Thoughts on recent report on Haitian migrant workers on Dominican sugarecane plantations: Is the time right for a Social Security Agreement between Haiti and the Dominican Republic?

The U.S. Department of Labor's recent report on working conditions for Haitian migrant workers in the Dominican sugar industry highlights a shift in the way U.S. DOL's Office of Trade and Labor Affairs (OTLA) reviews petitions submitted under the labor chapters of U.S. free trade agreements.  Just 15 years ago, the OTLA's predecessor (the National Administrative Office - NAO) declined to review a petition from the Florida Tomato Exchange alleging that farmers in Mexico utilized child labor to grow and harvest tomatoes, reasoning that the U.S. tomato producers did not supplement their allegations with additional facts.  Such a high standard made it difficult for NGOs, human rights organizations and trade unions - and even business trade associations - to persuade the U.S. DOL to examine lapses in labor law enforcement if they lack the budgetary or technical capacity to produce the kinds of facts that would persuade the U.S. DOL to accept a petition for review.  Thus, an opportunity to address child labor in agriculture in Mexico - along with the unfair trade implications of child labor - was lost 15 years ago.  The shift in the OTLA's methodology may make it easier for advocacy groups to file petitions and bring more attention to child and forced labor issues among U.S. trade partners.

The report also shows that over 200 years after Haiti became independent, Haitian migrant workers still work in slave-like conditions on Dominican sugarcane plantations.  Although the report does not explicitly address the issue of racism, it appears that Haitian sugarcane workers and their families are continually exposed to racial, ethnic and national discrimination in the Dominican Republic.  The Inter-American Commission on Human Rights (IACHR) denounced a recent decision of the Supreme Court of the Dominican Republic that denied and revoked citizenship status of Dominicans of Haitian descent born in Dominican territory.  According to the IACHR, the court decision strips tens of thousands of people of Dominican citizenship. Discrimination against Haitians and Dominicans of Haitian descent plays a role in the prevalence of child and forced labor in Dominican agriculture.  Lack of legal clarity about the citizenship of Haitians born in the Dominican Republic perpetuates child labor and poverty and will make it even more difficult for employers, worker rights organizations, NGOs and government authorities to find a solution to child labor in Dominican agriculture.  I would argue that the situation also hampers sustainable economic development in both Haiti and the Dominican Republic because it precludes access to education and social security among a significant immigrant community in the Dominican Republic.  Access to education and social security could improve the labor market outcomes for Haitians and alleviate poverty in both countries.

The $10 million grant issued by the U.S. Department to address child labor in agriculture in the Dominican Republic is a major step forward in the types of remedies and solutions available as a result of labor petitions filed under U.S. FTAs.  Such grants greatly increase the potential positive outcomes of such petitions, showing that it is possible for civil society to utilize the labor petition process under FTAs to affect the international aid process.  Nevertheless, the facts discussed in the OTLA's report cry out for even more creative and innovative regional solutions - such as negotiation of a broad ranging Social Security Agreement between Haiti and the Dominican Republic, as well as an internationally funded program and campaign to provide documentation to all unregistered children of Haitian descent born in the Dominican Republic.

A number of obstacles exist to the negotiation of a Social Security Agreement between Haiti and the Dominican Republic, but the time and circumstances may be right for the international community to press for just such an agreement.  Although Haiti and the Dominican Republic share both an island and a labor market, a December 10, 2013 article in the St. Maarten Island Times highlights how the relationship between the two nations has deteriorated in light of the recent citizenship decision issued by the Dominican Supreme Court.  In addition to international approbation by both the U.S. OTLA and IACHR, the Dominican Republic's action has been condemned by the Caribbean Community and Common Market (CARICOM), which as a result of the Supreme Court decision has deferred the Dominican Republic's application for full membership in the regional organization. Potential trade sanctions under the CAFTA-DR resulting from mistreatment of Haitian migrant workers as well as the prospect of full membership in CARICOM can be utilized as leverage by the Organization of American States, CARICOM and international trade partners such as the U.S. and  European Union to bring the Dominican Republic to the table to negotiate a Social Security Agreement with Haiti and address other issues related to the two nations' joint labor market and unresolved citizenship issues.

While the darkest hour may be before the dawn, the dawn may not come for Haitian migrant agricultural workers in the Dominican Republic if the international community does not seize this rare historical opportunity to press for a Social Security Agreement between these two island nations.

Can NAFTA and CAFTA be used as tools to eliminate indigenous child labor in the Americas?

Sara Shahriari's November 20, 2013 article in Indian Country Today  highlights the prevalence of indigenous child labor in the Americas - particularly exploitation of indigenous child laborers in the Bolivian mine industry.  Indigenous child labor is also prevalent in agriculture throughout the Americas, as highlighted in these studies in Mexico, Guatemala, Honduras, Peru and Costa Rica.  Indigenous girls face particular challenges, as exemplified by this 2008 UNICEF report about the lives and status of indigenous girls in Guatemala.  According to the Mexican National Council to Prevent Discrimination (citing official  government statistics), there are 3.6 million children working in agriculture in Mexico, over a third of which are indigenous - with indigenous child workers suffering additional levels of discrimination on account of their racial and cultural heritage.  Indigenous children also toil in mines and agriculture in Colombia and Peru.  U.S. agriculture employs hundreds of thousands of indigenous workers from Mexico and Central America and child labor is prevalent in U.S. agriculture, but it is unclear what percentage of child workers in U.S. agriculture are indigenous.

In addition to International Labor Organization conventions prohibiting child labor and ILO resources on indigenous child labor - not to mention the ILO's Guidelines on Combating Child Labor among Indigenous and Tribal Peoples cited in Shahriari's article - labor chapters in a number of free trade agreements between the United States and Latin American countries - such as the North American Free Trade Agreement (NAFTA), Central American Free Trade Agreement (CAFTA-DR), U.S.-Peru Free Frade Agreement and U.S.-Colombia Free Trade Agreement - prohibit child labor and discrimination on the basis of race.  The labor provisions in these free trade agreements (FTAs) contain mechanisms for members of the public to file international complaints that can lead to trade sanctions.

There has been skepticism among NGOs and trade unions about the effectiveness of the labor provisions in these FTAs, especially the NAFTA labor side agreement.  Although the NAFTA labor side agreement has been in force for 20 years, there has yet to be a petition filed under the agreement that focuses specifically on the issue of child labor in agriculture, despite the fact that prohibition of child labor is one of 3 out of 11 labor principles which can lead to trade sanctions under the NAFTA labor side agreement. While some petitions filed under the NAFTA labor side agreement have involved racial and ethnic minorities (such as the 2005 Puebla petition, where a number of the workers were indigenous, and the 2006 North Carolina petition, where the majority of the workers were African American), no NAALC petition to date has focused on racial discrimination per se.  Thus, the issue of systemic racism has yet to be formally addressed under the NAFTA labor side agreement - or under any of the other FTAs the U.S. has with nations in the Americas and elsewhere.

A report issued by the U.S. Department of Labor under the CAFTA-DR in September 2013 regarding child labor, forced labor and racial discrimination against Haitian migrant workers in the sugar cane fields of the Dominican Republic is a positive indication that FTA labor provisions may be a useful tool for addressing labor by indigenous and other children in the U.S., Mexico, Central America and South America.  This is the first report issued by the Office of Trade and Labor Affairs (OTLA - the U.S. Department of Labor office tasked with accepting petitions alleging a trade partner violated the labor chapter of an FTA) to address and discuss at length the issues of forced labor and child labor in agriculture.  The petition and findings led to the commitment by current Secretary of Labor Thomas Perez (who is himself of Dominican heritage) of a $10 million project to improve labor conditions in the sugar sector in the Dominican Republic .

