Migrant Worker Women Advancing Gender Equity through the USMCA

Men only, 1835 years old. 

In 2021, seeing a job posting with those words is startling. Shocking even. But more than a year into a world-changing pandemic that has pushed millions of women out of paid work, U.S. employers continue to discriminate against women, posting ads like that one. To evade legal consequences, U.S. businesses discriminate in Mexico, hiring men to work in the United States with temporary H-2 guestworker visas while turning women away. Other U.S. businesses discriminate by hiring women but channeling them into lower-paying jobs with poorer conditions than those they hire men for. Although the U.S. government knows that H-2 employers discriminate against women, it has done little to stop them. 

For more than fifteen years, since I founded Centro de los Derechos del Migrante, Inc. (CDM)—the first transnational workers’ rights organization based in Mexico and the United States—I have heard from women in Mexico about patterns of abuse in the U.S. H-2 programs. Migrant women have courageously spoken out about blatant discrimination in H-2 recruitment and hiring, sexual harassment and other violence against women at work, unfair pay, and unlawful working conditions. Women report discrimination in industries ranging from Maryland’s blue crab processors to fruit and vegetable sorting. Sex discrimination persists in H-2 labor supply chains even though U.S. law prohibits employers and labor recruiters from discriminating against women. Laws prohibiting discrimination protect all women who work in the United States, even if businesses hire them outside of the country.

Today, migrant women continue the fight for gender justice. In March, in honor of Women’s History Month, CDM and workers’ rights organizations across North America joined migrant women in filing the first viable state-to-state complaint under the new United States-Mexico-Canada trade agreement (USMCA). The USMCA’s labor chapter, Article 23, requires the United States to enforce its anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. In failing to root out discrimination in H-2 recruiting, hiring, and employment and neglecting to ensure gender equity in the program, the United States is violating Article 23. 

In the complaint, we collectively make three demands:

  1. The U.S. government must end sex discrimination in the H-2 guestworker programs once and for all.
  2. The government must ensure that all workers have access to Legal Services Corporation-funded civil legal services. (Without lawyers working in solidarity with them, it is nearly impossible for migrant women to access justice through U.S. courts.)
  3. The government must investigate discrimination complaints from women in the H-2 program under Title VII of the Civil Rights Act, rather than ignoring or summarily dismissing them.

And to increase pressure on the Administration, we are filing a supplemental complaint with Professor Sarah Paoletti, a Practice Professor of Law and the Director of the Transnational Legal Clinic at the University of Pennsylvania School of Law. The supplement will address the U.S. government’s obligations under the ILO and international human rights law to end discrimination in the H-2 program.

We have reasons to be hopeful that the USMCA can serve as a tool to improve access to transnational justice for migrant workers. Unlike NAFTA—the old trade agreement with its toothless labor side accord—the USMCA has a mechanism for migrant workers and their advocates to push governments to comply with labor and employment laws—or face sanctions. Concretely, this means that the U.S. government may face sanctions if it maintains the status quo and ignores the grave abuses that the petitioners report in the H-2 program. It means that the U.S. Equal Employment Opportunity Commission must end its practice of failing to investigate and meaningfully respond to migrant women’s discrimination complaints. And it means that the U.S. Departments of Labor and Homeland Security must stop allowing H-2 employers to discriminate without consequences. In receiving and reviewing our petition, the governments are legally responsible for showing us that they meant what they said about protecting migrant workers’ and women’s rights when they signed the agreement. 

The historic process for the migrant women petitioners began in Mexico, where we filed the USMCA complaint with the Mexican government. Mexico formally accepted the complaint and is now investigating discrimination and other abuses in the agricultural and protein processing industries, the industries in which the petitioners work. Earlier this month, Mexico asked the United States to honor its obligations under the USMCA and invited cooperation in doing so. And now the Biden-Harris Administration has the opportunity to make good on the promise of the USMCA and proactively address the urgent issues we raise in the complaint.

For too long, U.S. businesses have used the H-2 programs to bypass our civil rights and labor laws. Left without government oversight, H-2 employers have enacted their sexist, racist, and ageist ideas about the kinds of workers who maximize profitability. Sex discrimination in the H-2 program harms not only migrant women from Mexico but also U.S.-based workers. 

Over the next year, as we rebuild the U.S. economy for a sustainable and equitable recovery, justice for migrant women must be at the fore of the government’s labor and employment policies and practices. And next Women’s History Month, we look forward to celebrating meaningful, sustainable reforms in the H-2 program that will end discrimination against migrant women and promote access to justice. 

