Saturday, June 23, 2018

Bold and innovative NAFTA labor petitions spotlight gender discrimination in international migrant labor market

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 Agricultural 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 Journaldiscusses 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.
Also published at IntLawGrrls.

Sunday, June 17, 2018

Mexico moves toward elimination of labor protection contract system with some hurdles along the way

The practice of protection unionism in Mexico appears to be on its way out - though slowly, with several bumps in the road.  In early 2017, the Mexican Congress passed sweeping constitutional reforms to eliminate protection unionism through replacement of tripartite labor boards with independent labor courts.

My recent piece in the ABA Section of Labor and Employment Law International Newsletter provides an update on legislative efforts to implement the constitutional reforms. According to Proceso, a leading political analysis magazine in Mexico, President Peña Nieto's administration introduced the reforms to meet labor commitments as part of the process of negotiation the Trans-Pacific Partnership.

Labor protection contracts exist at the intersection of international labor standards, free trade, and corporate compliance - particularly compliance with the U.S. Foreign Corrupt Practices Act (FCPA).  Long denounced by Mexican and international labor and human rights activists, these contracts are negotiated by employers and representatives of "official" unions before a company opens its doors - and without the participation or knowledge of workers.

Less recognized by Mexican and international companies that engage in protection unionism in Mexico is the serious corporate compliance risk presented by the practice because of the current configuration of tripartite labor boards in Mexico.  Payments made by employers to leaders of "official" unions may in fact be payments to government officials, since these individuals often serve as labor representatives on tripartite labor boards and as officials in local and federal government.  For example, as reported by Proceso in 2010, after signing a labor protection contract, an employer in the State of Jalisco paid 2,000 pesos a month to a trade union leader for "paperwork processing."

In recent years, Mexico has increased its efforts to eliminate corruption and bribery of government officials.  In March 2018, the labor department of the State of Jalisco introduced a new campaign against corruption.  Mexico will not eliminate government corruption without eliminating the practice of protection unionism, however.

Saturday, May 26, 2018

2018 OECD Social Policy Forum Showcases Powerful Female Labor and Social Ministers

The Organization for Economic Cooperation and Development (OECD) held its 2018 Ministerial Meeting and Forum on Social Policy in Montreal, Canada on May 14 and 15, 2018.  The event, titled Social Policy for Shared Prosperty: Embracing the Future, was the first time in the OECD's history that the Social Policy Forum and Ministerial Meeting were held outside Paris.  Elder Ka'nahsohon Kevin Deer conducted a blessing ceremony at the beginning of the event.

Labor and Social Policy Ministers from over 35 countries participated in the social forum on May 14, 2018 and conducted closed door discussions on May 15, 2018.  Speakers in the public Social Policy Forum grappled with the challenge of setting social policy in an era of globalization and technical change, particularly with the increase in non-standard working relationships as a result of technological change, the Uberization of work, and the proliferation of the "gig economy" throughout the developed and developing world.  Topics to be addressed in the Ministerial Meeting included modernization of social protection systems to better incorporate workers in non-standard jobs; promotion of diversity and social inclusion; coping with aging populations; ensuring equal opportunities for children and youth; and mainstreaming gender equality in policy design and reform.

During a special public mid-day session titled "Investing in Working Parents Pays Off," researchers and policy makers from the Nordic countries presented their new study Is the Last Mile the Longest? Economic Gains from Gender Equality in Nordic Countries.  The study contains economic data demonstrating that gender equality actually improves countries' overall economic performance.  Swedish Minister for Health and Social Affairs Annika Strandhäll pointed out that Sweden's over 40 years of experience with gender and family support policies can be instructive to other countries, as mistakes were made and not every experiment worked as well as policy makers hoped.

By far, the highlight of the Social Policy Forum was its showcasing of powerful, elegant, and effective female labor and social ministers from a number of OECD member states, including Ireland, Sweden, Japan, and Greece.  These strong - and, for the most part, fairly young - leaders are guiding their countries' labor and social policies into the future.  They are stars to watch on the global and their own national stages.

A powerful and witty speaker, Regina Doherty, Minister for Employment Affairs & Social Protection of the Republic of Ireland, spoke in the first plenary session on the importance of walking in constituents' shoes in order to better understand what kind of policies to design and implement.  A Dubliner, Doherty started her career in the IT sector while raising 4 children with her husband before entering politics in 2009.  She was appointed to her current position in 2017.  Some of the issues she has tackled during her political career include IRA sex abuse allegations and increasing public funding to improve childcare in Ireland.

Annika Strandhall of Sweden, also appointed to her position in 2017, spoke in the final plenary session.  Strandhall started her career as a trade unionist and public sector employee, working her way up to president of her trade union.  She served as Sweden's Minister for Social Security from 2014 to 2017 before becoming Minister for Health and Social Affairs in 2017.  Her remarks demonstrated that she is emotionally and intellectually engaged with the issues and challenges faced by her constituents within and outside Sweden.

