In a Day's Work Read online

  Afterwards, her supervisor once again warned her not to tell anyone what had happened. She would have stayed silent anyway. She thought her family and friends would never believe her or would think she had brought it upon herself.

  Hernández says that at the time, she didn’t think there was a way out of her supervisor’s trap. “There’s no way to defend yourself,” she says. “There’s no way to say no. When you need the job, you become the victim of others. That’s why you deal with everything, all of the harassment. You deal with discrimination, everything. You deal with it because you need the job.”

  For the next few weeks, she reported to work at the hotel as usual, making it a point to avoid her supervisor. He managed to find her, however, either to remind her how much she needed the job or to chastise her for being so cold during their encounters. Finally, he came to her with an ultimatum: she had to decide whether she wanted to keep her job or not. If she did, he would continue to have certain expectations of her.

  Hernández felt hopeless, unmoored. She was having migraines and panic attacks. She dreaded his next demand. But she couldn’t agree to the abuse. When he confronted her again, she told him that she had self-respect and she would not have sex with him to keep her job.

  Her supervisor began his revenge. He yelled at her in front of her coworkers and disciplined her for supposedly leaving used tissues in the lobby. Mortified, she cried. The campaign of yelling continued, and then she says her supervisor began to sabotage her work, throwing trash in areas that she had already cleaned and then disciplining her for it.

  The rapes had been horrific violations, but they had happened in private. Now her supervisor was publicly impugning her work, and her job was still at risk. She felt lost and compromised, but she swallowed how she felt and continued to drag herself to work.

  She tried not to show how damaged she felt, even though she felt she was cracking inside. Feeling desperate, Hernández decided to speak to the cleaning company about the assaults. She had seen her supervisor try to hug and flirt with another cleaner, so together the women called Human Resources to make a complaint. But Hernández says nothing changed.

  Almost two months into the job, Hernández called in sick one evening. It was all her supervisor needed to remind her that he still had the upper hand. The next day, he fired her.

  Hernández didn’t leave the house for days. She had headaches and couldn’t sleep. The nausea she felt only continued to intensify. The truth was hard to face: she was pregnant.

  Hernández had hit the edge of what she could handle on her own. Depleted and sobbing, she sought out the only person she could trust. Vicky Márquez remembers how Hernández sounded that afternoon. She was crying and her voice was faded and anguished. Márquez had rushed to Hernández’s apartment, but the cleaner said they could not talk there. “I’m afraid that the walls will hear, and I don’t want anyone to hear me,” she said to Márquez.

  They talked for a while in Márquez’s car. “Something has happened that I don’t want to have to tell you, Vicky,” Hernández began, “Something terrible.” She was inconsolable and could not go on. The investigator remembers feeling powerless to help, but she told the cleaner, “We can find a lot of help for this. Don’t be scared.”

  Truthfully, Márquez had no idea what she could do. The investigator called Anel Flores, one of her co-workers who was an attorney, to ask for help. Flores suggested that Márquez bring Hernández to their office.

  There Hernández was still unable to unearth the words to explain why she was so upset. She could only manage to repeat over and over again that something terrible had happened. “Something was happening, you could see it, but she was crying and she couldn’t speak,” Flores recalls.

  Flores took Hernández into a conference room and closed the door. “There’s something going on,” she said gently to the janitor. “Why don’t you tell me what’s going on so we can figure out what to do?”

  Hernández continued to cry without speaking. “Just tell me what you want to tell me, and we’ll start from there,” Flores said.

  For the next two hours, Hernández shared snippets of what had happened at work until Flores was able to piece the whole story together, from the rape in the parking lot to the coerced sex in the motel. Finally Hernández told Flores that she was pregnant from one of the rapes. She was still holding a paper she had received from a health clinic confirming the pregnancy test results.

  The janitor had already made an appointment for an abortion. “I cannot have this baby,” she told Flores.

  Hernández added that she was worried people would find out that she was pregnant, and that she would be judged and blamed for everything that had happened. Flores tried to reassure her: “It’s not your fault. You did not do anything wrong. You did not do anything to cause this. You’re not a bad person.”

  But it was clear from her despair that Hernández did not believe it.

  Hernández eventually agreed to let Flores share some of what had happened to her with Márquez and Lilia García, the executive director of the Maintenance Cooperation Trust Fund. The three worker advocates told Hernández that they would help her address the problem step by step, in the ways that the cleaner felt would be the most comfortable. They became her confidants and a support network dedicated to helping her out of crisis.

  When Hernández terminated the pregnancy a few days later, Flores picked her up from the clinic and delivered her home. After an attorney specializing in sexual harassment suggested that Hernández file a police report, Flores and Márquez drove Hernández to the police station, and Flores sat with her as she was interviewed.

