Tuesday, June 28, 2022

Brian Morton's Tasha: A Son's Memoir captures poignancy and pain of a parent's decline

This is normally a blog about international labor and human rights. Sometimes Life with a big L intervenes, pushing the topic at hand off the dais and placing the inconvenient and uncomfortable at the forefront.

I heard about Brian Morton's Tasha: A Son's Memoir on NPR a couple of weeks after my own mother passed. The book called to me as the tale of an adult child grappling with the decline of a beloved and maddening, eccentric but traumatized, idealistic but cynical, angry but spirited parent in post-WW II United States. It was a book I could not not read. I cried when Morton cried, I laughed when Morton laughed. At times I was seized with envy - Morton's mother was accepted to a rehab facility after her stroke - my mother languished for months in the hospital waiting for acceptance to a rehab facility without hope because there were not enough rehab beds in her home state for seniors with "Behavioral issues." She was not the only one in this predicament.

At other times I felt deep relief that my mother, brother, and I did not have to face what Morton, his mother, and his sister faced - home caregivers who screamed abusive invective at his mother; broken bones; surreptitiously slipping a recording device in his mother's room to get a handle on the quality of the care she received.

Then there were shameful things none of us want to talk about. The admission of helplessness in the face of a parent's decline from a competent person with a fine mind to a person who is too afraid to leave the house or let anyone inside. The regret at not seeing what was happening sooner. The weakness in not being able to master Acknowledge, Comfort, and Deflect in the face of an angry and fearful parent who cannot stop yelling.  The nasty neighbor who shows up at the yard sale not to buy anything but to yell in your face, "SO YOUR MOTHER'S GOT THE ALZHEIMER'S, HUH?" The Police. Senior Behavior Health. The Ambulances. The fight for a dignified discharge from the hospital. Never being able to get it quite right, no matter how many Alzheimer's Association trainings and online articles you read. The ejection from the inadequate assisted living for "The Behaviors." Always "The Behaviors." Neighborhoods and Hospitals - a whole world full of people that like you, have not mastered Acknowledge, Comfort, and Deflect. 

And the poignant and beautiful people and moments in the midst of it all. The cousin and aunt who send the cards with loving notes to wherever you tell them - no questions asked. The amazingly competent manager of the county senior meals program and the drivers who wear the Covid masks and make your mother feel loved when they drop off the meal with its little bag of chips and half-pint of milk every day. The assisted living house manager who looks at your intransigent and stubborn mother with genuine love and affection. The non-profit worker who picked up your mother's medications even though your mother refused to let her in the house or accept in-home assistance. The hospital nurse who helped your mother learn how to walk again after Covid when wasn't really her job. The senior housing consultant who knew the good places and the bad. The perfect van driver who comforted your mother on the ride while you sat in the front seat. The hospice nurse who, upon learning your mother was a nurse for 42 years, told your mother, "You spent your life taking care of other people. Now let me take care of you."

Watching the Jacques Cousteau documentary on your tablet in the hospital and having your mother confide that she thought Jacques Cousteau was very sexy when she was a young teenager. Grossing your brother out by telling him that story.

On the face of it, Brian Morton and I have little in common. Yet with all the differences, we have everything in common. The contours are different, but the story is the same. The human frailty and inability to meet the mark are the same. And the oddly comforting little coincidences. Morton's mother's deep trauma was the sudden passing of her beloved husband. My mother's trauma was different - but no less impactful, with some similar outcomes. The frustration with a system that is not quite right - and trying to make do in a system that is not quite right. A system that our mothers spent some portion of their lives trying to reform.

And, while I am still deeply envious that Morton's mother got to go to Rehab - and sympathetic, not to mention slightly amused, that his mother got kicked out of rehab because of "The Behaviors" - I am grateful to Morton for putting it all out there. The screw-ups. The sad but funny moments. The few and far between tiny triumphs. The exasperation of dealing with a senior who refuses help no matter how much it is needed. The fantasy that suddenly a person who has lived alone for decades doing exactly what she wants to do when she wants to do it will suddenly adapt to assisted living and "make friends." It is the deep emotional honesty that makes Morton's very particular tale a universal story.

After finally achieving the Dignified Discharge from the hospital, I went on an odyssey for the perfect chair for my mother's room. Something comfy she might herself sit in; something inviting so caregivers would want to sit next to her and chat or watch television. I went to what seemed like every furniture store in the city. I ran away from some of the furniture salespeople. Then I started telling the salespeople I was looking for the perfect chair for my mother's room in assisted living. Like Zola, I ran into as many stories as the stores I went to. Seniors all over the city who got kicked out of senior homes due to "Behaviors" or for financial reasons. Sad tales of not being able to afford the $8,000 / month assisted living where your parent would get the very best of care.