While there are numerous existing international and national programs designed to address child labor in the U.S. and Latin America, petitions filed under the above-mentioned FTAs regarding the issue of indigenous child labor could have a significant impact by drawing attention and resources to indigenous child laborers.  An FTA labor petition can get indigenous advocates a seat at the table in policy discussions related to child labor.  It would also afford indigenous advocates and their allies the opportunity to affect and change the bases for policy conversations about indigenous child workers - particularly in addressing and dispelling stereotypes about indigenous parents and families and their motivations for having their children work alongside them or sending their children to work instead of school.  Advocates could make specific education and labor policy proposals and use FTA labor petitions as leverage to get their proposals and ideas on the desks of policy makers.  Under the NAFTA labor side agreement, it is possible to cross-file petitions.  Indigenous and child advocates could file a petition with the U.S. Department of Labor regarding child labor in agriculture in Mexico and at the same time file a petition with Mexican labor authorities regarding child labor in agriculture in the U.S. - and file both petitions with Canadian labor department to involve an international third partner to see through the Gordian knot of U.S.-Mexico relations and leverage creative Canadian policy mechanisms to address common issues in both of Canada's trade partners to the south.  Such a cross- and dual-filed petition might lead to a call for an Evaluation Committee of Experts (ECE) - the 2nd of 3 tiers of dispute resolution under the NAFTA labor side agreement - to draft an independent report about indigenous child labor in agriculture in the NAFTA region.  Similarly, the regional structure in the CAFTA-DR could be leveraged to design policies to combat indigenous child labor at the regional level in Central America.  While the U.S., Mexican and Canadian labor departments have 20 years of experience in accepting and addressing petitions filed under the NAFTA labor side agreement, it is a process that may be new to Central American nations.  Strategically, it might be interesting to dual file indigenous child labor petitions under the CAFTA-DR with Central American nations - for example, filing a petition in Costa Rica about the treatment of indigenous child laborers in Guatemala, or one in Honduras about the treatment of indigenous child laborers from Honduras in Costa Rica - as well as in the United States, to leverage the financial and institutional resources of the U.S. Department of Labor.

Finally, utilizing FTA labor provisions to combat indigenous child labor in the Americas may increase the vitality of these provisions and their capacity to foment positive policy development and exchange on a regional level, especially in the NAFTA region.  Since there is general consensus that child labor implicates fundamental human rights, dual-filed petitions may increase engagement between authorities and advocates across borders to address and eliminate indigenous child labor, including affording the opportunity to child labor specialists in Mexico, Central America and South America to lend their expertise, experience and language skills to their counterparts in the United States.  The NAFTA labor side agreement is in particular need of revitalization, as traditional and more recent disputes between the U.S. and Mexico in the area of labor policy - as well as mutual lack of enthusiasm among the 3 trade partners' labor authorities and social partners - have rendered the agreement's potential for innovative labor market and human rights policy fallow.  As child labor in agriculture is a difficult issue to combat in both the U.S. and Mexico, a dual and cross-filed petition on the issue of indigenous child labor might provide the common ground North American labor authorities need to rebuild their strained and tattered relations.  Since the North American labor departments closed down their joint tri-national labor secretariat in 2010, the labor ministers of the three trade partners have not held North American Labor Council meetings or engaged in cooperative activities as required by the NAFTA labor side agreement.  Since not a single one of the three trading partners has completely clean hands in the areas of racial discrimination against indigenous peoples or child labor in agriculture - but all three countries have active programs to eliminate both - working together to resolve a common issue of basic human rights may afford them an opportunity to rebuild their relationships and eventually engage in North American regional labor policy and research in a more productive fashion and on more sound footing than in the early years of their relationship.

Indigenous child labor in agriculture is an issue in which the cooperative mechanisms engaged in as part of the dispute resolution processes under FTA labor chapters - such as meetings, studies, bringing people to the table and financing special programs - may actually work.  Petitioners would have to craft the petitions and their requests for remedies to include their ideas for what kinds of programs and dialogue they want.  For example, advocates could ask for the participation of educational authorities and experts and have a set of ideas ready for what kinds of social dialogue they want and who should participate.

While the history of application of FTA labor chapters has shown the processes and outcomes to be less than perfect, recent reports and activities exemplified by the 2013 Dominican Republic Sugar Cane Industry report and ensuing action plan show that workers may have some vindication of their allegations and some productive outcomes as a result of petitions.  And, as demonstrated by action by the Centro de Migrante and its allies, petitions filed under FTA labor chapters in conjunction with legislative initiatives related to agricultural labor visas in the United States can lead to administrative and legislative progress on important human rights issues as well as the energizing of communities.

European Debt Crisis contributes to changing dynamic between Europe and Latin America

In her November 8 COHA article Latin America Extends Helping Hand to Europe (reprinted by Eurasia Review), Olga Imbaquingo provides interesting and in-depth counterpoint to recent opinions expressed by Fox News Political Commentator Charles Krauthammer about the causes of the European Debt Crisis.  While Krauthammer ascribed causation to expensive social support programs that exist in many European nations, Imbaquingo points out that Germany's economy has been doing great in recent years exporting manufactured goods to the rest of Europe.  Germany, like the Netherlands and Nordic countries Denmark, Norway and Sweden, has some of the strongest social support programs in Europe.  Similarly, while the Netherlands has adopted austerity measures in the last couple of years, the country still has a strong social safety net and Dutch unemployment during the financial crisis hovered around 7.5%, reaching a record high of 8.1% in May of this year.  Imbaquingo points to mismanagement of public administration, political corruption, poor tax collection and U.S.-style debt-fueled economic growth as root causes for high unemployment and economic crisis in trouble EU nations - not social welfare.  Imbaquingo also highlights the trend of migration of professionals from Spain and other southern EU nations to Latin America for work, as well as implementation of educational and labor market programs in Argentina and Ecuador to increase scientific innovation and high quality high tech employment.

AARP partners with private sector in innovative initiative to address long term unemployment among older workers

This week, Bloomberg News highlighted an innovative private and non-profit sector collaboration to address the issue of long term unemployment in the United States in the wake of the 2008 financial crash.  According to an April 2013 report of the Joint Economic Committee of Congress, almost 40% of the currently unemployed in the U.S. have been looking for work for more than 6 months and over 25% of the unemployed have been searching for over a year.  While youth unemployment has declined over the past year and young people have exited the labor market to pursue education and training, older workers (especially those over 50) find themselves over-represented amongst the long term unemployed, as do African American and Hispanic workers.  Official statistics do not fully capture the real number of people who have been unemployed for one, two, three or more years because once a person stops "looking" as officially defined, they stop being counted.  In May 2013, Bloomberg News reported that long term joblessness feeds upon itself, as stigma sets in.    The longer a person is out of work the harder it is to find a job.  Those affected are parents with college-aged kids, homes and cars, losing all the perqs of long careers and being productive members of society with homes, cars and retirement funds.  They find themselves without options, having lost everything that gave them status in society and having to start again from scratch - while competing against younger workers and suffering discrimination based on both their age and long-term joblessness.  The plight of older workers who lose their jobs is captured in this August 26, 2013 New York Times article about older workers being shut out of the economic rebound.

The Bridges to Employment program, modeled after Platform to Employment or "P2E", was first implemented in Bridgeport, Connecticut in December 2012 as a joint initiative of the American Association of Retired People (AARP) and The Workplace, Inc. to provide assistance to unemployed persons aged 50 and over to re-enter the workforce.  The AARP has taken an intensive interest in employment issues for older Americans.  In addition to its co-sponsorship of job creation programs like Bridges to Employment, the AARP developed Life Reimagined, a website dedicated to career advice for older Americans, conducts research and publishes studies on age discrimination such as its 2013 report Staying Ahead of the Curve about perceptions of discrimination against workers aged 45-74 and lobbies Congress and State Legislatures to strengthen anti-discrimination protections for older workers.

