Made in New York

Like many before her, Lilia Luna had great hopes for her life in the US. She arrived in New York 12 years ago, from Mexico, and immediately found work in a garment factory. That lasted a year, until she became pregnant. Then she got a job at a building on West 38th Street, on the sixth floor, making clothes for Donna Karan.

Sixty women worked there, making evening gowns, jackets and coats. The loos were padlocked: workers could use them only after finishing their quota of work. Phones were not allowed. Surveillance cameras monitored the workers’ movements. Paid holidays and maternity leave did not exist. Even when workers requested unpaid time off it was commonly refused. Long hours at work – often 11 hours a day, six days a week – affected the women’s health. Most suffered neck, back, shoulder and leg pains. Meanwhile, their families suffered. One woman discovered that her son had been skipping school – but by the time she found out, he’d been doing it for a year.

Additionally, there was discrimination. Chinese Americans used sewing machines, Latin Americans stitched by hand. “The boss would say Latinas were not good with machines,” Luna says. “She said we would break them.”

Having always worked alongside Spanish speakers, she has learned little English. When I meet her at her apartment in Harlem – amid gaudy images of the Virgin and frequent interventions from her youngest daughter – she speaks through an interpreter. Her manner is modest, she speaks quietly: it takes time to get out of her how dreadful the job was.

Earnings were calculated on a piece rate, depriving workers of payments such as time-and-a-half for working more than 40 hours a week. And with complex, time-consuming garments, piece rate amounted to less than the minimum wage. “I was surprised to see how expensive the clothes were,” says Luna. “Sometimes we would talk to each other and say, ‘How come these jackets are so expensive but we get paid so little?’”

Luna is one of several workers suing Donna Karan over conditions in the factory. Like the others, she would never be able to launch such a case alone. Adam Klein, the lawyer representing them, explains that his firm, Outten & Golden, is taking a risk and will only be paid if the case succeeds. “Individual workers can’t pay for this. And we can’t take on a case like this unless it’s a class action. You have to be doing it for all the workers together.

“There is a lot at stake for these folks, personally,” he says. “They are concerned about retaliation. Many don’t speak English and a lot are undocumented” – not entitled to live and work in the US. “This is another reason they’re easy to exploit.”

Donna Karan’s initial response to the lawsuit was a short statement asserting the company’s concern, and revealing a “factory compliance program” to promote improved working conditions. Subsequently, Donna Karan – now owned by the luxury goods group LVMH – brought a motion to dismiss the case, arguing it was not directly responsible because the factory was run by a contractor, Chung Suk Choe. But that motion was itself dismissed. “The work was extensively for DKNY,” explains Klein. And Karan’s reps were fully aware of conditions in the factory. “We saw the reps every day,” says Luna. “They would check the clothing that was finished and maybe look at how we were working. Then they would talk to the manager.” And the manager would pass on their demands to workers. “Their comments were very detailed.”

Before the class action can proceed further, a judge must confirm that Klein’s clients constitute a discrete class, with common claims and interests. That decision is expected soon. “We think we have a very strong case,” says Klein. (A separate lawsuit will argue that Latinas also suffered discrimination.)

Altogether, some 93,000 people work in clothes manufacturing in New York, and the Department of Labour estimates that more than half the 7,500 garment factories should be classed as sweatshops. “Most sweatshop activism in this country is about factories overseas. But people walk by New York’s sweatshops every day,” says Karah Newton, of the Brooklyn-based National Mobilisation Against SweatShops (NMASS). “The US model is one of the most brutal systems for keeping people working,” she adds. Another activist, Betty Yu, says: “In other countries people are shot. Well, they don’t shoot people here because they want to keep you working.”

Thanks to the high profile of Donna Karan, the case has helped to raise awareness of bad working conditions. But one-off actions against employers, even if they succeed, do little to tackle the wider issue. However, NMASS, working together with three similar organisations and a handful of young lawyers at New York University, has come up with a new tactic – audacious but inexpensive – that could help to improve working conditions in every industry across the state.

After all, it’s not only in the garment trade that immigrant New Yorkers find themselves working in appalling conditions. Take Amapola Ochoa, whose career ended prematurely in 1998. In the Dominican Republic she was a teacher, but after coming to New York she worked as a care attendant. “I was working 24 hours a day, for a woman with mental illness. No one wanted to be assigned this job. I started there for one month but every month the agency told me to do one month more.”