Japan's Parliamentary Vice-Minister of Health, Labor and Welfare Mizuho Onuma was appointed to her position in 2017 after an almost meteoric rise through government ranks when she moved to the public sector from her first job in broadcasting.  Mizuho was first elected to Parliament in 2013.  Mizuho spoke about the need for public officials to take the ideas they exchange at the OECD forum back to their home countries for implementation and harmonization.

Finally, Greece's Minister of Labor, Social Security and Social Solidarity Effie Achtsioglou spoke powerfully and poignantly about pulling Greece out of its 2008 debt crisis, the negative impact international and European conditions for restructuring Greece's public debt have had on Greek workers and labor markets, and emerging signs that Greece's labor market may indeed be recovering after its decade-long ordeal.   First appointed to her position in November 2016, Achitsioglou is responsible for guiding Greece's workers, employers, and labor markets from a position of complete collapse to healthy and near full employment.  An academic who obtained her Ph.D. in European Labor Law in 2015, Achtsioglou is a widely published expert on financial crises and labor markets.

Achtsioglou is a tireless advocate for Greece's workers in the global community.  Prior to her current appointment, she was the Ministry's chief negotiator in charge of negotiations with European and international institutions (EC, ECB, IMF, etc.). In February 2017, she informed the IMF that Greece will no longer accept further pension cuts as a condition for continued debt restructuring.  Recently, she argued in the Huffington Post that labor rights in Greece must not be exempted from European Union standards.  Finally, in a March 2017 speech, Achtsiogiou argued that Europe's future is inextricably tied to labor relations in Greece.

These four rock stars of the 2018 OECD Social Policy Forum are truly the Wonder Women of our age.  I look forward to observing how their grit, intellectual prowess, and political acumen help them shape their own and their countries' futures in years to come.

Wednesday, April 11, 2018

U.S.-Guatemala Arbitration Panel Clarifies Effective Enforcement Under Labor Provisions of Free Trade Agreement

 
US FTAs have had labor clauses since 1994, but do they actually work?  See my comment in the International Labor Case Law Journal on the recent controversial CAFTA-DR Guatemala labor arbitration decisiron.

I'd also like to draw your attention to some other articles in the current issue of the International Labor Case Law Journal on the Bangladesh Accordcompulsory trade union dues in Brazilcollective bargaining in the public sector in Peru, a new decision from the European Court of Human Rights on wage deductions and forced labor, equal pay for work of equal value in Germany, a fascinating Dutch case in the Democratic Republic of Congo under the OECD Guidelines, and labor standards and the World Cup.

The ILRC was established four years ago and has proven to be an important resource on international labor law developments.  One of the nice things about the ILRC is that the case comments are all concise and to the point. They can be accessed free in PDF format, though the actual case reports and decisions can only be accessed with a subscription.


Saturday, April 7, 2018

Twarog, Cornell, and Trestman: My favorite 3 books of 2017

Of my three favorite books of 2017, one is not a book and one was published in 2016, but all are wonderful, and each opens a door to a whole new way of seeing work, labor, organizations, history - and women.



First on the list is Emily E. L.B. Twarog's Politics of the Pantry: Housewives, Food, and Consumer Protest in Twentieth-Century America published by Oxford University Press in 2017.

This excellent U.S. working class history book takes the reader to homes, grocery stores, and streets in a world that is almost the exact opposite of that portrayed in AMC's Mad Men.  While Don Draper and Sally Olsen worked out ways to display Dutch beer in grocery stores to catch the eye of the country's housewives, real housewives across the United States waged a grassroots struggle to ensure that their husbands and families had enough to eat on a working person's wages.  Imagine that just behind that glorious stand of beautiful green bottles there are housewives standing next to the meat counter refusing to buy until grocery chains reduce prices to fit into their meager budgets.

Ignored by histories of the labor and feminist movements, these courageous and well-organized housewives defined a working women's movement based on their identities not as bra burning feminists, but on their identities as home keepers and housewives with the duty to keep their families fed and strong.  Not only is the book intellectually stimulating and fill a gap in feminist and labor historical literature, its style and prose are light and enjoyable to read - not to mention filled with that absurdist Americana we all love, like the delivery of a live calf to the front yard of one midwestern housewife's home.  As Whoopie Goldberg said on TV recently, her working class mother couldn't afford to burn the one bra she owned.


Next on the list is the non-book, Angela Cornell's 2017 case comment Inter-American Court Recognizes Elevated Status of Trade Unions, Rejects Standing of Corporations, published in the International Labor Rights Case Law journal.  

Elegantly written and concise, this case comment highlights an important and new legal distinction between trade unions and corporations in Inter-American and International Human Rights Law - recognizing that as direct representatives, trade unions have standing to defend and protect the human rights of their members.  "The jurisdiction of the Court to entertain contentious cases involving freedom of association advanced by trade unions," writes Cornell, "has been established with the understanding that this result will facilitate broader protection and the effective exercise of workers rights."


Last on the list is Marlene Trestman's 2016 book Fair Labor Lawyer The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin, published by Louisiana State University Press.

