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

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

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

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

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

Shout outs in Workplace Law and Workers' Comp Law blogs

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

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

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

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According to lore, laws requiring compensation for workplace injuries came about as a Grand Bargain between workers and employers.  In exchange for limited liability, employers would ensure that workers receive medical care and wage benefits for workplace injuries without having to prove that the employer was at fault.  This bargain has become frayed and tattered over the last few decades as employers and insurers find ways to shirk their responsibility toward injured workers.  This is especially the case when it comes to immigrant workers, as evidenced by two hair raising reports published by Pro Publica and The New York Times in recent weeks.

For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported.  Although public policy and extensive case law in the U.S. guarantee workers' compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities. Grabell and Berkes tell the story of father of three who spent a year and a half in jail and immigrant detention before being deported after suffering a severe back injury due to a fall at work.  After the worker's doctor recommended expensive back surgery, his employer's insurer reported him to U.S. Immigration and Customs Enforcement (ICE) for using a false social security number.  Other workers find themselves ambushed by ICE agents after giving depositions at their lawyer's office or attending hearings.  One mother of three who had been in the U.S. since she was a teenager spent years in jail and immigration detention after suffering a workplace injury, only to learn upon finally being released that the father of her children sexually abused their 10-year-old daughter.

Having legal documentation is no guarantee that immigrant workers receive proper compensation for workplace injuries.  In his August 13, 2017 New York Times article Foreign Farmworkers in Canada Fear Deportation if They Complain, Dan Levin reported the story of a father of four from Jamaica who worked in Ontario for 9 seasons under a Canadian temporary agricultural labor program until he was sent home in 2008 after hurting his back while picking peaches.  Although he was permanently disabled, compensation for his injury ended in 2011 because he would be physically able to work as a cashier in Ontario - despite being ineligible for a Canadian work visa and unable to obtain a visa to appear in a hearing appealing the decision.  Migrant workers with temporary labor visas in the U.S. often find themselves uninvited to return to work in the U.S. after they suffer workplace injuries or complain about workplace conditions, encountering extensive cross-border administrative and legal complications when they try to obtain compensation rightly owed them under the law.

In addition to rupturing a century-old Grand Bargain between employers and workers, utilization of federal immigration procedures to avoid full payment of workers' compensation claims is a violation of the human rights of immigrant workers.  In November 2016, the Inter-American Commission on Human Rights publicly released a report defining the right to compensation for workplace injuries as being within the scope of human rights protection.  In its report on the merits in the case of Leopoldo Zumaya and Francisco Berumen Lizalde, two undocumented  workers who were deported after making workers' compensation claims, the IACHR found the U.S. to be in violation of its human rights obligations under the 1948 American Declaration of the Rights and Duties of Man.

In particular, the IACHR found that the U.S. violated the undocumented immigrants' rights under Article II (right to equality before the law) and Article XVI (right to social security).  In the case of Mr. Lizalde (who, unlike Mr. Zumaya, received no compensation before being deported), the Commission found that the U.S. had violated Article XVII (right to recognition of juridical personality) and Article XVIII (right to a fair trial).  In its legal analysis, the IACHR concluded that the right to equal protection applies to nationals and non-nationals alike regardless of their legal status and authorization to work.  The Commission also observed that workers' compensation programs fall within the definition of "proper conditions" of work under Article 45(b) of the OAS Charter, defined as those that "ensure life, health, and a decent standard of living for the worker and his family..."  These rights apply when the State allows private persons (such as insurers and employers) to act with impunity toward the human rights of others.  Though not integral to its analysis, the IACHR mentioned that countries have an obligation to protect the physical integrity of people within their jurisdiction.

One surprising source of rights cited by the IACHR was the 1994 North American Agreement on Labor Cooperation (NAALC), the supplemental labor accord to the North American Free Trade Agreement (NAFTA).  Under the NAALC, the U.S., Canada and Mexico agreed to promote 11 labor principles, including workplace safety; compensation for workplace injuries and illnesses; and protection of migrant workers.

NAFTA is the only U.S. free trade agreement that includes workers' compensation in its definition of labor law - though Canada continues to include workers' compensation in its FTA labor provisions.  In addition to requiring effective enforcement of labor laws, the NAALC contains cooperative mechanisms that could be used by member states to address the complications that arise in the case of cross-border workers' compensation and other labor cases involving immigrant workers.  Employers and insurers that shirk their obligation to injured workers transfer the cost not only to the injured worker herself, but to the health care system of her country of origin.

Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers' compensation or protection of migrant workers - but they should.  Labor provisions in FTAs contain mechanisms that can enhance member states' ability to protect human rights.   While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues.  They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind - and act accordingly to ensure that workers' compensation is included among the labor rights protected in any re-negotiated agreement.