Law finds for laborer, but payments don’t follow

Bernardino Pina install windows at a Fayetteville apartment complex last month. Pina has been fighting for four years for NC Contracting Inc and the company's owner to pay the wages he owes for three weeks of framing work in 2010. Pina and six other men filed a lawsuit in Wake County courts to force Pina to pay; they still wait.
Bernardino Pina install windows at a Fayetteville apartment complex last month. Pina has been fighting for four years for NC Contracting Inc and the company's owner to pay the wages he owes for three weeks of framing work in 2010. Pina and six other men filed a lawsuit in Wake County courts to force Pina to pay; they still wait. The News & Observer

When Bernardino Pina tuned in to a Hispanic radio station in 2010 and heard an ad seeking construction framers, he jumped at the chance for a steady paycheck.

What he got, instead, was entanglement in a labor scam that runs afoul of a host of laws and cheats low-wage workers out of pay and security. Pina’s boss, Robert Miller of NC Contracting Inc., treated him and the other laborers on his crew as independent contractors rather than employees. And, after three weeks of hard labor, court records show, Pina and six other Hispanic workers collected a single check for $500. Split among them, it amounted to 41 cents in pay for every hour they’d logged at a federally funded affordable housing project in Wilmington, N.C.

Pina and the six other laborers turned to the courts to right the wrong. Despite rulings from a judge ordering Miller to pay them, years later they still wait.

“The saying goes around: ‘Hispanic people can’t do anything about it, so you can do anything to them,’ ” Pina, 55, said last month through a translator.

NC Contracting Inc. has robbed dozens of workers of their pay on federally funded or federally backed jobs for years without penalty, according to reports provided by federal labor officials and court records. A story Sunday detailed federal investigators’ failure to stop Miller. In some instances, claims against Miller, a subcontractor, were closed after the general contractor on the project paid the workers directly, according to federal labor reports. But Pina and the other six laborers have tried to collect the money from Miller, using the court system to force his hand.

Their journey illustrates the frustrating – and sometimes futile – process of workers cheated out of pay finding remedy in the courts. Under federal law, workers can turn to the courts to enforce some labor laws, such as minimum wage and overtime pay.

Many lucky workers – employees of well-heeled companies such as FedEx, for example – often find remedy, sometimes collecting double the amount of pay owed. But low-wage workers for small firms such as NC Contracting find themselves trudging through lengthy lawsuits that might yield nothing. Many workers are stalled before they start, unable to find lawyers willing to take gambles that often yield nothing for the workers or the attorneys’ time.

“If you are a low-wage person, it may be a lot of money to you, but for lawyers it’s not an economically viable case,” said Eric Fink, an employment law professor at Elon University who formerly filed worker labor suits in California. “A good attorney will know what the odds are.”

A McClatchy investigation last month, “Contract to Cheat,” revealed widespread worker exploitation on federally funded projects across the country. The labor scheme, in which a company treats a worker who should be an employee as an independent contractor to save money, is pervasive in the construction industry. The practice, known as misclassification, often breeds other tactics, such as wage theft. McClatchy estimates that misclassification is costing states and the federal government billions each year in lost tax revenue.

Pina’s case shows the difficulty of making workers who are cheated out of pay whole again.

Despite court rulings requiring Miller to settle the workers’ pay, he has evaded every order. He’s failed to show up to court at least five times. Despite a sheriff deputy’s hunt to find and seize assets of Miller’s that could be sold to recoup the workers’ pay, Miller has avoided parting with any asset.

For years, Katharine Woomer-Deters, an employment lawyer at the North Carolina Justice Center, a Raleigh nonprofit, heard wage complaints from immigrant workers hired by NC Contracting. After hearing from Pina in 2010, she decided it was time to force Miller into court. She calls Miller’s actions theft.

“We’ve pursued this case because we believed Robert Miller was a serial wage violator worth pursuing,” said Woomer-Deters, whose work is funded through grants.

Miller insists Pina was an independent contractor and said Woomer-Deters was a “crusader” who was pursuing a “witch hunt” against him. He said he didn’t pay the wages owed because they should have been paid by a middleman he hired to run a crew.

“I’m the victim,” said Miller, 42, of Raleigh.

‘They made it clear that I had no proof’

The recession delivered a forceful blow to Pina and so many of his friends and family members making a living in America’s construction industry. Pina came here from Mexico as a young man in 1979 to find a more stable life. Over three decades, he hopscotched the United States chasing construction work in Texas and along the East Coast. But in 2010, Pina found himself without work for the first time.

