WITHOUT WARNING: Effects and reform of the WARN Act

Different workers face the same problem with the WARN Act

From illegal immigrants to union miners, laborers encounter difficulty invoking law

7/17/2007
BY STEVE EDER AND JAMES DREW
BLADE STAFF WRITERS

Third of four parts

Workers who lost their jobs at WinCup because of their undocumented status showed up at the company in West Chicago, Ill., to claim their paychecks in March.
Workers who lost their jobs at WinCup because of their undocumented status showed up at the company in West Chicago, Ill., to claim their paychecks in March.

WEST CHICAGO, Ill. -- Jose Correa beamed with pride as he walked out of the 113-year-old Catholic church.

He and his wife had basked in the baptism of their 2-year-old son.

"May the strength of Jesus Christ the savior be yours," the priest said in Spanish as he touched the forehead of Osbaldo Correa with holy water.

For the 30-year-old Mr. Correa, the rituals -- with their powerful symbols of hope and renewal -- provided a brief respite from the upheaval and uncertainty of his family's life.

On March 7, Mr. Correa and 101 other Latino workers lost their jobs unexpectedly at a factory in the suburb of West Chicago.

WinCup, which former employees say has manufactured cups for the world's most famous fast-food empires, including McDonald's, and retailers such as Wal-Mart, employed about 190.

Several former WinCup workers interviewed recently said that most, if not all, who lost their jobs abruptly were illegal immigrants from Mexico, including Mr. Correa, who crossed the border eight years ago searching for a better life in the United States. An attorney who has worked with the ex-workers said they don't know the immigration status of all of those who no longer work at WinCup.

READ MORE: Effects and reform of the WARN Act

What happened at WinCup has led many of the laid-off, undocumented workers to question what their rights are and whether they are covered by a federal law requiring many businesses to provide a 60-day notice to workers before mass layoffs and plant closings.

A dozen years earlier and 500 miles to the southeast in the coal mines of Fairmont, W.Va., Delas Stuzen felt the fear and hopelessness that sets in when workers are laid off without notice.

On Oct. 2, 1995, Mr. Stuzen strapped on his boots, fastened his hard hat, safety goggles, and ear guards, buckled his miner's belt, and waited for the cage to take him and fellow miners underground.

"We were sitting right in front of the cage, ready to go to work," Mr. Stuzen recalled. "And right at 4 o'clock, [the supervisor] stepped in and said four of you men go to work. The rest of you stay out here because you are laid off."

Despite the differences between WinCup's Mexican laborers and West Virginia's unionized coal miners, both groups have faced a common struggle -- trying to enforce their rights under the federal Worker Adjustment and Retraining Notification Act, known as the WARN Act.

Falling short of goals

A Blade investigation has found that the federal law requiring many businesses to provide a 60-day notice to workers before mass layoffs and plant closings has fallen short of its goals:

- The U.S. Department of Labor has no enforcement power over the WARN Act, forcing displaced workers to hire attorneys to try to hold their former employers accountable.

- The law is vague and has been interpreted in varying ways by federal courts across the nation, making it difficult for employees and business owners to understand their rights and obligations under the law.

- Even in cases in which a violation of the WARN Act is obvious, it is difficult to force an employer to pay damages promptly, if ever.

- Lawsuits filed alleging WARN Act violations often take years to wind their way through courts, providing little or no immediate relief for workers who have lost their livelihoods.

It's especially difficult for nonunionized workers, such as those who lost their jobs at WinCup, because they don't have an established network to help them. Mr. Correa and his fellow laid-off workers have scattered to find new jobs, relying on a church group and a public-interest law firm to examine what rights, if any, they have.

While the coal miners are better organized because of their unions, they still face difficulties in getting the WARN Act enforced because of how the law is written.

In recent years, coal mining companies have laid off workers with just a 24-hour notice by terminating less than one-third of their work force. Such a maneuver keeps the companies below the threshold that triggers the 60-day notice requirement under the WARN Act, said Rich Eddy, a coal mining union leader based in Fairmont, W.Va.

Jose Correa, left, is joined by Daniel and Esmeralda Barrera at the baptism of Mr. Correa’s 2-year-old son, Osbaldo. Mr. Correa was among 101 Latino workers terminated by WinCup in March.
Jose Correa, left, is joined by Daniel and Esmeralda Barrera at the baptism of Mr. Correa’s 2-year-old son, Osbaldo. Mr. Correa was among 101 Latino workers terminated by WinCup in March.

