Thursday, October 27, 2016

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

My recent piece in IntLawGrrls, reproduced here, highlights the some of the main points in the recent UN Special Rapporteur report on the rights to freedom of peaceful assembly and association in the workplace.


UN Special Rapporteur Maina Kiai presented his report on the rights to freedom of peaceful assembly and association in the workplace to the UN General Assembly on October 20, 2016.
The Special Rapporteur on the rights to freedom of assembly and association was created in October 2010 by UN Human Rights Council Resolution 15/21 and renewed in September 2013 (UN HRC 24/5) and September 2016 (UN HRC 32/32).  The current Special Rapporteur Maina Kiai has been serving since May 2011.
General Assembly Report A/71/385 examines the rights to assembly and association in the workplace with a special focus on the most marginalized - global supply chain workers, informal workers, migrant workers and domestic workers.
In remarks made on October 21, Maina Kiai recounted how years before, his human rights NGO in Kenya attempted to assist local workers but encountered friction from the local trade union.  It is thus no surprise that the Special Rapporteur calls for obliteration of "the antiquated and artificial distinction between labour rights and human rights generally.  Labour rights are human rights, and the ability to exercise those rights in the workplace is a prerequisite for workers to enjoy a broad range of other rights, whether economic, social, cultural, political or otherwise."
The report outlines the international legal framework establishing the principle that Worker Rights are Human Rights.  The rights to peaceful assembly and association are recognized in Article 20 of the Universal Declaration of Human Rights.  They are recognized as first generation human rights in Articles 21 and 22 of the International Covenant on Civil and Political Rights - with Article 22 specifically including "the right to form and join trade unions" within the right to freedom of assembly.
The International Covenant on Economic, Social and Cultural Rights recognizes the rights to assembly and association as second generation human rights.  Article 8 of ICESCR recognizes the rights for individuals to form and join trade unions and for trade unions to create and join national and international federations.  Article 7 of ICESR recognizes other work-related rights as human rights, including:
  • fair wages that guarantee a decent living for workers and their families;
  • equal pay for work of equal value
  • equitable working conditions for women and men;
  • safe and healthy workplaces;
  • equal opportunity in the workplace;
  • rest, leisure and reasonable limits on working hours; and
  • paid vacation and holidays.

The rights to freedom of association and collective bargaining are also enshrined in ILO Conventions 87 and 99.  They are foundational rights essential to the protection of core labor rights in the 1998 ILO Declaration on Fundamental Rights at Work, so States must respect them whether or not they have ratified these 2 conventions.  The Special Rapporteur observes that the Right to Strike has been established in international law for decades and has in fact become customary international law.
States must respect, protect and fulfill the rights to freedom of assembly and association.  States must ensure full enjoyment of these rights for both women and men under Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women.  Many women around the world are excluded from protection under national labor rights regimes because they work in the informal economy.  An estimated 60.7% of the world's workers toil in the informal economy, where employment relationships are not legally regulated.
Others excluded by law from protection in many countries include migrant, domestic and agricultural workers.  Report A/71/385 declares unequivocally that States that discriminate against or exclude certain groups from protective legislation violate their obligations to respect and protect the rights to peaceful assembly and association.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families recognizes human rights standards protecting migrant workers.  For both authorized and unauthorized migrant workers, exclusion from legal protection and lack of assembly and association rights are compounded by harsh immigration laws and unscrupulous labor recruitment organizations.  The report points to guest worker programs in Bahrain, Kuwait, Oman, Saudi Arabia, Qatar, the United States, the U.K. and Zimbabwe that legally and structurally deny migrant workers' rights to assembly and association.  Workers in these programs who attempt to exercise their rights risk being blacklisted, deported, evicted, denied future visas, threatened with violence and physically assaulted.
Violence - including gender- and racial or ethnic-based violence - is frequently used by States and others to deter the exercise of rights to freedom of peaceful assembly and association.  In 2015, trade unionists were murdered in 11 countries - Chile, Colombia, Egypt, El Salvador, Guatemala, Honduras, Iran, Mexico, Peru, South Africa and Turkey.
The Special Rapporteur issued recommendations not only to States, but to Businesses, the ILO, the United Nations and multilateral financial institutions like the World Bank and IMF as well as to trade unions and civil society.
Key among those recommendations to States are:
  • ratification of relevant international and human rights instruments;
  • taking measures to ensure that workers in vulnerable situations have the ability to fully and effectively exercise their rights to freedom of assembly and association;
  • prohibiting companies that fail to respect those rights from bidding on public contracts; and
  • protecting and promoting the assembly and association rights of migrants.

Businesses should:
  • commit to the principle that labor rights are human rights;
  • respect the rights of workers to form and join trade unions and engage in collective action;
  • engage in collective bargaining;
  • refrain from anti-union practices and policies; and
  • implement the Guiding Principles on Business and Human Rights.
The ILO should:
  • set standards to extend rights to freedom of association and collective bargaining to informal workers; and
  • focus on governance gaps for workers in global supply chains.

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

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

Finally, trade unions should:
  • specifically target outreach and advocacy toward the historically disenfranchised, including domestic, migrant and informal workers.