We would be grateful for your support in standing with migrant worker women to fight against discrimination. Please email me (rachel@cdmigrante.org) to join the supplemental complaint on the U.S. government’s obligations under the ILO or to submit an amicus in support of migrant worker women. 

On borrowed time: Five years after the Rana Plaza disaster, the Bangladesh Accord faces court-ordered closure

 

Five years ago, sometime before 9am on 24 April 2013, cracks started to appear in the Rana Plaza building in the Dhaka District of Bangladesh, revealing a structural failure that caused the eight-story commercial building to collapse. The building contained five garment factories supplying major global brands and retailers.

It only took 90 seconds for Rana Plaza to collapse, but it took two weeks to search for the dead. When the search ended on 13 May 2013, the total of lives lost was over 1,100.

The tragedy spurred textile and clothing companies into action. In May 2013, global fashion brands and retailers and trade unions signed the Accord on Fire and Building Safety in Bangladesh (the “Bangladesh Accord“), a ground-breaking worker safety agreement. Adidas, H&M and Esprit are amongst the signatories.

The most famous pillar of the Bangladesh Accord is its five-year legally binding agreement between brands and trade unions to ensure a safe working environment in the Bangladeshi ready-made garment industry. This feature gained notoriety when a case was filed at the Permanent Court of Arbitration in The Hague in October 2016 by two global unions, IndustriALL Global Union and UNI Global Union, to hold two unnamed multinational companies to account. The case eventually settled for $2.3 million in January 2018.

There are, however, additional components to the Accord, including, importantly, the creation of an independent inspection programme.

The Accord, which gathered the support of more than 250 brands and retailers from over 20 countries, was originally established for a limited time of five years – until May 2018.

In May 2017, the Remediation Coordination Cell (“RCC“) was established under the government of Bangladesh’s National Initiative, with a view to take over from the Accord to implement the remediation process for garment factories.

In June 2017, leading fashion brands and global trade unions announced at the OECD Global Forum on Responsible Business Conduct that they would enter into a new agreement, which would come into effect in 2018. Later that year, a transition agreement (the “2018 Transition Accord“) was signed, extending the Accord’s mandate for another three years, and allowing it to continue its operations until the RCC was ready to take over the platform’s responsibilities.

Everything seemed on track to guarantee a smooth continuation of the Accord’s activities… until judicial proceedings were started by a Bangladeshi factory owner who had failed to remedy safety breaches, and was therefore removed from the list of factories that Accord signatories are allowed to source from.

The factory owner sued the Accord. In April 2018, in an extraordinary unilateral action, the Bangladesh High Court issued a “suo moto” restraining order against Accord office operations. The restraining order is due to come into force on 30 November. This means that, in two days, the Bangladesh Accord will have to close its Dhaka office, severely limiting its scope of work and its ability to inspect thousands of factories supplying clothes for brands such as H&M, Esprit and Primark.

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Brazilian NGO addressing environment and human rights receives inaugural Human Rights & Business Award

Justica nos Trilhos - logo

The Brazilian NGO Justiça nos Trilhos will receive the inaugural award from the Human Rights and Business Award Foundation, the recently-formed foundation announced today.  The award, which is accompanied by a $50,000 grant, is made in recognition of “outstanding work by human rights defenders in the Global South or former Soviet Union addressing the human rights impacts of business in those regions”.

As the foundation states in its press release:

Justiça nos Trilhos is an organization working closely with local communities in remote parts of Brazil – including indigenous peoples, peasants, and Afro-descendants – to address human rights and environmental abuses by mining and steel companies, in particular the multinational Vale.

Mining and steel companies have polluted the rivers on which these people depend for drinking water and their livelihoods, polluted the air causing respiratory and eyesight problems, contaminated the soil with industrial waste, displaced communities, and decimated the cultures and lives of indigenous peoples.

The foundation notes:

The human rights defenders of Justiça nos Trilhos, and the local communities they work with, have been subjected to surveillance and retaliatory lawsuits by Vale.

Information about the Vale mining company is available here.  Two stories about the work of Justiça nos Trilhos, the first of which includes Vale’s responses:

Session on Tuesday at UN Forum on Business and Human Rights

BHR ForumDanilo Chammas, a lawyer at Justiça nos Trilhos, will accept the award on behalf of the organization at a session being held at the United Nations Forum on Business and Human Rights in Geneva on Tuesday 27 November. The session “will be an interactive learning and discussion opportunity, linking the particular experiences of the award recipient and the lessons learned through those experiences to the Forum’s priority issues including human rights due diligence, sector-focused challenges, and the UN Guiding Principles [on Business and Human Rights]”.