Learning of the collapse of the very best places due to Covid. As bad as things were for Morton and his family and mother, the Covid pandemic seems to have made it all that much worse - with a hard struggle ahead of us to make things better.

My mother always quoted Plato, observing that No Man can rise above or be taller than his City. It is an apt observation, especially for those of us grappling with aging in the modern United States. 

She was a bright but flawed woman. I think of her every time I watch Star Trek (any Star Trek) or enjoy a television murder mystery show. In Memory of Lee Brigit Harley.

Monday, April 5, 2021

International Labor Rights Case Law Journal dedicates first issue of 2021 to OECD Guidelines

The first issue of Volume VII (2021) of The International Labor Rights Case Law journal is dedicated to examining the implementation of the OECD Guidelines for Multi-National Enterprises by National Contact Points (NCPs) in Belgium, France, Germany, the Netherlands, Switzerland, the United States, and Australia. In existence since 2015, the ILRC pairs an excerpt of a key international labor rights decision with a comment by an expert in international labor rights. 

As explained by the journal's Editorial Team in the Introduction to the first issue of Volume VII, OECD member states adhering to the Guidelines must establish an NCP to implement a specific instances mechanism under which trade unions, non-governmental organizations, and other interested parties may submit complaints about the failure of MNEs to comply with the Guidelines. In addition to what the Editorial Team describes as a "relative fragmentation of mediation procedures within each NCP," a review of the six comments on the operation of NCPs of seven countries reveals a reluctance on the part of MNEs to engage in meaningful mediation of disputes related to Freedom of Association and trade union rights.

In his Comment comparing the operation of the U.S., Swiss, and Australian NCPs in the context of Coca Cola's operations in Indonesia, Jernej Letnar Černič observed three different approaches to the same case by three different NCPs. He also observed that the Australian NCP is housed in the Secretariat of the Treasury, while the Swiss NCP is housed in the Secretariat of the Economy - neither of which is a judicial body. The U.S. NCP is housed in that country's Department of State (Foreign Affairs). In reviewing the report issued by the German NCP on Adidas's failure to mitigate the adverse human rights effects of the actions of a sub-contractor in Indonesia, I noticed that the German NCP is housed in the Secretariat of the Economy - but did not mention that fact in my Comment on the German NCP's report. I did wonder, however, whether the fact that the German NCP is housed in that country's Secretariat of the Economy was a major factor in why the NCP adopted such a narrow view of the MNE's obligation to exercise due diligence and be held responsible for the adverse human rights effects of a subcontractor.

In her Comment on the report issued by the Belgian NCP on a complaint filed against InBev, the largest global beer producer, about human and labor rights violations at a beer production facility in India, Kari Otteburn questioned whether NCP-sponsored mediation alone is an effective tool to address human rights violations in MNE global value chains. Otteburn observed that unlike other NCPs, the Belgian NCP is not empowered to issue an assessment of underlying facts.

Similarly, in a Comment on the report issued by the Dutch NCP in a case involving violation of trade union and child labor rights by a Dutch sugar company in Bangladesh, Yvonne Erkens found the Dutch NCP's attempt to mediate of trade union rights in the case to be ineffectual because the MNE in question only accepted mediation of disputed instances of child labor, not trade union issues.

Finally, Isabelle Daugareilh wrote a Comment on the first complaint filed with the French NCP regarding COVID-19 safety violations at Teléperformance call centers in 10 countries.

In addition to the series of articles on the application of the OECD Guidelines by various NCPs, the issue contains comments on the Observations of the ILO Committee of Experts on Labor Law in Bangladesh, a decision by the European Court of Human Rights on Forced Labor and Trafficking in Croatia, the lack of legal regulation of forced labor in Poland, and Equal Opportunity for Female Officers in the Indian Military.

Note: If you are unable to read the commentaries in the ILRF, you might consider reaching out to authors to ask them for a limited copy of their article. Or - if you are affiliated with a college or university, consider asking your library to subscribe to this excellent journal.