Thursday, September 29, 2016

Colombia: Violence against trade unionists impacts OECD bid, trade relations with U.S.

My two recent pieces on labor issues in Colombia  highlight how important effective protection of freedom of association and the right to collective bargaining are to a country's participation in the global community.

The first piece in The International Employment Lawyer USA - Department of Labor Accepts First Labor Petition Under US-Colombia Trade Promotion Agreement (Fall 2016) discusses the recent labor petition filed by Colombian trade unions and the AFL-CIO under the U.S.-Colombia free trade agreement.  At issue is whether or not the Government of Colombia has fully complied with labor-related commitments in the FTA and a 2011 Labor Rights Action Plan outlining a number of pre-conditions to be met by Colombia before the FTA went into effect.  If Colombia cannot effectively protect trade unionists from murder and violence, it risks losing U.S. trade benefits.

The second piece in IntLawGrrls Violence against trade unionists, application of labor laws at issue in Colombia’s bid for OECD membership (September 2016) discusses labor and social protection issues related to Colombia's bid to become a member of the Organization for Economic Cooperation and Development (OECD).  The OECD's 2016 report on labor and social protection in Colombia highlights the same issues raised by Colombian and U.S. trade unions - including failure to protect trade unionists from violence - as areas of improvement to be addressed before Colombia can joint the club of elite governments in the OECD.  If Colombia cannot find a way to improve Rule of Law and protect trade unionists from murder and threats of violence, it may fail in its bid to join the OECD.

Now that Colombia has signed a Peace Agreement with the FARC, it will be interesting to see whether efforts on an international level and within Colombia will lead to meaningful change for Colombian workers.

Tuesday, September 27, 2016

OECD: Some progress made in Pacific Alliance, but more must be done to lift women out of poverty

Chile, Colombia, Mexico and Peru should be doing better for women.  Now is the time to act.

- Gabriela Ramos, OECD Chief of Staff, Sherpa to the G20
and Special Counsellor to the OECD Secretary-General

Since 2013, the Organization for Economic Cooperation and Development (OECD) has pursued a robust  research and policy agenda to support the reduction and elimination of gender equality in member states.  This agenda is based on the OECD's 2013 OECD Gender Recommendation and 2015 OECD Recommendation on Gender Equality in Public Life.

As part of this agenda - and at the request of countries in the Pacific Alliance - on August 26, 2016 the OECD released the report Gender Equality in the Pacific Alliance : Promoting Women's Economic Empowerment which compares gender-related economic outcomes in Chile, Colombia, Mexico and Peru.  The Pacific Alliance is a regional integration project established in 2011 by the four Latin American countries.  Three of those countries (Chile, Mexico and Peru) are parties to the still unratified Trans-Pacific Partnership (TPP).  Two are members of the OECD (Chile and Mexico) and one is being considered for membership in the OECD (Colombia).  All four countries are signatories to free trade agreements with both the U.S. and Canada - most notably Mexico, which has been a member state of the NAFTA since 1994.

As a result of the leadership of outgoing President of Chile Michelle Bachelet, gender equality was on the agenda of the 2016 Pacific Alliance Summit held in Puerto Varas, Chile from June 28 to July 1, 2016.

The overall message of Gender Equality in the Pacific Alliance is that all four member states have made significant strides in improving gender equality but a significant amount of work is still required.  Overall issues that hit women particularly hard are the pervasiveness of work in the informal sector, high rates of poverty, weak rule of law and inadequate institutions.

The report examines and compares participation rates for women and girls in education, the labor market and business ownership, highlighting three major areas of concern: (1) the high rate of girls and women who are Not in Education, Employment or Training (NEET); (2) unequal sharing of unpaid housework and childcare borne by women; and (3) the persistence of traditional attitudes about gender roles.  The report then goes on to make the economic case for gender equality and concludes with a number of policy recommendations to level the playing field between girls and boys and women and men.

All four of the countries in the Pacific Alliance made significant progress in primary education rates for both girls and boys - over 90% of children in Chile, Colombia, Mexico and Peru attend primary school.  Rates drop off for both girls and boys at the secondary school level, with the lowest participation rate in Mexico at 67% and the highest at 86% in Chile.  More girls attend secondary school in Colombia than boys (80% of the girls and 74% of the boys).  At the college/university level, Chile made the most advancement.  The total college enrollment in Chile is now 71%.  Compared to 2000 when 35% of young women in Chile attended college or university, today 84% attend.  Only 23% of Chilean women in college graduate with a degree in science or math, however - compared to 42% and 46% in Colombia and Mexico respectively.

Labor market participation rates for women in the four nations have increased over the last two decades, especially in Chile and Peru.  In Chile, the percentage of women in the workforce increased from 37.4% to 55.7%.  The percentage of Peruvian women in the workforce increased from 52.7% to 65.5%.  The percentage of women in the Colombian and Mexican labor markets increased about 5%, from 39.6% to 46.8% in Mexico and from 57.4% to 62.9% in Colombia.