After completing a 5-week training program, a participant in Bridges to Employment transitions to a job try-out in which P2E pays up to 8 weeks of salary for the participant to work for a private sector employer.  The program is similar to those partially funded by the European Social Fund in the Sensitive Urban Zones (ZUS) in the suburbs of Paris and other major French cities to improve labor market participation of disadvantaged youth, except that rather than public funding of unsustainable public positions that go away after a few years, the hope is that payment of direct subsidies to employers will result in sustainable positions in the private sector.  As reported by Bloomberg, the Executive Director of The Workplace Inc. says employers prefer direct funding to tax credits.  While Americans and Europeans may have philosophical and cultural differences about whether funding should come from private or public sources, the advantage of providing the funds to private sector employers rather than public sector entities is it supports businesses still recovering from the ongoing effects of the Financial Crisis and can provide much-needed cash flow to small- and medium-sized businesses.  There is general consensus among labor market economists that small- and medium-sized businesses are the engines of job creation, as discussed in this March 2013 paper by Michael Grimm and Anna Luisa Paffhausen.

So far, the Bridges to Employment programs seems to be a success.  Not only do participants have high rates of permanent employment, but the program is in the process of being duplicated around the United States.  For example, in Dallas in February 2013, the program was expanded to cover both long-term unemployed and Veterans, with the governmental Workforce Solutions of Greater Dallas, non-profitYWCA of Metropolitan Dallas and private Citi Community Development and the Walmart Foundations joining The Workplace Inc. and the AARP Foundation as funders of the operation.

Drawing a connection between tribal sovereignty, the Paul Frank party flub and international sustainable development

I highly recommend Pilar Thomas' article Governance and Jurisdictional Considerations for Renewable Energy Development in Indian Country in the August 2013 ABA Native American Resource Committee Newsletter (pp. 13-17).  In this interesting and succinct piece, Ms. Thomas clearly and compellingly lays out the complexities of tribal jurisdiction over energy development on native lands in the U.S.  Basing her narrative on the principle of tribal sovereignty, Ms. Thomas provides a legal road map for U.S. tribes to exercise jurisdiction and control over the manner in which they pursue renewable and traditional energy generation and to encourage development of energy resources while ensuring that taxes and other revenues accrue to the tribe itself.  Exercise of sovereignty, authority and control over use of their lands and energy resources empowers U.S. tribes to impact the development of the U.S. energy grid now and in the future.

Empowerment is also the theme of a recent development in fashion circles whereby 4 Native American fashion designers partnered with Paul Frank to come up with a new collection of clothing and fashion accessories in the wake of Paul Frank's "Powwow Party Flub" back in September 2012.  The collaboration resulted after blogger Dr. Jessica Metcalfe criticized Paul Frank in her blog Beyond Buckskin for misappropriating and misrepresenting native culture in a company theme party.

What connects these two seemingly unrelated items to one another and to the themes of this blog are the concepts of empowerment, agency and transformation inherent in both. Pilar Thomas' article about tribal sovereignty and energy development shows native peoples asserting sovereignty over their land and resources while the fashion line resulting from Jessica Metcalfe's outraged blog post shows native people asserting sovereignty over their ideas, images and culture.  Both represent assertion of ownership over how peoples and cultures depict and define themselves rather than allowing outsiders to be the depicters and definers.

Empowerment, agency and transformation should play a more prominent role in approaches to eradication of global poverty and inclusion of the world's indigenous and racial minorities in sustainable environmental and economic development.  These two examples of empowerment and re-appropriation of cultural identity and resources contrast sharply with the "vulnerable populations" discourse in the European Union, where all peoples who differ from a certain view of the norm - racial minorities, the Roma, young people, old people - are referred to as "vulnerable" and deserving of special treatment.  The "vulnerable populations" discourse implies pity from the majority rather than respect and a well-deserved hand or leg up.

The dialogue and outcome at Paul Frank is something that could happen at other clothing manufacturers and retailers with global operations.  One example that comes to mind is the garment and textile manufacturing sector in Southern Mexico (Puebla, Oaxaca, Guerrero).  Despite thousands of years of history and tradition in textiles and clothing, indigenous workers are involved at the lowest ends of clothing and textile production but not at the design or conceptualization levels.  There is really unused space for creative and positive Corporate Social Responsibility initiatives and community engagement that can transform fashion and garment manufacturing the world over, modeled on expanded versions of the Paul Frank initiative.

Pilar Thomas' article raises the question of legal structures around the world that would allow indigenous and minority peoples to assert the kind of control over energy production the way tribal sovereignty empowers native peoples in the U.S. to assert themselves over energy production on tribal lands.  While indigenous peoples have used international human rights and minority protection regimes as a form of empowerment to challenge energy-related decisions in their lands - for example, the building of hydro-electric dams - indigenous people involved in such actions are often framed in international discourse as victims seeking redress rather than powerful actors seizing control of their destiny.  These issues are complex and strategies, cultural viewpoints and goals pursued by native peoples in the United States may not be the same as those pursued by native peoples elsewhere, but Thomas' article provides a good place to start in developing a new way of thinking about these issues not only in the U.S. but elsewhere around the world.

US and EU differ on trade sanctions for violation of labor rights in Bangladesh

As one of the least developed countries in the world, Bangladesh has been a beneficiary of special tariff benefits under GSP programs in both the EU and US over the last several decades.  In the wake of the Rana Plaza building collapse in which 1,129 people were killed, US and EU trade authorities differed in their approach in determining whether Bangladesh should continue as a beneficiary of special trade preferences.  While the US suspended trade benefits under GSP, the EU allowed benefits to continue.  Despite this difference in policy, both the US and EU have continued active engagement with government authorities and social partners in Bangladesh to improve labor and employment law enforcement and workplace and building standards.  Both the US and EU will cooperate with the ILO and one another to improve labor standards and enforcement in Bangladesh in the coming years. European authorities have criticized the decision of US authorities to engage in trade sanctions against Bangladesh, but it appears as though action taken by USTR has led to a flurry of legislative and administrative action in Bangladesh to implement meaningful labor protections .  Critically, on August 9, 2013, the Solidarity Center reported that the Government of Bangladesh re-registered the Bangladesh Center for Worker Solidarity, a worker education and advocacy group which had been deregistered in 2010.

My recent piece in the ABA International Employment Lawyer (August 2013) outlines the procedural history leading up to USTR's suspension of trade benefits for Bangladesh in June of this year.  Although the suspension occurred 3 months after the Rana Plaza disaster, it was in fact the culmination of a 6 year process commenced with a petition filed by the AFL-CIO in 2007.  In many ways, this process has been ongoing for the last 23 years, as the first petition to suspend Bangladesh from the US GSP program for labor violations was filed in 1990.

What stands out in reviewing the pleadings in the GSP review process is how prominent a role Export Processing Zones (EPZs) play in the continuance of serious labor violations in Bangladesh and elsewhere.  EPZs allow for a separate labor rights regime which affords lesser protections than most countries' general labor rights regimes.  While both women and men work in EPZs, there is a predominance of women in certain sectors in EPZs which results in the creation, in essence, of a separate and unequal labor rights regime with disparate impact on women workers.

It is also apparent that the ongoing trade review process over the last 23 years has resulted in some improvements to the contents and application of labor laws in Bangladesh, with some steps forward and many steps backward.

Legislative authorities in Bangladesh are in the process of amending the country's labor laws, but the ILO has found amendments to fall short of full compliance with international labor standards and has called for further steps to improve labor laws and compliance.   In particular, Human Rights Watch focused its analysis on gender-related provisions of the new law, noting that while the version as of July 15, 2013 contained new provisions prohibiting discrimination on the basis of sex and disability, it did not contain provisions prohibiting sexual harassment in the workplace as required by a 2009 decision of the High Court Division of the Supreme Court of Bangladesh outlawing sexual harassment of women, girls and children in the workplace and educational facilities.

