The Wages of Neglect	by Geoff Kelly

They say that no news is good news. The case of Mayor Byron Brown and the city’s living wage law lends itself to a simple inversion of that old saw: Bad news is no news at all.

So what follows isn’t news at all. But the content bears knowing.

The city’s Living Wage Ordinance was passed in 1999, with no small thanks to the advocacy of Masten District Councilman Byron Brown. After four years of wrangling, the law was implemented in August 2003. Currently the statutory living wage in Buffalo is $9.59 an hour with benefits or $10.77 an hour without benefits. Any contract worth more than $50,000 is covered by the law. Exemptions are granted in certain, strictly defined cases: As one example, seasonal employees and youths in special employment programs may be paid less than the living wage; as another, construction workers can be paid the industry’s prevailing wage. The law does not apply to the city’s sewer and water authorities, nor to school district employees, because all three are independent entities.

Despite Brown’s championing the law as a councilman, the mayor’s office as a rule ignores requests to comment, attend meetings, issue responses or offer justifications for its behavior in regard to the Living Wage Ordinance. A report issued last month by the city’s Living Wage Commission—empanelled to monitor compliance with the law that, in theory at least, began to be enforced in 2003—concluded that the city “has violated the Living Wage Ordinance in a remarkable number of ways. Not one of these violations can be termed inadvertent. In each case, the LWC has notified the City of its duties, usually multiple times. The evidence reveals a consistent pattern of ignoring, evading, subverting, and openly violating the law.”

In the course of the last year, for example, the mayor has canceled several scheduled meetings with representatives of workers for Rural/Metro Medical Services, which contracts to provide ambulance services in the city and yet pays its drivers well below the mandated living wage. (Rural/Metro argues that it pays the city in a “franchise agreement,” rather than being paid by the city in a contract for services, and so is exempt.)

The commission’s report distilled its findings into eight points:

• Any time a city department entertains bids from a prospective contractor, the department must also solicit an application for contract from the contractor and pass a copy along to the Living Wage Commission. That application includes a description of the job, the number of employees who will work on the job and a description of where they fall under the city’s living wage law and a written commitment to pay those employees accordingly. “For the hundreds of contracts that the city has made since 2003,” the reports says, “the LWC has received only one application for contract forwarded by a city department.” In other words, the commission is being denied the opportunity to examine city contracts for compliance.

• Each contract covered by the living wage law is required to include provisions that allow aggrieved employees to file actions against employers who fail to abide by the law. The contracts should also include provisions allowing the city to terminate contracts or pursue other legal remedies if the contractor fails to abide by the law. “To the LWC’s knowledge,” says the report, “the City has never put this language in a contract.”

• If the commission recommends that a city department impose sanctions on a contractor who violates the living wage law, the department head has 30 days to choose from a list of sanctions enumerated in the law. The commission recommended sanctions be imposed on Brand-On Services on December 19, 2006 and on Rural/Metro on February 21, 2007. The Brown administration has neither sanctioned those employers or explained its failure to do so.

• The city improperly granted an exemption from the law to Brand-On Services for youth workers at Erie Basin Marina, according to the report. The law allows exemptions for youth in a “summer youth program, school-to-work program, or other related seasonal part-time work.” High school and college kids working at the Marina are surely seasonal and possibly part-time, but they are not enrolled in a program with any educational or vocational value. “The City was well aware that Brand-On did not qualify, having previously denied an exemption for Brand-On after the LWC objected to it.” The exemption granted to Brand-On was passed in Common Council just two weeks before the Marina was required by the city’s charter to open for the season, when it was far too late to seek another contractor.

• Employers covered by the living wage law are supposed to file quarterly reports with the Living Wage Commission, so that the commission and the public can monitor compliance. The City of Buffalo, which is a covered employer, has never filed a quarterly report.

• Employers covered by the living wage law are supposed to post on their premises at least two copies of the ordinance, to inform workers of their rights. The commission supplied the City of Buffalo, a covered employer, with posters to that end. The commissioners could not find any posters on City Hall bulletin boards.

• Employers covered by the living wage law are supposed to inform workers making less than $12 an hour about the possibility of filing for the Federal Earned Income Credit. The administration has provided the commission no evidence that it does so.

• The City violates the most basic tenet of the law: that it must pay “no less than a living wage” to its employees. The commission has received 10 grievances from city employees, most of them making $8.15 an hour.

One of the more egregious evasions of the Living Wage Ordinance is the case of sanitation workers who are made “seasonal” employees by virtue of the occasional one-week layoff. Some of these have been “seasonal” for six years. The city pays them $8.15 an hour with no benefits; unlike “permanent” employees, they have to buy their own boots and protective gear. They don’t receive extra pay for working holidays. The layoffs are doubly cruel, because they keep the workers at poverty-level wages, and because a worker who makes so little—and who maybe has a family to feed—can’t afford a week without a paycheck.

There are softer abuses of the law, too. For example, the Mayor’s Summer Youth Employment Program employs more that 2,000 people between ages 14 and 24, both in city offices and private businesses. The kids make either $7.15 or $8.15 an hour—less than a living wage, but not bad for a summer job. These are clearly seasonal employees, involved in a summer youth employment program, and the mayor has a right to ask for an exemption for those under age 21 from the living wage law. (There are no exemptions for those over 21.) He didn’t bother to file a request, even though probably it would have been granted. Such is his regard for the law he helped to pass as a councilman.

“The Mayor, the Law Department, and the Public Works Department, in particular, have a long history of refusing requests for meetings and failing to answer letters and phone calls from the LWC,” the report says. “In the few cases when the City has acted on living wage issues, it has been to seek improper exemptions through Common Council without notice to the LWC.”

The commission is asking the city to mend its ways, beginning with these steps:

• The city should see to it that every contract over $50,000 comes with a form ensuring that an application for contract—the document that deals with compliance with the living wage law—has been filled out and forwarded to both the commission and the Common Council.

• All bids, requests for proposals and contracts should flow through one department, such as the Purchasing Department, instead of through individual department heads. That would make it easier to include living wage provisions in contracts and to monitor and enforce compliance.

• The administration should make a publicly accessible database of all city contracts.

• The mayor and the Common Council should agree that exemptions to the living wage law will not be granted without consultation with the Living Wage Commission, and recognize the commission’s authority as the body charged with interpreting the law, investigating violations and enforcing compliance.

• The city should immediately hire as permanent employees all those who are bogusly classified as temporary or permanent, including those “seasonal” garbage collectors.

• A representative of the Corporation Counsel should meet with the commission monthly until those recommendations have been implemented.

When the commission released its report at the end of June, no one from the Brown administration was in attendance, though various department heads and the mayor himself had been invited. Asked for a response to the report a week after its release, mayoral communications director Peter Cutler said, in effect, that they had been awfully busy and had not formulated a response. He said he’d call back. He hasn’t yet.

—geoff kelly