Wednesday, December 18, 2002
Consul Not Exempt From Suit by ‘Enslaved’ Employee—Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Republic of Korea’s deputy consul general in San Francisco and his wife are not immune from a suit for overtime wages and other compensation brought by a former live-in worker at their home, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel reinstated Tae Sook Park’s suit against Bong Kil Shin and his wife, Mee Sook Shin. U.S. District Judge Maxine Chesney of the Northern District of California erred in ruling that the suit was barred by the Vienna Convention on Consular Relations, Judge Susan P. Graber wrote for the appellate court.
Park’s complaint said she worked 13 to 14 hours per day, seven days per week for the Shins but was paid only $300 to $500 per month rather than the federal minimum of $5.15 per hour or the state minimum of $5.75 per hour in effect at the time. She also contended she was “enslaved” when her employers allegedly confiscated her passport and that they refused to return it.
Bong Kil Shin denied the accusations. He told a reporter he was “very much disappointed” by the suit and had considered Park a member of the family.
Park, a Chinese national of Korean descent, started working for the couple when Shin was stationed at the Korean Embassy in Beijing in 1996. After Shin was transferred to San Francisco, he obtained an A-3 (personal employee of consular official) visa for Park and she joined the family at its Milbrae home in February 1999.
Park claims she cooked, cleaned, took care of the Shins’ three sons and did extra work when the couple entertained, working from 6:30 a.m. on weekdays and from 8 a.m. on weekends until 10 p.m. every day. She left on Oct. 3 after being fired a week earlier, she alleges.
The deputy consul general claims that Park worked only two or three hours per day cooking dinner in addition to helping Mee Sook Shin with housecleaning once or twice a week. Park asked him to keep her passport because she feared losing it, he said.
He said Park “simply disappeared” in October 2000, leaving a short thank-you note, and the Shins worried about what had happened to her. Two months later, they heard from Korean Immigrant Worker Advocates in Los Angeles seeking back pay for her, Shin said.
Park claims in the complaint that she was fired and, not having friends or family in the United States, took a taxi to Los Angeles to seek help from the Korean community here.
The complaint seeks unpaid minimum and overtime wages, statutory penalties, as well as compensatory and punitive damages for failure to provide itemized wage statements, wrongful possession of Park’s passport, false imprisonment, infliction of emotional distress and unfair business practices.
Chesney held that the Shins are immune under a provision of the Vienna Convention which holds that consular officers and employees are not subject “to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.”
But Graber, writing for the appellate panel, said Park’s domestic chores were not consular functions, even if, as the Shins claim, her duties included cooking and serving in connection with consular events at the family home.
The appellate jurist distinguished a district court ruling that the Turkish consul general in New York was immune from a suit by a vice consul alleging a campaign of harassment designed to drive the plaintiff out of the consulate. While the management of a consulate is clearly a consular function, household domestic work is not, Graber said.
The facts of the case indicate that any benefit to the consulate from Park’s work was purely incidental to her employment as the Shins’ personal servant, Graber said. She noted that Park had an A-3 visa, rather than an A-2 visa as a consular employee; that she was paid by the Shins rather than by the Korean government; and that the time she spent working on consular events was a small percentage of the total hours she alleges to have worked.
Nor can the Shins claim immunity under the Foreign Sovereign Immunities Act, Graber explained.
The act immunizes foreign officials against suits for official acts, not for violating the rights of their personal employees, the judge said. Besides, she added, the employment of a domestic servant is a “commercial activity” and thus exempt from the FSIA.
The case is Park v. Shin, 01-16805.l
Copyright 2002, Metropolitan News Company