Solman and Sum discuss the major impact current jobless recovery in the U.S. has on minority teens

Having called on EU and European authorities to take radical action to address unemployment among racial minority youths in the EU, I am both surprised and unsurprised to read in Paul Solman's interview with Andrew Sum that jobless rates for young black teens in the U.S. exceed 90% - about the same rate as jobless rates for Roma youth in Eastern Europe.

Clearly, the EU isn't the only continent that needs to take radical, concerted action to address unemployment among minority youth, who already face a number of barriers when it comes to accessing the labor market.  With state and local governments buckling under financial pressures as a result of the financial crisis, college-educated workers displacing workers with high school diplomas and those with high school diplomas taking the jobs that those without a high school diploma would take, unemployment among the least advantaged in our society has soared.

CSR professional advocates for putting CSR on the Board agenda

In this compelling piece on the glass ceiling for CSR managers (and corporate social responsibility itself), Marie d'Huart argues that Corporate Social Responsibility has to be part of the mandate of the top of corporate management, including at the Board level.  She points out that many mid-level CSR managers find themselves in the awkward position of recommending that management decisions be countermanded without having the authority or support within the management structure for these recommendations.

Financial compliance is now embodied in U.S. corporate law through the Audit Committee - why not create a similar mechanism at the Board level for Corporate Social Responsibility, along with a Corporate Social Responsibility Officer at the same level as the Corporate Financial, Executive and Operations Officer?

A fundamental management principle common to company policies banning financial malfeasance and bribery of government officials on the one hand and prohibiting racial, sex-based and other kinds of discrimination and harassment on the other is the need for ethics and behavior modelling at the top - along with effective, swift and fair discipline of malfeasors.  Leadership at the top has an important impact on the culture of an organization or company.  CSR experts point out that there is often a disconnect between the buyers who set prices and manage contracts with manufacturing subcontractors on the one hand and the CSR managers who develop and implement policies and corporate codes of decent conduct.  With these kinds of internal disconnects, it is no wonder that multinational companies find themselves in the position of learning they have sourced products from factories so unsafe that they quite literally collapse on the workers, as happened in Bangladesh earlier this year.  As d'Huart points out, only by setting strategy at the top level of a company with leaders that have sufficient authority and a full view of all aspects of operations can a company overcome these kinds of disconnects.  People who act as a company's conscience at mid-level and management levels of the governance structure should receive the training and opportunities to allow them to rise to top level leadership.

Great piece in Huffington Post about Global Jobs Crisis

I really liked this piece on the need for a Jobs Strategy in the Trans-Pacific Partnership and EU-US FTA by Michael Shank and Sabina Dewan in yesterday's Huffington Post.   Shank and Dewan draw some interesting and powerful linkages about the potential impact of the current global jobs crisis and the lack of decent work for so many around the world.  The parallels between our own age with Rana Plaza and social unrest are eerily like those of a century ago with the Triangle Shirtwaist Fire and that era's social movements.

How does the EU's strategy against racial discrimination compare to that of the NAFTA region?

Next week ILERA's 10th European Regional Conference is happening in Amsterdam, Netherlands.  The theme is Imagining New Employment Relations and New Solidarities.  Most of the papers are up and can be downloaded here.  The conference has a lot of great themes and papers which I look forward to highlighting and discussing in this blog over the next few weeks.

My own paper discusses and analyzes the effectiveness of the European Union's strategy against racial discrimination.  As in the United States, where unemployment rates among African Americans and Latinos are 2 to 3 times those among the majority, the European Union has major disparities in employment outcomes for racial and ethnic minorities in comparison to the majority population.  In Europe, racial and ethnic minorities are generally defined as "Third Country Nationals" or second and third generation third country nationals - basically, people who migrate to the EU from non-European countries.  The Roma (previously known as Gypsies) are also included as ethnic minorities, but with a separate set of problems. 

The European Union differs significantly from the NAFTA region because it has a number of legal and policy instruments that can be utilized to combat racial discrimination on a regional basis, including the Race Equality Directive of 2000, a regional European Employment Strategy and its various progeny and updates like Europe 2020 and a European Social Fund. Sadly, we do not have these kinds of instruments at our disposal in our region.  So the EU has several steps up the regional ladder in comparison to the NAFTA region, and we should look at these examples for regional policy making - a subject for further research.  Moreover, EU institutions like the European Commission and European Parliament are constantly reviewing and revising both policies and outcomes with the goal of improving their effectiveness.  EU institutions also systematically involve trade unions and employer groups in the establishment of regional labor market policy, something that was not done under the NAFTA labor side agreement before the North American Commission for Labor Cooperation Secretariat closed in 2010, and which has been done rarely in U.S. policy.  A rare instance in the U.S. case is when trade unions and employer groups got so exasperated with inaction on Capitol Hill that they partnered together to push a joint Immigration Reform agenda.

Nevertheless, the investment of significant regional resources by the EU into combating racial discrimination - which is critical to the maintenance of EU social security systems in the future due to changing demographics - has not really had a huge (if any) impact on reducing high unemployment among Europe's racial minorities.  It could simply be a matter of time.  It has been less than 15 years since these laws and policies were put into place.  My analysis is that these policies are ineffective for a couple of reasons, however.  The primary reason is Europe's racial minorities are perpetually defined as "Other" and "Not European" with the use of the term "third country national."  Other major reasons include not systematically including representatives of racial minority groups in designing regional law and policy.  The EU is simply not asking the right questions of the right people.  Finally, not enough attention is paid to existing economic survival strategies of European immigrant communities.

So the EU's strategy against racial discrimination is light years ahead of that of the NAFTA region (which does not have one) but it depends on how the the EU strategy adapts and evolves over the next several years to see if it will have a genuine impact.

Conversation on AFL-CIO CSR report continues in wake of Rana Plaza Disaster in Bangladesh

Thanks to the Business and Human Rights Resource Centre, the conversation about how to fix CSR and multi-stakeholder initiatives has begun.  Business and Human Rights solicited responses from the companies and multi-stakeholder initiatives to the AFL-CIO's CSR and MSI critique.  Social Accountability International offered a thoughtful response to the AFL-CIO's as well as some corrections.  SAI pointed out that the CSR industry is $80 million US, not $80 billion US - an important correction.  SAI's argument that the AFL-CIO got SAI's certification business model wrong did not strike me as a convincing counterpoint to the AFL-CIO's critique, however.  Regardless of how the operational and contractual structure is organized, entities affiliated with SAI gave top level certifications to factories that later turned out to be deadly to their workers.  All of the responses - and a record of  non-responses - are included on the Centre's website.  The website is updated as discussants submit additional materials. On May 20, the AFL-CIO submitted a rejoinder to SAI's response to its report, with subsequent responses for SAI and others.

On May 7, The Guardian published an informative blog piece on the opportunities and challenges faced by CSR personnel within multi-national corporations which makes an insightful contribution to the conversation.  The writer, Christine Bader, points out that pressures in the purchasing department and lack of communication due the tendency toward division into silos in large organizations can nullify the work being done by serious CSR practitioners within corporations.

This week, factory workers at a Nike supplier in Cambodia went on strike for better wages because they cannot subsist on their minimum wage earnings.  While the Better Factories Cambodia program allows the garment industry in Cambodia to market itself as a high labor standards provider, in fact it seems that the price point guides and not high labor standards.

Meanwhile, despite their differences on the efficacy of SAI's certification process, both SAI and the AFL-CIO and other international trade unions support the Accord on Fire Safety and Building Safety in Bangladesh.