Human Rights & Business Award – Human rights defenders in the Global South
– Tuesday 27 Nov, 18:15-19:45, Room XX, Palais des Nations, Geneva
– The session’s objectives, key discussion questions, and discussants:  here

The Business and Human Rights Award Foundation was established by the founder of the award-winning Business and Human Rights Resource Centre, Chris Avery.  The foundation website was launched today in eight languages.

Press release announcing the 2018 Business and Human Rights Award:

 

Women challenge sexism in U.S. and Canadian guest worker programs through bold and innovative NAFTA labor petitions

In July  2016, UFCW Canada and Centro de los Derechos del Migrante (CDM)  filed petitions under NAFTA’s labor side agreement alleging sex discrimination in recruitment for the Canadian  Seasonal Orange tiger liliesAgricultural Worker Program (SAWP) and the U.S. H-2A and H-2B agricultural and low wage visa programs. In early 2018, CDM filed a supplement to its petition, arguing that sex discrimination is pervasive in recruitment for professional visa programs as well as low wage visa programs.

Because of sex discrimination in recruitment, less than 4 percent of the workers who participate in U.S. and Canadian agricultural and low wage guest worker programs are women. While working conditions in guest worker programs are rife with human and labor rights issues, they still represent economic opportunity for women who would like to participate.  Moreover, women who are excluded are forced into migration through informal channels, leading to the risk of violence, human trafficking, and even worse working conditions.

These two bold and innovative petitions highlight in a tangible and human way the bifurcation of global migrant labor markets.  Global migrant labor markets bifurcated based on gender exclude women from economic opportunity based on gender stereotyping. Discrimination in recruitment and treatment of women in the global migrant labor market is the norm, not the exception.

My forthcoming article in the Employee Rights and Employment Policy Journal discusses and compares the facts and claims raised in each petition under applicable legal frameworks in Canada, the U.S., Mexico, and the North American Agreement on Labor Cooperation (NAALC). The article explores possible outcomes of the petitions given the nuances and political environments in the Canadian and U.S. cases and the current state of relations between the Government of Mexico and its North American neighbors. Finally, the article places sexism and gender stereotyping in North American guest worker programs in an international context, discussing other examples of sexism in the global labor market and existing norms in ILO Conventions and CEDAW Recommendation No. 26 on Women Migrant Workers.

Row of flowers and sidewalkIn the Canadian case, the article argues that the Governments of Canada and Mexico should renegotiate international agreements that form the SAWP to implement the recommendations of the Mexican Council on the Prevention of Discrimination. In the U.S. case, the article argues that the Government of Mexico should pursue the establishment of an Evaluative Committee of Experts (ECE) under Article 23 of the NAALC if the U.S. does not enact and enforce meaningful reforms to eliminate sex discrimination in the H-2A and H-2B visa programs.

This article is the direct result of the supportive research community that has grown up around the IntLawGrrls blog. I first presented it as part of a wonderful panel at the IntLawGrrls 10th Birthday Conference in Athens, Georgia in March 2017.  Moderated by Jaya Ramji-Nogales and featuring Karen Bravo, Deepa Das Acevedo, and Urvashi Jain, this panel focused on exclusion – whether the exclusion of transgender children from schools in India, of persons from their fundamental humanity through slavery and human trafficking, of women from the Hindu temple at Sabarimala, or of women from economic opportunities represented by international guest worker programs.  I am grateful to my fellow panelists, to IntLawGrrls, and to the Dean Rusk International Law Center at the University of Georgia Law School for a transformative experience.

Olga PedrozaMy article is dedicated in part to Olga Pedroza of Las Cruces, New Mexico, who unfortunately passed away earlier this year. Olga was my boss when I worked as a farmworker intern at Southern New Mexico Legal Services during law school. Olga introduced me to a world I never imagined, where migrant farm workers sleep on sidewalks in El Paso to catch 4:00 a.m. school buses to ride hours away to pick chiles, tomatoes, and onions in Southern New Mexico.  It was because of Olga that I sat in a renovated chicken coop in Artesia, New Mexico, talking to a farmworker who told me that he and other farmworkers did not deserve any better. After her retirement from Southern New Mexico Legal Services, Olga served as a Law Cruces City Councilor for 8 years. Olga was a tireless and lifelong advocate for the excluded. She will be missed.

Working women and evolving labor standards in U.S. and Canadian free trade agreements

My forthcoming article in the Comparative Labor Law & Policy Journal discusses and compares the evolution of labor standards in U.S. and Canadian free trade agreements (FTAs) since 2000.  It then assesses their usefulness as tools to improve IMG_0646working women’s rights.