Saturday, February 6, 2021

Panel of Experts releases significant report analyzing Freedom of Association obligations in EU-Korea Free Trade Agreement

The World Cup for International Labor Lawyers came early this year with the release of the Report of the Panel of Experts analyzing labor obligations under the EU-Korea Free Trade Agreement in January. This report is the most significant legal development in the field of Trade and Labor Provisions since June 2017, when an Arbitral Panel released its report analyzing labor obligations under the CAFTA-DR in Guatemala

For the "Tik Tok" version of the Panel's report, see my piece in the
ABA's International Labor and Employment Law Committee Newsletter, Panel of Experts Issues Report on Labor Issues Raised under EU-Korea FTA

For a more in-depth discussion of the Panel's legal
analysis of the concept of Freedom of Assocation, see Tonia Novitz's excellent February 4 Oxford Human Rights Hub post, Asserting Jurisdiction to Assess Compliance with 'Multilateral labour standards and agreements' - The EU-Korea FTA Panel Decision.

And, for a thought-provoking analysis of the Report of the Panel of Experts in the EU-Korea case, check out Desiree LeClerqc's thoughtful post in the International Law and Economic Policy Blog, The Panel Report under the EU-Korea Trade Agreement Concerning Labor Practices: What are the Purposes of Trade Agreements as they Relate to the ILO's Fundamental Labor Rights? In this piece, LeClerqc takes on the issue of coherence in the interpretation and analysis of fundamental labor rights, the 1998 ILO Declaration, and ILO Conventions. 

Labor and Trade Lawyers are going to be discussing and comparing the EU-Korea and the CAFTA-DR Guatemala labor reports for years to come. At the heart of this debate is the fundamental role of workers in the global economy - rights and trade, who determines the substance and implementation of those rights ... a very interesting era to be working on these issues.

Saturday, January 23, 2021

Time for enforceable women's rights provisions in U.S. free trade agreements - starting with the proposed U.S.-Kenya FTA


My new IntLawGrrls post on the proposed U.S.-Kenya free trade agreement highlights the opportunity the FTA presents to the Biden administration and the U.S. Congress to transform U.S. trade policy through the adoption of enforceable women's rights provisions in U.S. free trade agreements.

The United States is falling behind the European Union and other countries like Canada, Chile, and Kenya in the adoption of gender-forward trade provision.

Update - February 13, 2021

Thanks to Aleydis Nissen of Leiden University who reached out and shared her excellent 2020 piece in AfronomicsLaw, "Where is the flower power these days? The EAC-EU Economic Partnership Agreement." Nissen's piece is full of up-to-date economic data and, importantly, an insightful analysis of the geopolitical and legal status of the Eastern African Community (EAC) and potential impact of the EAC-EU Economic Partnership Agreement on women's rights in the floricultural sector in Kenya.

Sunday, December 6, 2020

Rodriguez-Florez publishes comprehensive and insightful article on 2015 labor petition under US-Peru TPA

A new article published by Maria Eugenia Rodriguez-Florez in the E-Journal of International and Comparative Labour Studies, "Trade Mechanisms as a Way to Improve Labor Rights Compliance and Its Policies. A Case Study from the United States-Peru Free Trade Agreement," fills several key gaps in existing literature on the intersection between free trade agreements and labor standards.

Rodriguez-Florez's article conducts a comprehensive and insightful analysis of the July 23, 2015 petition filed with the US Department of Labor (DoL) Office of Trade and Labor Affairs (OTLA) under US-Peru Trade Promotion Agreement (TPA) Labor Chapter 17. The 2015 petition, which alleged that the Government of Peru failed to comply with its labor obligations under the US-Peru TPA, is under-theorized in comparison to labor petitions filed under the NAFTA labor side agreement and CAFTA-DR Chapter 16 on Labor. 

Utilizing interviews with governmental,  employer, union, and non-governmental actors and observers in Peru and the US, the article:

  • delves into international cooperation efforts several years prior to the filing of the petition;
  • pinpoints conflicting theories on how the decision to the file the petition was made (international versus local Peruvian genesis);
  • discusses the legislative impacts (or non-impacts) of the petition process in the Peruvian Congress; and
  • explores the possible ultimate impacts the petition and the resulting 2016 report issued by the OTLA may have on workers' rights in Peru. 
The 2015 labor petition under the US-Peru TPA contrasts with the 2008 Guatemala labor petition filed under the CAFTA-DR because the Peruvian petition has not been subjected to formal inter-governmental dispute resolution under the free trade agreement. Rodriguez-Florez elucidates not only the cooperative mechanisms utilized by governmental and non-governmental parties to address labor rights issues raised in the petition - but the perspectives of Peruvian government officials on the impact the petition process has had on Peruvian labor policy. The article also includes insights and analysis of Peruvian labor law - as well as the 2013 reform of Peru's labor inspectorate, which was previously a state-by-state mechanism but is now a federal mechanism.