Pathbreaking May 2013 Report and Strategy Paper on Migrant Girls

I highly recommend this May 2013 Population Council report and strategy paper on migrant girls.  The study was launched by the Wilson Center in a May 14 event and webcast.  The report credits adolescent girls who leave home - for work, for marriage, for education - with agency and spunk, pulling together what little statistics exist in countries in the Americas, Africa and Asia to put together a picture of the reasons the girls migrate and the challenges they encounter along the way.  Since information is scarce and hard to obtain, the Population Council commissioned several original studies to support the report.  Girls on the Move is 5th in a 5-part Girls Count series inspired by the Coalitiion for Adolescent Girls which advocates for placing girls on the global agenda. In the webcast, Miriam Temin pointed out that many of the young women who were killed in the Rana Plaza building collapse in Bangladesh were migrant girls.

A major point made in the report is that while adolescent girls (aged 13 to 19) leave their homes for their own reasons, global attention focuses on the small percentage of the total migrant girl population that is trafficked for illicit purposes.  This places migrant girls who aren't trafficked in precarious situations where they can end up being trafficked or end up being exploited.  Girls who leave rural areas and small towns with the support of their families or other girls and women have better experiences than those who leave without the support of family and friends.  Because of little training and education available to them in rural areas in countries like Ethiopia, Guatemala, Vietnam, Bangladesh, girls have little social capital and take positions such as household maids and nannies or factory workers.  Thus, girls who migrate need education and training before they leave, and education, training and health services once they reach their destination - not to mention support along the way.

One of the best aspects of this report is the researchers asked girls what they thought and how they felt about their experiences.  For many, even toiling away 12-16 hours a day as a domestic worker in the city and earning a bit of money was better than staying home with no prospects.  Many girls are proud of their independence and the contributions they are able to make to their families' wellbeing.

Another of the report's aims is to recommend services and support for migrant girls before things go awry and they are exploited or fall into trafficking.  For example, young women who travel for marriage or to work as domestic workers can be isolated from other girls, leading to depression, exploitation and other problems.  Girls who work in factories and sleep with other girls in barracks or houses have more of a chance to develop connections, but they are not afforded the leisure time to take full advantage of these connections and pursue opportunities to educate themselves and improve their lives.

The report shows that girls' experiences differ based on culture and gender norms.  Yet in many ways, migrant girls are like every other girl in the world.  Like all teenage girls, many migrant girls keep in contact by texting with family and friends on their cell phones - the cell phone is their main lifeline.

The final 2 chapters of the report outline recommendations for how to provide better support to migrant girls, pointing out that often migrant girls receive a tiny percentage of the support and services provided to disadvantaged youth, while boys tend to take up the bulk of the services.  The protective assets girls need for a successful migration include human, social, physical and financial assets - such as having a safe way to save money and send resources home to needy families.  In addition to highlighting some excellent programs that work, the report warns against 2 of the bogeymen of the unsuccessful program:  targeting programs toward "migrants" (as the girls may not view themselves as migrants) and developing programs designed to return girls to their homes (something the girls may not actually want).

This report brought me back to the days when I was a girl, 17 years old and taking a train from my home in Santa Fe across country to go to college in Maryland.  Along the way I met predators and  creeps.  If it weren't for an older gentleman from St. Louis watching out for me and warding off the predators, I might have been derailed and not reached my destination.  Millions of girls that age and younger set out for similar reasons with similar opportunities and challenges all over the world.  A main point of the study is that Girls Count and should be taken note of by local, national and international communities.  The health and wellbeing of the migrant girls discussed in the report will directly impact the health and welbeing of their children and generations to come.

Much research still needs to be done and many more creative and applicable support programs need to be developed.  Girls on the Move has a full 15 pages of references, which is an excellent start.  My only criticism is that the studies commissioned in particular by the Population Council were not highlighted in a separate section.

Update on progress of labor petition under U.S.-Bahrain FTA

Yesterday the U.S. Department of Labor announced that the U.S. Trade Representative formally requested ministerial consultations with Bahrain regarding shortcomings in Bahraini labor law related to freedom of association and protection from discrimination.  While such a step was recommended in USDOL's December 2012 report, the request must be formally made per diplomatic protocol in order for the process to begin.  In the March 2013 National Advisory Committee at USDOL, USTR explained that it wanted to give the Bahraini Government an opportunity to rectify the situation before proceeding formally.

USTR's letter to the Bahraini Government is particularly interesting given the robust interpretation of language in the U.S.-Bahrain FTA's labor chapter that the trading partners must strive to ensure that rights enshrined in the ILO Declaration on Fundamental Rights at Work are recognized and protected by law.  The "strive to ensure" language has been criticized as being too weak to result in meaningful protection and promotion of rights, but its usage in the USTR's letter indicates that meaningful rights protection can derive from the obligation.  Such a robust interpretation of the "strive to ensure" language implies a distinction between a country not having the institutional or budgetary capacity to recognize and protect rights but making a "good college try" and a country that does not appear to be trying at all.  Given the lack of meaningful legal protections for freedom of association in Bahraini law and the fact that that Bahrain does not have legislation prohibiting workplace discrimination, it appears the trading partner has fallen on the wrong side of this distinction.

If the two trading partners are unable to resolve the matter through ministerial consultations, a Subcommittee on International Labor Affairs will be convened.

Who's watching the watchers? A review of two recent critiques of Better Factories Cambodia, Corporate Social Responsibility and Multi-Stakeholder Initiatives over the past 2 decades

As every school kid in the U.S. who has learned about the unvirtuous triangle of sugar, slaves and rum in cross-Atlantic trade routes in the colonial days of the Americas knows, neither global value chains nor human exploitation within those chains are new to the human experience. Over the past two decades, however, there has been a proliferation of inter-governmental, nongovernmental, mixed public-private, business and multi-stakeholder initiatives designed to address the negative impacts of modern global value chains on workers and communities.  Early 2013 has been a time of reckoning for and reflection upon these initiatives with the publication of two important critical studies of their impacts and effectiveness. In February 2013, the International Human Rights and Conflict Resolution Clinic of Stanford Law School in conjunction with the Worker Rights Consortium (WRC) released the report Monitoring in the Dark An evaluation of the International Labour Organization’s Better Factories Cambodia monitoring and reporting program.  In April 2013, the AFL-CIO released its critical report on CSR and Multi-Stakeholder value chain monitoring initiatives Responsibility Outsourced: Social Audits, Workplace Certification and Twenty Years of Failure to Protect Worker Rights.  These two reports raise important questions about the impact and effectiveness of Better Factories Cambodia (BFC) and CSR and multi-stakeholder global value chain monitoring initiatives and should be required reading for all CSR practitioners, especially in the wake of the recent factory building collapse in Bangladesh and factory fires in Bangladesh and Pakistan.  Clearly 2013 should be a year of reflection, reassessment and redirection for CSR and multi-stakeholder initiatives because, as detailed cogently in both these reports, they are not working despite the best intentions of those involved.

Better Factories Cambodia (BFC) was an innovative initiative of the International Labor Organization (ILO), the International Financial Corporation (IFC), U.S. and Cambodian governments and employer and trade union groups that started in 1999.  The goal of the initiative was to certify that the Cambodian garment manufacturing sector complied with international labor standards in producing clothing and textiles for global markets.  BFC led to the establishment of a permanent partnership between the ILO and IFC called Better Work which symbolizes a partnership between the social and financial development models.  Better Factories programs have since been established in Haiti, Indonesia, Jordan, Lesotho, Nicaragua, and Vietnam and will soon be established in Bangladesh and Morocco.  In addition to entrenching the idea that a country can increase its global manufacturing market share by ensuring humane working conditions, BFC and Better Work broke the longstanding cold war between the ILO and Bretton Woods Institutions like the World Bank and IFC.  While there is still a long way to go before the World Bank and IFC fully embrace the ILO's principles of freedom of association, worker rights and social dialogue between workers, employers and governments within their international development framework, Better Work is an important step in bringing the interests of working people to the attention of the global financial infrastructure.

