Hey, you'll love this episode even more if you also listen to the one before it. Can I get y'all a drink while you wait? Oh yeah. Yes, cheap please. Sweet tea? You sweet enough? I'm sweet enough. I knew it like you are. Back before the pandemic, Jimmy Knicks and Willie Easter sat down for lunch one day with senior producer Caitlyn Esch. They went to a local spot in Forest Mississippi near where they live. So what's good here? Actually, I like the chat fish. But chicken's good, also they have the chicken on the stick. Chicken on the stick. If you like chicken on the stick. We ordered these huge plates of food with greens and baked beans and hush puppies and chicken. I had the chicken and fish combo and also got some greens from my associate, Natalie. I ate it. I ate chicken tenderloin. They both ordered chicken. In spite of what they told me, the chickens have done to them. You're having chicken live, they peck you. They crap on you. The chicken might even squirt in your mouth if you don't watch it. So, I mean, it's sad to say, but it happens to some people now. This is the stuff that chicken catches has to go through. That's Jimmy. He was working as a chicken catcher back in 2016. That is, he was going out to farms sometimes in the middle of the night to catch live chickens that then went on to slaughterhouses and grocery stores and restaurants and finally to our plates. Jimmy caught chickens for cook foods. When he started the job, he worked directly for cook. But one day he was told he would need to start working for a subcontractor instead. Doing the same work, but now for less money and with no benefits. The work was hard. The pay was low. Jimmy was not paid by the hour, but by the thousand chickens caught. He says he wasn't making overtime and sometimes when he counted up all his hours, he says his pay came out to less than minimum wage. And Jimmy was getting increasingly fed up. So one day he was venting to a friend who also catches chickens and his friend told him about some lawyers who helped another crew of catchers get back wages. It's not so wild. They the ones I need. Jimmy decided to sue for back wages and damages for all the years he caught chickens and wasn't paid what he thought he was owed. And the point is, is we try to make them do better and treat us better too and pay us for what we were worth. For the time lost, the time, the wait time, the old time, which is all basically the same. It boils down to the same thing. We want to get paid. And to get paid what they thought they were owed, they decided they wouldn't just go after the subcontractor who signed their paychecks. They wanted to go to the top of the chain and sue Cook Foods, the chicken company that hired their bosses, sue them for violating minimum wage and overtime laws. And this wasn't necessarily going to be easy because there was a contract between Cook and the subcontractors that said Cook was not Jimmy's employer. So the lawyers would have to convince a judge that it didn't matter what the contract said, that really Cook was still calling the shots, that really the chicken catchers had two bosses, the subcontractor and Cook. And Cook should have to pay. Welcome to The Uncertain Hour. I'm Chrissy Clark. And I'm Caitlin Esch. And this season is all about this thing we used to call employment and what happened to it. We're looking at the illegal and also the legal ways that companies shed responsibility for their workers and in the process sometimes end up skirting labor laws. Today, we're looking at why people you didn't hire might be your employees. Or why a company that didn't hire you might be your employer. And why that matters. We're going to tell this episode in three chapters. First, a horrifying tale from history that led to new regulations that in turn led companies to look for new ways around those regulations. Then the story of a modern day sweatshop that had a lasting impact on labor law. And finally, we find out what happened to Jimmy and the chicken catchers. Caitlin's going to start us off. This subcontracting system that the chicken catchers had to deal with, it wasn't a new idea. There are similar arrangements going back more than a hundred years. An early notorious example is the garment industry. Let's start with the story of a woman named Pauline Pepe. In 1911, she was working in a garment factory. Here she is in an oral history recorded later in her life. Were you working on the machines? Were you an operator? Yes. I was doing the tucking. Pauline made shirt wastes, which was a style of blouse that was popular around the early 20th century. They were cheaply made and mass produced. In case you're trying to picture one that's kind of puffy at the top with the high neck, some embroidery, cinched at the waist. Like picture a suffragist marching for the right to vote. She would probably be wearing one. And it turns out that actually these shirt wastes weren't just a trendy fashion at the time. They became kind of an iconic image for the progressive woman who was working outside the home, earning her own wages. Yeah, just like