Rodriguez-Florez's article sets the template for a new literature on the impacts of labor provisions in free trade agreements. It is a must read for anyone conducting research and writing in the field - as well as for advocates seeking to utilize FTA labor provisions as tools to improve workers' rights.

Sunday, August 9, 2020

New article by Gabriel & McDonald brings fresh perspective on cross-border migrant advocacy

In a new article published in Third World Quarterly, Christina Gabriel and Laura Macdonald bring a fresh social movements perspective to research migrant worker petitions filed under NAFTA's labor side agreement, the North American Agreement on Labor Cooperation (NAALC).

Published on August 6, 2020, New architectures for migration governance: NAFTA and transnational activism around migrants’ rights compares two migrant worker petitions filed under the NAALC - the 2001 Washington Apple case and the 2013 H-2B Carnival Workers case. The article discusses the different roots of the petitions (trade unions v. legal aid attorneys and cross-border allies) and shows how the petition processes contributed to the development and strengthening of new and existing cross-border advocacy groups.

The article is an important contribution to the growing literature analyzing the use of regional legal mechanisms to advocate on behalf of migrant workers in North America. Definitely worth the read!

Monday, August 3, 2020

Save the Dates! DC LERA has a great line-up of Webinars this fall

Following up on a star performance by AFL-CIO Chief Economist and Howard University Economic Professor William Spriggs back in May 2020, the Washington, DC Chapter of the Labor and Employment Relations Association (DC LERA) has a great line-up of speakers this fall.

Due to less than ideal circumstances as a result of the pandemic, the DC LERA community is unable to meet for its monthly lunch meetings - but this gives us the opportunity to share our great fall speaker series with the rest of the world through a series of webinars to be hosted by the Washington, DC Office of the International Labor Organization (ILO).

This fall, we've got:

September 9Nancy Groce, Senior Folklife Specialist at the Library of Congress, speaking on The Occupational Folklife Project

October 21Jeff Vogt, Director Rule of Law Department, Solidarity Center speaking on The Right to Strike in International Law

November 18Wilma Liebman, Former Chair of the National Labor Relations
Board, President of National LERA, An Evening with Wilma Liebman

And for our sports fanatics,

December 16Mark Hyman, Director, Povich Center for Sports Journalism, at the University of Maryland and Adam Richelieu, NFL Players Association, speaking on Labor-Management Issues in the NFL

Mark Your Calendar and Stay Tuned!

For more information, see our website at www.dclera.org or Follow us on Twitter at @DCLERA.

Saturday, July 18, 2020

NAFTA and NAALC: Twenty-Five Years of Trade-Labour Linkage now on Kindle!

NAFTA and NAALC: Twenty-Five Years of Trade-Labour Linkage Second Edition (Compa & Brooks, 2019) is now available on Amazon Kindle!

Great news for people like me who primarily read e-books.

NAFTA & NAALC transition to USMCA with cross-border issues affecting women workers in the foreground

My latest piece in Regulating for Globalization on the recent report issued by the Mexican government on sex discrimination in US work visa programs maps North America's transition from NAFTA and NAALC to USMCA / T-MEC / CUSMA on July 1, 2020 through a report issued by the Government of Mexico in response to a 2016 labor petition filed under the NAALC.

The excellent petition filed by the bi-national organization Centro de los Derechos del Migrante (CDM) was both ground breaking and perfect for resolution under a regional agreement like NAALC or USMCA given the cross-border nature of recruitment and hiring under the US agricultural H-2A, low wage H-2B, and other US work visas, including the NAFTA T-1 visa for professional workers.  The companion petition filed by UFCW Canada about sex discrimination in recruitment for Canada's binational Seasonal Agricultural Worker Program (SAWP) was similarly ground-breaking. Some articles and commentary on the petitions include:

While it does not appear as though a report has been released in response to the UFCW Canada NAALC petition, an early report from UFCW Canada indicated that the union was able to obtain a positive outcome from Mexico's national anti-
discrimination commission Consejo Nacional para Prevenir la Discriminación (Nacional Council for the Prevention of Discrimination - CONAPRED). Under an agreement mediated by CONAPRED, Mexico's labor ministry Secretariat del Trabajo y Previsión Social (Secretary of Labor and
Social Protection - STPS) agreed to eliminate gender discrimination by 2021 (Galvez, Godoy & Meinema, 2019, p. 205). Nevertheless, they note in their 2019 book chapter that the percentage of women in the SAWP has not increased since the original petition was filed. 