Bessie Margolin was an elegant lady raised in a Jewish orphanage in New Orleans when her single immigrant father could not afford to keep her and her brother and sister.  She grew up to be a pre-eminent Constitutional Lawyer, arguing 27 - and winning 24 - cases before the U.S. Supreme Court.  It is because of the strength of her intellect and argumentive style that the U.S. Fair Labor Standards Act (FLSA) is the strong and effective legal tool it became during Margolin's three decades at the U.S. Department of Labor.  Margolin argued and won these cases in an era when few women were afforded the opportunity to do so.  She also - quite literally - wrote the rules for the prosecution of Nazi War Criminals in Nuremburg.

In addition to being an excellent advocate and attorney, Margolin was an avant garde bachelor woman enjoying life in her Washington, DC apartment on her own terms.  The book shows that even though she was imperfect, human, and feminine, Margolin, she is a true American hero we can and should all emulate.

Friday, February 2, 2018

New article assesses FTA labor provisions from gender perspective

My forthcoming article in the Comparative Labor Law & Policy Journal assesses labor provisions in US and Canadian free trade agreements both generally and from a gender perspective. See SSRN for a link to the article:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3056990. See this IntLawGrrls piece for a sketch of the main arguments and points made in the article.

Policy makers and advocates in both countries have made great strides in the past quarter century since NAFTA was negotiated, but much work remains to be done.  The key to progress has been creative advocacy efforts by trade unions and workers' human rights advocates on the one hand and intelligent, creative, and responsive problem solving methods by policy makers.

The article shows how both advocates and policy makers have overcome definitional and procedural shortcomings in FTA labor provisions to make them useful tools for worker rights advocacy.  It also highlights weaknesses and shortcomings in the texts of FTA labor provisions that must be addressed to make them truly transformational.

Sunday, October 29, 2017

Comment on UN Women's E-Discussion: How Can Grant Making Better Support Women’s Civil Society?

The October 2017 Empower Women E-Discussion focuses on the question "How Can Grant Making Better Support Women's Civil Society"?  My intervention focuses on maquiladora workers' campaign for employer-sponsored child care in Central America.

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One area in which grant makers can make a big difference in tackling all three issues (Leaving No One Behind, Capacity Development, and Learning from What Doesn't Work) is by supporting workplace-sponsored child care in low and middle income countries.  

A case in point is the current campaign by maquiladora (export processing zone) workers in Central America.  Local women's advocacy groups and trade unions are advocating that their employers and international brands follow laws in Honduras, El Salvador and Guatemala to establish employer-sponsored child care.  

On October 12, 2017, the International Finance Corporation (IFC) issued a report Tackling Childcare The Business Case for Employer-Supported Childcare.  This excellent report reinforces the campaign by providing data demonstrating how workplace-sponsored child care can be good for business.  The report discusses 10 original in-depth case studies that show how employers in blue, pink and white collar companies have made workplace-sponsored child care work in low-, middle- and high-income countries.  This is a report that women's and children's advocates - including Corporate Social Responsibility advocates within companies - can take to skeptical CEOs, CFOs and Boards of Directors to persuade them to fund and implement workplace-sponsored child care.

As discussed in my piece in IntLawGrrls IFC report on business case for workplace childcare reinforces maquiladora workers’ campaign in Central America, workplace-sponsored child care plays an important role not only for companies and their employees, but for society in general.  The IFC, OECD and Inter-American Development Bank (IADB) have all pointed to the importance of early childhood education to the development of young minds - and to the lack of good early childhood education programs in many low- and middle-income countries.

This is an area where grant makers can make a difference.  While the IFC shows how workplace-sponsored child care benefits the bottom line of company coffers (reduction of absenteeism, for example, or attracting new business as a result of good practices), there are significant start-up and other costs involved in setting up workplace-sponsored child care programs.  Companies in low- and middle-income countries will have a difficult time coming up with these initial costs - especially in low margin industries where women predominate, like garment manufacturing and agriculture.  International brands can support workpace-sponsored child care with both funding and purchasing policies that favor suppliers with workplace-sponsored child care.  Other international companies can support workplace-sponsored child care programs through education grants and their Corporate Social Responsibility programs.  


International grant makers can play a unique role in funding both initial start-up costs for and programs supporting workplace-sponsored child care.  Examples include:
  • Funding needs assessments, surveys and focus groups of working parents to learn about what kind of programs they want and need (Disney funded a needs assessment in Central America through local women's groups and facilitated by Canada-based Maquiladora Solidarity Network
  • Funding dialogue between local workers, worker representatives, women's rights groups, employers, international brands and governments to ensure that child care programs are feasible and meet workers' and children's needs;
  • Developing programs that provide companies and trade unions with guidance on how to establish effective workplace-sponsored child care programs that meet workers' needs and children's educational needs;
  • Developing programs to provide workforce development training and certification programs for childcare providers at varying education levels;
  • Supporting secondary and university-level Early Childhood Education programs in low-income and middle-income countries;
  • Funding legal research on the development of national laws that create the best legal environment to support workplace-sponsored child care;
  • Funding initial start-up costs for workplace-sponsored child care programs.
Working women in Central America have challenged their employers and governments to follow national laws to implement employer-sponsored child care programs.  International grant makers can help working women, employers, governments and the global CSR community to meet that challenge.