With few exceptions, all U.S. and Canadian free trade agreements have included labor provisions since 1994.  They also contain procedures for members of the public to file petitions that trading partners have not met their labor obligations under FTAs.

After 2000, the governments of Canada and the U.S. both incorporated the 1998 ILO Declaration on Fundamental Principles and Rights at Work as the guiding standard for labor rights in free trade agreements.  The four core labor standards in the ILO Declaration are (1) abolition of child labor; (2) elimination of discrimination in the workplace and occupation; (3) elimination of all forms of forced or compulsory labor; and (4) freedom of association and the effective recognition of the right to collective bargaining.

My article examines the outcomes of a number of recent cases filed under the labor provisions of U.S. FTAs, including the U.S.-Bahrain FTA, U.S.-Peru FTA and the U.S.-Central America-Dominican Republic FTA (CAFTA-DR).   The article also compares civil society advocacy efforts in Canada and the U.S. related to the negotiation of free trade with Colombia and discusses the implementation of a Labor Rights Action Plan (LAP) between the U.S. and Colombia as a pre-condition for Colombia’s entrance into the U.S.-Colombia FTA.

A definite evolution is observed in the investigative methods, problem-solving techniques and types of remedies adopted in reports issued by the U.S. Department of Labor (USDOL) in response to public petitions filed under FTA labor provisions during the Obama Administration (2009-2016).  In addition to making fulfillment of certain labor standards commitments a pre-condition to formal entry of trade relations between U.S. and Colombia, USDOL (a) called on one trading partner to pass legislation prohibiting discrimination in the workplace (Bahrain); (b) worked with another trading partner to develop a method for denying export permits to companies that did not comply with labor court orders (Guatemala); and (c) timed the issuance of labor administration and/or elimination of child labor grants with the issuance of reports (Honduras, Dominican Republic).  USDOL also increased its capacity for addressing threats of violence against trade unionists in the territory of U.S. trade partners (Colombia).

Despite evidence of improvement in USDOL’s administration of labor petitions under FTAs since it first started receiving petitions in 1994, definitional shortcomings in U.S. FTA labor provisions weaken their utility as advocacy tools for workers as a whole and women in particular.

One problem is that only 75% of the ILO Declaration is incorporated into the definitions sections of the U.S.-Jordan FTA and CAFTA-DR.  Both agreements fail to specifically include equal pay for equal work for women and men and the elimination of workplace discrimination in the Definitions section for purposes of international dispute resolution.  This leads to textual uncertainty as to whether discrimination on the basis of sex or other grounds is covered.  As a result, gender-related claims in an omnibus petition filed about labor law and administration in Honduras were ignored in a 2015 USDOL report under the CAFTA-DR.  Ironically, comparison of the 2012 Honduras CAFTA-DR case with the 1997 Pregnancy Testing in Mexico case shows that the NAFTA has been a better advocacy tool for working women that the more modern CAFTA-DR.

Definitional shortcomings in post-NAFTA U.S. FTAs are not limited to incomplete incorporation of the 1998 ILO Declaration.  After 2000, U.S. FTA labor provisions limit the definition of “labor law” as applied to the United States to laws passed by the U.S. Congress.  This definition excludes all U.S. state labor laws, which cover compensation for workplace injuries, govern the time and manner of payment of wages, and guarantee trade union rights to state and local government employees.  My article shows how two 2012 reports released by the Government of Mexico about U.S. failure to comply with NAFTA labor obligations may have played a role in the U.S. decision to narrow the scope of the definition of U.S. labor law in FTAs.

In contrast, there is no such textual or definitional uncertainty in the labor provisions in post-NAFTA Canadian FTAs, which explicitly cover workplace discrimination and equal pay for women and men – as well as compensation for workplace injuries.  Canada currently has FTAs with labor provisions with Chile, Costa Rica, Peru, Colombia, Jordan, Panama, Honduras, South Korea and the European Union.  Canada also has Labor Cooperation MOUs with Brazil, Argentina and China.

The article shows how women’s rights advocates have creatively utilized FTA labor provisions as advocacy tools with mixed results  The most successful gender petitions focus solely on gender discrimination rather than burying gender claims in broader petitions.  Because of definitional shortcomings in U.S. FTAs, however, women’s rights advocates should consider filing labor petitions under Canadian FTAs in addition to or rather than U.S. FTAs.  Not only are the definitional provisions stronger, the petition procedures are very similar and Canada has stronger Equal Pay laws and culture.