Saturday, May 23, 2020

New and updated resources on COVID-19 and global workplaces - Verite, ILLEJ, ILO, ITUC, IFC, Solidarity Center, Ergon

Italian Labour Law E-Journal 2020
There has been a proliferation of excellent resources on COVID-19, global workplaces, and social protection systems tn the two months since the WHO announced that COVID-19 was a global pandemic. Below are some of my favorites:

  • ILO: The ILO's resource website on COVID-19 and the world of work continues to be a great resource on COVID-19 and the workplace, with a 3rd Edition of the ILO Monitor on COVID-19 and Work published on April 29, 2020. One of my favorite new reports on the ILO site is The COVID-19 response: Getting gender equality right for a better future for women at work issued on May 11, 2020. This 11-page report provides data on the impact of the COVID-19 crisis on working women. Unlike the 2008 crisis which primarily impacted the economic sectors in which men predominate, the COVID-19 crisis affects those sectors in which women predominate - healthcare, education, retail, food and hotel services, and administrative services. The economic effects of the pandemic are also having a major impact on the 740 million women around the world who work in the informal sector. These women have no access to workplace, income, or social protections when they cannot work due to lockdowns and curfews.
Solidarity Center 2020
In addition to the "Just the facts, ma'am" resources, there are resources that delve into workers' stories and experiences and the effects of the pandemic on specific sectors of workers. Some of these key resources include:
  • Verité: The consulting services NGO Verité has compiled several Reports on Labor-Related Impacts of COVID-19, including reports the global public health crisis has had on agricultural workers, workers and farmers in the cocoa sector, the garment industry, hospitality industry, illegal mining and logging, and migrant workers in the Gulf - just to name a few.
CDC Investment Works & Ergon 2020
There are also some great resources for employers on how to support workers and keep workspaces safe from the risk of COVID-19 infection.

  • International Finance Corporation: The IFC published Interim advice for IFC clients on supporting workers in the context of COVID-19 on April 29, 2020. The 9-page guidance sheet explains the COVID-19 challenges faced by different categories of workers (seasonal workers, women workers, older workers, workers with pre-existing conditions, casual workers, gig workers, migrant workers). It then provides tips and tools for employers to help workers address these challenges in global supply chains. 
  • CDC Investment Works and Ergon developed COVID-19 Guidance for investors and financial institutions on job protection, a 16-page advisory that makes the business case for addressing job protection, then provides guidance for investors and financial institutions on how to address job-related risk in investment portfolios and implement financial measures to protect jobs in times of crisis.
Jobs, and therefore job protection, are a crucial part of this ability to recover. Skills and labour are valuable company resources, and retention of these skills can allow businesses to maintain a competitive edge beyond the crisis, avoiding potentially costly hiring and re-training costs in the future. This is especially relevant if there is likely to be competition for skills and talent in certain sectors once the COVID-19 crisis is over. (CDC Investment Workers, 2020)

Wednesday, May 20, 2020

Powerful Wilson Center webcast on the impact of COVID-19 on gender disparities in Latin America

The Wilson Center (2020)
The May 19, 2020 Wilson Center webcast on The Impact of COVID-19 on Gender Disparities in Latin America featured three excellent presentations by experts in Guatemala (Adriana Quiñones), Uruguay (Karina Batthyani), and Washington, DC (Claudia Piras) on the acute challenges faced by women in Latin America during the COVID-19 crisis.

The public health crisis and lockdown are exacerbating existing disparities and challenges women face on a daily basis. These challenges and disparities include unequal access to the labor market, low quality jobs in the informal sector, lack of social protections such as healthcare and social security, occupational segregation, the excess burden of care work in the home, and domestic violence. The speakers highlighted that despite general awareness of the challenges women face on a daily basis, the COVID-19 policies and assistance programs developed by national and regional institutions do not target women to receive benefits - or simply leave them out by adopting eligibility requirements most women cannot meet.

All three of the speakers are doing cutting-edge work that is worth checking out.

The panel was to the point with lots of timely and sobering information packed in. Women in Latin America are suffering during this crisis and policy makers at the national and international level need to act now.

Thursday, April 16, 2020

Great resources on global workplace laws and social policies and COVID-19

If you watch the news in the US and missed The Daily Show from Trevor Noah's Living Room recently, you might not realize that COVID-19 affects every country in the world.

