Working 16 Hours a Day for No Pay

Get-rich fishing ads become boat to nowhere
by John Merriam

This is a true story. Names have been changed.

Life for Wayne and Gabby started about the time the Viet Nam War ended. Hoang "Wayne" Pham was born in Viet Nam in 1974. Bora Gabrielle "Gabby" Pham was born in Cambodia in 1976. Both came to the United States at a tender age and speak American English with no accent. They met in Fresno, California, where both went to high school. Wayne graduated in 1992. Along with some college, he worked a variety of low-paying jobs in the area until he moved with his parents to Norfolk, Virginia. Gabby followed Wayne, and in early 1999 they got married. In Norfolk, both worked long hours for minimum wages, mostly at restaurant jobs. Even with time-and-a-half for overtime, they soon realized they were only running in place.

Wayne remembered seeing get-rich-quick ads posted on his Fresno college campus by recruiters for the Alaska fishing industry. He started calling fishing companies in Seattle. Many companies operating factory/trawlers--vessels that catch their own fish, then cut up and package them on board--were hiring processors, no experience necessary. In June 1999, they both quit their jobs and bought plane tickets to Seattle.

Wayne and Gabby ended up in the Seattle office of a fishing company called Bering Pacific, Inc. A company representative explained that the work was hard and the hours long, in difficult conditions at sea in Alaskan waters, but that they could make a lot of money if they worked hard. Wayne asked how much money they would make. The representative said it depended upon how hard they worked and how much fish was caught. He handed them employment contracts that described compensation as a share of the fish sold, rather than an hourly wage. Each of the processors would receive one "share" if he or she worked at least 40 days. Working less than 40 days caused compensation to be reduced to 0.6 share. Also included was a paragraph stating that $50 per day would be charged for room and board to anyone refusing to work while the vessel was at sea. After being assured that females were given separate quarters, Wayne and Gabby signed the contracts.

Bering Pacific flew the job seekers to Dutch Harbor, Alaska, half way to Russia in the Aleutian Island chain, with the price of the plane tickets to be deducted from their earnings. They were assigned to separate ships, Wayne to the Iceberg, and Gabby to the Bering Pacific.

The Bering Pacific arrived first, to unload its fish and replace crewmembers, a lot of whom were getting off for unspecified reasons. At 200 feet the ship was the size of a small freighter. It had a crew of 46--mostly processors, along with several deckhands and a small complement of seamen and officers. Once aboard, Gabby realized she was sharing a very small cabin with not only one female, but also with two male cooks and a male observer for the National Marine Fisheries Service. Wayne complained to the "Director of Human Resources", also in Dutch Harbor, and was told that cabin assignments would not be changed but that he could switch vessels and go on the same ship as his wife, though not in the same cabin. They were not offered airfare home if the trade was not accepted. Wayne and Gabby agreed, reluctantly, and motored into the Bering Sea.

Gabby immediately accepted an offer to switch from processor to housekeeper, replacing someone who had left the ship. Her new job, less physically demanding, was to clean the heads, do laundry and assist in the galley--16 hours per day and seven days a week, a workweek of 112 hours. Wayne's work was more grueling. He worked in the factory, processing cod and other bottomfish as fast as he could--12 hours on, six hours off, continuously. He headed and gutted fish, froze, bagged, and stacked them on pallets, until everything became a blur. "Every day is Monday down here," one of the processors said. Fish heads and guts floated around his feet. The stench of dead fish and the rolling of the boat caused many of the greenhorns to vomit-including Wayne. But he kept working.

By mid-July the Bering Pacific had filled its holds with almost a half-million dollars worth of fish and motored back to Dutch Harbor to offload onto a Japanese tramp freighter. When the ship returned to the fishing grounds, Wayne slipped on the freezer deck and sprained his ankle. The captain gave him painkillers. He got 12 hours off then was told to go back to work. Wayne's ankle still hurt but he kept working.

By late July the Bering Pacific had filled its holds again and returned to Dutch Harbor. During this second offload, Wayne was stabbed in the hand by a fish spine sticking out of one of the bags he handled. He tried to keep working but his hand bled and swelled up. He went to speak to the captain. The captain said there was no need to fill out an accident report--even though the employment contract stated that injuries had to be reported in writing--and that he should soak his hand in bleach. Wayne went to the galley to get a container of bleach from Gabby.

The last straw was when Wayne's supervisor came into the galley and told him to get back to work. At that point Wayne and Gabby both quit. They took a skiff into town. A company car dropped them off at the airstrip in Dutch Harbor, Alaska, with no plane tickets and no money.

Wayne called his mother in Norfolk. Lucky for them, Wayne's mother had a friend with enough room on his credit card to charge the $1500-plus required to fly both to Virginia from Alaska.

Several weeks later, settlement statements came in the mail showing their earnings from working 16-hour days for a month. Instead of a paycheck, they each received a bill. Wayne was informed he owed the company $716.39; Gabby owed $378.63. In Wayne's settlement, for example, gross wages were slightly more than $900 (or about $2 per hour of work). Deducted from these wages were taxes, Social Security, Medicare, and minor amounts for soda and sundries from the ship's store. Also deducted was almost $1200 apiece for plane tickets, including $582 each for the fare from Dutch Harbor back to Seattle, plane tickets they had paid themselves! Besides being an illegal deduction from wages, that violated an Alaska law requiring that employers who bring workers into the state give them a way to get out.

Had Wayne and Gabby received minimum and overtime wages they would have grossed close to $3000/month. The Fair Labor Standards Act was enacted during the Depression in 1938 to guarantee workers a minimum wage. Exempted from the minimum wage laws, however, are fishermen and those engaged in the "first processing" of fish. At that time, U.S. fishing boats only caught fish, did minimal "first processing", then delivered the catch to canneries for the final processing on land.

U.S. factory/trawlers started showing up about 20 years ago, replacing some of the canneries on land. The processors on these boats are factory workers, like their counterparts on land, and not true fishermen. I say they should be entitled to the same guarantee of compensation. The fishing companies, however, take the position that "first processing" means the 'first time' fish are processed, never mind that it's also the final processing.

Processors are not unionized. Some companies in the fishing industry are trying to protect profit margins on the backs of their employees. How many other unsuspecting workers--many of them immigrants and college students--will end up working 16 hours a day for no pay?

I used Wayne and Gabby as test cases on how the Fair Labor Standards Act should be interpreted, filing one case in federal court and the other in state court. So far no judge has agreed with my interpretation of the law. We now await final judgments at the trial court level, before seeking relief from appellate courts. It may well turn out that processors can be protected by the Fair Labor Standards Act only with an act of Congress.

Meanwhile, back in Norfolk, Virginia, Wayne and Gabby both work in a nail salon. They had a baby, Daphne, born in the spring of 2000.

John Merriam is an attorney representing all types of seamen on wage and injury claims.