  Feeling reassured by the support of the women from the Maintenance Cooperation Trust Fund, Hernández became determined to push back against what had happened. With the help of the lawyer she had met through the organization, Hernández filed a sexual harassment lawsuit against the cleaning company. In the legal filing, Hernández accused the company of failure to prevent sexual harassment, wrongful termination and retaliation, negligent supervision, intentional infliction of emotional distress, and assault and battery. Within months, the company paid a financial settlement to close the case, though it did not admit any liability in the process. It also fired the supervisor.2

  Hernández says the outcome of the case can never make up for the rapes, but she is proud that she set aside her fears to challenge what had happened to her. She had tolerated too much for too long because she didn’t know how to get help, and she might have been stuck with the same problems if Márquez hadn’t found her at work, cleaning the movie theater. “I would have guarded all of this pain,” she says. “I wouldn’t have known how to speak out about what happened.

  “If I had known Vicky from the beginning, I would not have suffered the harassment, the things that happened to me,” Hernández says. “When I met Vicky, I stopped saying that I was going to continue to suffer, that I would continue to endure and continue without the ability to say no. All those other times, I was afraid to lose my job.”

  The experience transformed Hernández. She became diligent in tracking her hours and her rest breaks, and proactive about advising other workers about their rights. “What gives me strength now is that I know my rights in this country,” she says. “Even if I’m undocumented, now I know that there are laws that can help us and defend our rights.”

  Márquez says the isolation of the job and the demographic of the workers makes night-shift cleaners like Hernández easy targets for abuse. “It’s because the supervisors always think that the worker needs work and they have work to give,” Márquez says. “So they commit these abuses. And there are many—who knows how many hundreds or thousands of cases—that remain in the shadows because no one knows. Many women don’t say anything out of fear. They’re afraid that society will realize that they have been forced to sleep with someone. They are afraid that they will lose their job.”

  Márquez knows that it is rare to uncover cases like Hernández’s. Sh
e and her co-workers are making random nighttime visits to buildings that are being cleaned when few others are around. For each building, there are hundreds more. For each janitor they reach, it can take months of calls and visits before a worker will begin to think about speaking up about the problems. For taboo topics like sexual assault, it takes even more work and time to expose the problem. “How many cases are there in this country that we don’t know about?” Márquez says. “Because no one is there investigating. Because we cannot reach them. When I saw this case of harassment, I said, ‘My God, there need to be many investigators looking into the many places where this can happen.’”

  Sexual assault can happen to anyone, anywhere, but if there is a perfect storm of factors that put workers at risk, night-shift janitorial work is at its epicenter.3 Nearly every office building in America relies on janitors, but we rarely see the people who do the vacuuming and mopping. The work is scheduled to happen at night or during the early morning, when few people are around. They are expected to be invisible.

  Janitorial work is also emblematic of a larger trend toward subcontracting that makes it easier to paper over problems on the job.4 Before the 1980s, most businesses and stores had their own janitorial staff. Then as institutional investors purchased high-rises to build out their real estate portfolios and retailers grew into chains with locations all over the country, it became more efficient to outsource janitorial work to contractors to minimize cost and liability.

  The industry has become even more diffuse and mysterious with the rise in subcontracting. While one contractor might land the official cleaning contract with a big-box store or big city high-rise, it might hire a subcontractor to do the actual cleaning. Some of the subcontractors might then subcontract some or all of the work to a third business. The hazy web of bosses and employers makes it easier for labor abuses to go undetected.

  This system has not resulted in healthy salaries and work conditions for cleaners. Building owners, retailers, and businesses award contracts to the lowest bidder, so cleaning companies—both big corporations and mom-and-pop subcontractors—have to keep costs as low as possible. Human labor is the largest expense in this business, and it is where cleaning companies look first to trim costs. According to what is reported to the government, janitors earn about $27,000 a year.5 The reality is often quite different.

  Labor advocates say that the lowest-bidder system means that it is easy—even necessary—to exploit janitors. “The way you make money in this industry is to cheat, because the profit margin is so thin,” says Stephen Lerner, who in the 1980s led the Justice for Janitors campaign, the first national effort after World War II to organize cleaners by the Service Employees International Union (SEIU).6

  Lerner says that there are a number of unseemly strategies a contractor might use to win a contract. They might promise a client that an unrealistic amount of work will be done during a shift, knowing that their staff will have to work longer hours without additional pay to finish it—the very scenario that Hernández experienced. Janitors might be forced to clock in using two different names to avoid racking up overtime. Or unscrupulous contractors might call their employees independent contractors to avoid adhering to labor laws.

  Janitorial work is in many ways primed for exploitation, and the people who gravitate toward this work are also not inclined to make complaints about it. It is an industry that takes all comers, and those who seek out the tough and thankless work usually have few options. Some are undocumented, and others lack the formal education or language skills to land other jobs. When workers feel compelled to keep a job at any cost, it reinforces a power dynamic that makes them easier to abuse.

  Then there is the simple fact that the job keeps workers hidden and separated. Night-shift janitors fan out in small teams to anonymous buildings every night. The isolation of the work and the fact that the workers are spread out over entire cities makes it hard to track what is really happening.