While BFC has been hailed as a success and model for other countries, the assessment produced by Stanford and WRC draws attention both to changes that occurred to the program after the first five years of its decade-long existence and to the manifestation of certain fundamental structural flaws in the BFC framework that have been revealed over time.  When BFC was first established, it was in the context of the international Multi-Fibre Arrangement (MFA) and its sub-agreement the Agreement on Textiles and Clothing (ATC), which allocated quotas for garment and textile manufacturing among various countries.  In addition to the reputational advantages afforded by participation in BFC, the Government of Cambodia and manufacturers were incentivized by the leverage that could be exercised by the U.S. government in denying access of Cambodian apparel and textile products to the U.S. market if they were not manufactured in accordance with the ILO fundamental rights at work.

In 2005, however, there were two critical events that appear to have hampered the effectiveness of the BFC program.  First, the MFA and ATC expired, removing the leverage of potential denial of access privileges to the U.S. and global markets.  Second, the BFC became partially self-sustaining, meaning that much of its funding now comes from the manufacturers and brands that use its auditing services.  The result, argue Stanford and WRC, is that there is much less transparency in the monitoring and auditing processes conducted by BFC.  Rather than being treated as active participants in the auditing process, Cambodian workers are treated as passive audit interviewees who do not get to see the individual factory audit reports, which are for the eyes of factory owners and international buyers only.  The Stanford-WRC report also points out that despite a decade of BFC's presence, independent trade unions are still struggling in Cambodia and wages have stagnated at the same low pre-BFC levels despite inflation so that workers are often not able to purchase enough food to sustain basic nutrition levels, causing them to pass out on shop floors.  Other persistent issues noted in the report include excessive overtime, violations of freedom of association, lack of authentic collective bargaining, occupational safety and health violations and child labor. Moreover, the authors found that many of the Cambodian factories subcontract projects to entities that are not part of the BFC program and not subject to labor inspection requirements of the program - as well as to prisons, where free labor by prisoners further depresses wage levels for garment workers.

The Stanford-WRC assessment is clearly designed to be a constructive report, making recommendations to improve BFC's effectiveness within its existing framework such as taking more steps toward openness by issuing public inspection reports on individual named factories, seeking more input from and responding to the concerns of garment workers and expanding the BFC's role in remediation and follow-up of identified violations.  It is clear from interviews with BFC leaders that the tripartite governance structure of BFC as well as its status as an inter-governmental entity rather than a national governing authority put BFC in the awkward position of having to deal diplomatically with the Government of Cambodia and manufacturers and thus hampering its effectiveness as a rights ombudsman for trade unions and workers.  In discussing a proposed BFC hotline for workers to call, the Stanford-WRC authors note that BFC has no triage mechanism for dealing with or referring work-related complaints that inevitably make it onto BFC desks.  One step obvious to many readers would be for BFC to refer such complaints to the Cambodian Labor Ministry.  It is surprising that not once is the Cambodian Labor Ministry mentioned in the worker rights enforcement process involving BFC, or in the Stanford-WRC report.  While it may be that the weakness of Cambodian labor authorities may have been a factor in why BFC was created, it appears as though the presence of BFC is doing little to strengthen the Cambodian Labor Ministry or the viability of independent Cambodian trade unions.  This calls into question the overall sustainability of the BFC program for Cambodia, as BFC seems to be operating as the functional equivalent of a national labor authority or trade union without having the jurisdictional powers a national labor authority would have or the representational capacity a trade union would have since BFC is a tripartite intergovernmental entity that receives funding directly from the companies it is monitoring.

The AFL-CIO's report Responsibility Outsourced: Social Audits, Workplace Certification and Twenty Years of Failure to Protect Worker Rights assesses the effectiveness of unilateral Corporate Social Responsibility policies and multi-stakeholder initiatives (MSIs), especially the Fair Labor Association (FLA) and Social Accountability (SAI), both of which have been in existence a little over 15 years.  Between company CSR policies and MSIs, a global manufacturing monitoring industry worth over $80 billion has come into existence over the past two decades.  The effectiveness of this industry has been called into question these last couple of years due to a couple of high profile failures such as the 2012 incident when over 300 workers were killed in a fire at the Ali Enterprises factory in Karachi, Pakistan - which had received a top-level certification from SAI - and the deaths of 119 workers who were killed in fires at the Tazreen Fashions and Smart Garment Export factories in 2012 and 2013.  In addition to raising questions about the overall effectiveness of the monitoring industry, the AFL-CIO notes that often factory inspection reports produced under company CSR programs are not shared with workers or government authorities, so they cannot act on safety and other violations.

One of the most interesting insights in the AFL-CIO's report is the fact that CSR and MSI monitoring mechanisms suffer from the same flaw as companies' management of their global supply chains - essentially, much of the in-country monitoring by MSIs like the FLA and SAI is assigned to a series of sub-contracting companies that in turn outsource the work to other sub-subcontractors, with the resultant risk of loss of quality of products and outcomes in audit reports and certifications - as well as damage to the reputation of the company or MSI and up to the possibility of potential acts of corruption by sub-subcontractors.  For example, in the case of Ali Enterprises, the ultimate monitoring sub-subcontractor did not actually physically inspect or visit the factory in Pakistan before awarding a top level certification to the factory.  The Tazreen Fashions and Smart Garment Export factories had also been subject to CSR auditing inspections.

As did the Stanford-WRC report on BFC, the AFL-CIO report notes that CSR programs and MSIs like FLA and SAI tend to pay less attention to trade union rights in their questionnaires and factory audits, making it difficult for workers and their representatives to develop independent trade unions capable of addressing workplace and pay issues directly with their employers.  The AFL-CIO argues that this dynamic, along with the proliferation of CSR programs, MSIs and various for-profit and not-for-profit monitors is leading toward unsustainable labor-management relations within countries.  Local trade unions are not being allowed the room to grow and develop to maturity and labor authorities are being sidelined and functionally replaced by private and often foreign monitors ultimately beholden to manufacturers and buyers.  This may be why the AFL-CIO hailed as a victory the recent action plan agreed to by the Government of Guatemala as part of settling the recent CAFTA-DR labor petition.  The action plan, discussed elsewhere in this blog, calls for improvement of the capacity of Guatemalan legislative, executive and judicial branches to pass protective labor laws, conduct workplace inspections, levy meaningful fines for noncompliance and enforce administrative and judicial orders.

My research has shown that multi-national enterprises can take action against suppliers that do not comply with standards set in Corporate Codes of Conduct with dispatch and a certain amount of leverage within the purchasing process that inter-governmental bodies cannot muster.  Unfortunately, sometimes this results in completely pulling out of a potentially dicey manufacturing situation, resulting in job losses rather than workplace improvements.  Disney recently pulled out of Bangladesh in light of the recent factory building collapse. Iron-clad contractual provisions with suppliers could be part of a solution to the problem raised in the Stanford-WRC report of certified factories subcontracting work to sweatshops that aren't part of the BFC monitoring agreement.  Multi-stakeholder initiatives perform a number of important functional roles, such as providing a forum in which companies and suppliers can interact and exchange information with worker advocates and can create a set of standards for conduct and model good corporate citizen behaviors.  As discussed by the AFL-CIO in its report, however, only a small percentage of companies effectively use their leverage in ways that lead to real change for workers such as improvement of wages and recognition of independent worker organizations, since there is an inherent tension between pressure from companies' pricing departments and the lofty goals of CSR departments.  In addition, there is wide variety among MSIs ranging from those like the Ethical Trading Initiative (ETI) which have international trade union representation to those such as the SAI and FLA which appear to have difficulties obtaining or retaining worker representatives due to overall institutional viewpoints and culture.  The range includes entities that could be described as MSIs such as WRAP that have no worker or NGO representation at all.