Tuesday, October 24, 2017

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

MSN 2016
MSN 2016

Simultaneously published on IntLawGrrls.

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 - and 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.

From a practical standpoint, many companies and employers do not know where to start even if they want to implement a child care program.  CSR advocates within companies need the data and information to persuade CEOs, CFOs and Boards of Directors that the investment is needed.  Establishing and maintaining a workplace child care program isn't cheap.  At the launch of Tackling Childcare, Farhan Ifram, the CEO of Jordanian garment manufacturer MAS Kreeda, observed that the initial investment in his company's child care center was close to $100,000.

This is where the IFC's report will be truly useful.  Not only does the report contain evidence that can be used to persuade skeptical company boards and officials that sponsoring child care is good for the bottom line - it contains advice on what steps companies must take to develop child care programs that are both high quality and meet the needs of employees.  A key element  to developing a good child care program is working with employees and their representatives to ensure the program meets their needs personally and culturally.  The report pays attention to the needs of child care workers for training, certification and decent pay and working conditions.  Accommodations must be made in situations where workers currently pay family members and neighbors for child care to ensure there are not unintended negative impacts on extended family and neighborhood economies.

Finding the funding to establish high quality child care centers is a significant challenge, but one that can be overcome.  In the Central American case, international brands can be a source of support for suppliers that take the plunge to establish child care programs - both financially (for example, through one-time start-up grants) and through increased business.  International brands do not have to provide all the financing and support, however.  Tackling Childcare points to a reframing of broader existing CSR culture.  In 2013, Fortune 500 companies spent $15.2 billion on CSR initiatives.  Of that, $2.6 billion was spent on education - in both CSR contributions and grants.  If even one tenth of that amount were spent on grants for employer-sponsored child care program start-ups, workers at over 3,000 garment factories would benefit directly - with untold benefits for the education and health of working parents and children.  Working women, their trade unions and women's rights advocates in Central America have taken the lead in the campaign for employer-sponsored child care in their countries.  It is time for their employers, international brands, and the international community to accept the challenge - and be models for the rest of the world.

Saturday, September 9, 2017

Maquiladora Solidarity Network publishes must-read briefing paper on labor reforms to Mexico's Consitution

In July 2017, the Maquiladora Solidarity Network published a must-read briefing paper on recent labor reforms to Mexico's Constitution.  Approved by the Mexican Congress in October and November 2016 and by a majority of Mexican state legislatures in January 2017, these reforms resulted from conditionalities imposed on Mexico as part of the Trans-Pacific Partnership negotiation process and decades of advocacy and pressure by Mexican and international labor and human rights activists.  They went into effect in February 2017.

The purpose of the constitutional labor reforms is to remove legal obstacles to workers' right to organize democratically to negotiate collective bargaining agreements, eliminate the corrupt employer practice of negotiating protection contracts with unrepresentative unions, and to completely revamp Mexico's labor justice system so that it is independent, fair and transparent.

MSN clearly and cogently outlines the new reforms, discusses the 2016 reforms in the context of Mexico's 2012 labor law reform project, and provides an insightful analysis of what comes next in the legislative process and the coming challenges and risks in implementing the reforms.  One major challenge that remains is the dissolution of tri-partite labor and conciliation boards in order to replace them with impartial federal and local labor courts - and what to do with existing labor board functionaries who may either lose their jobs or transfer undesirable institutional cultural practices to the new labor court system.  One key risk is the possibility that labor justice reforms will stall without full implementation in the face of legislative opposition from employer groups and insufficient pressure from the U.S. Trade Representative in the current NAFTA renegotiation process.

MSN recommends that international brands, employers, trade unions, worker support groups, human rights organizations and the international community continue to support Mexico's labor reform process and encourage the Mexican government to approve implementing legislation that is true to the underlying spirit and intent of the Constitutional Reform.  MSN's July 2017 briefing paper provides the perfect foundation for this work.

Shout outs in Workplace Law and Workers' Comp Law blogs

A Little Bit of Lime (well, IntLawGrrls) got shout outs in the Workplace Law and Workers' Comp Law blogs this week for a piece on making the human rights case for keeping the right to compensation for workplace injuries in the NAFTA.  Hopefully this will draw more attention to the need to ensure that immigrant workers receive proper compensation when they are injured on the job instead of being detained, jailed, deported or worse.

Sunday, September 3, 2017

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

My recent piece on IntLawGrrls on making the human rights case for including compensation for workplace injuries in free trade agreements is reproduced here.

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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.