  In the 1980s and 1990s, the SEIU tried to confront these conditions with its Justice for Janitors campaign. The union realized that traditional methods of organizing—convincing workers at a particular job site to vote for union representation—wasn’t going to work when janitors working for the same company were dispersed throughout a single city.

  The union was also grappling with the fact that the janitorial workforce was changing. Through the 1970s, the industry was made up primarily of African American workers, but as janitorial salaries and unionized jobs declined—non-unionized cleaners might have made $3.40 an hour in 1988—Latino immigrants from Mexico and Central America began to fill the jobs. And increasingly, the work was done by women—today 34 percent of building maintenance workers are female. The union had to find ways to reach a new demographic in a new language.

  With activists like Stephen Lerner at the helm, the union decided to organize the industry as a whole instead of focusing on individual work sites. It also decided to target the people who they believed had the power to improve conditions: the building owners who controlled the cleaning contracts, not the janitorial contractors, who were often at the mercy of the low-bid process.

  Public shaming became the central strategy. The SEIU staged noisy protests outside of buildings that paid their janitors too little. They mounted political theater at fine-dining restaurants and golf clubs frequented by targeted real estate moguls. The union made public how much a real estate company earned in profits in comparison to the people cleaning the buildings they owned. Street protests, like a 1990 march from Beverly Hills to Century City in Los Angeles, also helped galvanize public support for janitors, especially when the police unnecessarily attacked a group of participants that included children and pregnant women.

  These in-your-face strategies worked. In cities like Los Angeles and Philadelphia, most cleaning contracts for big high rises—regardless of which cleaning company was hired to do the work—stipulated decent baseline pay and healthier working conditions.

  However, in the decades since, the split between unionized and non-unionized janitors has deepened. A unionized company can still subcontract to a non-unionized one. And retailers and big-box stores have largely avoided signing union contracts for janitorial work. As an industry that doesn’t tend to get much attention from the government or the public, it functions without scrutiny.

  It is also an industry that is relatively opaque. The largest corporations are easiest to track, and they provide regular paychecks and benefits to workers. It is easy to recognize janitors working for these larger firms at airports, shopping malls, and government buildings by their clearly marked uniforms. Workers for these bigger-name outfits still have their grievances about wages and sexual harassment, judging by the lawsuits filed against these companies in courts throughout the country. But at least these companies respond to lawsuits and are in a position to seek solutions to the problem.

  At the other end of the spectrum are the unknown number of black-market subcontractors that, either out of ignorance or intent to violate the law, never bother to register with the government as official businesses. They may be little mom-and-pop companies operating on a shoestring, or they may be criminal enterprises that use anonymity as a way to skirt the law. In an industry this diffuse and invisible, it’s hard to tell these types apart, and when problems arise, the misconduct stays hidden.

  This is the black vortex that Lilia García tries to wrangle under control as the director of the Maintenance Cooperation Trust Fund. A native of East Los Angeles, García is a forceful presence with a big laugh.

  She says she’s predisposed to align herself with the workers her organization seeks out. Her parents immigrated from Mexico, and when they arrived in the United States, her mother took a job as a garment worker. Her father worked up to three jobs to put García and her siblings through college.

  García has seen countless examples of janitors who work for a month and then get stiffed on their paychecks. She has handled cases where bosses harangue workers o
r threaten them with violence for refusing to work without pay or for trying to exercise their rights. She says one supervisor from Los Angeles not only failed to pay his employees what they were due, but he would also lay a gun on the table to remind them who was in charge when cleaners came to pick up their meager paychecks.

  García saw that it was unlikely that night-shift janitors would be able to make it to her office just south of downtown Los Angeles to make a complaint in their free time. The only way to find out what was really happening was to be on the ground. She hired field investigators like Vicky Márquez, former janitors or immigrants who are relatable to the workers, so they could meet the cleaners where they already were—on the night shift. This makes her group almost singular in its efforts, and California’s labor commissioner often relies on García’s group to turn up cases.

  “Everywhere you have a physical structure, you have a janitor,” García says from her office, where family photos share wall space with political posters. “We really want to make sure that they understand that they have rights. If they have any questions about their working conditions, we’re a resource for them.”

  In many ways, García’s team is doing what the government could be doing, though the state and federal departments of labor rarely do night-shift outreach. “The reality is that there are very few or no enforcement agencies who do this work,” García says. The cases that her organization brings would otherwise be unreported.

  When it comes to sexual violence cases like Hernández’s, labor agencies are almost silent on the subject. In states like California, there is a push to create regulations around workplace violence that would address everything from physical attacks to sexual assault. At the federal level, the U.S. Occupational Safety and Health Administration (OSHA) acknowledges that it has a responsibility to address sexual assault on the job, and the federal government estimates that fifty people are sexually assaulted or raped at work every day.7 In reality, though, OSHA doesn’t do much to tackle the issue. It took on its first case of workplace sexual assault in 2016.8