Labor advocates say there is more Austin can do to protect its low-wage workers
It's been two months since construction worker Ramiro Loa fell to his death while working on a balcony at the Eastside Station Apartments.
While neither the subcontractor that employed Loa nor building owner and developer Flournoy Properties has commented on Loa's death (a representative for Flournoy told the Chronicle that it's their policy not to comment on open investigations), ESA's social media presence continues to be upbeat. "Imagine sleeping in here on the weekend! #AustinTX #Apartments #EastAustin," an administrator posted to Eastside Station's Facebook page on Aug. 22, along with a picture of a room dominated by a large bed.
Both the silence and the cheer feel instructive. We hear all the time about what an ideal place Austin is to live, and how many new jobs are being created, and how many big companies are choosing Austin for their headquarters over other cities, and we hear much less about the people who make it all possible, those who actually construct all the new buildings that are transforming the cityscape.
A number of circumstances combine to make working construction in Texas an especially precarious proposition. About 50% of Texas construction workers are undocumented immigrants, according to research done by Workers Defense Project. Coming primarily from Central America, these men (almost all of them are men) may be fleeing violence, or may simply believe that their opportunities for work are too slim to stay where they are. In general, they're not in a position to complain about the work they're given here in Texas. The other half isn't much better off: It's not often clear to a worker what his legal rights are, and enforcement of safety standards is lax. The federal Occupational Safety and Health Administration (OSHA) is tasked with making sure job sites are following federal safety standards, but as U.S. Congressman Lloyd Doggett puts it, "The basic Republican approach is to turn OSHA into the 'Occasional Safety and Haphazard Action' agency. They seek to cut even more from an agency that already lacks the resources to effectively enforce safety regulations. Workers pay the price, sometimes with their lives, when oversight is overlooked."
Additionally, the process for lodging complaints about safety violations or wage theft can be slow and difficult, especially when the person attempting to lodge the complaint doesn't speak English. It doesn't help that Texas is perhaps the least labor-friendly of all 50 states. It's the only state that doesn't require employers to carry workers' comp insurance, and, as a "right to work" state, it's hostile toward unions.
According to WDP, Texas construction workers work an average of 55 hours per week, making $10 per hour. Because many of them (about 40%) are misclassified as independent contractors, they don't get paid overtime, and their employers don't pay employee taxes on them. Independent contractors are people who are contracted to do a certain job, but it's up to them how to do it. Since the person who has contracted them doesn't have control of what times during the day they get that work done, or how they choose to do it, they're not considered their employer.
But while it makes sense not to consider the person who mows your lawn or paints the side of your house your employee, it makes far less sense when you're running a painting company and telling your workers when to show up, when to take breaks (or not), and how much they need to do. About $1.2 billion in taxes are lost to employee misclassification, but it's a death by a thousand cuts. The IRS isn't going to make much off the tiny subcontractor with five employees, assuming they're able to convince a judge they are in fact employees.
Employees misclassified as independent contractors also aren't eligible for job-based health insurance, which means many construction workers, thanks to the state's rejection of a Medicaid expansion under Obamacare, choose to go without insurance for themselves and their families. WDP reported in 2013 that 1 in 5 workers is injured on the job, causing yet another drain on shared resources in the form of uncompensated care costs.
Many workers travel from city to city in order to maximize the amount of time they're working. This can make it hard for them to form the sort of bonds with their fellow workers that are conducive to collective action.
Cesar Olalde, who works in Austin as a painter, is originally from Mexico City. He agreed to speak to the Chronicle about his experiences as an immigrant and construction worker in Austin. Olalde had originally planned to become a lawyer; he enrolled in a Mexico City university to study law and worked as a law clerk, but then he got married and didn't feel he could continue his studies. Olalde began working at a Goodyear factory putting tires on pallets and also as a taxi driver. Olalde's father worked at the same Goodyear factory for many years. When the factory closed down, Olalde decided he should try his luck in the U.S. "They told me I could make a lot of money here," he says, wryly, in Spanish. "They didn't say how I had to earn it."
He, his wife, and their two young daughters all crossed the border together. They traveled to Atlanta, where they knew some people. While there, Olalde found different jobs to support them. He taped walls to prepare them to be painted, installed ACs, and, in the era before Uber, drove an unlicensed taxi serving only Spanish-speaking immigrants. Olalde explains that it can be very difficult for undocumented immigrants to get around: They're afraid of being stopped by the police, they often don't understand English, and so can't read the street signs. "Lots of things were difficult" about that time, Olalde says.
Olalde relocated with his family to Austin because a friend said he could give him a good paying job, "but that was a lie." His friend told him he'd pay him $1,200 biweekly to paint. Instead the friend paid him $150 for the first two weeks. He blamed it on the fact that he'd just started the company and had not received payment himself.
(Although Olalde characterizes his friend's promise as a lie, it's not uncommon for small subcontractors to experience the same wage theft that plagues their employees. In Invisible in Austin: Life and Labor in an American City, contributor Jennifer Scott recounts the experience of a subcontractor who was forced to come up with the money himself to pay his employees after they accused him of wage theft. He, in turn, had been stiffed by the contractor.)
Olalde then went to a different contractor, where he was paid $50 per day. He got to work at 8am and didn't leave until it was dark out. During this time, Olalde and his family were living with the friend who owed him money (he let the Olaldes count the money he owed them toward their rent). Seventeen people in all lived in the house.