Sunday, August 13, 2017

Aspinwall's refreshing proposal for strengthened NAFTA labor and environmental institutions deserves serious consideration

Mark Aspinwall, author of the must-read 2013 book Side Effects: Mexican governance under NAFTA’s labor and environmental agreements, argues in his August 10, 2017 Forbes piece Learning From The Experience Of NAFTA Labor And Environmental Governance that NAFTA negotiators should create a neutral inter-governmental body to address labor issues under NAFTA similar to the currently existing North American Commission for Environmental Cooperation.

There are three key elements to Aspinwall's proposal, emphasizing the independence of any multi-lateral agency established.  One, the inter-governmental agency should have mechanisms to receive complaints from affected civil society groups in any member state.  Two, the inter-governmental agency should have authority to conduct independent fact-finding investigations and issue reports under specific rules.  Third - and most importantly, since this element is present in the current NAFTA environmental side agreement but not the labor side agreement - civil society should have a permanent role in the functioning of the inter-governmental agency.  Aspinwall highlights that civil society should be involved not only in forming priorities and work plans but in participating in compliance oversight of the new inter-governmental agency.

Aspinwall's proposal is compelling and his arguments should be given serious consideration.  He rightly points out that the government-to-government dispute mechanism established under the current NAFTA labor side agreement (and, it should be pointed out, every free trade agreement negotiated by the U.S. since) is problematic because of politics and the inevitable conflicts of interest that result from international and national political priorities.  On the one hand, a government may not want to pursue a particular issue because of its relationship with the other member state.  Similarly, a government may simply not have the interest or political will to pursue labor rights issues.

As Aspinwall points out, there was relatively strong interest under the Clinton administration from 1995 to 2000 to press Mexico on trade union and working women's rights.  This interest and related political will waned during the Bush II administration from 2001 to 2008 - causing a severe drop-off in the amount of interest on the part of Mexican trade unions and civil society in using the NAFTA labor side agreement (NAALC) as an advocacy tool.  Despite the increased political will of the Obama administration to act creatively and sometimes forcefully in response to complaints filed under labor chapters of free trade agreements, Mexican trade unions and civil society had already moved away from the NAALC.  Cross-border labor and civil society movements did not fade with the NAALC.  They simply moved to other venues where they felt their efforts were more likely to have an effect - including the OECD Guidelines for Multi-National Enterprises, the ILO Committee on Freedom of Association, multi-stakeholder initiatives, independent labor and human rights commissions, and the negotiating arena of the Trans-Pacific Partnership.  Much of the hard work of pressuring the Government of Mexico to implement meaningful labor justice reform occurred during the TPP negotiations.

Aspinwall's argument for an independent labor commission under NAFTA is refreshing because it may almost seem like a quaint, idealistic idea to those who have worked in NAFTA labor arena.  The sad fact is that the politics he so correctly highlights in his analysis of government-to-government dispute settlement can also infect and weaken inter-governmental institutions - as was the case with the now closed North American Commission for Labor Cooperation.  Convincing North American labor policy makers, trade unions, civil society, and employer groups that a new Commission for Labor Cooperation is a good idea - even an independent and publicly accountable Commission - will be a hard slog and will require overcoming deep layers of skepticism.

The example of the North American CEC's Joint Public Advisory Committee shows that the effort of bringing disparate groups together for genuine dialogue and community building can be worth it.  The idea of independent fact-finding and reports in response to labor issues raised under free trade agreements is particularly compelling given recent developments in the trade and labor arena in 2017.  Two developments that put U.S. trade and labor policy implementation into jeopardy are the recent U.S. loss to Guatemala in arbitration of Guatemala's labor violations under the CAFTA-DR and the recent change in presidential administrations.  While the current administration makes a public show of emphasizing enforcement of free trade labor provisions, its budget proposals make this all but impossible financially.

The problem is determining what entity will serve as the honest broker and neutral convener of the kind of genuine North American labor dialogue and institution building that Aspinwall proposes. The current administration seems like an unlikely convener.  As observed by Aspinwall, the current administration's NAFTA negotiation objectives for the environment will actually weaken the CEC by creating rules to guarantee domestic enforcement without independent review.  As I have pointed out elsewhere, the negotiation goals for labor are almost purely cosmetic and actually narrow the number of labor laws subject to sanctions.  Maybe the Wilson Center and the Mexican Center for Economic Research and Study can get the dialogue going.

Sunday, July 23, 2017

U.S. negotiation objectives for New NAFTA: Labor no longer separate, but still unequal

This piece was simultaneously posted on the HuffPost.

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Publicly, American workers are the focus of the much-touted renegotiation of NAFTA announced by USTR in May. The first round of negotiations begins on August 16, 2017. USTR’s NAFTA negotiation objectives, released on July 17th, place the American worker front and center, observing that trade deficits and factory closures created by NAFTA have left American workers economically stranded. Such bold rhetoric might lead observers to believe that the administration’s negotiation objectives for labor provisions in NAFTA will be equally bold. Sadly, this is not the case.