The AFL-CIO recommends guaranteeing stronger protection of fundamental rights to association and collective bargaining with employers as well as governmental labor institution building.  The AFL-CIO points to Global Framework Agreements (GFAs) - also referred to as International Framework Agreements (IFAs) - as an alternative to unilateral Corporate Codes of Conduct.  GFAs, which originated in the European context, are agreements negotiated between multi-national enterprises and global union federations allowing for social dialogue throughout the MNE's global value chain.  The AFL-CIO points to two recent GFAs negotiated in the Americas (Banco do Brasil and Ford Motor Company) as examples.  The report refers to these as the first two GFAs involving companies based in the Americas, but in fact the first GFA in the Americas was between Chiquita Banana, the International Union of Food Workers (IUF) and the Central American regional banana workers union COLSIBA in 2001 and has been in effect for over a decade.

The AFL-CIO concludes that a number of actors will have to play important institutional roles to ensure better equity and humane working conditions in global supply chains.  These include governments, trade unions, employers, consumers, NGOs, investors and MSIs.  Already the International Labor Organization is in the process of implementing an action plan to address the institutional failures that led to the deaths of over 650 people last week. As discussed in the Stanford-WRC and AFL-CIO reports, however, there is much, much more that needs to be done.  

U.S. and Guatemala settle first labor-related arbitration filed under CAFTA-DR

On April 11, 2013, Acting U.S. Trade Representative Demetrios Marantis and Acting U.S. Secretary of Labor Seth Harris announced that the first labor-related arbitration requested under the labor chapter of a U.S. free trade agreement (CAFTA-DR) had been settled informally without an arbitration decision.  In a March 19 2013 open National Advisory Committee meeting, U.S. DOL officials indicated that arbitrators had been selected, which may have been a tactical move in pressing the Government of Guatemala to take action on U.S. demands to improve labor law enforcement pursuant to Chapter 16 labor provisions in the CAFTA-DR.

The text of the settlement agreement itself has not been made public, although both the U.S. DOL and USTR issued press releases and a fact sheet on the comprehensive labor enforcement plan agreed to by the Government of Guatemala to settle the arbitration process.  Under the comprehensive labor enforcement plan, the Guatemalan administration committed itself to propose laws to the legislature to expedite the process for levying fines on employers who violate labor laws, increase resources to the labor inspectorate, ensure workers receive legally mandated payments when plants close, improve enforcement of court orders through a newly created "Verification" unit within the Judiciary, prosecute non-compliant employers with fines and other enforcement measures, take steps to ensure that export companies comply with labor laws and improve the transparency of labor law enforcement.  The fact sheet indicates that in 2012, the Guatemalan labor ministry increased its staff by 100 inspectors and 5 lawyers.  The USTR also indicated that arbitration proceedings will recommence should the Government of Guatemala fail to implement the comprehensive plan within a certain amount of time.  The specific time frame for implementation of the plan was not included in the public fact sheet, however.  Nor does the fact sheet indicate whether any steps were taken by the Government of Guatemala with regard to the particular cases raised in the petition.

Although the Guatemala petition had been pending for exactly 5 years (it was submitted on April 12, 2008) and the arbitration process itself has been pending since August 2011, one wonders if the settlement of the CAFTA-DR Chapter petition last week was premature, since the U.S. Senate has yet to confirm President Obama's nominee to replace Hilda Solis as Secretary of Labor (with a contentious lead-up to the nomination hearing) and President Obama has yet to nominate a replacement for USTR Ron Kirk.  New administration officials will come into office with the Guatemala arbitration settlement as a fait accomplit, without room to maneuver to address some of the other matters raised in the 2008 petition, including the fate of individual workers whose cases were raised in the petition and the ongoing violence against workers and trade union advocates in Guatemala.  At least 10 trade unionists were murdered in Guatemala in 2011 alone.  According to Human Rights Watch, in 2012 violent attacks against trade union offices and trade unionists continued unabated and continues to rise as reported by the International Trade Union Confederation.  British trade union officials point out that Guatemala is second only to Colombia in the physical danger posed to trade unionists.

Determining whether settlement of the Guatemala CAFTA-DR labor petition was a positive development in Trade and Labor jurisprudence and practice will depend on the effectiveness of implementation of the comprehensive plan by the Government of Guatemala.  If the overall goals of improving implementation of workers' rights and increasing workers' standards of living are achieved, the lack of an arbitral decision may be less important than actual outcomes attained through Guatemalan legislative, executive and judicial action taken pursuant to the comprehensive plan.  Settlement of the dispute could reflect the desire of U.S. authorities to encourage improvement of labor law enforcement through both positive assistance and the threat of economic sanctions under the CAFTA-DR, especially in a country where capacity and budget are major factors in hampering effective labor law enforcement.  If the Government of Guatemala has demonstrated tangible commitment and willingness to improve labor law enforcement, U.S. insistence on pursuing arbitration might be viewed as boorishness or bullying behavior.

As expressed by trade union officials at the March 19, 2013 National Advisory Committee at U.S. DOL, however, the U.S. government sends a powerful message through its action, inaction and delay with regard to labor petitions filed under FTAs. Settlement of the Guatemala labor arbitration process contrasts with the Railroad Development Corp. (RDC) v. Guatemala case brought under the CAFTA-DR investor dispute resolution mechanism, which resulted in a $64 million arbitration award in favor of the private company RDC in June 2012.  What message does it send that a trade partner will be held accountable for investor disputes but not for failing to comply with its FTA-mandated labor-related obligations?  In addition to calls for action made by the the U.S. and Guatemalan trade unions that filed the petition, a number of multi-national enterprises that source goods in Guatemala called for action on improved labor law enforcement by Guatemalan authorities, demonstrating that a positive Rule of Law environment benefits both workers and companies.  Moreover, the absence of any text in USTR's fact sheet on the Guatemala settlement addressing the violence Guatemalan trade unionists face every day appears to be a big step backward from positive developments in the recent 2012 report on the 2011 petition filed under the U.S.-Bahrain FTA, which outlines how social dialogue resulted in the reinstatement of Bahraini workers who lost their jobs as a result of participating in public protests, and the 2011 Action Plan on Labor Rights in Colombia, which outlines steps that must be taken not only by labor authorities in Colombia, but Police and Ministry of Interior and Justice authorities, to prevent violence against trade unionists and to prosecute and punish the perpetrators of that violence.

Settlement of the Guatemala CAFTA-DR labor arbitration process raises more questions than it answers, especially in light of the fact that the settlement agreement has not been made public.  It will be interesting to see what the AFL-CIO, SITRABI and other Central American and Guatemalan unions think of the settlement agreement and whether they - or employers - were consulted in the final stages of the negotiation process - and whether settlement of the arbitration will lead not only to improvements in Guatemala's labor enforcement procedures and outcomes but to the reduction of violence against Guatemala's trade unionists.

Chicago-based Silk Road Rising receives SAALT award this Friday

With all the sad news out of Boston this week, I wanted to share the happy news that my very own college classmate Malik Gillani (St. John's College Annapolis, Maryland 1992), his life partner Jamil Khoury and their Chicago-based non-profit theatre organization Silk Road Rising will be awarded with the 2013 Changemakers Award by the organization South Asian Americans Leading Together for Silk Road Rising's theatrical work in countering negative representations of Asian American, Middle Eastern American, and Muslim American peoples in the U.S. Very proud of you Malik!

First U.S. labor report under U.S.-Bahrain FTA issued relates to Arab Spring

Check out my latest item in the International Employment Lawyer newsletter on the December 2012 U.S. Labor Department report on labor issues during Bahrain's Arab Spring.  This report breaks new ground for the U.S. Labor Department which for the past 19 years has tended to be reluctant in its reports to openly call out U.S. trading partners for inadequate labor legislation - or in the case of Bahrain, a complete lack of legislation prohibiting workplace discrimination. 