Recently, Canada established itself as a leader on women’s issues by advocating for a gender chapter in the 2017 re-negotiation of NAFTA.  Mexico expressed support for the idea of a gender chapter, but observers opine that the U.S. would never agree to binding gender-related provisions in a renegotiated NAFTA – despite the fact that a non-binding 2012 U.S.-Mexico Memorandum of Understanding on Women’s Economic Empowerment is already in place.

As Mark Aspinwall rightfully pointed out in his August 2017 Forbes Op Ed, effective application of FTA labor and environmental provisions is heavily dependent on political will.  Even with strong political will backed by critical human and financial resources, the Obama administration’s free trade and labor agenda had some mis-steps and imperfect outcomes.  There is much work to be done to maintain the gains and momentum achieved.  Unfortunately, the current administration is already off to a bad start.  Congress has already called upon the Trump administration to ensure that U.S. trade partners Colombia, Dominican Republic, Guatemala, Honduras and Peru fulfill their commitments under ongoing labor action plans related to petitions filed under FTA labor provisions.  In addition to a lack of political will to address labor violations among trading partners, the current administration has not allocated sufficient human and financial resources to USDOL’s Bureau of International Labor Affairs to properly perform its duties.  In their September 19, 2017 letter to Trump adminstration officials, ranking Democratic members of the House and Senate called on USTR, USDOL and USDoS to fill five positions key to enforcement of FTA labor provisions.  Lack of political will and inadequate resource allocation risks slowing or stopping the evolution made by the last administration in the enforcement and application of labor provisions in free trade agreements.

Write On! [Slavery Past, Present In & Future]

This installment of Write On!, our periodic compilation of calls for papers, includes calls to present at Indiana University Europe Gateway, Berlin, as follows:

chains.jpgThird Global Meeting: Slavery Past, Present and Future, to be held July 10 & 11, 2018, at Indiana University Europe Gateway in Berlin, Germany. Theme is “Slavery Past, Present and Future.”

Controversial estimates indicate that up to 35 million people worldwide are enslaved today.  This modern re-emergence of slavery, following legal abolition over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of the individual victims and communities. This conference will explore slavery in all its dimensions and, in particular, the ways in which individual humans and societies understand and attempt to respond to it.

Deadline is Friday, March 2, 2018. For more information, click here.


IFC report on business case for workplace childcare reinforces maquiladora workers’ campaign in Central America

MSN 2016

MSN 2016

Lack of quality, affordable child care is a significant concern for working parents in every region in the world, regardless of country or socioeconomic status.  According to the 2017 OECD report The Pursuit of Gender Equality An Uphill Battle, single parents – usually working moms – in the U.S. and Ireland pay up to 45% of their disposable income for affordable childcare.  In countries like Honduras, El Salvador and Guatemala, the lack of quality, affordable child care is just one of several challenges to leveraging working people and entire countries out of poverty.  Other challenges include the lack of adequate social security provisions and inadequate or non-existent early childhood education programs.  Authors of the 2016 IADB study Cashing in on Education: Women, Childcare and Prosperity in Latin America and the Caribbean argue that the key to boosting Latin American countries out of poverty is female labor force participation – and that child care and early childhood education are key policy measures to move more women into paid work outside the home.  Social security contributions made by working women and their employers strengthen social security systems in poorer countries.  Reducing pay gaps between women and men would strengthen social security systems even more.

Maquiladora workers, trade unions and women’s rights activists in Honduras and El Salvador made workplace funded child care a key platform in their workplace advocacy campaign in 2014.  With the collaboration of Canada-based Maquiladora Solidarity Network, they have focused their advocacy efforts on international apparel brands, industry associations and governments to develop and implement viable childcare solutions.

As outlined in MSN’s  guide to legal requirements and international conventions Childcare in Central America, labor laws in Honduras, El Salvador and Guatemala require employers to provide child care facilities for their employees.  In 2014, the Government of Honduras, Honduran trade unions and the Honduran Manufacturers Association entered into a tripartite agreement to work on establishing some form of employer-provided child care program for textile manufacturing workers.  Employers have been slow to fund child care centers due to cost and capacity factors as well as lack of clarity in Honduran law – stalling the process.

IFC Tackling Childcare p. 21

IFC 2017, p. 21.