Despite increased participation in labor markets, women in the Pacific Alliance tend to have lower quality jobs and earn less than men.  They also tend to work in the informal sector such as in home-based and domestic work.  This means that in addition to having low earning potential, a high percentage women are not participating in national social security systems - meaning no access to new increased maternity benefits legislated in Colombia in 2010 (for example) and no pension benefits in old age.  Thus women in the Pacific Alliance start out poor, remain poor during adulthood and end their lives in poverty.

Particularly troubling are the statistics for Mexico, where 64.6% of women (and 48.8% of men) report having never paid social security contributions.  In 2010 Colombia passed the Formalisation and Job Creation Law to incentivize formalization of companies and employment - providing government support, simplifying administrative and legal procedures and providing tax relief to encourage the hiring of workers from "vulnerable population groups" like women over 40.

One particularly hard-to-overcome problem is the gender pay gap - despite equal or better school completion rates for girls.  The OECD attributes this to employer discrimination, women's career breaks, occupational segregation and the heavier housework (including childcare) burden on women.  The report points out that increasing women's labor force participation and Equal Pay are good for both women and men.  Halving the current gender gap in Mexico would increase the country's projected growth rate by 0.16 percentage points a year.

The OECD highlights a number of policy measures to address economic inequality between women and men.  One policy measure is paternity leave, to enable fathers to take a greater role in childrearing.  Chile offers 12 weeks of parental leave that can be divided between the mother and father.  Mexico recently introduced 5 days of paternity leave.   Mothers in Mexico are entitled to 12 weeks of maternity leave.  The report emphasizes at each point it discusses these maternity leave laws that the majority of women cannot access the benefits because they are working in the informal sector.

Another policy measure effective in reducing women's poverty and allowing them to improve their earning capacity is childcare and early childhood education.  Mexico has made some progress in this area.  In 2002, 54% of children aged 3 to 5 were in pre-primary or primary school.  Today, that number has increased to 91.3%.  Between 2005-2014, the number of Peruvian pre-schoolers increased from 66.5% to 78.9%.  One particular Mexican program highlighted by the report is the Estancias Infantiles para Apoyar a Madres Trabajadores (Childcare to Help Working Mothers) program which both provides childcare and certification mechanisms for childcare providers (many of whom are women).

Not surprisingly, one of the report's main policy recommendations is that more women should be moved into formal employment and social security systems.  Some of the recommended steps to achieve these two interlinked goals are:   providing tax credits and enabling individual unemployment savings accounts; improving women's (especially poor, rural and indigenous women's) access to banking and loans; making it less expensive to formalize an informal business or self-startup in the informal sector; and strengthening labor inspection of informal businesses with workers on the payroll.

Another set of key recommendations in the report relate to the elimination of gender inequalities in the workplace - particularly eliminating the gender wage gap by promoting pay transparency, tackling stereotypes, emphasizing equal pay for equal work and strengthening laws and enforcement for combating all forms of discrimination in pay, recruitment, training and promotion.    In addition to  these workplace-related recommendations, the OECD emphasizes the need to improve educational outcomes for girls and women, especially in the scientific, technical and math fields.

Gender Equality in the Pacific Alliance : Promoting Women's Economic Empowerment is an excellent report.  It is an example of just how critical leadership by women at the top levels of government and the private sector can be to getting women's issues at the top of the international agenda.  Anyone interested in sustainable economic development, women's economic empowerment and regional legal and social systems or the well-being of women, children and men in the Pacific Alliance should immediately read this report.

Thursday, September 22, 2016

President of Chile Michelle Bachelet speaks at the Wilson Center

This afternoon President of Chile Michelle Bachelet spoke at the Wilson Center.  A video of the event is available.  She spoke of a wide range of subjects like the absolute necessity for the empowerment of women to ensure sustainable development; her leadership of the 2016 session of the Pacific Alliance and her request to the OECD for a special report on gender equality in Pacific Alliance member states Chile, Colombia, Mexico and Peru (subject of a separate post on this blog); the sometimes harshness of politics; the necessity for quotas and affirmative action to encourage women to participate in politics and private sector leadership; the need to excite children in school rather than have them sit at their desks quietly and passively; and her feelings about the impeachment of Brazilian President Dilma Rousseff and the media's treatment of U.S. Presidential candidate Hillary Clinton.  The event was moved from the Wilson Center's normal conference room to a major lecture hall in the Ronald Reagan International Center.  The audience was engaged and buzzing with excitement.

According to her biography, Michelle Bachelet has served as President of Chile twice.  During the period between her two terms as President, she headed up UN Women, the UN agency dedicated to gender equality and the power of women.  Today, the UN Women released the First report by High-Level Panel on Women's Economic Empowerment, which outlines drivers to advance gender equality.

President Bachelet observed that it is necessary to constantly update strategies to effectively empower women - and that development is unreachable when half of the population is not empowered.  While women's participation in the Latin American workforce has increased from 49.2% in 2000 to 52.9% in 2010, much work still needs to be done - particular in the areas of addressing the wage gap and ensuring a higher percentage of women at top levels of leadership in the government and private sectors.  In addition to her work on an international level ensuring that a gender perspective is incorporated into the Pacific Alliance, President Bachelet's administration has a number of gender-related initiatives to empower women within Chile - like facilitating women's access to capital and credit for businesses and coming up with strategies to increase the number of women scientists and engineers.  She observed that today, there are more female engineers graduating in India than men.