NAFTA’s 1994 labor side agreement – the North American Agreement on Labor Cooperation or NAALC – has been criticized for (1) inadequate dispute resolution mechanisms; (2) not including the core labor standards of Freedom of Association, Right to Collective Bargaining and Right to Strike in NAALC’s full panoply of dispute resolution mechanisms; (3) setting a benchmark for enforcement of existing national laws rather than international labor standards; and (4) failing to result in meaningful change in workers’ lives in North America.

Criticism of the NAALC and imperfect implementation and application by policy makers have obfuscated the agreement’s strengths. NAALC is the only international labor agreement that is fully binding and readily enforceable on the United States. Over 25% of NAALC petitions filed since 1995 have been filed with Mexico about ineffectual enforcement of labor laws in the United States. NAALC’s definition of labor law covers 11 labor principles and is arguably broader than the definition in subsequent U.S. FTAs. In addition to covering minimum wage standards, occupational safety and health and the core labor standards outlined in the 1998 ILO Declaration on Fundamental Rights at Work, NAALC covers compensation for workplace injuries and equal labor protection for migrant workers. Surprisingly, NAALC’s gender protections are stronger than those in CAFTA-DR, which does not extend its dispute resolution provisions to the elimination of workplace discrimination and guarantee of equal pay for women and men in Central America. Finally, NAALC’s public communication process allowing members of civil society to file petitions alleging a member state has failed to effectively enforce labor laws has been duplicated in every subsequent U.S. FTA since.

Labor advocates have criticized NAALC on the “Separate and Unequal” standard, arguing that workers are not afforded the same mechanisms and remedies afforded to businesses and other member states under NAFTA’s business-to-state and state-to-state international arbitration procedures. Instead, NAALC provides for a public petition process (leading to a public report and government discussions); the possibility of the establishment of an Evaluative Committee of Experts (ECE) to issue a neutral report analyzing subjects raised in petitions; and finally, the potential for international arbitration and limited trade sanctions.

Following the pattern of every U.S. FTA negotiated since the 2000 U.S.-Jordan FTA, USTR’s current proposal is that labor provisions will be benchmarked to international labor standards, brought into the core NAFTA text, and subject to the same government-to-government arbitration mechanisms as other NAFTA disputes. This may seem like an advancement intellectually. In practice, realization of the fantasy of using international trade arbitration to address issues raised under FTA labor provisions has left much to be desired. On June 26, 2017, it was announced that the U.S. lost to Guatemala in the very first international trade arbitration resulting from a petition arguing that Guatemala failed to comply with its labor obligations under CAFTA-DR. First filed in April 2008, the Guatemala CAFTA-DR labor petition took over 9 years to wend its way to this ignominious conclusion.

NAALC also suffers from the Separate and Unequal standard when it comes to treatment of different labor principles under its dispute resolution mechanisms. Not all 11 labor principles are subject to the fully panoply of dispute resolution under the NAALC. A NAALC arbitral panel can only be requested in the case of petitions relating to occupational safety and health, child labor or minimum wage standards.

This shortcoming is not addressed in USTR’s 2017 proposal. In its NAFTA renegotiation objectives, USTR vows to “[e]stablish rules that will ensure that NAFTA countries do not fail to effectively enforce their labor laws implementing internationally recognized core labor standards and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health laws.” USTR’s proposal actually narrows the scope of dispute resolution under New NAFTA by not including child labor as one of the listed subjects eligible for international arbitration.

In fact, USTR’s NAFTA re-renegotiation objectives set a tougher standard for proving a violation of labor obligations in international arbitration than that set in the NAALC. Under NAALC, a case may be subject to arbitration if a member state’s failure to effectively enforce labor laws is “trade-related.” The proposed standard in the renegotiation objectives is failure to effectively enforce “through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the parties.” This is similar to the standard set in CAFTA-DR – which turned out to be insurmountable for USTR in the CAFTA-DR Guatemala labor arbitration case - not to mention for trade unions, civil society groups and workers of limited means.

It is not just that USTR’s labor-related NAFTA renegotiation goals fail to address NAALC’s most obvious flaws, eliminate some of NAALC’s positive attributes and duplicate past labor-related trade negotiation objectives. New NAFTA will never address serious labor market policy failures by the U.S. and its North American neighbors to address job loss and economic decline that result not only from free trade but technological and economic change. New NAFTA is just Old NAFTA in new clothes.

Like it or not, the current administration must recognize that Zero Sum We Win-You Lose strategies will not heal what ails the American workforce. Negotiation of a New NAFTA that better serves America’s workers requires a truly bold approach, not regurgitation of the same old approaches. It should improve NAFTA’s labor standards and dispute resolution mechanisms and incorporate measures that empower Mexico, Canada and the U.S. to engage in serious regional employment policy development and human and physical infrastructure investment. It means that the U.S. must cooperate with Canada and Mexico to find ways to improve educational and labor market outcomes on both sides of both borders. It also means looking to bold ideas like those expressed in Stephen Zamora’s 2008 article A Proposed North American Regional Development Fund: The Next Phase of American Integration under NAFTA.