Pauline, she might have been wearing a shirt wastes while she was stitching them. My mother wanted me to go to work, but my friends said, come on, we have a good time. And she really liked the job. She liked working with other young women. All young girls were there, and girls to be married and engaged and everything. We had a lot of fun. But this was 1911. There were very few labor laws protecting workers. Pauline talks about how managers would lock the doors of the factory. Why was the door locked? Well, you know, they were afraid that the women would take blouses and run in. The managers were afraid the workers would steal. They'd search their bags at the end of every shift. Did anyone ever do that? Did you ever hear about anyone being caught doing that? No, no. They wouldn't. This factory was staffed mostly by crews of subcontractors. People who did jobs like Pauline's didn't necessarily work for the people who owned the factory. There was the system of middlemen. Richard Greenwald is a historian at Fairfield University in Connecticut. The manufacturers would hire a foreman. The foreman would hire, and at a price point, the foreman would then hire their own crews of workers and negotiate peace rates for those individuals. There were women working on the same floor, right next to each other, working for different subcontractors, earning different peace rates or wages. And you would have, you know, Jewish workers speaking Yiddish, you know, not too far away from southern Italian workers, speaking, you know, a dialect of Italian. Richard says sometimes a factory would strategically place workers. Trying to make sure that it interspersed ethnic groups and religious groups, you know, so that they would separate out folks. Folks couldn't wander around the factory floor. They couldn't go for breaks. So you were essentially at your station unable to talk to anyone around you. That made it harder to organize to improve working conditions. The factory was not unionized, and there was no federal minimum wage at this point. And competition between subcontractors was fierce. That competition drove wages down. Richard Greenwald says the contractors would underbid each other to try to get the work, and then they'd have less money to pay the workers. Richard says from the late 1800s till World War I, wages for garment workers actually fell. This system of subcontracting was known as the sweating system. And I just want to linger on that phrase for a second, sweating system. Because I didn't know until recently that this is where the modern term sweat shop comes from. I'd always thought sweat shop was a reference to sweat, like you work so hard, you break a sweat. But it's also an old reference to subcontracting. Those middleman subcontractors were called sweaters. The people they hired worked in sweating shops. As one paper that I've read puts it, the sweater was the labor intermediary who sweated a profit out of his workers. Those shops became synonymous with terrible working conditions. Low wages, long hours, child labor. So this was the system that the factory Pauline worked in used to staff its workforce. And it contributed to some pretty bad work conditions that eventually led to a horrible accident. A tinder box just waiting for a lit cigarette. Which is literally what happened one Saturday in 1911. What we're going to talk about next is the stuff of nightmares. So just a warning, this story may be disturbing for some listeners. The factory Pauline worked at was called the triangle shirt waste factory. You might remember learning about it in school. One day when Pauline was at work, a fire broke out, probably actually ignited by a cigarette. And workers rushed to the exits, but the doors were changed shut. Some lucky workers pushed and packed their way into the freight elevator, which continued taking people down till the cables eventually melted. Other workers who couldn't get into the elevator tried to slide down the cables all the way from the ninth floor. The operators later described the sounds of bodies hitting the roof of the elevator car. People were letting go when they couldn't hold on to the cables any longer. Accounts from the time refer to the triangle factory as a modern building. But there weren't many fire regulations that employers had to follow. And anyway, there was little enforcement. There were no sprinklers in the building, only a few buckets of water to throw on the flames. There was just one fire escape, and it collapsed. No balconies. If there were balconies, there wouldn't have happened that. Pauline lived to tell this tale. She managed to get out. But dozens of women stuck inside, threw themselves out of the windows of the eighth and ninth floors, rather than burned to death. And how those girls did it. I don't know how they had the courage to throw themselves down. I couldn't do it. That was a sight to see. What did you see when you came down from? The people, old bodies, it was terrible. We got sick. The men took us away right away. The day of the fire, a young woman named Frances was having tea with friends near