Reinforcement for Central American maquiladora workers’ campaign for employer-provided child care has come from an unexpected source.  The IFC’s new report  Tackling Childcare The Business Case for Employer-Supported Childcare uses case studies to show that not only is sponsoring child care programs the right thing to do, it is the right thing to do to succeed in business.  As expected, the case studies examined include white collar employers in the IT, financial services, and healthcare industries in wealthy countries like the United States, Japan and Germany.  More to the point to maquiladora workers in Central America, the case studies include blue collar employers in garment manufacturing, agriculture and heavy manufacturing industries in low- and middle-income countries like Jordan, South Africa, Turkey and Brazil.  In fact, the IFC report emphasizes the heightened need for high quality employer-sponsored child care in low income countries, where lack of access to quality early education and care programs can have a long-lasting negative impact on the growing minds of children – and where the economic security of families is threatened when parents must choose between working to provide for their families or staying at home to care for their children.

The report shows that investing in child care improves employee performance by reducing absenteeism, enhancing worker productivity, and increasing employee commitment and motivation.  The positive impression and improved  company reputation resulting from providing quality child care can help companies recruit and retain good employees.  In countries like Honduras, El Salvador and Guatemala where employer-sponsored childcare is a legal requirement, companies can attract more international business by showing their compliance with local laws.  Thus, making an investment in child care programs can be an income generator for companies.

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Making the human rights case for including compensation for workplace injuries in free trade agreements

According to lore, laws requiring compensation for workplace injuries came about as a Grand Bargain between workers and employers.  In exchange for limited liability, employers would ensure that workers receive medical care and wage benefits for workplace injuries without having to prove that the employer was at fault.  This bargain has become frayed and tattered over the last few decades as employers and insurers find ways to shirk their responsibility toward injured workers.  This is especially the case when it comes to immigrant workers, as evidenced by two hair raising reports published by Pro Publica and The New York Times in recent weeks.

For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported.  Although public policy and extensive case law in the U.S. guarantee workers’ compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities. Grabell and Berkes tell the story of father of three who spent a year and a half in jail and immigrant detention before being deported after suffering a severe back injury due to a fall at work.  After the worker’s doctor recommended expensive back surgery, his employer’s insurer reported him to U.S. Immigration and Customs Enforcement (ICE) for using a false social security number.  Other workers find themselves ambushed by ICE agents after giving depositions at their lawyer’s office or attending hearings.  One mother of three who had been in the U.S. since she was a teenager spent years in jail and immigration detention after suffering a workplace injury, only to learn upon finally being released that the father of her children sexually abused their 10-year-old daughter.

Having legal documentation is no guarantee that immigrant workers receive proper compensation for workplace injuries.  In his August 13, 2017 New York Times article Foreign Farmworkers in Canada Fear Deportation if They Complain, Dan Levin reported the story of a father of four from Jamaica who worked in Ontario for 9 seasons under a Canadian temporary agricultural labor program until he was sent home in 2008 after hurting his back while picking peaches.  Although he was permanently disabled, compensation for his injury ended in 2011 because he would be physically able to work as a cashier in Ontario – despite being ineligible for a Canadian work visa and unable to obtain a visa to appear in a hearing appealing the decision.  Migrant workers with temporary labor visas in the U.S. often find themselves uninvited to return to work in the U.S. after they suffer workplace injuries or complain about workplace conditions, encountering extensive cross-border administrative and legal complications when they try to obtain compensation rightly owed them under the law.

In addition to rupturing a century-old Grand Bargain between employers and workers, utilization of federal immigration procedures to avoid full payment of workers’ compensation claims is a violation of the human rights of immigrant workers.  In November 2016, the Inter-American Commission on Human Rights publicly released a report defining the right to compensation for workplace injuries as being within the scope of human rights protection.  In its report on the merits in the case of Leopoldo Zumaya and Francisco Berumen Lizalde, two undocumented  workers who were deported after making workers’ compensation claims, the IACHR found the U.S. to be in violation of its human rights obligations under the 1948 American Declaration of the Rights and Duties of Man.

In particular, the IACHR found that the U.S. violated the undocumented immigrants’ rights under Article II (right to equality before the law) and Article XVI (right to social security).  In the case of Mr. Lizalde (who, unlike Mr. Zumaya, received no compensation before being deported), the Commission found that the U.S. had violated Article XVII (right to recognition of juridical personality) and Article XVIII (right to a fair trial).  In its legal analysis, the IACHR concluded that the right to equal protection applies to nationals and non-nationals alike regardless of their legal status and authorization to work.  The Commission also observed that workers’ compensation programs fall within the definition of “proper conditions” of work under Article 45(b) of the OAS Charter, defined as those that “ensure life, health, and a decent standard of living for the worker and his family…”  These rights apply when the State allows private persons (such as insurers and employers) to act with impunity toward the human rights of others.  Though not integral to its analysis, the IACHR mentioned that countries have an obligation to protect the physical integrity of people within their jurisdiction.