Of particular interest was the Bachelet Administration's participation in foreign affairs in Latin America.  President Bachelet participated in the peace talks leading up to the negotiation of a peace accord between the Government of Colombia and the FARC.  The 297-page peace accord, to be signed on Monday, September 26, is one of the first to specifically include provisions related to gender and pays special attention to the fundamental rights of women, indigenous communities, girls, boys, adolescents, the Afro-Descendent community, those with disabilities and the LGBT community.

Also of interest were Chilean assistance programs in Central America which are being used to support agricultural projects and encourage trade unionism.

It was exciting to be in the presence of the Chilean Head of State - and more exciting to see how she incorporates gender leadership throughout her administration's national and international policies.

Wednesday, September 21, 2016

Oversold and under-delivered: The Trans-Pacific Partnership and Women's Economic Empowerment

This piece was simultaneously published on the Huffington Post.

The Trans-Pacific Partnership should not be ratified without meaningful provisions on Women's Economic Empowerment.

U.S. ratification of the Trans-Pacific Partnership is up in the air due to opposition by both major party presidential candidates, a number of members of Congress and U.S. trade unions. If negotiations are to be reopened to address the public's concerns, one area that must be revisited and reopened for negotiation is that of Women's Economic Empowerment.

Women's Economic Empowerment was clearly a goal of the Obama Administration in the negotiation of the Trans-Pacific Partnership, a proposed free trade area between countries on all sides of the Pacific including Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Japan, Peru, Singapore, the United States and Vietnam. In April 2014, U.S. Trade Representative Michael Froman published a post on the USTR blog Tradewinds extolling the advantages free trade can have for women. Froman references a USTR strategic paper that highlights 4 areas in which the TPP would enhance women's economic empowerment - protecting vulnerable workers, increasing formal employment, promoting development and encouraging development.

It should come as no surprise that the Obama Administration would want to prioritize the empowerment of women in its international trade agenda. Women's Economic Empowerment and achieving gender equality are also global policy goals for the international community. Two critical gender-equality targets under the U.N. Sustainable Development Goals are (1) ending all forms of discrimination against women and girls everywhere and (2) eliminating all forms of violence against women and girls everywhere in the public and private spheres. The Organization for Economic Cooperation and Development (OECD) has a robust research and policy agenda in support of the achievement of gender equality - most notably exemplified by its May 2013 Recommendation on Gender Equality in Education, Employment and Entrepreneurship. Gender equality was a key agenda item for the 11th Summit for the Pacific Alliance (a regional integration project of TPP signatories Chile, Mexico and Peru as well as Colombia) held in Chile in June-July 2016. An OECD report on gender equality in the Pacific Alliance published in August 2016 emphasizes not only the need to create a supportive business environment for women entrepreneurs, but the damaging role unequal pay for women has on the economy and the importance quality childcare and early childhood education programs have both for working women and the overall wellbeing of a country's inhabitants.

When I first heard a rumor at a conference in Toronto in May 2014 that there would be provisions on Women's Economic Empowerment in the Trans-Pacific Partnership, I envisioned an entire chapter dedicated to Women's Economic Empowerment on the same level as Labor (Chapter 19), Environment (Chapter 20) or Intellectual Property (Chapter 18) - something like the wide ranging 2012 U.S.-Mexico Memorandum of Understanding for the Promotion of Gender Equality, the Empowerment of Women and Women's Human Rights signed by then U.S. Secretary of State Hillary Clinton and then Mexican Minister of Foreign Affairs Patricia Espinosa. The scope of cooperation in the 2012 MOU includes the strengthening of citizenship security (particularly for women and girls) and promotion of economic empowerment and opportunities, social development that supports women and increased access to justice for women.

An entire TPP chapter devoted to Women's Economic Empowerment would make history, putting women and issues facing working women and business owners at the center of U.S. trade policy.

The actual result in the TPP is a little more underwhelming. A February 2016 blog piece by former Acting Deputy USTR Wendy Cutler in The Hill highlights that the Women's Economic Empowerment text is tucked away in Article 23.4 of TPP Chapter 23: Development.

In fairness, inclusion of an entire FTA chapter devoted to development is new to U.S. trade policy. Article 23.1.1 of TPP Chapter 23 on Development affirms the parties' "commitment to promote and strengthen an open trade and investment environment that seeks to improve welfare, reduce poverty, raise living standards and create new employment opportunities in support of development." TPP's development chapter emphasizes the concept of Inclusive Growth, which it defines as "broad-based distribution of the benefits of economic growth through the expansion of business and industry, the creation of jobs, and the alleviation of poverty."

Inclusion of any text at all devoted to women's role in economic development is also new to U.S. trade policy. Article 23.4 extends the concept of inclusive growth to include women, In the first clause, the parties to the TPP recognize that enhancing opportunities for women contributes to economic development. This covers women as both workers and business owners.