the triangle factory. We could see this building from Washington Square. She rushed over to see what was happening, and she watched the building burn. She watched as firefighters and police officers tried to roll out tarps and horse blankets to hold between them. To catch people if they do jump. They would try to get that out, and they couldn't wait any longer. I mean, they began to jump. This one in the window was too crowded, and they would jump and they hit the sidewalk. As the New York Times wrote in 1911, the nets ripped like cheesecloth. The net broke. She was terrible at distance, and the weight of the bodies was so great. The speed at which they were traveling, they broke through the net. Every one of them was killed, everybody who jumped was killed. It was a horrifying spectacle. The fire lasted just 18 minutes. 146 workers died. Most of them were young immigrant women. The young woman Frances, watching those terrified workers leap from the windows, was Frances Perkins, who later became the labor secretary under FDR. This experience left a deep mark, led her to become the famous advocate for workers' rights that we remember her as today, and let her ultimately to help write the Fair Labor Standards Act of 1938, that law we spent so much time talking about earlier in the season, that set a minimum wage and overtime and stricter rules for child labor. As Frances said in a lecture later in her life, there had been protests and strikes over conditions and factories right before the triangle fire, but they didn't get that much attention or sympathy from the public. The tragedy of the fire really exposed conditions in a way that no one could ignore any longer, and people were outraged. This made a terrible impression on the people of the state of New York. I can't begin to tell you how disturbed the people were everywhere. It was as though we had all done something wrong. It shouldn't have been. We were sorry, may our culpa, may our culpa. Tragedy led to action. It led to more union organizing and a whole bunch of reforms in New York State and building codes designed to keep workers safe. Something must be done. We've got to turn this into some kind of victory, some kind of constructive action. Even before she worked for FDR, Frances Perkins was part of that constructive action. Soon after the fire, she became an investigator for the government. She would go into factories and inspect them, make sure they were safe. And she wasn't just looking out for fire code violations. She went after the bad conditions enabled by the sweating system. She made reports on child labor, on harsh working conditions, even on homework, which was common at the time. It was very low paid, peace rate sewing work that women were pressured to take home at night and do. Frances Perkins and others managed to get new state laws and standards through, reforms that are sometimes referred to as a dress rehearsal for the new deal. And so conditions for many workers got a lot better after the triangle fire. But when there are new rules, companies can sometimes come up with new ways to get around them. Ironically, the protections that passed after the triangle fire might have provided an incentive to some garment manufacturers to keep sweating labor through subcontracting in order to distance themselves from workers and avoid the legal responsibility of keeping them safe. Again, Richard Greenwald. You're not just outsourcing the work, you're also outsourcing the risk. These post-triangle fire reforms contributed to a trend that was already happening in the garment industry. This phony middleman, the sweatshop operator who's really just nothing more than a glorified supervisor for the manufacturer. James Reef is an employment lawyer at a firm in New York. He also writes legal papers on wage and hour issues and history. And he says, this kind of middleman subcontracting? By the 1920s, that became the standard feature of the garment industry in New York. And it had remained essentially unchanged for, you know, 70 years or 75 years until the workers walked into our office on that day in 1999. What James is talking about here brings us to the next chapter of this episode. I want to tell you about this case James worked on because it helped me understand what happened to the chicken catchers in a whole new way. In 1999, James Reef was in his office in New York City when a group of garment workers, mostly women who immigrated from China, came in with a translator. With a complaint that for the last several weeks they hadn't been paid by their boss. These women worked in a factory in lower Manhattan sewing clothes. Like the chicken catchers, they were paid a peace rate, meaning they were paid by the article of clothing they sewed, not by the hour. And for the past several weeks, they'd been showing up to work, working long hours, and their boss just wasn't paying them. They kept coming to work because they believed they would eventually get paid. One day they showed up at the sweatshop and there was a padlock on the door. The shop was closed. The sweatshop operator