From Advocacy to Action

November 16, 2023 · By Nicole Jennings
University of Washington School of Law student James Stafford (left) and Seattle University School of Law alumnus David Fernández Antelo ’23 (right) visit the Capitol in Olympia the day the wage theft bill is signed into law.
University of Washington School of Law student James Stafford (left) and Seattle University School of Law alumnus David Fernández Antelo ’23 (right) visit the Capitol in Olympia the day the wage theft bill is signed into law.

Students in Seattle U Law's Workers' Rights Clinic score a victory against wage theft with passage of legislation.

This story originally appeared in Lawyer, Fall 2023.

Imagine you’re an employee in an office job and you didn’t get paid on payday. Before letting it go on for more than one missed paycheck, you would likely contact your HR department to make sure that there was not an error with payroll. You might get on the phone with your bank to check that there was no problem with the deposit system. If all else failed and the issue appeared to be deliberate — and recurring — you might call a lawyer.

Now imagine you are a restaurant worker who is new to the country and you have not been paid for several weeks.

“Low-wage workers don’t have any of that infrastructure. They don’t have HR departments,” said David Fernández Antelo ’23. “They might not even know about their rights. They might be immigrants who are scared to find out about the laws, what their rights might be, because of fear of being prosecuted. And so they never go to the police, to law enforcement, and say, ‘Hey, my employer didn’t pay me.’”

That is why Fernández Antelo and his classmates in Seattle University School of Law’s Workers’ Rights Clinic (which is also open to University of Washington School of Law students) helped to pass a bill in the Legislature this past session to increase penalties for employers who do not pay their employees what they are owed. It was not only the first time ever that the clinic pushed a bill all the way to the governor’s desk, but also the first time the clinic got involved in the Legislature at all.

“It’s tough to pass any piece of legislation, with four out of five bills dying each session,” said Rep. Liz Berry (D-Seattle). “It’s even tougher to pass a law that makes real change.”

Professor Elizabeth Ford started the Workers’ Rights Clinic in 2015, around the same time that the City of Seattle was passing its $15/hour minimum wage (now up to $18.69). She wanted a chance for low-wage workers, who often don’t have the resources to access legal help, to be able to consult with law students for free.

“It is such a privilege to work with the clients who come to us. They are, just by virtue of reaching out, incredibly courageous, kind, and appreciative of the students’ work,” said Ford, who runs the clinic each semester.

She noted that while students frequently take on the workers’ cases, the real work is more about workers understanding their rights and becoming empowered to advocate for themselves.

“One of the most wonderful things is to watch a transformation in a person,” Ford said. “I can remember one client who came to the clinic after having worked in a beauty salon where she was treated badly … by the end of the semester, she was carrying herself differently and she just clearly had absorbed something that allowed her to express more of who she was, to hold herself in a more confident way. And her daughter, who served as the client’s interpreter throughout the process, ended up going to law school.”

The most common theme that the law students heard from their clients was that the workers were not being paid what they were legally owed. While there is a pathway for workers to get their wages back by making reports to the Department of Labor and Industries, students were outraged to learn that those workers who do successfully get their backpay often do not get any interest for all the months or years they went without the money.

State law mandates that employers who commit wage theft pay 1% interest for every month that they withheld pay from their employees. Nonetheless, the Department of Labor and Industries routinely offered employers the chance to “settle” without paying interest. Fernández Antelo explained that the vast majority of meritorious wage theft reports are resolved in a settlement.

Ford said this is doubly unfair because in so many of these cases, the worker is paying interest on credit cards, on unpaid bills, and overdue rent because they do not have access to their own money, “all while they are essentially giving their employer an interest-free loan.”

“The loss of the use of that money can be really damaging. In the best case, the worker is putting money on their credit card, and that is 20%-plus interest. And so they are going deeper and deeper in debt because they don’t have the money they were supposed to have,” Ford said. “In the worst case, people are forgoing things like food and rent and medical care.”

The fall Workers’ Rights Clinic collaborated with legislators, including Berry and Rep. Lillian Ortiz-Self (D-Mukilteo), to write House Bill 1217, which mandates that payments of 1% interest for every month of withheld pay be part of any future wage theft settlements, beginning next year.

“Working with the students was fabulous,” Berry said. “Every task I gave them, they completed tenfold. They were enthusiastic, they were thorough, they followed instructions well.”

When the Legislative session opened in January – just days after the new semester at Seattle U Law began – it was up to the spring clinic of four students to take over the job.

“We were sort of thrown into the arena, because as soon as we started class, the Legislative session started, and a week later, there were already public hearings,” Fernández Antelo said. “And so this was our opportunity to testify and make the case for the law.”

Testifying before the House went well, and the bill passed that chamber. Things got down to the wire in the Senate, however, when some senators raised the concern that charging an employer interest was impinging on their due process rights - effectively punishing them before it was proven that they had done something wrong.

With just hours left for the bill to pass the Senate and stay alive in session, Ford raced down to Olympia to help the students create a clipart-festooned chart that would help explain the issue to the senators. As the chart noted, interest would only be charged when an employer agreed to settle, not before. Students, having developed trusting relationships with Senate staff, were able to place a chart on every committee member’s desk.

In the nick of time, the senators passed the bill out of committee and then out of the chamber.

“It’s really rare for bills to become law the same year they’re introduced, especially if it’s a meaty policy proposal like this one,” Berry said. “I credit that a lot to the students and their tenacity.”

Seeing Governor Jay Inslee sign the bill into law in May was especially gratifying to Fernández Antelo, who himself immigrated to the U.S. and has driven for Uber and Lyft to make ends meet.

“I have that working-class background. I understand that uncertainty and not knowing about your rights,” he said. “My mom cleans houses. She’s a domestic worker. I knew on a very personal level what people go through. And I think that enlightened me as to how these issues are real.”

Fernández Antelo said this law will have a real impact on low-wage workers.

“There’s no legal or philosophical reason why employers should have this money,” he said. “Workers should be paid when they were promised they would be paid.”

Next up for the Workers’ Rights Clinic is to advocate for the department to create a payment fund for workers, which would allow workers to be made whole by the department earlier, preventing some of the devastating consequences of the delay in payment. A recent article Ford wrote for the California Law Review provides the roadmap for how to accomplish this.

“While I don’t think we’ll pass this in a single session, the conversations are already underway,” she said.

Seattle University’s emphasis on helping those members of society who do not come from privilege especially spoke to Fernández Antelo and his colleagues. Now an analyst for the Wisconsin Legislative Reference Bureau in his home state, he is drawn to cases of information asymmetries like this one – where one party is disadvantaged not just in terms of power and money, but also by not having the same access to information.

“I don’t come from a traditional law student background,” he said. “I always feel that sense of being on the outside because of my background as a first-generation American. I’m an immigrant. And all these things have made me feel like a little bit of an underdog. So that’s why, I think, I have sympathy for all the underdogs I help.”

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