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Seattle city councilman’s wife may be violating state labor laws

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Seattle City Councilman Mike O'Brien said his wife will re-evaluate her use of volunteer workers at her fermented food kitchen in Ballard, following a KIRO Radio investigation. (KIRO Radio/Brandi Kruse)

The wife of Seattle City Councilman Mike O’Brien may be violating state law by accepting volunteer labor at her trendy fermented food kitchen in Ballard.

Julie O’Brien and a partner founded Firefly Kitchens in 2010 to share their “collective knowledge and passion” for naturally fermented products, such as kimchi, sauerkraut, and salsa, according to the company’s website.

Listen: Interview with Seattle Councilman Mike O’Brien

While the operation began on a small scale – using rented kitchen space and selling kraut at local farmers’ markets – the company scaled up production in 2012. By the end of 2013, according to the website, Firefly Kitchens had quadrupled its sales and distribution.

Firefly products are now sold at retailers in Washington, Oregon, California, Nevada, Arizona, Hawaii, and parts of Canada.

At PCC Natural Markets, jars of Firefly kimchi sell for more than $10.50 apiece.

Despite its growth, Firefly Kitchens has continued to use free labor, which could be a violation of state laws surrounding minimum wage.

During an interview with Evening Magazine, a local news and entertainment show, O’Brien highlighted the fact that Firefly Kitchens uses unpaid workers.

“I think one of the biggest things we do is we have volunteers come in and obviously it’s a win-win for us,” O’Brien said in the January 8 episode. “Because when we started, we didn’t have any money and we still don’t.”

“We would have these people who were so excited about this food that they would come and help us,” she told the show.

Evening Magazine did not mention that O’Brien was the wife of Seattle City Councilman Mike O’Brien, who was a leading proponent of an ordinance to raise the city’s minimum wage to $15 an hour. O’Brien once went as far as to march with fast food workers who walked off the job to demand higher pay.

KIRO Radio host Dori Monson questioned how Julie O’Brien could justify having unpaid volunteers when other small businesses have expressed concern over how to afford the $15 minimum wage that her husband helped to pass.

“(How) can you demand $15 an hour for all other businesses when your wife is not paying some of her workers because she can’t afford it?” Monson said on his show earlier this month. “When a councilman is demanding that businesses pay $15 an hour, whether they can afford it or not, and his wife is using volunteer labor – that is the height of hypocrisy.”

But Julie O’Brien’s actions may be more than hypocritical. They could be against the law.

The Washington Minimum Wage Act clearly states that volunteers are not allowed at a for-profit business.

Firefly Kitchens is registered as an LLC, or Limited Liability Cooperation, with the Washington Secretary of State’s Office and does not have nonprofit status with the Internal Revenue Service (IRS).

“If I’m a for-profit business, then the people I get to work for me are employees,” said Matthew Erlich, a spokesperson for the Washington State Department of Labor and Industries. “Volunteers cannot replace actual workers that would have to be hired to do the same job.”

Erlich could not speak to specifics about Firefly Kitchens, but said not even family members could work as volunteers and would have to be paid at least minimum wage. There are certain exceptions for farms, he said.

The law is meant to protect workers, business owners, and taxpayers.

“It opens the door to a lot of problems, because like a lot of laws, they’re put in place to prevent certain abuses,” said Patrick “Leo” McGuigan, a Seattle labor attorney. “You can’t allow it because it can be abused. People can be manipulated and made to say they’re volunteers.”

Erlich said the law also prevents issues surrounding on-the-job injuries.

“To have somebody coming in and doing volunteer work, there aren’t protections for that person or the employee,” he said.

In 2010, a winery in California was fined $115,000 for using volunteer labor after one of those workers was injured on the job and tried to make a workers’ compensation claim.

The California Department of Industrial Relations cited Westover Winery in July 2014 for not paying minimum wage, not providing wage statements, and not paying workers’ compensation insurance.

The winery was fined $29,375 for back wages, $29,375 in liquidated damages, and $56,800 for minimum wage violations, pay stub violations, and failure to have workers’ compensation coverage, the department said.

California and Washington have nearly identical laws when it comes to who can utilize volunteers.

McGuigan, the labor attorney, said business owners have a responsibly to know those types of laws.

“To say that you don’t know, that you think people can just walk in and start working for you? That’s a hard sell, as far as I’m concerned,” he said.

Since opening in 2010, Julie O’Brien and her business partner have spoken with several media outlets about Firefly Kitchens. In those interviews, they discussed openly the use of volunteer labor.

“They’re very proud that the business has grown and it’s grown apparently because they have the help of the community, which now I understand means people working for free,” McGuigan said. “I don’t want to jump to any conclusions, but I would say they need to have a look at the law.”

Councilman Mike O’Brien told KIRO Radio on Tuesday that neither he nor his wife were aware that the use of volunteer workers was forbidden at a for-profit business. O’Brien said he himself had volunteered for Firefly, selling their products at a local farmers’ market.

“It didn’t cross her mind, I don’t think, to go look at what are the state’s wage rules,” he said. “Regardless of whether I’m a city councilmember or not, my wife runs a small business in Seattle. She need to abide by all those laws.”

Asked whether he had read the state’s minimum wage law while researching whether to raise Seattle’s minimum wage, O’Brien said he had not seen the section of the law that deals with volunteer labor.

“I know that running a small business is a challenge, you have to wear so many different hats,” he said. “You’re focused on bringing a product market and making a living, and there’s lots of regulations – for good reason, that are in place.”

He said his wife will reevaluate her use of volunteers.

“Julie takes this very seriously,” he said. “Firefly Kitchens is going to go back and do their best to understand how the law applies, if there are volunteers being used out of compliance, they will get into compliance and make them whole.”

A call directly to Firefly Kitchens was not returned.

An Issaquah woman who claimed to have volunteered at Firefly told KIRO Radio she was excited about the opportunity to learn and did not expect to be paid.

“They have volunteers the first Thursday of each month and I could not wait to be a part of it,” she wrote in an email. “It is amazing to me that they are willing to help share their secrets to us knowing that we will no longer be purchasing their products in Whole Foods or the PCC. It’s about getting healthy and feeling better and they offer me that when I am able to join them in their kitchen and learn the technique.”

Erlich said the Department of Labor and Industries would launch an investigation into Firefly Kitchens if a complaint were made.

He said violations of state wage law can be costly, particularly for small businesses.

“It’s just much easier to pay people for the work that they do,” he said.

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