Dealing with the pandemic is straining legal and policy frameworks, particularly when it comes to the workplace. These strains shine a cold hard light on the shortcomings in national and international workplace and social policies - whether it is the lack of laws governing telework, lack of an unemployment compensation system in Mexico and other Latin American countries, the absence of a national paid sick leave law and little to no job protection in the United States, or the absence of income or workplace protection for large groups of people around the world who are migrants or toil in the informal sector of the economy.

Some great resources have popped up in the past month to help us begin to understand how COVID-19 is affecting the workplace and how countries are approaching the pandemic in workplace law and policy. Check them out! The articles are short but impactful, shedding light not only on how COVID-19 is affecting workplaces around the world but also on how policy makers and other workplace actors are dealing with the crisis.

1. The International Labor Organization (ILO) has a dedicated web page COVID-19 and the world of work which contains articles discussing how the pandemic is affecting different groups of workers (for example, young workers), country responses to the pandemic, and periodic monitoring reports,  The first report, published on March 18, consists of a preliminary assessment of the impacts of COVID-19 on the world of work and steps policy makers, employers, and trade unions have taken to mitigate those impacts. An updated report was posted on April 7.

2. The Special COVID-19 Edition: ABA International Labor and Employment Law Committee Newsletter published on March 26 covers a variety of countries and regions including Australia, Argentina, Costa Rica, Central America, France, Germany, Mexico, Thailand, Turkey and the United Kingdom (both generally and with regard to immigration). As described by Editor Rick Bales in the Workplace Law Prof blog, "The special edition of the newsletter contains a series of short articles describing how several countries from throughout the world are using workplace laws to combat the spread of COVID-19 and to mitigate its effect on workers and workplaces. Though our survey is not comprehensive, it nonetheless provides a snapshot of the often thoughtful and creative ways that countries are responding to the crisis."

3. The Italian Labour Law e-Journal published Special Issue: Covid-19 and Labour Law: A Global Review designed to be a comprehensive resource written by labor law scholars from around the world. I want to highlight in particular the Editorial in which the Editors wrote, "Although the precautions suggested by the epidemiologic science, like for example social distancing, are the same around the world, national governments and legislators are translating them into specific policies and normative solutions, in different attempts to balance health and economic interests. Hence, it is important to explore differences and similarities, with a view to identifying diverging patterns and common trends."

The ILLEJ editors are hoping to broaden coverage of countries around the world and have issued a call for additional country articles, The special issue "is designed to be 'work-in-progress'. Scholars from the Countries not already dealt with are welcome to submit their contribution. The deadline for new submission is 4 May 2020. Please send your expression of interest beforehand at the following email address: illej@unibo.it."  Due May 4.

Saturday, August 31, 2019

Get the latest on USMCA's labor chapter and other North American free trade agreements here

The 2019 update to the monograph NAFTA, NAALC, and Labor Provisions in North American Free Trade Agreements, part of Kluwer's International Encyclopaedia of Laws, is now available online.

This comprehensive and up-to-date 270-page resource contains essential
background on the structure and operation of labor provisions in North American free trade agreements, including NAFTA, USMCA, CAFTA-DR, TPP, CPTPP, TTIP, CETA, EU-Mexico, and Canadian and US bilateral free trade agreements with partners in Latin America and around the world - not to mention a complete digest of every petition filed under the NAALC and labor provisions of other North American FTAs.

Highlights from the last 5 years in the new edition include:

  • New labor petitions filed under NAALC, Canadian and US FTAs with Colombia, and the US-Peru FTA;
  • The latest developments in pending cases filed under CAFTA-DR and the US-Peru FTA;
  • Addition of the 2006 labor petition filed under the US-Jordan FTA;
  • New sections comparing labor provisions in multi-lateral FTAs such as TPP, CPTPP, CETA, and the proposed TTIP; and
  • A new chapter comparing the NAALC to labor provisions in the signed, but not-yet-ratified USMCA.
This monograph will be published as a book by Kluwer in late 2019.

Wednesday, March 20, 2019

Rijken and de Lange edit ground-breaking volume on Decent Labour Market for Low Waged Migrant Workers

Conny Rijken of Tilburg University Law School and Tesseltje de Lange of University of Amsterdam recently released their ground-breaking edited volume Towards a Decent Labour Market for Low-Waged Migrant Workers (2018).