was nowhere to be found. As they're telling James what happened, it becomes clear to him just how bad conditions at this factory are. They worked on average 85 hours a week. Some of them worked as much as 94 hours a week for the approximately 45 hours of overtime that they were made to work each week. I mean literally each week they got no overtime compensation. James said they weren't even getting paid minimum wage. As he was talking to the workers through a translator, he kept hearing this phrase. They used the term big boss and little boss. The big boss and the little boss. At first, James was confused by this. It was clear to us that the little boss was the sweatshop operator who had hired them and who paid them and who daily supervised their work. But we didn't, it wasn't like really clear who the big boss was. And so finally I just said, well who's the big boss? And they said, oh that's Liberty Apparel. Liberty Apparel is a garment maker. It had hired a middleman contractor who hired the workers to make the clothes. James quickly realized they weren't going to get any money out of the middleman contractor who these women worked for. He had disappeared and even if he had been sued and served with the papers before he disappeared, he clearly didn't have any money. But if they could go after the big boss, Liberty Apparel, a much larger company with deeper pockets, then maybe they could get the back wages and damages the workers were owed. We're talking hundreds of thousands of dollars here. And as the workers are talking about the big boss and the little boss, a question forms in James's mind. Which was the question of whether or not their big boss was a joint employer with their little boss. Joint employer is a legal term that just means there's more than one employer responsible for making sure basic labor laws are followed. And so the argument James made was even if we can't find the little boss to make things right. The big boss, the garment manufacturer was wholly liable for the violations that were committed against the workers. And James would argue this wasn't just about trying to find someone with deep pockets to sue. It's about going back to the company that ultimately has the economic power to shape wages and working conditions. It's about making sure big bosses can't hide behind subcontractors, leaving workers with no recourse to get the money that they're owed. That's coming up after the break. Okay, so back to those garment workers. Caitlin, what happened to them? Well, as you might have guessed, the lawyer James Reef sued the big boss on behalf of the workers. The lawsuit is called Jung vs Liberty Apparel. And it's become one of those cases that you often see footnoted in legal papers and in other lawsuits. Yeah, I've run across it several times during research for this season. That's because it's a classic example. It was one of the first federal cases of its kind, one of the first cases in manufacturing to use this idea of there being two joint employers, a big boss and a little boss that should both be liable for violating minimum wage and overtime laws. It challenged big boss Liberty Apparel and it ended up expanding the idea of what it means to be a joint employer. Right, because there wasn't much of a question as to whether the law had been violated, it clearly had, but it was this question of whether Liberty Apparel should be on the hook for it. Yeah, so this case dragged on for a long time. It took almost 14 years to fully resolve. The first judge James faced ruled against him, sided with the clothing maker. James appealed the decision. And a central question of this lawsuit was about the definition of a seemingly simple word that is actually really complicated. It's a word we've spent some time on in previous episodes. That word is employ. And as we know in the Fair Labor Standards Act, that law that created a federal minimum wage and overtime, employ is defined as to suffer or permit to work. Yes, to suffer or permit to work. That's six word phrase. And to really understand what's at the heart of the lawsuits brought by the chicken catchers and by James' clients, you need to look at where this definition comes from and why it was written. Chrissy, you talked about how weird that phrase is in earlier episodes. Right, this archaic language, especially the suffer part, to suffer as in to tolerate to work. And it turns out that the suffer or permit language is actually borrowed from state child labor laws written around the turn of the 20th century. And in a lot of ways, the phrase was an attempt to address the very bad conditions created by the sweating system or subcontracting. For example, there was a long history of bringing children into mines and factories to help their parents or other adults. They were kind of like helpers and they would often end up doing really dangerous work. They would sometimes get injured or even killed. And the parents might try to hold the company the kid was ultimately working for responsible. The defense was they're not my employee. James Reef again. I didn't hire them. So