The report discusses the close partnership between the U.S. Departments of Labor and State and the United States Trade Representative (which has ultimate authority for enforcing the provision of the free trade agreement) in investigating the petition filed by the AFL-CIO and negotiating issues with the Government of Bahrain.  While in the past I have criticized the 2004 requirement that the Labor Department consult with other agencies on petitions filed under labor provisions of free trade agreements, it appears that inter-agency cooperation in examination and resolution of these petitions can be a critical element in effective application of FTA labor provisions, especially in cases where peoples' lives and human rights are at stake.  The active involvement of the International Labor Organization in setting up dialogue between Bahraini trade unions, employer groups and government officials also led to the first time workers unlawfully terminated for exercising their trade union rights have been reinstated in the context of a U.S. FTA labor petition.

While the 2012 Bahrain report makes significant advances in the jurisprudence in the area of enforcing labor rights through free trade agreements, human rights advocates found that the year and 4 months it took for U.S. DOL to issue its report sent a signal that the U.S. might not be serious about its commitment to worker rights in Bahrain. Moreover, the human and worker rights issues stemming from Bahrain's Arab Spring are ongoing, as several medics who provided care to demonstrators in 2011 are still incarcerated.

As an interesting side note, the European Parliament is also keeping a close watch on the human rights situation in Bahrain.

Innovative high school program in Albuquerque, New Mexico successfully tackles youth unemployment and nursing shortage in poorest state in the United States

by Tequila J. Brooks

                Youth unemployment in the United States and European Union have skyrocketed since the economic collapse in 2008.  According to the OECD, the youth unemployment rate in the United States has hovered between 17.3% and 18.4% since 2009.  This is about the same as the youth unemployment rate in Belgium in 2011, slightly below the average in the United Kingdom, France and Sweden (which have been 19-20%, 22-23% and 23-25% respectively), though lower than the average 30% rate in Italy, Portugal and Ireland and the even more troubling figures for Greece and Spain, which increased from 26% and 37% respectively in 2009 to 44% and 46% in 2011.

                Unemployment rates among minority youths in both the US and the EU are even more troubling.  The average unemployment rate among African American teenagers in the US  rose from 39% in 2009 to 43% in 2010.  Among Latino youth in the US, the unemployment rate in 2009 and 2010 hovered around 31-32%.  In EU member states France and Belgium, it is estimated that the minority youth unemployment rate is 1.5 to 2.5 times higher than the general rate.  These estimates tend to be unreliable, however, because of idiosyncratic methods for defining racial and ethnic minorities in most European nations.  In France, it is prohibited to keep statistical data about racial or ethnic status although news reports of youth rioting in the "sensitive urban zones" or ZUS over the last 5-7 years make it clear that there is a racial and ethnic element to youth unemployment in France.  Even in EU member states with low general and youth unemployment such as Germany and the Netherlands, rates of minority unemployment are high.  While Germany  boasts it has the lowest youth unemployment rate in the EU (estimated to be 8.4% by the OECD), the general unemployment rate for people of Turkish origin in Germany is estimated to be between 22-26% or higher.  Similarly, in the Netherlands the youth unemployment rate is around 8% but the general unemployment for racial minority populations is as high as 30-40%.

                Along with the youth unemployment crisis, both continents face a shortage of health care workers, especially nurses.  The World Health Organization (WHO) has found that there is  an inadequate number of nurses in the European Union to serve the health care needs of an aging population.  The WHO ascribes this shortage to the increased health care needs of Europe's aging population, retirement of older nurses, the decreasing number of young people who choose nursing as a career due to low pay and poor conditions and the migration of nurses to places where they are better paid.  Similarly, the Sigma Theta Tau International Honor Society of Nursing has noted a shortage in nursing in North America, Europe and Africa for similar reasons - diminishing pipelines of new students and an aging nursing workforce.  The OECD has noted  nursing shortages in the Netherlands, Norway, Mexico, Switzerland, the United States and the United Kingdom - though this list is by no means exhaustive, as nursing shortages are prevalent the world over.

                An innovative program developed by Albuquerque Public Schools in Albuquerque, New Mexico, the poorest state in the US (or one of the top 2 poorest states in the US depending on your source) may provide American, European and global policy makers with the kind of policy mechanism that addresses youth unemployment, minority unemployment and the nursing shortage at the same time. 

                The Albuquerque Public Schools Career Education Center Practical Nursing Program began in 1981 as the initiative of two Registered Nurses who wanted to reduce the nursing shortage in New Mexico by training more nurses at the secondary school level.  Through this program, 16-year-old high school students in Albuquerque are able to complete their high school degrees and a degree in Licensed Practical Nursing at the same time, enabling them to practice as LPNs when the graduate from secondary school.  The students undergo a rigorous application process requiring testing, an interview and three reference letters.  Students must have taken Biology and two years of Mathematics, but they do not have to be academic stars.  As long as they have passed Biology and their prerequisite math courses with a C (average grade) and demonstrate the level of maturity, aptitude and motivation to complete the program, students are eligible for consideration.  Students attend 3 hours of nursing courses each school day in addition to their regular high school coursework, and participate in a professional practicum during their summer vacations.

                In the 30 years since its inception, 600 students have gone through the program to become LPNs when they graduate high school.  An interesting aspect of the program is that while students may not start out as academic stars, they become academic stars as a result of participation.  100% of the students graduating from the program passed the National Licensed Practical Nursing Board exam on the first try in 2009, 2010 and 2011.  Over 91% of the graduates go on to pursue higher education as well, becoming Registered Nurses, Physicians and Nurse Practitioners, attaining bachelor's degrees, master's degrees and Ph.D.s.  For example, Jocelyn Amberg, the program's director from 2007-2012), obtained a master's degree in nursing and has been a clinical instructor and lecturer at the University of New Mexico and in the APS LPN program since 1998.

                Not every high school or secondary school student has the maturity or desire to graduate high school as an LPN.  A one-year program after high school or later in life - as my mother pursued when she became a single mother with two children, thereafter pursuing an RN degree and a bachelor's degree - might suit others better.  The benefits of the Albuquerque Public Schools LPN program cannot be heralded enough, however.  In addition to personal and educational benefits for participants, the program has a huge impact on the quality of life of its graduates.  In a state as poor as New Mexico, these young graduates have the capacity to earn between $32,000.00 (€23,950.00) to $36,000.00 (€26,930.00) a year upon graduation from high school.  This entry level salary is just $5,000.00-$9,000.00 (€3,740.00- €6,730.00) below the average annual wage in Albuquerque, New Mexico - and it is being earned by high school graduates. Compare this to what these high school graduates would typically earn as entry level minimum wage employees in retail or a fast food restaurant at the U.S. national minimum wage of $7.25 (€5.42) per hour or $15,080.00 (€11,280.00) per year assuming 52 full weeks of employment in a year (which not all minimum wage workers are able to attain).  It is more than double that amount, and lifts these young people out of poverty before they are 20 years old.  These young LPNs also have the capability of paying for their post-secondary education out of their earnings rather than joining the millions in the United States who are saddled with tens of thousands of dollars in student loan debt.  While most of the graduates of the program appear to be young women, these kinds of results and benefits could be made to be attractive to both young men and young women in secondary schools.

                Way to go, Albuquerque Public Schools and Career Center LPN Program co-founders Carol Johanson and Nina Adkins!  High schools and policy makers around the United States, in the European Union and elsewhere around the world need to follow your example and start coming up with practical ways to move more young people into the workforce with better skills at the get-go so they can start tackling the health care problems of the present and future.

Resources

Amberg, Joceyn, Connie Baker and Christina Cartright, "APS Career Enrichment Center Practical Nursing Center Program," Nursing News and Views, New Mexico Board of Nursing, Vol. 7, No. 1, Winter 2012, pp. 8-9.