Towards a Decent Labour Market for Low-Waged Migrant Workers asks the important question of whether the law and policy of the European Union and member states promote decent working standards for migrant workers both from EU member states and from outside the EU.

Excellent chapters by Mijke Houwerzijl and Annette Schrauwen, Jan Cremers and Ronald Dekker, Margarite Helena Zoeteweij, and Lisa Berntsen and Tesseltje de Lange assess whether EU laws such as the Posting Directive, Freedom of Movement, the Seasonal Workers Directive, and the Employer Sanctions Directive contribute to decent working conditions for migrant workers. A common theme in these chapters is the way the EU's common market roots frequently outweigh its social policy roots to the detriment of migrant workers.

In addition to analysis of EU and national law, the book contains fascinating original research on local and national initiatives and policy measures affecting migrant workers in (and near) the EU. Petra Herzfeld Olsson and Lucia della Torre explore local cases involving Thai berry pickers in Sweden and undocumented migrant workers in the canton of Geneva in non-EU Switzerland, showing how local initiatives can improve the working conditions of migrant workers. At the same time, Tesseltje de Lange explores the impact of limitations in Dutch law which prohibit asylum seekers from working for the first six months after they file their asylum application. In her discussion of the findings of research on the impact of the 6-month limitation, de Lange comments, "[H]anging around in an asylum seekers' residence centre can be detrimental to one's health."

Other chapters provide readers with the tools for understanding the migrant labor market, especially Conny Rijken's chapter on the continuum of exploitative labor conditions, differentiating between decent work, exploitative labor conditions, human trafficking, and forced labor.

As this book shows, the EU and Europeans have by no means developed a model for ensuring decent work for low-waged migrant workers. For those of us on the American side of the Atlantic, the book shows that Europeans have at least started asking the right questions.

A hardback copy of the book can be purchased from the University of Amsterdam Press for 95 Euros. For those of us on a budget, a PDF ebook can be downloaded for free.

Monday, March 18, 2019

Coming later in 2019! 2nd edition of NAFTA and the NAALC 25 Years of Trade-Labour Linkage

Look in this space later in 2019 for more information about the release of the Second edition of NAFTA and the NAALC Twenty(Five) Years of North American Trade-Labour Linkage!

The new edition will contain a new chapter comparing NAFTA's labor provisions in the NAALC with the labor chapter in the recently negotiated but not ratified United States Mexico Canada Agreement (USMCA).

Other new information to be included:

  • labor provisions in the Trans-Pacific Partnership (TPP) and its post-US withdrawal successor agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTTP);
  • sustainable development and labor provisions in the Canada-European Union Trade Agreement (CETA); 
  • The European Union's 2016 proposal for trade, sustainable development, and labor provisions in stalled FTA negotiations between the US and the European Union for a Trans-Atlantic Trade and Investment Partnership (TTIP);
  • recent labor-related developments in the renegotiation of the EU-Mexico free trade agreement; and
  • the latest on recent petitions filed under North American FTA labor provisions in Jordan, Guatemala, Honduras, and Colombia
  • not to mention four new NAALC petitions related to Mexico's ongoing labor justice reform, freedom of association at a grocery chain in Mexico, and sexism in recruitment for agricultural labor visa programs in Canada and the United States.
Stay tuned!

Sunday, March 3, 2019

Nuno Ferreira publishes nuanced and balanced analysis of EU Roma policy

Nuno Ferreira of Sussex University has published an excellent nuanced and balanced analysis of the EU's Roma policy.

Ferreira's 2019 contribution A Roma European crisis road-map: a holistic answer to a complex problem, a chapter in the book Constructing Roma Migrants European Narratives and Local Governance, dissects each element of the EU's law and policy designed to address discrimination, deprivation and inequality in the Roma community in Europe.

The chapter outlines each of the frameworks applied by EU law and policy - which cover anti-discrimination, integration, and human rights and minority protection laws and policies - cogently parsing the achievements and limits of each. The chapter also contrasts the EU's legal and policy framework with that of the Council of Europe (CoE), embedding a comparison of case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

The author goes on to recommend a holistic approach that blends all of the approaches discussed, writing,

The complex and web-like vicious circles described here are extremely hard to address by isolated or sectoral policies, and thus require a holistic, complex and dynamic approach by the EU institutions (p. 40).

Of particular interest is the author's critique of the EU's integration policy toward the Roma. As an alternative, the author recommends that the EU and member states adopt a stance of convivencia, which would respect the dignity and culture of the Roma, and policy measures involving cultural mediators and intense consultation and dialogue to develop bottom-up solutions rather than top-down solutions.