Some concrete proposals to improve the negotiation objectives for the New NAFTA include:

  • Exploration of the idea of incorporating the Evaluative Committee of Experts process in the dispute resolution mechanism as an intermediate step on the way to arbitration in order to provide arbitrators with a common factual and labor standards basis for analyzing the facts in arbitral proceedings;
  • Incorporation of the 2016 Trilateral M.O.U. Promoting Women’s Entrepreneurship and the Growth of Women-Owned Enterprises in North America into NAFTA’s text and expansion of the M.O.U. to promote women’s empowerment in the workplace and society as outlined in the 2012 US-Mexico M.O.U. on Women’s Economic Empowerment;
  • Removal of the insurmountable standard of proving a country has failed to effectively enforce labor law “through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the parties” from the New NAFTA negotiation proposal;
  • Expansion of NAFTA’s dispute resolution and arbitral provisions to cover all labor standards covered by the definition of labor law, including: collective labor rights; the elimination of workplace discrimination and guarantee of equal pay for equal work for women and men; elimination of forced labor; and elimination of child labor;
  • Explicit retention of compensation for workplace injuries in the list of labor laws covered by NAFTA;
  • Strengthening of cooperative mechanisms in NAFTA to allow for the development of a North American Employment Policy and Jobs Strategy similar to the European Employment Strategy – including the participation of large and small employers, trade unions, women’s rights groups and other members of civil society;
  • Retention of the labor principle requiring equal treatment for migrant workers; and
  • Development of a North American Investment Fund to help employers and workers adapt to economic and labor market changes caused by free trade as well as technological and economic change.
Other proposals to consider that are currently outside the U.S. trade policy development framework include:

  • Requirement that the U.S. conduct a Human Rights Impact Assessment (HRIA) and Women’s Rights Impact Assessment (WRIA) of New NAFTA before it is implemented, in addition to the labor and environmental studies already required by Congress; and
  • Incorporation of human rights and rule of law provisions in the New NAFTA.

These proposals do not even capture the kind of bold rethinking that needs to be done with respect to renegotiation of NAFTA. Clearly, the administration and we as a country and region are not “there” yet.

Wednesday, July 5, 2017

Is it 1917 or 2017? Wobblies lose campaign for sick leave at U.S. sandwich chain

This July 3, 2017 article in the Minneapolis Star Tribune captured my attention because of the incongruous tale of the Wobblies - the Industrial Workers of the World, first established in 1905 - losing a campaign to unionize a local Jimmy Johns sandwich restaurant and obtain sick leave for its employees.  Wait, what?  Is it 1917 or 2017?  The Wobblies are still actively organizing workers?  According to the Wobblies' web site, no, they did not disappear in 1917.  After a resurgence about 40 years ago, they seem to have a number of active campaigns throughout the United States - an indicator that we may be in another gilded age.

Of course there's that other thing that hasn't changed in the U.S. in the last century.  Most Americans don't have the legal right to or access to paid sick leave.  According to a July 2016 report released by the U.S. Bureau of Labor Statistics, among the poorest 25% at the lower end of the labor market only 41% have access to paid sick leave.  Access to sick leave increases as wages increase.  Among workers in the top 25% of the labor market, 87% have access to paid sick leave.

The federal appellate court decision reported on in the Star Tribune article criticized workers for being "disloyal" because they posted images on Facebook showing that customers don't know if a sandwich was made by a healthy worker or a sick worker bringing germs to work because she can't afford to stay home because she doesn't have paid sick leave.

Wobblies in Minneapolis are not the only ones making the argument that paid sick leave is necessary for the health and well being not only of workers but of the public as well.  In a 2010 report issued by the World Health Organization (WHO), The case for paid sick leave, Xenia Scheil-Adlung & Lydia Sandner wrote, "In fact, the absence of paid sick days forces ill workers to decide between caring for their health or losing jobs and income, choosing between deteriorating health and risking to impoverish themselves and often their families."  They also point out that a number of workers throughout the world without paid sick leave worked even after they contracted the H1N1 virus, causing over 7 million other Americans to contract the virus.  The U.S. Centers for Disease Control (CDC) also came out in a 2012 article arguing that paid sick leave is needed to protect public health and safety. Think of that next time you head to the local burger chain around the corner for an illicit unhealthy midnight snack.  

According to Scheil-Adlung and Sandner, 145 countries around the world - a group among which the U.S. will not be found - have laws ensuring between 7 and 30 days of paid sick leave to workers each year.  Granted, high rates of employment outside the formal economy in some countries mean that the legal requirement does not extend to as many people as it should.  It cannot be denied, however, that paid sick leave is an area where the U.S. has fallen behind 75% of the rest of the world.  When low income countries like Cambodia and Bolivia have laws guaranteeing paid sick leave, one does wonder what is wrong with the biggest economy in the world.