I'm terribly sorry, but they're not my employee and therefore I'm not liable for the injury. So child labor laws were written with this expansive definition of who should be responsible to include not just whoever did the direct hiring and the paying of the kids. Which might have been the kids' parents. These laws were saying also the parents employer, the big boss, they should be responsible to. In other words, if you're a company that has kids working doing labor on your behalf, even if you don't do the direct hiring of those children, you should have known a child was working for you and you should take steps to stop it. It's your responsibility to make sure that these child labor laws are being enforced. Francis Perkins actually has this great quote when child labor codes were being written for the steel industry. They were thinking about using the words knowingly employ and she said that was a bad idea that that would make it impossible to enforce. She said the suffer or permit language was a way to hold an employer responsible. Here's the quote. This places the responsibility directly on the management to see to it that child labor is not employed and there can be no quibbling about whether it was done knowingly or not. I suggest that the wording be changed to correspond to the wording of the best state laws. For I take it that the intent is really to prohibit child labor. And as we saw after the triangle fire, it's like if you don't use some sort of broad language like that, how could any of these laws ever really be enforced? Companies could use subcontractors to do the work. And then if a worker protection law is violated, the subcontractor can just go out of business and the big company can throw up their hands and say, I didn't know these violations were happening. And minimum wage and overtime were seen as such basic protections that lawmakers didn't want companies to be able to avoid them through this subcontracting tactic either. So we have this very broad definition of employee to suffer or permit to work, a definition that could apply to almost any work arrangement. But does that really mean any any work arrangement? Like where do you draw the line? Is any business that contracts with a smaller business? Therefore the employer of that smaller businesses, employees, that could be a daunting prospect for businesses. Yeah. So over the years, courts have developed tests to figure out how much power and control the big boss has over the little boss's workers. Back to the example of James Reef's case, Jung versus Liberty Apparel. The court looked at things like who owns the property and the equipment, the big boss or the little boss. Does the big boss supervise the little boss's workers? How critical is the work that the workers do to the business of the big boss? Like for a company that manufactures clothing, workers who so close would probably be pretty important. Right. And this list is important because earlier courts had taken a narrower view of what it means to be an employer. In Jung versus Liberty Apparel, the judge took a broader view and looked back at that very broad definition of employee, looked at how much power and control the big boss had over the little boss and the workers and decided, yes, Liberty Apparel should be on the hook for back wages. Liberty Apparel ended up paying the garment workers about a half a million dollars. The decision expanded the idea of what it means to be a joint employer. And that's had a rippling impact on businesses that subcontract out labor. But even though this decision was important in a lot of ways, it's not like it set up a simple precedent. There still is no single test that courts use to decide if the big boss should be held responsible. It's a hotly contested battleground every time and there are these expensive lawsuits that can go on for years, which means a lot of workers don't even have the resources to sue over any of these issues. Yeah, and these cases are hard to bring. And that brings us to the third and final chapter of this episode. Back to the chicken catchers and their fight for minimum wage and overtime. A worker like Jimmy Nix, the chicken catcher, can't really take on a company like Cook Foods alone. Lawyers in cases like this need to have lots of plaintiffs joining together in class action. So Jimmy's case grows and grows. About 270 catchers sign on. Jimmy is one of the lead plaintiffs. And kind of like in the Liberty Apparel case, big boss Cook Foods pointed to its contracts with all of its little bosses like Jet, the subcontractor Jimmy worked for. And Cook said, I am not the employer of these workers. The subcontractor is. So I'm not responsible for making sure workers are paid minimum wage and overtime. And that's this thing businesses are worried about. It's not like every worker to step foot on Cook property as a Cook employee. So where do you draw the line? And you're saying, Caitlin, that in the case of the chicken catchers, the subcontractor agreed that they were the chicken catcher's employer, not Cook. It did, but Jimmy's lawyers argue it