One surprising source of rights cited by the IACHR was the 1994 North American Agreement on Labor Cooperation (NAALC), the supplemental labor accord to the North American Free Trade Agreement (NAFTA).  Under the NAALC, the U.S., Canada and Mexico agreed to promote 11 labor principles, including workplace safety; compensation for workplace injuries and illnesses; and protection of migrant workers.

NAFTA is the only U.S. free trade agreement that includes workers’ compensation in its definition of labor law – though Canada continues to include workers’ compensation in its FTA labor provisions.  In addition to requiring effective enforcement of labor laws, the NAALC contains cooperative mechanisms that could be used by member states to address the complications that arise in the case of cross-border workers’ compensation and other labor cases involving immigrant workers.  Employers and insurers that shirk their obligation to injured workers transfer the cost not only to the injured worker herself, but to the health care system of her country of origin.

Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers’ compensation or protection of migrant workers – but they should.  Labor provisions in FTAs contain mechanisms that can enhance member states’ ability to protect human rights.   While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues.  They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind – and act accordingly to ensure that workers’ compensation is included among the labor rights protected in any re-negotiated agreement.

Child trafficking in the fishing industry on Lake Volta

Challenging Heights is an anti-trafficking, anti-slavery, children’s rights NGO located in Winneba, Ghana, approximately an hour and a half outside of Accra, the capital. Inspired by the president and founder’s own experience being trafficked and enslaved as a child, the organization serves source communities, which are communities where children are trafficked from, in order to achieve its strategic goal of ending child trafficking in the fishing industry in Ghana in five years and ending child slavery in the fishing industry in Ghana in ten years.

 

During the Advocates Program, Challenging Heights provided an in-depth overview of every aspect of the organization. Each day, I was amazed by the breadth (and depth) of the organization’s programs. Not only does Challenging Heights rescue children from Lake Volta, rehabilitate them in a shelter, reintegrate them with their families and monitor them after reintegration, it also provides livelihood support to reintegrated children’s families as well as other vulnerable children’s families, conducts a youth empowerment program to tackle the root cause of poverty, campaigns against corporal punishment and child marriage, conducts alternative dispute resolution with slave masters to make sure children are given what they are owed for their labor, distributes 80,000 Tom’s shoes a year to schoolchildren, supports education with its newly independent Friends International Academy, conducts research projects on issues connected to its programs, and advocates for children’s rights locally, nationally and internationally.

 

The passion of the staff members of Challenging Heights layered each and every session throughout the Advocates Program. The communications officer, in the campaign against child marriage, hands out flyers that include her personal phone number so that people in danger of being married as a child or who know a child in danger of being married can call her for help. The rescue team risks their own lives to go out on the lake to rescue trafficked and enslaved children from slave masters. The shelter manager reminded us of the realities and challenges of shelter life, but when asked about her greatest success said, “Every single day when I see children laughing it’s a success. Even when they are crying, it’s a success because they can express their emotions”.

 

Despite the dedication and passion of Challenging Heights and its staff, slave masters and traffickers continue to traffic and enslave children without legal repercussion. In 2016, there were no convictions under Ghana’s anti-trafficking law, due to insufficient resources devoted to collecting evidence which hinders investigations according to the State Department.  Challenging Heights staff was certain Ghana would be moved to the Tier 3 watch list for trafficking in persons this year due to the government’s lack of action. However, the State Department granted Ghana a waiver because of a written plan that would have an impact if implemented. The Trafficking in Persons watch list levels are based on minimum standards for the elimination of trafficking in persons the US State Department created.

 

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UN Special Rapporteur issues report on workers’ human rights to freedom of association and peaceful assembly

image-of-worker-rights-posterUN Special Rapporteur Maina Kiai presented his report on the rights to freedom of peaceful assembly and association in the workplace to the UN General Assembly on October 20, 2016.

The Special Rapporteur on the rights to freedom of assembly and association was created in October 2010 by UN Human Rights Council Resolution 15/21 and renewed in September 2013 (UN HRC 24/5) and September 2016 (UN HRC 32/32).  The current Special Rapporteur Maina Kiai has been serving since May 2011.

General Assembly Report A/71/385 examines the rights to assembly and association in the workplace with a special focus on the most marginalized – global supply chain workers, informal workers, migrant workers and domestic workers.