A highly recommended read! Better yet, the entire Constructing Roma Migrants book is open access and can be downloaded in its entirety.

Sunday, January 20, 2019

Europe and the World law review dedicates issue to EU extraterritoriality, human rights, and trade

For all you free trade and human rights nerds out there, Europe and the World a Law Review - a new peer-reviewed, open access law review -  dedicated its second issue to the inter-relationship between extraterritoriality of EU human rights law and social norms with EU free trade and public procurement policies.

Edited by Professor Christina Eckes of the University of Amsterdam, Professor Piet Eeckhout of University College London, and Associate Professor Anne Thies of the University of Reading, Europe and World a Law Review has a companion blog for shorter pieces.

The October 2018 issue of Europe and the World a Law Review is guest-edited by Dr. Vassilis Tzevelekos of the University of Liverpool and Dr. Samantha Velluti of University of Sussex. The issue focuses on extraterritoriality of EU Law and Human Rights after the 2009 Lisbon Treaty.

The articles in the issue are based on a 2017 workshop held at the University of Sussex on EU human rights obligations in relation to external action. The articles raise the question of whether conditionality in EU international agreements - particularly free trade agreements in the area of human rights and social norms - falls under the concept of extraterritoriality.

Of particular interest to trade and human rights and social norms nerds is the obligation in Article 3(5) of the Treaty on the European Union (TEU) that the EU contribute to free and fair trade, eradication of poverty, and the protection of human rights. Professor Gammage explores this obligation in the excellent article "A critique of the extraterritorial obligations of the EU in relation to human rights clauses and social norms in EU free trade agreements."

Other articles in the issue explore the binding nature of human rights norms toward individuals outside member state territory who are affected by EU trade and investment policies (Berkes); the EU's extraterritorial obligations in occupied territories (Ryngaert & Fransen); extraterritoriality of human rights norms in public procurement in the context of global supply chains (Corvaglia and Li); and the effectiveness of EU public procurement standards as applied through external trade policies (Sanchez-Graells).

The adoption of the 2030 Sustainable Development Goals by the UN in 2015 obligates the world community to end poverty, improve health and education, reduce inequality, protect our planet, and spur economic growth. Achieving these goals will require an overhaul of our global trading system and its priorities - not an easy task. The authors' exploration of extraterritoriality of EU human rights and social norms in the context of free trade agreements and public procurement in this special issue of Europe and The World a Law Review is a thought-provoking springboard for the hard work ahead of us.

Sunday, November 25, 2018

Rose-Marie Belle Antoine knocks it out of the park with new article on intersectionality and gender discrimination in the Caribbean

The inaugural issue of the University of Oxford Human Rights Hub Journal is out - and readers will
not be disappointed.

The first gem in this treasure trove is the excellent article by Professor Rose-Marie Belle Antoine, An Intersectional Approach to Addressing Gender and Other Forms of Discrimination in Labour in the Commonwealth Caribbean. This article analyzes the intersection of race and gender in discrimination against women in multi-ethnic societies in Trinidad and Tobago and other Caribbean nations.

Nothing is left out. Every axis is explored - not just racial divides and how they amplify gender discrimination, but how urban-rural divides, internal acceptance of external gender and racial identities, inadequate child care, and national laws, regional trade frameworks, and international economic trends all impact and keep women in poverty.

If you are interested in any of these topics, you should race to the Oxford Human Rights Hub website and download and read this article immediately.

Tuesday, August 7, 2018

American Bar Association's International Anti-Corruption Newsletter highlights compliance risk posed by labor protection contracts in Mexico

The summer 2018 issue of the American Bar Association's International Anti-Corruption Committee Newsletter highlights the corporate compliance, bribery and HR risk posed by labor protection contracts in Mexico.

The article can be found at the following link:ABA International Anti-Corruption Committee Newsletter - Summer 2018 (pdf opens, pp. 6-10).

The newsletter also contains insightful anti-corruption stories and updates from every region in the world and a report on insights provided by Ana Pinelas Pinto of the Miranda Alliance in Portugual on anti-corruption compliance concerns related to payments to public entities or officials in Africa (pp. 3-4).

The International Section's Anti-Corruption Newsletter changed its format in Winter 2017 to include both substantive articles and regional anti-corruption updates. See the following link for past and future issues, as well as additional information about the Committee's work: ABA International Section Anti-Corruption Newsletter

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 on IntLawGrrls and Medium.

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.

Also published on Medium.