The second clause of Article 23.4 commits the parties to the TPP "to consider [my emphasis] undertaking cooperative activities aimed at enhancing the ability of women, including workers and business owners, to fully access and benefit from the opportunities created by this Agreement." Examples of cooperative activities include developing women's leadership networks; identifying best practices related to workplace flexibility; helping women build their skills and capacity; and enhancing women's access to markets, technology and financing.

On the one hand, Article 23.4 creates an opening for international dialogue on women's economic empowerment in the context of the TPP. With the right leadership and attention, women's rights advocates within and outside government policy circles can do a lot even with this little text. Much more has been built on a smaller foundation.

On the other hand, the gender-based commitment in Article 23.4.1 is highly contingent - flimsy almost. The parties do not even commit to undertake cooperative activities to enhance opportunities for women - they commit to consider undertaking cooperative activities to enhance opportunities for women. Is that even a binding commitment? "We've considered it and decided it against it." Even if it were a binding commitment, Article 23.9 specifically excludes Chapter 23 on Development from TPP's dispute resolution mechanism.

Thus, no TPP chapter devoted to Women's Economic Empowerment. No strong statement about the importance of women in the global economy or in Trans-Pacific Partnership member states. No binding commitment to empower women economically or otherwise.

The lack of meaningful provisions on Women's Economic Empowerment and gender equality in the TPP is just another instance where the promise of a modern "21st Century" trade agreement did not materialize. The political head winds against the TPP create an opportunity for improvement, however, and women's advocates throughout the Trans-Pacific region should take this opportunity to make their voices heard. TPP should not be ratified without a fully enforceable chapter on Women's Economic Empowerment.

Thursday, September 15, 2016

Tim Gunn: Fashion Industry Loses Billions - literally $20.4 billion - a year not clothing Real American Women

I want to take a break from the normal fare of my blog and the invisibility of women on the international trade agenda to talk about the invisibility of women in the U.S. fashion industry.

Tim Gunn's recent Op-Ed in the Washington Post Designers refuse to make clothes to fit American women. It’s a disgrace. highlights just how backwards, short-sighted and maddeningly obtuse the mainstream fashion industry can be.  They are literally leaving $20.4 billion a year - let me repeat $20.4 billion dollars a YEAR - on the table because they don't want to - or don't have the smarts and talent to - help the average American woman look beautiful and have great clothes to buy.

It just goes to show how prejudice hurts the pocket books of these designers and, in fact, our entire economy.  How much money could these designers earn and add to our economy if they opened up design houses and clothing manufacturing in the U.S. to serve an underserved market and make ALL the women in our country feel great about themselves?

According to Gunn, the fashion industry is still using aesthetics, business models and fashion runway techniques developed before American women had the right to vote.

Even more startling, Nike has only 5 designs - 5 designs! - of sportswear for larger women.  With the fitness craze, with almost everyone wanting to get out and move it to improve our health regardless of how or whether it improves our waist lines - I cannot wrap my mind around the fact that Nike is so blind that it cannot see it can make not just more but gobs and gobs of money by catering to all these women who want to get out and jog and lift weights just like their thinner counterparts.  Planet Fitness anyone?  Someone needs to fill this vacuum.

It's enough to make me want to beat my head against a wall - and I've already got a dent there from beating my head against the wall about the short-sightedness of the global manufacturing industry which cannot see the link between absurdly low wages, excessive overtime by moms and dads in factories and kids at home running amok without adequate supervision and education in economies that aren't growing in the right places.

I'll close by making a shout out to my nephew Chris of Closet by Christobal who started out his fashion design career in high school helping his aunties, classmates and cousins look beautiful no matter what their size.  A frequent feature in the annual Philadelphia Fashion Week, Chris is in his own personal basement sweatshop night and day designing and sewing beautiful outfits for all kinds of women.

Let's just hope that investors and backers start pulling designers like Closet by Christobal out of their basements and into the limelight where they belong.

Saturday, August 27, 2016

My first post as an IntLawGrrls contributor - EPZs and Women's Economic Empowerment?!?

This week I'm excited to announce that I've joined the IntLawGrrls as a contributor on International Labor and Employment Law issues.  IntLawGrrls is blog dedicated to promoting women's scholarship in International Law and international legal issues.

My first post considers the idea that export processing zones (EPZs) might serve as a vehicle for women's economic empowerment.  Yes, those EPZs.  The idea was posited in a recent study released by the International Finance Corporation (IFC).  Yes, that IFC.  Even more surprising - outlandish even - about the IFC study was the frank and unabashed advocacy by the authors for workplace childcare programs and sexual harassment complaint mechanisms.  The entire proposition was too incongruous to ignore.

I'm not so naive as to think that EPZs will turn from Exploitation Zones where workers work far too hard for far too little money into Excellent Places to Work Zones.  Even those employers that take pride in their stance on empowering women have a hard time acknowledging that workplaces in their supply chains do little to empower women economically or otherwise with bottom-of-the-barrel wages, workplace abuse and excessive hours, as discussed in this excellent August 26, 2016 piece in Slate about women manufacturing sneakers in Vietnam by Maria Hengeveld.

