Tuesday, September 18, 2007

The Whittaker judgement could bring a smile to faces of nkuba kyeyo in America

The Whittaker judgement could bring a smile to faces of nkuba kyeyo in America
September 18, 2007
A recent decision by a USA court could mark a turning point in the lives of hundreds of thousands of Ugandans living and working in the United States of America. An estimated 10,000 Ugandans are believed to be living in the US.

Many of these are engaged in menial work locally know as (kyeyo) in their pursuit of the ‘American dream’. However, many of our brothers and sisters have not found life easy in the US. They are tormented by the ever prying eye of the US authorities who are always on the look out for the odd ones- the unwelcome illegal immigrants. And yet these are the people that the affluent American society hires to do the odd jobs- those that attract little pay and are left for the casual labourer.

In a recent case involving a Ugandan citizen, a US court stated that un-documented workers (or illegal aliens in the US) cannot be prohibited from asserting their legal rights. Ms Rosa Whittaker, an American citizen who is a Uganda government trade and investment advisor, lost a preliminary application to dismiss a fraud case which was filed against her by her Ugandan housemaid Ms Idah Zirintusa. Ms Zirintusa, a former employee at State House, sued Ms Whittaker at the United States District Court in Columbia, for fraud, unjust enrichment and illegal interference with her earlier contract with State House.

Ms Zirintusa alleged in her pleadings that Whittaker entered into a three-year oral employment contract pursuant to which Whittaker promised her four times the wage she had been earning in Uganda, full tuition at a US college, food and shelter.

Ms Whittaker further promised Ms Zirintusa to make separate payments to support her family which she left in Uganda. Ms Whittaker was also accused of violating various provisions of the US Fair Labour Standards Act (“FLSA”), D.C. Payment and Collection of Wages Law, and D.C. Minimum Wage Act by failing to pay her the minimum wage and overtime pay to which she was entitled for the domestic services she provided to Whittaker and her friend Harris.

Like in most cases involving desperate Africans and their American or European masters, Ms Whittaker didn’t deliver her part of the bargain. And upon institution of the case in court she tried to play the ‘alien’ card arguing that because Ms Zirintusa like many Ugandans (emphasis mine) was not legally permitted to work in the United States, she could not sustain her claims.

Whittaker also argued that Ms Zirintusa was not entitled to overtime pay under either federal or D.C. law because domestic service workers who reside in their employer’s residence are exempt from the overtime pay requirement. She (Whittaker) based her defence in part on the Immigration Reform and Control Act (“IRCA”) which makes it illegal for aliens to sue for breach of contract.

Fortunately, the judge was of a different view. Court stated that although the purpose behind IRCA was to eliminate employers’ economic incentives to hire undocumented aliens, nothing in the IRCA or its legislative history suggested that the US Congress (lower chamber of their parliament) intended to limit the rights of undocumented aliens.

The judge noted the fact that several courts in America have held that all employees, regardless of their immigration status, are protected by the provisions of the US Fair Labour Standards Act (FLSA.) Court thus sated that Ms Whittaker’s reliance on cases in which illegal aliens were not entitled to bring employment discrimination claims were un-convincing.

In this case court also considered one of the injustices suffered by Ugandans working abroad. And that’s fraud where people are lured into employment only to end being conned. The judge in the Ms Zirintusa case held that because she gave up her job at State House to take up Whittaker’s offer in the US, she had a right to claim her entitlements.

Then there is the issue of unjust enrichment ,where the foreign master will make you work like a slave and offer you a paltry pay. Court while considering the provisions of the FLSA that allow an employer to deduct the costs of food, lodging and other expenses from a domestic employee’s wages- stated that such deductions should be made after full payment of the employee for work done.

Much as there are many illegal Ugandan aliens living and working in the US, their rights as domestic workers or otherwise, should be respected. It’s only fair that one should receive a pay that is commensurate to work done.

The writer is a journalist and advocate
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