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.

In 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 on IntLawGrrls and Medium.

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.