One day her client, a large woman, stumbled while walking downstairs and fell on Ochoa, causing serious damage to two discs and the coccyx. She pulls up her sweater to show off the ugly brace that holds together her midriff. “I have become severely depressed,” she says. “A lot of my friends and my family have not been supportive. My husband left me.”

Then there’s Eva Herrera, from Mexico, whose injuries – neurological, respiratory and spinal – were caused by inhaling chemical fumes in a factory. Arek Tomaszewski, from Poland, who worked on a building site without proper protection and developed respiratory problems. Or You Di Liao, a former rice farmer from China, who eventually collapsed at her place of employment – another garment factory – after working too many 16-hour days on her feet.

The mighty American economy is powered by the efforts of people like these; and to its credit the US has not forgotten them entirely. For nearly a century, they’ve been covered by Workers’ Compensation, a scheme that is available across every state and which was established in New York in 1914. The idea behind it, then as now, was to provide prompt, no-fault compensation and medical coverage to anybody injured at work, and to protect employers against costly law suits. (By law, employers pay into insurance funds and insurers, when necessary, compensate injured employees.) The scheme is admirably humane because even workers who are undocumented are entitled to Workers’ Comp, as it’s widely known.

But in practice many immigrants don’t get that assistance, either because they’re too scared to make a claim or because their cases drag on for years.

Tomaszewski, for instance, has endured 30 hearings since his accident in 1992. Herrera has received nothing since filing for compensation in 1998. Jinen Zhou, unable to work again after his accident, was initially awarded two-thirds of his previous salary, but the insurance company responsible for paying him arbitrarily cut that amount to $100 a week, then cut it again.

If you ask Zhou about his case, he’s liable to roll up his trouser legs and show you his whacked-up knees. He was working in distribution for a Chinese-language newspaper, throwing bound stacks of the latest edition from the truck as it crossed the city from one newsagent to the next. On October 19 1996, because of the rain, the floor inside the truck was slippery – so when the driver suddenly executed a sharp turn, Zhou went flying. He suffered severe injuries to his head, neck, back and knees. “This has completely destroyed my life,” he says. “I have no choice but to rely on relatives, friends and my wife to piece together a living. I have felt suicidal. My wife works in a factory; she makes $7,000 (£4,800) a year. It’s difficult to make ends meet. I can’t tell you how much this has damaged my family.”

Stanislawa Kocimska, another care worker, was injured in 1994. “I knew there was a problem because I heard a crack,” she remembers. “From that day, in 1994, I have never worked again. Not even for an hour. For six months, I received $170 a week, but then it stopped and I lived on my savings. I was evicted in 1999. Since then, I have not had a place to live. I have been sleeping all over the place,” says the 73-year-old, whose legs are in such terrible condition that, after we have finished speaking, she takes 10 minutes to hobble down two flights of stairs. “If I had known what would happen to me, I would never have come to this country.”

The Workers’ Compensation Board (WCB) in New York is not run by monsters. On its website you can read all about its efforts to speed up assistance to injured workers, and prosecute uninsured employers. It’s also fair to say that some of the 173,000 people who put in claims in 2000 – the most recent year for which figures are available – may be frauds. The day I visit NMASS, The New York Times runs a story about a bus maintenance worker who has lodged 11 claims in 20 years. His latest asserted that a work-related injury made driving impossible and walking intensely painful. But investigators with video cameras filmed him shovelling snow, driving his pick-up and trotting round a park with his dog.

But most claimants are sincere. They honestly consider it wrong that, by delaying payments to vulnerable individuals, insurers amass huge profits. And as Karah Newton points out, those profits enable insurers to lower their premiums and that in turn allows employers, assuming all to be well, to do little to promote health and safety. Which leads to yet more injuries. “These are not freak accidents,” she says.

So how can a bunch of impoverished workers, with ruined bodies and poor English-language skills, many of them undocumented, hope to enforce improved working conditions – not only in garment factories but also across every industry in New York State?