Still, the independent governance structures, the presence of EPZ Administrators and a global organization WEPZA - plus the support of the IFC of all organizations - gives advocates something to work with.  WEPZA seems like a great vehicle for transmission of Better Workplace ideas that economically empower women (and men) working in EPZs.

A starting place might be the establishment of a worker and women's rights counterpart organization to WEPZA - to engage in information exchange, training and development of model programs and policies.

Another starting place would be for international trade unions like ITUC to approach WEPZA to negotiate an International Framework Agreement (IFA) with provisions extending enhanced protections to women and men working in EPZs.

I suspect that negotiation of an IFA with WEPZA and regional subgroups would not be an easy task - but this is where policy makers in governments supportive of international workers' rights (Canada, the United States, the European Union) and in international bodies like the OECD and even the IFC might serve as convenors and encouragers of this kind of project.

Regardless of what side of the discussion we are on, we all have to remember that the easiest way to empower a woman economically is to put more money in her pocket in the form of higher wages and to allow her sufficient free time to spend that money as she wishes.

Thursday, February 4, 2016

Finally - Absolute Must-Read Guides to US Foreign Corrupt Practices Act for human and labor rights activists

As anyone who has ever worked on an investigation under the US Foreign Corrupt Practices Act is aware (For guidance, see the US Department of Justice web guide at, the FCPA is a great tool enabling companies and enforcers to identify, prevent and remedy bribery of foreign government officials in exchange for business advantage.  

It's not just the expansive extraterritorial jurisdiction; the availability of both civil and criminal penalties (including fines and jail sentences); and strong enforcement by US authorities in the US Department of Justice and the Securities and Exchange Commission.  It is also the immense web of compliance practices and risk assessments that have developed over time both within companies and in company networks.  This compliance web includes internal audits; robust compliance teams; due diligence of third parties; special contract provisions making bribery of a foreign official an event allowing termination of the contract; electronic filtering of transactions; multiple trainings and compliance manuals; and global lists of companies and individuals with government or criminal ties  The thoroughness and complexity of this web is mind boggling.

On the other hand, as anyone who works in human and labor rights or represents migrant workers and/or victims of human trafficking knows, human trafficking and migrant smuggling cannot occur without the knowledge and complicity of certain government officials - the obvious suspected linking factor being bribery and corruption.

In recent years, the NGO Vérité has started issuing reports and studies drawing the link between human trafficking and exploitation on the one hand and bribery and corruption on the other (See Vérité's 2013 White Paper Corruption & Labor Trafficking in Global Supply Chains here:  In 2013, global anti corruption NGO Transparency International highlighted the role bribes paid to building inspectors played in fires and building collapses that killed hundreds of workers in disasters like the one that occurred at Rana Plaza in Bangladesh (See Transparency International, "In Bangladesh, corruption kills hundreds," April 26, 2013,

At long last, the NGOs Liberty Asia ( and The Freedom Fund ( have produced two absolute must-read clear language guides to the FCPA for human rights advocates.  The first is a 16-page briefing paper Modern Slavery and Corruption ( providing a thumbnail sketch of the FCPA and clearly highlighting the points at which bribery plays a role in the human trafficking process.  Some of these points include pressure to use labor brokers related to government officials (a kickback or direct benefit scheme); provision of excessive and extravagant gifts to officials responsible for issuing permits and licenses (a practice expressly prohibited under the FCPA); bribes to officials at border checkpoints to allow trafficked persons to pass through without scrutiny; bribes to police and inspectors to ignore mistreatment of workers or workplace violations.  These and other elements of corruption are highlighted in a case study of a hypothetical victim of human trafficking in this excellent and poignant briefing paper.

Less concise but equally useful is the 148-page legal guide Modern Slavery and Corruption- Legal Analysis of Relevant Laws and Their Application (  This excellent legal guide punctuates each well-documented explanation of FCPA statutory law with a takeaway message that is easily digestible by the human rights activist.  For example, on the subject of 3rd party liability, the guide notes, "[T]he use of labor recruiters to secure seasonal labor and low-skilled labor, as well as the use of products whose supply chain is known to utilize human trafficking, are all warning signs that might give rise to FCPA liability if companies do not conduct proper due diligence."  

The legal guide also explains the UK Bribery Act (which prohibits bribery of private company officials as well as foreign government officials), the US Trafficking Victims Protection Act and other relevant legislation.  Importantly, the guide lends visibility into corporate compliance programs and culture (see p. 24 et seq.) - critical elements in the enforcement of legal norms prohibiting bribery, money laundering, financing of terrorism and other types of corporate and legal risk.

Putting an end to corruption, human trafficking and abuse of migrant workers is a 2-way street.  CSR and Corporate Compliance departments within companies must talk to each other; corporate compliance professionals must communicate norms and opportunities to human rights advocates; and human rights advocates must sensitize corporate compliance professionals about compliance risks inherent in human trafficking and other human and labor rights abuses.

In sum, Read these manuals!  They are great - actually awesome - resources.

