Overburdened San Jose office takes more than a year to act on wage theft claims

Managing a property oftentimes means solving unpredictable problems at odd hours.

Scoti Blesie, a handyman for a San Jose apartment building, found himself fixing leaks or repairing damage from break-ins at all hours. On many occasions, he would receive calls in the middle of the night. The work piled up, but the pay allegedly did not.

“We’re basically like indentured servants because of our dedication to the people here,” Blesie said.

Blesie worked with his partner, Dar Enz, to take care of MetroWalk apartments, a residential complex in downtown San Jose, for almost five years. They agreed to work 20 hours a week in order to live on the premises, but the couple claims they worked more than double that — and allege that one of the property owners, Mike Bauer, failed to pay them for the extra time.

Fearing retaliation, the couple reported the alleged wage theft with the help of a tenant to San Jose’s Office of Equality Assurance in January 2019, which enforces the city’s minimum wage policies. But Enz and Blesie have been waiting more than a year for a resolution — though the city office confirmed violations occurred.

It took the office more than 14 months to issue a Notice of Violation to Bauer on April 27.

The situation has revealed a growing backlog of complaints at the city’s labor compliance office plagued by severe staffing shortages. Only ten people investigate complaints of wage theft and minimum wage violations in San Jose — a city of more than a million residents.

Without other solutions, the couple filed a lawsuit in November 2019 against Bauer and the other property owners.

Blesie said he worked 50 to 70 hours a week, and Enz worked 35 to 45 hours. Blesie claims he was paid inconsistently, and Enz said she was only paid at most $400 in a given month, starting in 2017. The couple allege they never received a pay stub in almost five years.

“We’re always struggling,” Blesie told San José Spotlight. “We just kept realizing, ‘Why are we working so hard and we have nothing?’”

Bauer, one of the property owners, declined comment due to the pending lawsuit.

“I’m not allowed to comment on those legal issues,” Bauer said, “but there is a lot more information that will come out in the future and it will be decided in a legal forum on what is true or not true.”

Bauer had until Aug. 16, 2019 to provide the city office with documentation showing the hours Blesie and Enz worked, but failed to do so. The OEA issued a second request on Sept. 16 and gave Bauer a Sept. 30 due date.

Six months after the deadline, Bauer submitted documentation. But the record shows the employees’ hours were spotty, said Tom Skinner, their attorney.

“Because the employer never kept records of how many hours by employees work, they didn’t really know how often that they worked,” Skinner said. “In the property management industry, there’s no clocking in or clocking out, you’re only supposed to count the time that you actually did something for a tenant.”

An understaffed office  

Enz and Blesie hired their attorney in October 2019, nine months after the initial complaint was filed to OEA in January of that year.

The employees were let go in January when Bauer hired a separate contractor to manage the property. 

Skinner said OEA’s inability to enforce violations in a timely manner jeopardized stagnated upholding wage law and obtaining justice for underpaid workers.

Christopher Hickey, the division manager for the OEA, said he understands the concerns because of the slow nature of the process, but maintained the goal is to help low-wage workers.

He also revealed that his office has just ten people — including himself — handling complaints for the entire city.

“Yes, it’s not as fast as everybody would have liked,” Hickey said. “Yes, COVID-19 definitely has slowed down some of this process. But in reality, my office is here helping individuals get what’s owed to them. Mr. Skinner’s clients aren’t going to be any different,” Hickey said.

According to OEA data, the OEA returned $118,806 in 2019 to affected workers, though some payouts came from complaints pending from 2018. Hickey said the numbers show the office is enforcing minimum wage complaints.

But with the staff shortage, the wheels of justice move slowly and workers like Blesie and Enz are forced to wait more than a year for relief.

“I have a staff of 10. That’s including myself,” Hickey said. “There’s one and a half of us for every policy. So I think it may be a staffing issue.”

The OEA investigates both sides of every complaint. If they determine wage law has been violated, the office will issue a Notice of Violation outlining how the San Jose employer failed to comply with wage laws.

Then it is up to Hickey to decide whether to uphold, revise or scrap the violation entirely.

“My decision is currently being reviewed in the City Attorney’s office right now. We have not stopped the enforcement on any investigation — nor will we,” Hickey said. “This does take time.”

The lack of documentation for the hours Enz and Blesie worked complicated the case, according to Skinner. The attorney said the unpredictable schedule and undocumented hours would be difficult to reconstruct.

However, because California Law requires Bauer to record hours, Skinner said the lack of documentation should have been enough to prompt action from OEA.

Skinner said that OEA could have fined Bauer for failing to keep track of his employees’ hours per the San Jose Municipal code.

Hickey’s team of ten oversees prevailing wage, living wage, minimum wage, opportunity to work and the Disadvantaged Business Enterprise program. They also continually discuss changes to wage theft policy and assist in citywide labor projects.

“I do believe we are efficient, but we can and will strive to be more efficient,” Hickey said. “It’s just at this time, we can’t, as a city say, ‘Let’s put 50 people toward minimum wage,’ when we may not receive a complaint for two months, three months. We didn’t receive a minimum wage complaint in March or April of 2020. We would have 50 staff members not working at that point.”

Santa Clara County has the highest wage theft in the state. According to a county report the average low-wage worker loses 15% of their wages to wage theft each year. Nearly half of the county’s low-wage workers last year were Latino, making them more likely to be victims of wage-theft.

Skinner said the civil case could have been avoidable if OEA had pursued the case faster.

“(OEA) should hire enough people to take on the workload out there. We’re basically poorer than poor, in poverty,” Enz said. “It’s a tragedy that the owner would actually let his managers be poorer than the tenants that live here.”

Contact Mauricio La Plante at [email protected] or follow @mslaplantenews on Twitter. Contact Carly Wipf at [email protected] of follow @CarlyChristineW on Twitter.