Pelosi's legacy: private business at the Presidio may be exempt from all state and local labor laws
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As a production assistant for a visual effects studio, Robert Seeley had a job at the Orphanage that was nuts and bolts for the movie industry handling paperwork, overseeing schedules, arranging deliveries, and making sure folks were fed, clients were happy, and many of the million little logistics for a film project were coordinated.
His days began with an hour-long commute from Pleasant Hill to the Presidio, where the Orphanage is based. Mornings started around 9, and the typical workday ran about 10 hours. Or it did when he started there, in July 2006.
"There was a snowball effect. It started out as a regular 10-hour workday. It slowly built to 12, then 16," Seeley told the Guardian.
At one point, Seeley charges, he was asked to work a 20-hour shift and return to work two and a half hours later. When he didn't come in, he was fired.
Seeley sued, and the case was eventually settled. But along the way, the lawyers for the Orphanage raised a startling argument: since the Presidio is a federal enclave, they said, California labor law, which restricts the length of shifts, doesn't apply.
"This was a really straightforward, meat and potatoes case," Seeley's lawyer, Steve Sommers, told the Guardian. "And if he worked across the street, it would have been a slam dunk."
If the legal argument advanced by the studio as a response to Seeley's lawsuit is right and some labor experts say it may very well be then none of the private companies that lease space at the Presidio have to follow any state or local labor laws. That means no California or San Francisco minimum wage, no workplace safety statutes, nothing. And since state law is generally far tougher than federal law, the difference could be profound.
There are hundreds of people working for private companies in the Presidio, which operates under a unique arrangement that allows private, commercial development in a national park.
Federal regulations are almost always weaker than California's and not necessarily improving. "Federal laws are evolving backwards for the most part," said Katie Quan, associate chair for Labor Research and Education at UC Berkeley. "There have been attempts to weaken benefits, Social Security, who can and can't join unions. Even the new minimum wage that's been passed there's a big question as to whether or not [George W.] Bush will sign it."
While California's minimum wage is $7.50 and San Francisco's is $9.14, the federal hourly rate is currently $5.15 and arguably the only one that applies in the Presidio.
Several employment lawyers contacted by us initially suggested that California's labor statutes would have to apply in the Presidio, but Chris Cannon, a lawyer familiar with the situation, did not.
"I've gotten a lot of people acquitted on a criminal basis applying that same validity," he said of the cases the Orphanage's lawyers used to back up their argument. "It's like a little piece of Nevada here in California."
Cannon has litigated several cases in the Presidio, most notably on the controversial issue of where and when dogs can be off leash. "Given the history of the Presidio, I think there's a very good argument that California laws don't apply."
It's easy to extrapolate that nothing that's been passed in Sacramento or at City Hall would apply to the Presidio, including the recent universal health care plan passed by the Board of Supervisors and the paid sick-leave that voters approved.
The upshot: the author of the bill establishing the Presidio park, House Speaker Nancy Pelosi, who is a big favorite of organized labor, may have created a place where private employers can freely flout state and local laws designed to protect workers.
Lieutenant Jeff Wasserman of the US Park Police, which has exclusive jurisdiction over the Presidio, said, "We only have to follow federal laws. However, the US attorney has in the past asked us to adhere to state laws simply because they think it's the right thing to do."
One of Wasserman's examples involved a California law that speed limits may only be adjusted based on recommendations from a traffic engineer, which was established to prevent cops from setting speed traps. To Wasserman's knowledge, California is the only state with this restriction, and it's been extended to the Presidio. "The US Attorney felt that it was fair that if the surrounding streets followed it, we should too." He added that juvenile arrests in the Presidio have also stood up in local courts because the federal laws are so weak in that regard.
Two dozen companies contacted by us were asked questions regarding employment protocol, and all said they paid San Francisco's minimum wage or better and insisted they followed both federal and state labor laws. The largest employer in the Presidio, LucasFilm, did not respond to the questions.
Carsten Sorensen, CEO of the Orphanage, said, "We follow the letter of the law. We were told by our attorneys, being in the Presidio, we fall under the federal labor law."
He did say, "Of course we want our employees to be safe and do whatever we can to make sure that happens. There's no chronic issue of people who are dissatisfied with the working conditions."
But in responding to the lawsuit, his company didn't even try to defend its practices. Instead, Judith Droz Keyes, a lawyer with the firm Davis Wright Tremaine, argued in a Jan. 24 letter that "California has no jurisdiction either to legislate or enforce its laws within the federal enclave. The fact that the Orphanage is a private company leasing space within the Presidio makes no difference."
The Presidio Trust the semiprivate agency that manages the park did not respond to requests for comment, and it's unclear how the outfit treats its own workers. Discrimination based on sexual orientation, for example, is not a part of the federal Equal Employment Opportunity laws, but it is a part of California's, and even the Presidio Trust's own personnel manual mandates it.
To require anything definitive and absolute would take an act of Congress to mandate the Presidio adhere to state or local ordinances. We tried to reach Pelosi's office to ask about it, but she didn't return our calls.
In the meantime, Sommers said, "The Presidio Trust could insist that all vendors abide by California state labor laws. Then large employers in the Presidio would have to treat their workers like citizens of California." *