Gradually Olalde gained experience as a painter and started to only work for companies that paid better. Perhaps because of his legal background, Olalde doesn't have patience for employers who take advantage of him. "I understand many things," he says, "I stand up for my rights and that changes a lot." He gives the example of working six days one week, but then being given an extra day off the next week in an attempt to evade paying overtime. "I tell them they have to pay me, or let me go." He acknowledges his attitude is atypical: "People are scared, afraid of losing their jobs." In order to make more money, Olalde used to do contract work outside of Austin, but the recent birth of his fourth child has made him reluctant to travel.
Although Olalde's savvy separates him from some of his fellow workers, he and his wife, who works at a friend's food truck, don't make enough money – Olalde says he generally makes $15/hour – to live inside Austin city limits. Instead, they live in Round Rock. The family was living in an apartment on Rundberg, but the crime in the neighborhood became too much to bear.
A few months ago, Olalde became involved with Workers Defense Project after he saw an event on Facebook calling on Gov. Greg Abbott to abandon his opposition to President Obama's executive action on immigration reform. (A lawsuit filed by Texas and several other states has halted the expansion of programs that would allow immigrants like Olalde, his wife, and their older children to remain in the country without fear of deportation. "If I could apply [right now] I would," he says.)
Build It Better
WDP Executive Director Cristina Tzintzún believes that the city can do more to protect workers like Olalde. "There needs to be greater enforcement and oversight," she says. "The city needs to partner with OSHA." At the same time, the city also has the ability to create stronger laws for building and permitting.
Council's hands are somewhat tied when it comes to workers' wages: Texas prevents its municipal governments from raising the minimum wage. However, when offering incentives to builders or considering developer proposals for city projects, Council has a bit more leeway. WDP's Better Builder Program holds participating developers to higher standards than they would be held by simply following federal, state, and city law. They've convinced Council to require builders asking for city incentives to pay the prevailing wage in their respective fields to skilled workers, to offer OSHA 10 safety training (so called because it's a 10-hour course), to pay all workers a so-called living wage of $11 per hour, and to allow third-party monitoring. WDP has also convinced some developers to voluntarily join the program.
This Monday, Aug. 24, members of WDP went to Capital Metro's board meeting to ask them to require Better Builder standards for their projects. Cap Metro owns Plaza Saltillo, which is currently slated for mixed-used development. "Later this fall the new Capital Metro Board will consider passing historic wage and safety protections for construction workers on all future Cap Metro developments, including the 11-acre Plaza Saltillo tract," writes Tzintzún. "The meeting on Monday [was] an important first step for the new Capital Metro Board to hear from construction workers and their families about the importance of earning a living wage, having higher safety standards, receiving training to earn a rewarding career in the industry and having independent on-site monitoring to ensure workers benefit from these important standards."
For WDP Better Builder Director Bo Delp, the reason why Capital Metro should commit to his program's standards is clear: "Any construction using taxpayer dollars should provide its workers access to good and safe jobs and the opportunity to come home to their families each night in the city they helped build." Despite the experiences of families like the Olaldes, Delp believes that it is still possible for construction workers to find a home inside Austin city limits, provided they're able to work on projects that pay a living wage, and have access to workers' comp or other insurance for injuries. "Many of our members have experienced work-site injuries or wage theft and they get stuck trying to recover their money in court. An experience like that has a tremendous impact on a family's ability to live in Austin," he claims.
In the past, the program has allowed workers some recourse when a participating business failed to meet the program's standards. In 2013, Council revoked a $3.8 million incentive deal with JW Marriott developer White Lodging after it was found that some workers on the project had been paid less than the prevailing wage requirement. But it's not a panacea. The Austin Monitor recently reported that city officials have been operating on an honor system when it comes to public information requests, and quoted D4 Council Member Greg Casar, who used to work for WDP, as saying that the organization had had difficulties getting the information they needed to make sure developers were holding up their end of the agreement.
If a developer does join the Better Builder program, they have to find people to teach the safety classes and certify workers as being skilled. Though their power is negligible compared to what it is in union-friendly states, the Laborers International Union of North America (LIUNA) has been attempting to gain a foothold in Austin, in part by offering free, flexible classes in whatever subjects are in demand. Oklahoma-based members Jeremy Hendricks and Matt "Teo" Gonzales set up a local in Austin two years ago. Hendricks emphasizes that LIUNA isn't interested in being like the unions of old. They don't strike – "we're not gonna throw rocks," Hendricks says – but instead offer training for people looking to become "better workers" by building their skills and seek to "partner with contractors in a real way." The two argue that skilled workers who believe that construction can be a sustainable career are much more likely to do a good job and stick around than are unskilled laborers who are treated as disposable.
Earlier this year Gonzales stood in front of a handful of men on a Saturday morning in a conference room of a North Austin hotel, using the Socratic method to teach them how to calculate the weight of themselves and a specific length of rebar, in order to figure out how many straps they would need to support themselves. It's as much a math lesson as it is a safety one. The men have heard about the class from job fairs, Craigslist, and fliers handed out. The training is a chance for them to look for jobs other than the ones available to unskilled laborers – as Gonzales points out, the average age of the construction worker in the field is 55. "We're all about second chances," he says. If the men decide to join the union, they'll be able to get insurance and start building pensions that they can transfer from job to job, since most construction jobs aren't long-term.
However, most laborers in Austin aren't part of a union. Like Olalde says, they're scared to rock the boat. Barely making a living, they can't afford not to work. But as long as Austin is the kind of place where people get injured and die unnecessarily building apartments they'll never be able to afford to live in, our idea of ourselves as a progressive oasis in a desert of callous conservatism will ring hollow. But maybe we prefer it that way. After all, that bed does look pretty comfy.