To find out, I visit the clinical law centre at New York University. Every summer, the clinic offers legal support to community groups. “We go to the groups and say, ‘If you had a free lawyer, what would you do?’” says associate professor Michael Wishnie. For the past few years, the issue that groups have wished to tackle has been health and safety. “But this is very difficult. Unions have not seen Workers’ Compensation as a primary issue and lawyers have not been interested because there’s no obvious “silver bullet” – no easy way to tackle this huge, sprawling system. And the lawyers see all these people who are homeless… ” (That is, clients with no money.)

Wishnie has an idea. Why not use international law? In Britain, where domestic cases are routinely referred to international tribunals, that may not seem remarkable. In the US, it still is. Wishnie suggests that what is happening to injured workers violates the North American Free Trade Agreement between Canada, the US and Mexico. When Nafta was drafted, in 1993, many in the US expressed concern about low employment standards in Mexico. To address those concerns, Nafta incorporated a separate agreement on labour. “Everybody’s assumption was that this would be used almost entirely against Mexico,” says Wishnie.

The agreement does not commit member countries to change their laws – only to enforce the laws they already have. It requires that laws be enforced without unreasonable delay; that workers be compensated for injury; and that steps be taken to prevent similar injuries occurring. Clearly, the WCB was violating on two points: delay and compensation. But Wishnie’s colleague Sameer Ashar, acting assistant professor, observed that these violations directly affected the third issue: prevention. As long as cases went unresolved, employers would do little to improve health and safety. “But if people win their claims that will raise insurance premiums – giving employers an incentive to improve,” explains Ashar.

Late last year, these insights were put to the test. Five women, including Liao and Herrera, flew to Mexico City to file a petition on behalf of 13 New York-based immigrants, accusing the WCB of routinely stalling on workers’ claims. They could have posted it, but going to Mexico was more likely to win them publicity – a crucial part of their strategy.

“We arrived on Tuesday night and went straight to a hotel,” recalls Ranjana Natarajan, a clinical fellow at NYU who accompanied them. To keep costs to a minimum, the five shared two rooms. On Wednesday, they took a taxi to file the petition at the National Administrative Office. Afterwards, on the pavement, they held a press conference. There were reporters from The New York Times, TV and Mexican newspapers. Also present were workers camped out in tents, who had been laid off by a Mexican company. “It was startling to them to hear about our problems in the US. They said, ‘We didn’t know… ’ The impression was that in the US, because it’s such a rich country, there would be no problems like this and the law would be better enforced.”

In response to the petition, the WCB issued a statement from its chairman, Robert Snashall. This defended the agency in general terms. “Since 1995, the board has been transformed from a paper-based bureaucracy into a completely computerised, state-of-the-art service provider,” Snashall asserted. “We have reduced our inventory of open cases by thousands of claims, the number of cases experiencing excessive hearings has been dramatically reduced and our office of appeals has significantly reduced its inventory of pending cases.”

Soon after, Mexico’s National Administrative Office announced that the complaint did indeed fall within its jurisdiction. The NAO secretary, Rafael Aranda Vollmer, said his agency would attempt to determine whether “immigrant workers are being treated differently than nationals” when it comes to health and safety. In principle, this investigation could ultimately lead to trade sanctions against the US. But even the pressure groups think that is unlikely; and six months after the petition was filed, nothing has materially changed for Liao, Herrera and the others.

Their best hope, by no means a certainty, is that sheer embarrassment will push New York and its governor, George Pataki – the man ultimately responsible for Workers’ Compensation – to crack down on late-paying insurers and neglectful employers. If that’s to happen, the pressure must be sustained. Later this month, NMASS will hold yet another hearing, to which it has invited representatives of Mexico’s NAO, US politicians, United Nations human rights specialists and Pataki. He is not expected to attend. At any rate, he has yet to RSVP.

PLUS

Each year, something like 60,000 Americans die as a result of their work. A disproportionate number of them are immigrants, for whom the most dangerous place to work is New York: foreign-born workers account for three out of 10 work-related deaths in the city.

But workplace injuries and death are not unique to the US. Each year, some 1.3m people round the world die at work – about 3,000 a day. In Britain and Ireland, over the past 50 years, more people have been killed at work than in armed conflict, according to the organisers of April’s Workers Memorial Day. Between 2000 and 2001, more than 295 Britons died at work. A thousand more died on the roads while driving for work and 4,000 people died of asbestos-related diseases, many of them caused by work.