It wasn't until 2012 that Connecticut became the first U.S. state to require employers to provide paid sick leave to their employees.  Now, according to guidance on complying with paid sick leave laws from the Society for Human Resources Management (SHRM), seven states (Arizona, California, Connecticut, Massachusetts, Oregon, Vermont and Washington) and the District of Columbia require employers to provide paid sick leave to their employees.  SHRM also reports that the U.S. states of Maine, Maryland, Michigan (Michigan doesn't already have sick leave?), Pennsylvania and hey - Minnesota! - currently have paid sick leave legislation pending.

Affordability may be a genuine concern for some small employers.  This concern can be addressed by legislative tiers of sick leave coverage.  For example, under District of Columbia law, employers with 25-99 employees must provide 5 days of sick leave a year and those with 100 or more employees must provide 7 days of paid sick leave a year.  Very small employers with 24 or fewer employees must provide 3 days of sick leave a year.  Other examples cited in the WHO's study on paid sick leave include social security or public insurance programs to cover paid sick leave might be unpalatable at the federal level in the U.S. but might be considered by some U.S. states.  Even when affordability is a concern, some small employers still want to provide some measure of paid time off.  Not only can human resources organizations like SHRM provide guidance, but there are a number of resources available from entities like Quickbooks and Dun & Bradstreet that can help small employers tweak payroll budgets to ensure their employees have access to paid sick leave and other paid time off when they need it.

Wait, what - is it 1917 or 2017?  Did I just write a blog post arguing that U.S. law must extend access to paid sick leave to workers?  Hasn't that been a right in most other countries for almost the last century?  You'd think we don't have the legal right to paid vacation or holidays either.  Oh, yeah.  About that...

Sunday, June 18, 2017

Canada poised to supplant U.S. as leader in negotiating and enforcing labor provisions in free trade

Canada is poised to supplant the U.S. as the world leader in negotiating and enforcing labor provisions in free trade agreements.

In January of this year, the U.S. and Canada both issued reports in response to labor petitions filed by Colombian trade unions and their Canadian and U.S. allies under free trade agreements with Colombia.  The report issued by Employment and Social Development Canada (ESDC) was featured in the June 2017 issue of the ABA's International Employment Lawyer.

The Canadian and U.S. government reports both criticized Colombia's employment sub-contracting regime, labor justice enforcement machinery and ineffectual prosecution and punishment of murders of and violence against trade unionists.  Both Canada and the U.S. will engage in consultations with the Government of Colombia to address shortcomings in the substance and enforcement of labor laws and failure to effectively protect trade unionists from violence - with one tiny but important difference.

While the Canadian National Administrative Office (NAO - the office within Canada's labor ministry charged with administrating labor provisions of FTAs) recommended consultations between the Canadian and Colombian Labor Ministers, its U.S. counterpart recommended "contact point consultations" between U.S. and Colombian labor officials below the ministerial level.  U.S. officials will determine whether further action is needed if sufficient progress has not been made after a 9-month period.

In fairness, it should be noted that when the U.S. Department of Labor issued its report on January 11, the U.S. government was on the verge of inaugurating a new President in just 9 days.  Recommending contact point consultations may have been a way to ensure that work and discussions with the Government of Colombia could continue while a new Minister of Labor was being appointed and getting settled in the job - especially since the U.S. and Colombian governments have had a Labor Action Plan in place since 2011.  On the other hand, recommending contact point consultations rather than ministerial consultations may simply delay definitive U.S. action for another 9 months and weaken the leverage the U.S. might gain with the petition's potential for triggering trade dispute resolution mechanisms under the Colombia Trade Promotion Agreement (CTPA).

Meanwhile, Canadian Labor Minister Patty Hajdu and her Colombian counterpart Minister Griselda Janeth Restrepo have already begun ministerial consultations to develop a multi-year work plan to address issues raised by Colombian and Canadian trade unions. 

Bold Canadian action in response to the first petition filed under the labor provisions of a non-NAFTA Canadian free trade agreement is not the only indication that Canada is poised to supplant the U.S. as the world leader in negotiating and enforcing labor provisions in FTAs.  The Canadian government has taken a leading role in the negotiation of labor provisions in the Trans-Pacific Partnership (TPP) and in the financing of ILO research on incorporation of international labor standards in free trade agreements.  

Additionally, Canada's FTA labor provisions frequently include a broader set of labor rights than most U.S. FTAs  - especially when it comes to ILO Conventions 100 and 111 on equal pay for women and men for work of equal value and the elimination of workplace discrimination based on sex, race and other grounds. Most Canadian FTA labor provisions also include broader protections for occupational safety and health and compensation for workplace injuries - not to mention protection of migrant workers.

The benefits of free trade for workers may be hotly contested - especially by workers themselves - but labor provisions in free trade agreements can still be used as tools by worker rights advocates and trade unions to draw attention to labor rights violations with the aim of improving the substance and enforcement of labor laws.  Canada's report on shortcomings in Colombian labor laws and enforcement mechanisms shows that the Canadian NAO and labor provisions in Canadian FTAs are an untapped resource in the fight to improve global working conditions.