In remarks made on October 21, Maina Kiai recounted how years before, his human rights NGO in Kenya attempted to assist local workers but encountered friction from the local trade union.  It is thus no surprise that the Special Rapporteur calls for obliteration of “the antiquated and artificial distinction between labour rights and human rights generally.  Labour rights are human rights, and the ability to exercise those rights in the workplace is a prerequisite for workers to enjoy a broad range of other rights, whether economic, social, cultural, political or otherwise.”

The report outlines the international legal framework establishing the principle that Worker Rights are Human Rights.  The rights to peaceful assembly and association are recognized in Article 20 of the Universal Declaration of Human Rights.  They are recognized as first generation human rights in Articles 21 and 22 of the International Covenant on Civil and Political Rights – with Article 22 specifically including “the right to form and join trade unions” within the right to freedom of assembly.

The International Covenant on Economic, Social and Cultural Rights recognizes the rights to assembly and association as second generation human rights.  Article 8 of ICESCR recognizes the rights for individuals to form and join trade unions and for trade unions to create and join national and international federations.  Article 7 of ICESR recognizes other work-related rights as human rights, including:

  • fair wages that guarantee a decent living for workers and their families;
  • equal pay for work of equal value
  • equitable working conditions for women and men;
  • safe and healthy workplaces;
  • equal opportunity in the workplace;
  • rest, leisure and reasonable limits on working hours; and
  • paid vacation and holidays.

The rights to freedom of association and collective bargaining are also enshrined in ILO Conventions 87 and 99.  They are foundational rights essential to the protection of core labor rights in the 1998 ILO Declaration on Fundamental Rights at Work, so States must respect them whether or not they have ratified these 2 conventions.  The Special Rapporteur observes that the Right to Strike has been established in international law for decades and has in fact become customary international law.

States must respect, protect and fulfill the rights to freedom of assembly and association.  States must ensure full enjoyment of these rights for both women and men under Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women.  Many women around the world are excluded from protection under national labor rights regimes because they work in the informal economy.  An estimated 60.7% of the world’s workers toil in the informal economy, where employment relationships are not legally regulated.

Others excluded by law from protection in many countries include migrant, domestic and agricultural workers.  Report A/71/385 declares unequivocally that States that discriminate against or exclude certain groups from protective legislation violate their obligations to respect and protect the rights to peaceful assembly and association.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families recognizes human rights standards protecting migrant workers.  For both authorized and unauthorized migrant workers, exclusion from legal protection and lack of assembly and association rights are compounded by harsh immigration laws and unscrupulous labor recruitment organizations.  The report points to guest worker programs in Bahrain, Kuwait, Oman, Saudi Arabia, Qatar, the United States, the U.K. and Zimbabwe that legally and structurally deny migrant workers’ rights to assembly and association.  Workers in these programs who attempt to exercise their rights risk being blacklisted, deported, evicted, denied future visas, threatened with violence and physically assaulted.

Violence – including gender- and racial or ethnic-based violence – is frequently used by States and others to deter the exercise of rights to freedom of peaceful assembly and association.  In 2015, trade unionists were murdered in 11 countries – Chile, Colombia, Egypt, El Salvador, Guatemala, Honduras, Iran, Mexico, Peru, South Africa and Turkey.

The Special Rapporteur issued recommendations not only to States, but to Businesses, the ILO, the United Nations and multilateral financial institutions like the World Bank and IMF as well as to trade unions and civil society.

Key among those recommendations to States are:

  • ratification of relevant international and human rights instruments;
  • taking measures to ensure that workers in vulnerable situations have the ability to fully and effectively exercise their rights to freedom of assembly and association;
  • prohibiting companies that fail to respect those rights from bidding on public contracts; and
  • protecting and promoting the assembly and association rights of migrants.

Businesses should:

  • commit to the principle that labor rights are human rights;
  • respect the rights of workers to form and join trade unions and engage in collective action;
  • engage in collective bargaining;
  • refrain from anti-union practices and policies; and
  • implement the Guiding Principles on Business and Human Rights.

The ILO should:

  • set standards to extend rights to freedom of association and collective bargaining to informal workers; and
  • focus on governance gaps for workers in global supply chains.

The UN and MFIs should:

  • consult with trade unions and worker organizations to ensure that assembly and association rights are promoted and protected in their policies and programs.

Civil society and trade unions should:

  • create alliances to monitor the effective implementation of the Rapporteur’s recommendations;
  • commit to the principle that labor rights are human rights; and
  • continue to advocate for equal opportunity to present their views to governments and businesses.

Finally, trade unions should:

  • specifically target outreach and advocacy toward the historically disenfranchised, including domestic, migrant and informal workers.