Sunday, January 31, 2016

Gender Analysis of 2015 CAFTA‐DR Report on and Action Plan for Honduras: Public Comment to USDOL National Advisory Committee

The USDOL National Advisory Committee for Labor Provisions of US Free Trade Agreements provides the public with a great venue for comments on labor provisions of US free trade agreements - as well as a forum for learning the most up to date information about US implementation of FTA labor provisions.

The next meeting is from 9:30 am to 4:30 pm on Tuesday, February 2 in Washington, DC.

I've expanded my initial gender analysis of USDOL's CAFTA-DR report on and action plan for labor standards in Honduras to include (1) a discussion of the narrow interpretation of the definition of "labor law" to exclude gender and discrimination issues from the scope of CAFTA-DR's labor chapter; (2) a recommendation that a supplemental report be issued and action plan be developed on workplace gender issues in Honduras; and (3) a new References and Resources section with background information on the Honduras petition and report, gender and trade and gender sensitive approaches to OSHA and general workplace inspections.

One great new development in USDOL's implementation of FTA labor provisions is making public a complete Spanish translation of its 143-page February 2015 report on Honduras.

Check out my site to read my full comment to USDOL's National Advisory Committee here:  Gender Analysis of 2015 CAFTA-DR Report on and Action Plan for Honduras:  Public Comment to USDOL National Advisory Committee.

I'm looking forward to seeing whether and how USDOL and the NAC respond to my public comment.

Monday, January 18, 2016

USDOL failure to address sex discrimination claims in CAFTA-DR Honduras Report and Action Plan puzzles, disappoints

In early 2015, the U.S. Department of Labor issued its much-anticipated report on trade unions' public submission contending that the Government of Honduras failed to set high labor standards and effectively enforce existing labor laws.  The 143-page report confirmed petitioners' claims, observing that some progress was made during the 3 years since the petition was originally filed but that the Honduran Ministry of Labor (Secretaría de Trabajo y Seguridad Social - STSS) continues to fall short in responding to complaints, conducting inspections and remediating workplace violations.  The report made 7 recommendations for improvement of STSS labor inspections including imposing sanctions for labor law violations, compelling access to worksites, compelling employer compliance with remediation orders and improving enforcement of laws related to freedom of association, collective bargaining and child labor.

Notably absent from USDOL's report was any reference to or acknowledgement of claims of systemic sex discrimination in the Honduran garment sector outlined by petitioners in their 2012 public submission.  Petitioners highlighted the discriminatory nature of Honduras' industry-based minimum wage setting mechanism which set wages significantly lower in the predominantly female garment sector than in other manufacturing sectors (p. 4) and pointed to NGO reports of high levels of mistreatment of women workers in the form of verbal abuse, shoving, punching, denial of meal breaks, sexual harassment, sexual assault, sex-motivated dismissals and pregnancy discrimination (p. 5).

A critical element of petitioners' overall argument in the submission was that discriminatory low wages paid in the garment sector directly affects trade between the U.S. and Honduras (p. 5), thereby violating Honduras' commitment under CAFTA-DR Article 16.1(1) to strive to set high labor standards in conformity with the 1998 ILO Declaration on Fundamental Principles and Rightsat Work and its Follow-Up.

Despite early criticism that USDOL's report was incomplete (See Mateo Crossa, "Honduras: US Government Fails to Act to Prevent Labor Rights Violations," The Americas Blog, CEPR, March 19, 2015), the Labor Rights Monitoring and Action Plan signed by the labor ministers of the U.S. and Honduras on December 9, 2015 fails to include specific measures to address the problem of workplace sex discrimination in Honduras.  Like the February 2015 report, the Monitoring and Action Plan (MAP) does not contain a single word, commitment or timeline related to addressing the issue of sex discrimination, pay equity or sexual harassment in labor law enforcement, workplace inspections or training for STSS personnel.

USDOL's silence on the issue of sex discrimination in the Honduran garment sector and other industries is puzzling in light of recent reports and actions it has taken in response to submissions filed under the CAFTA-DR and other U.S. free trade agreements.  Since 2009, the Obama Administration has pressed its trading partners not only to improve enforcement of existing labor laws but to achieve a higher standard by passing laws that give life to fundamental labor standards in the ILO Declaration.  Examples include issuing a report exhorting the Government of Bahrain to pass a law prohibiting discrimination based on religion and other grounds; commissioning a series of studies on how to identify indicators of forced labor and slavery in the modern era; and designating funds to eradicate child labor in the Dominican Republic.  Any or all of these responses would have been appropriate in response to the sex discrimination claims raised in the Honduran labor petition under CAFTA-DR - and in fact could form the basis of a work plan to address workplace sex discrimination in Honduras.

By ignoring claims of sex discrimination in its report and action plan in response to the Honduras CAFTA-DR petition, USDOL has demonstrated that it is out of sync with the rest of the international community. The United Nations Conference on Trade and Development (UNCTAD) acknowledged as early as 2004 that gender equality is a universal goal and that trade can have important positive and negative implications for women - recommending in its seminal note Trade and Gender:  Opportunities, Challenges and Policy Dimension that women's concerns and role in the economy should be considered in the development of trade policy.  As discussed in the 2002 United Nations guide Gender Mainstreaming An Overview, gender mainstreaming has been a part of international policy making for the last two decades.  Even the World Bank came out in support of workplace childcare facilities because it is good for women's labor force participation, as discussed in Markus Goldstein's September 2013 piece "Building the evidence based roadmap for women's economic empowerment" in the World Bank's Development Impact blog.