doesn't matter what the contract says. One of the Miss Sarah Shalman Bergen, she suspects this kind of subcontracting is a tactic. That's correct. I think it's a way for a larger company to avoid the legal responsibilities of directly employing workers. Sarah says Jet, the subcontractor, is a labor broker like a temp agency, a middleman taking a slice of the profits and pushing down wages for workers like Jimmy. She says the only service Jet really provided was Human labor in the form of our clients. The companies were merely transporting our clients from the homes to the farms. Farms where the catchers were doing their work for the big boss. Sarah argues Cook clearly fits the definition of employer under the broad definition of the FLSA. Cook suffered or permitted the catchers to work. And just like in the Liberty Apparel case, this lawsuit comes down to a list of tests to determine how much power and control Cook has over the catchers. Who has the power to hire and fire the employees? Who supervised or controlled their work schedules? Who determined the rates and method of payment? And who maintained the employment records? Or, as Jimmy put it, You're not working directly under Cook's. You're working for him but indirectly. But still Cook's is in control. Is that making sense? Cook denied most of the allegations, by the way. We couldn't get an interview with anyone from the company. But in court documents, it denied it has significant control over the catchers, over work schedules, over day-to-day operations. It denied that it uses third-party labor providers to shield itself from liability. And it denied that it's a joint employer. So how did it go for the chicken catchers in court? Well, the subcontractor Jett settled early for about $41,000 because it couldn't afford to keep fighting in court. But $41,000 is not nearly enough to cover what the catchers say they're owed. And they keep fighting to get more of that back pay from the big boss from Cook Foods. The lawsuit goes on for three years. Jimmy stops working because of health issues, wear and tear on the body. And in 2019, Cook agrees to settle. It paid the catchers $625,000. It admitted no wrongdoing. And what about the question at the heart of the case? Was Cook a joint employer? Well, since the case settled, the judge never ruled on that question. But in other lawsuits brought by chicken catchers, judges have found that other big chicken companies are joint employers with their subcontractors. As part of the settlement, Cook agreed to send letters to its subcontractors, telling them they have to follow labor laws. So what does that actually mean for the chicken catchers? Well, Jimmy and I have both talked to chicken catchers who are still doing the job and they say not a lot has changed. On average, those few hundred workers who joined the lawsuit got about $2,100 a piece. As the name plaintiff, Jimmy got another $10,000. He says he's grateful for the settlement, but it hasn't changed his life. I called Jimmy recently to check back in. He was working part-time at a hotel. I'm a maintenance. I do maintenance work, repair work, you know. I fix everything. Everything turns up, I fix it, you know. That's about it, actually. Did they offer any benefits to you? No benefits. No issues, no sick days and nothing. Jimmy says he's a direct employee now. He's earning minimum wage. Start out minimum wage. More per hour than he sometimes got catching chickens. Is that enough? Is that enough? No. Not even close. 7.25, no, yeah. With minimum wage and a few hours that he had, it's rough, you know. But he says you have to have some kind of income coming in so you take what you can get. That's it for this episode of The Uncertain Hour. We'll be back next week with a look at baseball. And a group of people, Major League Baseball, has said aren't technically employees. Nobody in the minor leagues expects to make crazy amounts of money like happens in the big leagues. It's just that, you know, the amount that we do get paid is so small that it's truly baffling. How the baseball industry rewrote federal law to carve minor league players out of minimum wage and overtime requirements. That's next time. Thanks to Cornell University's Keel Center for their amazing Triangle Fire archive. That's where some of the audio in this episode comes from. And thanks to the University of Cornell for their amazing Triangle Fire archive. And we're putting together an episode that we need your help with. Have you ever been a non-employee or worked for a subcontractor? Do you have a question about something you've heard this season or something you want to know more about? Tell us. Our email is uncertainhour at marketplace.org. Caitlin Esch reported this story. Our producers are Peter Balanon-Rosen and Chris Julin. Our editor is Catherine Winter. Research and production help from Muna Dana. Daniel Martinez and Marquet Green. Our media producer is Robin Edgar. Our digital team is Tony Wagner, Erica Phillips and Donna Tam. Satari Nieves is the executive director of On Demand at Marketplace. And I'm Chrissy Clark.