Surviving tough times

In the hills of West Virginia, Delas Stuzen is the pastor of Noah's Ark Assembly of God, a congregation of about 140 families. The church, which towers above the back roads of Fairview, W.Va., was completed in the mid-1990s by laid-off miners searching for inspiration in tough times.

"We had every man in this congregation laid off but two," Mr. Stuzen, a third-generation coal miner, said during an interview in his church office.

"Little communities like Fairview, there's 400 people, two or three stores, and a bank," he said. "We are surrounded by coal mines. That community survives off miners going to and from work. When you lose all those jobs, that's just devastating."

On Oct. 2, 1995, Martinka Coal Co. and Eastern Associated Coal Corp. announced that the Tygart River Mine would close in two months, leaving 300 people out of work. Of that total, 89 -- including Mr. Stuzen -- were laid off with almost no notice.

After working for nearly 15 years in the mines, Mr. Stuzen, then 41, grew accustomed to the rumors and the job insecurity.

When the 1995 layoff was announced, Mr. Stuzen was only about nine months removed from his last layoff.

"The hardest thing for me was to come home and tell my wife that I lost my job again," Mr. Stuzen said.

The failure of the mine owners to provide notice compounded the anger.

"We give them good work and this is what we get in return," said Mr. Stuzen, who watched his pay plummet as he took whatever jobs were open. "They beat us. And we thought we were protected."

Grueling conditions

The WinCup factory is a low-slung building in a series of small factories in West Chicago, about an hour's drive from downtown Chicago.

Mexicans began moving to West Chicago after World War II because of job opportunities, including at the Campbell Soup Co. plant.

Mexican immigrants have transformed West Chicago from an old railroad town of 4,000 in 1950 to a city of about 26,000 where Hispanic residents outnumber whites. The signs along the main street -- an explosion of green, white, and red -- are in Spanish, the language that most speak inside the walls of the WinCup factory.

Several of the workers who lost their jobs in March at WinCup spoke of grueling conditions over the last several years: 12-hour shifts, a fast assembly line, sweltering heat, injured workers receiving warnings from supervisors, and tensions among legal immigrants and illegal immigrants.

For Jose Correa, losing his $10-an-hour job also meant losing his health-care benefits. His son, Osbaldo, was born with Down syndrome.

Pausing outside the church on the morning of his son's baptism, Mr. Correa, his head bowed and tears in his eyes, asked: "If I were to be deported, what would happen to my son?"

Immigrants at WinCup

Life as an illegal immigrant in the United States creates additional challenges for workers.

Celso Brito Guadarrama said powder generated in the manufacturing of cups has made her ill. But as an illegal immigrant, she said she was afraid to contact authorities.

Ms. Guadarrama said she had worked at WinCup since 1998 and her employer never determined whether she was a legal or illegal immigrant.

Ms. Guadarrama said a company supervisor told employees that there would be a routine check of their papers. Workers were caught by surprise when the company dismissed employees who could not document their immigration status, she said.

When workers who lost their jobs didn't immediately get their accrued vacation pay, they contacted a Lutheran church in West Chicago.

The church, with a growing Hispanic congregation, organized marches in March on the WinCup factory with the help of Jennifer De Leon, a community organizer with Lutheran Advocacy Illinois.

The workers received their vacation pay, but WinCup declined a request from them to voluntarily provide severance pay, said the Rev. John Dumke, co-pastor of St. Andrew Lutheran Church.

The workers who lost their jobs at WinCup said they were replaced by temporary workers bused in from Chicago who were being paid lower wages. WinCup's new owner denies that.

Last year, a private investment firm based in Santa Monica, Calif., Tennenbaum Capital Partners, bought nearly all of the assets of a bankrupt corporation that had owned WinCup.

The investment firm's president, Michael E. Tennenbaum, is chairman of WinCup's board of directors.

He "categorically denies" that WinCup laid off the workers to cut costs and that temporary workers were hired at lower wages.

When Tennenbaum Capital Partners became owners of WinCup in December, 2006, the firm brought in new management and examined human resources practices, he said.

At the West Chicago plant, records in dozens of employee files didn't match government documents, Mr. Tennenbaum said.

"It is against the law to hire undocumented workers in the U.S. As a consequence, the workers were asked to provide accurate data to explain why the U.S. government records were not accurate. They weren't able to do that. So we weren't able to employ them any longer," Mr. Tennenbaum said.