The essence of the concept of gender mainstreaming is that issues affecting women in particular must be addressed and incorporated into international policy making.  "Mainstreaming should situate gender equality issues at the centre of analyses and policy decisions, medium-term plans, programme budgets, and institutional structures and processes" (UN 2002, pp. v-vi).  The UN emphasizes that attention to gender issues must be explicit and systematic (p. vi).

In the case of the USDOL report on and action plan for improved workplace law enforcement in Honduras, it is not enough to simply expect that enhanced protections for trade unions and improved labor inspection methods and follow-through in general will address the particular issues faced by working women in Honduras. USDOL and the Obama Administration must explicitly account for and respond to working women's issues in Honduras.

In my mind, there was always a question whether USDOL would embrace the concept of equal pay for equal value implicit in petitioners' argument.  U.S. law recognizes the concept of equal pay for equal or similar work under the 1963 Equal Pay Act, but does not go as far as Canadian law, which recognizes the concept of equal pay for work of equal value - where the work being performed in a predominantly female sector is different but of equal value to work performed in a predominantly male sector (as explained in this November 2015 Ontario Equal Pay website).

What can USDOL do to remedy the situation?

The important question for USDOL, Honduran trade unions and women's rights advocates and their international allies is What now?

USDOL has a number of tools at its disposal to address the big gender gap left by its report on labor law standards and enforcement in Honduras and the resulting Action Plan.

  • Work with Central American women's advocacy groups and trade unions along with the Labor Affairs Council established under Article 16.4 of the CAFTA-DR to develop a Model Code to Eliminate Sex Discrimination, Violence Against Women and Unequal Pay in Central American workplaces.  A 2013 study produced by COVERCO (Guatemala) and other groups in Central America observed that the inequitable minimum wage setting mechanism present in Honduras is present in all of the Central American nations - contributing to overall poverty and lack of well being in these nations.
  • Provide technical support and funding for workplace childcare initiatives such as that agreed to by Honduran employers and trade unions in the 2014 Tripartite Agreement on Employment in the Maquila Sector.  In addition to setting forth a schedule for periodic wage increases, the agreement commits employers to establish workplace child care centers on a pilot basis - a pilot that has yet to be launched, no doubt due to lack of support and funding.
  • Work with women's rights groups, trade unions and international experts to develop best practices for a gendered approach to workplace inspections to identify unequal pay, sex discrimination in promotion and sexual harassment and violence.
  • Address USDOL's own shortcomings in addressing gender issues in labor petitions filed under trade agreements by developing and implementing a policy that mainstreams gender in its day-to-day activities, investigations and reports.
  • Work with the U.S. Department of State, its Central American counterparts, Central American Women's Rights Commissions, trade unions and women's civil society groups in Central America to negotiate a binding Memorandum of Understanding on Women's Rights and Economic Empowerment covering the entire CAFTA-DR region.
What can women's groups and trade unions do to remedy the situation?

Women's advocacy groups, trade unions and their allies have tools and options at their disposal as well.  Among others, these include:
  • Work through existing networks of women's rights groups and trade unions in Central America to file a region-wide sex-discrimination petition under CAFTA-DR Chapter 16 to challenge unfair wage setting mechanisms and inadequate protections against workplace sex discrimination and workplace violence.  The problem with the 2011 Honduras CAFTA-DR petition was that gender issues were buried among over 25 different instances of failure to enforce labor laws in several sectors of the economy.  Focusing solely on sex discrimination will ensure that the subject will not be ignored.
  • Go to Canada.  The United States is not the only actor in the global trade arena with a mechanism for filing claims that a country is not complying with internationally recognized labor standards.  Not only does Canada have more advanced pay equity laws than the U.S., its Labor Cooperation Agreement with Honduras specifically requires Honduras to ensure that its labor law and practices embody and provide protection for the elimination of discrimination with respect to employment occupation.  Under CAFTA-DR, member states are only obligated to "strive to ensure" their labor laws comport with the 1998 ILO Declaration.
It is not fair for working women in Honduras to have to "resubmit" their petition for equal treatment under Honduran labor law.  This was already part of the 2011 petition.  Honduran women - like all women throughout the world - know that if they don't do it, who will?  It is only with constant and sustained pressure that their voices will be truly heard.

International Trade Unions unite to celebrate 60 years of UN Commission on the Status of Women

Trade union women from all over the world will be celebrating the 60th anniversary of the UN Commission on the Status of Women taking place in New York March 14-24 this year.  For more information, check out the Organising for Women’s Social and Economic Empowerment by 2030 website.

In their Joint Statement to the UNCSW60, four international trade union confederations (ITUC, EI, PSI, ITF) call for "concerted State action to eliminate the sexual division of labour, which underpins the gender pay gap, and to end all gender bias around legislation and practices in job evaluation and work compensation."