Filipino Workers’ Groundbreaking Case In Peril

by Joseph G. Lariosa

CHICAGO (JGL) – The Philippine National Labor Relations Commission (NLRC) has been vested by Republic Act 8042, the Migrant Workers and Overseas Filipinos Act of 1995, with original and exclusive jurisdiction of voluntary or panel of arbitrators to decide disciplinary action on violations of recruitment laws, rules and regulations involving employers, principals, contracting partner and Filipino seafarers deployed overseas.

That is why in previous labor disputes involving Filipino crewmen in the U.S., American labor employers of these Filipino seafarers were just too happy to litigate labor cases in the Philippines, not in the U.S., so they will save a bundle in retaining their lawyers and even paying for damages when they lost because of the lower standard of living in the Philippines than that of the U.S.

But a clarification issued by the Department of Labor and Employment’s Philippine Overseas Employment Administration Administrator Hans Leo J. Cacdac to Filipino American lawyer Ellaine Carr that settlement provisions arising out of an employer-employee relationships or by virtue of any law or contract involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages, “do not preclude the enforcement of laws in an appropriate foreign jurisdiction.”

The sea change in labor dispute arbitration can happen only if the Philippine and U.S. governments will help some of the 600 Filipino overseas workers living in the Philippines or deployed in other parts of the world to be allowed to obtain visas so they can testify during a jury trial set on Aug. 11, 2014 before the U.S. Eastern District Court of Louisiana in New Orleans.

APPEAR IN PERSON OR BE DEPOSED

If the Filipino overseas workers — welders, riggers, pipe fitters or scaffolders — cannot attend the trial, they would have to be deposed. Or they can testify thru video-conferencing or other audio and visual remote means at the workers’ expense during the trial that will prove if the employer, Grand Isle Shipyards (GIS), an oil and gas company  of Galliano, Louisiana, of these workers violated their contracts when it paid them salaries half the U.S. federal minimum wage law, the Fair Labor Standards Act (FLSA).

The appearance of these hundreds of witnesses in court would not have been needed but Judge Kurt D. Engelhardt denied the certification of a class action suit because plaintiff’s lawyers, namely Ellaine Carr, and those of the Schneider Wallace Cottrell Konecky, LLP, and Peiffer, Rosca, Abdullah & Car, L.L.C., could not present a single complainant, who can testify on behalf of the class.

If nobody from among the 600 Filipino workers could testify, then the jury would just have to find GIS not guilty for violating the workers FLSA. GIS is accused of allegedly underpaying the workers by almost half when it paid them the contracted fee of $1,030 a month without overtime.

The Filipino workers’ lawyers initially tried to present three former workers – Samuel Nora, Nora Mallari and Michael Dalice – to testify on behalf of the class, 200 of them still working with the employer, GIS, but they were denied visas by the U.S. Embassy in Manila.

Violation of FLSA was the remaining case left to be resolved by Judge Engelhardt, who dismissed with prejudice 12 other charges against GIS and Philippine-based labor recruiters, namely Industrial Personnel and Management Services, Inc., D&R Resources, LLC, Danilo N. Dayao, Randolph F. Nunez Malagapo, Pacific Ocean Manning, Inc. (POMI), V People, Inc., Thunder Enterprises, Inc., DNR-Offshore and Crewing Services, Inc., Nilfil Peralta and Mark Pregeant.

CHARGES

These defendants were charged with allegedly subjecting the Filipino workers into forced labor in violation of Trafficking Victims Protection Act of 2003; Racketeer Influenced and Corrupt Organization Act (“RICO”); the Klu Klux Klan (Civil Rights) Act of 1871 and the 13th Amendment (slavery and involuntary servitude); torts of fraud, negligent misrepresentation false imprisonment, and intentional and negligent infliction of emotional distress under Louisiana law; breach of contracts and/or covenants of good faith and fair dealing, which were all dismissed with prejudice or settled.

The devastating super Typhoon Haiyan (Yolanda) late last year in Central Philippines even made the case more complicated because of fears that many of the Filipino complainants might have been victims themselves by the killer typhoon. If they are jobless, injured or dead, the complainants would not be able to appear in court.

Only the Philippine and U.S. governments can help them secure visas and provide them free transportation to enable them to appear during the trial. Or these governments can provide them equipment for video-conferencing or other audio and visual remote means.

A sworn affidavit of one of the workers, Filipino welder Rodel Eje, who returned to his home town of San Pascual, Batangas in the Philippines after working at GIS for three months showed that the work contract presented to him by POMI in Manila in 2006 obliged him to work 12 hours a day, seven days a week at a flat rate of $600 per month and a flat rate of $430 payment for overtime pay for a total monthly salary of $1,030. The fine print of the Standard Employment Contract of the POEA says that he “shall perform not more than forty-eight (48) hours of regular work a week.

“The seafarer shall be compensated for all work performed in excess of the regular eight (8) hours as prescribed above.”

ONLY PAID LESS OVERTIME

In 2006, the minimum federal wage in Louisiana was $6.15 per hour. If Eje’s total work  hours of 336 a month were paid a “straight time,” not overtime, based on Louisiana’s federal minimum wage, he was supposed to receive $2,066, almost half of $1,030 that he actually received.

In the U.S., overtime pay of time and half kicks in when a worker logs in more than 40 hours of work per week. So, if the federal minimum under the Fair Labor Standards Act (FLSA) were applied to Eje, he was supposed to be paid $405.90 more for 44 hours of work overtime or $1,623.60 a month in overtime.

Not only that, in at least one day in every three or four weeks,  Eje and other Filipino co-workers will start their day by leaving their bunkhouses at 2 a.m. and will board the company van for three hours en route to a helipad and they would wait for another two to four hours for a helicopter that would take them to the oil platform in the middle of the Gulf of Mexico for 45 minutes.

Eje and other crew would return to dry land after 21 to 28 days and would be returned for nearly three hours to their bunkhouses.

All these travel times, including the ten-minute wearing of their fire-resistant Personal Protective Equipment, including cotton work clothes, coveralls, safety glasses, safety shoes, fall protection, gloves, hard hat, hearing protection, personal flotation device and steel toe boots and cleaning of their equipment, were never paid for their shift that started from 6 a.m. during safety meeting and ends at clean-up at 6 p.m. They also have a “bag containing numerous tools that they just pack each day.”

Eje said he wanted to complain for the underpayment of his salary and non-payment of his off-clock carpentry work to convert the bowling alley into a bunk house, the shifts or deduction and the very restrictive environment but he did not do so for fear of deportation “to the Philippines at our own expense.” (lariosa_jos@sbcglobal.net)

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