NC Contracting’s radio ad seemed like an answer in a desperate moment. Pina jotted down the phone number and called it. He called several friends also down on their luck and told them about the chance for work.

In August 2010, Pina, who has a permanent resident green card, helped frame a public housing development funded by the U.S. Department of Housing and Urban Development and the Wilmington Housing Authority. A crew leader, sent by Miller, directed the men through the day, according to depositions provided by the workers. They were told when to arrive, when to break for lunch and when to stop working for the day. Pina said he’d never talked about wages with NC Contracting representatives but was assured he and the others would be paid each week. He never signed a contract, either. That sort of control and lack of financial destiny suggest that Pina should have been an employee, not an independent contractor as Miller has said he was.

A Wake County judge didn’t see an ambiguity in Pina’s status as an employee. The judge ruled in January 2013 that Pina and six others were employees, not independent contractors, and were due not only the hourly rate promised but also time and a half overtime for every hour worked over 40 in a week. Three months later, the judge ordered Miller to pay the workers more than $14,000, double pay for more than 1,200 hours of labor.

Pina had no way of knowing in 2010 that Miller had built a business on layer upon layer of low-wage framers, painters and drywall workers. In depositions, Miller says he had no employees, though he bid and secured contracts requiring the labor of dozens of carpenters. Fair labor standards say workers engaged in the purpose of the business are likely employees.

Miller said in a phone interview last month that Pina and the others worked for a middleman Miller had hired to run a crew.

“I get the crews together. I organize them. I train them if need be,” said Miller. “According to the CPA and the attorney I talk to, that’s the exact way it should be done.”

Pina and the six other men involved in the lawsuit worked for three weeks with only a single check of $500 for compensation, court records show. After three weeks, Pina said, he and the other men lost hope and walked away from the job.

“They made it clear that I had no proof I worked, and they were not going to pay me,” Pina said.

Pina felt guilty that he’d connected so many friends with NC Contracting, and that they, too, got stiffed on pay. He also felt as if he’d failed his children and his wife, whose work at a motel in Wilmington kept the family of eight afloat through the winter of 2010.

“It’s very hard, especially with a family, to go to work and not get paid for it,” Pina said.

Finally, Pina reached out to an immigrant advocate, who connected him with the North Carolina Justice Center.

‘It’s a game of chess’

By some measure, Woomer-Deters, Pina’s attorney, has succeeded in her pursuit of NC Contracting Inc. At every turn, judges have sided with Pina and the other workers. The judges ruled the workers were employees, not contractors. A judge ordered Miller to pay $7,027 in wages not paid, awarded another $7,027 in liquidated damages and assigned 8 percent interest. He even said Woomer-Deters and the justice center should be paid $27,000 in legal fees for her work on the case.

Woomer-Deters faced this reality at every turn: The court orders against Miller had little more heft than the sheet of paper on which they were written.

The judgments landed in the lap of Wake County Master Deputy Vicki Britt, whose job it is to find assets that can be seized and auctioned to settle judgments.

Pursuing Miller felt like a game of hide and seek to Britt. Over the past 17 months, she’s searched property records, deeds, motor vehicle registrations and liens filed under the Uniform Commercial Code. Britt tried to drive by Miller’s home daily, looking for anything – a vehicle, a camper, a boat – that had enough value to be sold to pay the workers. One day, she spotted a construction trailer.

“Two days later, it was gone,” said Britt. “It’s a game of chess.”

Earlier this year, Woomer-Deters secured an order that required Miller to go to court and answer questions about his assets. Since January, Miller has failed to show up to four scheduled hearings. In August, he finally sat for a hearing, but Woomer-Deters suspects he wasn’t honest about his finances, a point she’ll argue to the court at another hearing scheduled for November. Miller said in an interview that he was nearly broke.

Now, after four years, he faces the possibility of going to jail for contempt of the court and its orders in Pina’s case. Pina knows that a jail sentence for Miller could mean even less of a chance that he’ll collect the $900 he’s owed for 143.5 unpaid hours of work, including 28.5 overtime hours.

Pina now works for another contractor, one he said paid him what he was due when he was due it. Over the last few years, he’s warned friends to steer clear of NC Contracting and Robert Miller.

He just wants Miller to pay, one way or another, for depriving him and many other Hispanic laborers of their menial wages.

“I don’t want him to do this to other people,” Pina said.