"If they can demonstrate they are legal, we would be thrilled to have them back," he added.

Delas Stuzen says he was ready to begin work on Oct. 2, 1995,
when he and 88 others at a West Virginia coal mine learned
that they were being laid off, effective immediately.
Delas Stuzen says he was ready to begin work on Oct. 2, 1995, when he and 88 others at a West Virginia coal mine learned that they were being laid off, effective immediately.

Documents sought

Chris Williams, an attorney with the Chicago Workers' Collaborative, is researching whether WinCup violated the WARN Act. He is working with the Sugar Law Center for Social Justice, a nonprofit organization based in Detroit, to determine whether the federal law applies.

Employers don't have to comply with the WARN Act if they fire employees for "just cause."

George Wurtz III, chief executive officer of WinCup, said the employees -- whom he said were being leased by WinCup from its former owner -- were not fired or laid off.

All WinCup employees were given a three-week notice that they needed to present documentation to match their I-9 forms -- the document required by the federal government to verify identity and eligibility to work.

The workers were told they could not work at the plant any longer unless they produced documents proving they are authorized to work in the United States, Mr. Wurtz said. Only 5 of the 102 who lost their jobs produced documentation; the others never came back, and only one successfully returned to work, he added.

The WARN Act covers workers in the United States, but it does not speak to immigrant status, said David Santacroce, an assistant professor of law at the University of Michigan, who is a national expert on the law.

A common problem

Controversies like the one at WinCup are common across the United States, in large part because of flaws in the 1986 immigration law that included sanctions against employers for hiring illegal immigrants, said Arnoldo Garcia, an activist with the National Network for Immigrant and Refugee Rights, based in Oakland, Calif.

"It's a way for an employer to cut costs,'' he said.

Tim Bell, an investigator with the Chicago Workers' Collaborative, questioned why WinCup's new owners demanded that immigrant employees who had worked there for several years fill out new I-9 forms and present documentation that they are authorized to work in the United States.

"Those workers really took a lot of pride in the products they were producing for WinCup. We're saying the company did not have just cause to fire those workers," Mr. Bell said.

For Jose Correa, who used to drive a forklift at WinCup, the issue boils down to justice.

"They should give us something back, even if it is a little bit of everything that we gave them. Some of my fellow workers had been working there for 15 years. That is who we are working to help,'' he said.

A lengthy legal battle

As Delas Stuzen and the other 88 laid-off workers at Martinka Coal struggled to recover from losing their jobs, their union worked to fight for their rights under the WARN Act.

The United Mine Workers of America and three of its members, including Mr. Stuzen, sued the mine for failing to notify the workers in advance about the layoffs.

"It's very costly," said Mr. Eddy, the union leader.

A coal miner for 16 years, Mr. Eddy was chairman of the local's mining committee during the 1995 layoff. He now serves as vice president for the union branch that covers most of West Virginia and parts of Ohio.

Even with the cohesiveness of the union, it was still a long and difficult battle for the displaced miners seeking damages under the WARN Act.

After a nearly five-year legal battle, which included appeals, the courts sided with the displaced workers.

The companies that operated the mine argued unsuccessfully that they complied with the WARN Act by giving notice of the Dec. 5 shutdown date two months in advance. The courts didn't agree with their interpretation.

Lawyers for the workers and the company reached a settlement, the terms of which they didn't disclose.

"The law can be interpreted too many different ways," Mr. Eddy said. "The law itself needs to be written to where you couldn't misinterpret something."

As the senior pastor at Noah's Ark Assembly of God in Fairview, Mr. Stuzen has helped other coal miners whose lives were changed by the layoffs.

"There were some guys [who] had an awful time to the point of thinking about what's left to live for, suicidal thoughts," Mr. Stuzen said. "They were friends that we ended up getting help [for]. Of course, none of them took their lives, but who knows what [they might have done] if there weren't someone there to intervene."

Mr. Stuzen recently went to the mines with a group of pastors and saw several familiar faces.

"I see a whole bunch of my buddies from Martinka that are back to work, so I'm thankful that those guys weathered the storm," Mr. Stuzen said.

He said he is open to someday returning to the mines.

"I'm a coal miner. That's who I am," he said.

Contact James Drew at: jdrew@theblade.com or 419-351-2004.