| Joint Testimony oF Lucas benitez and Catherine Albisa ON CORPORATE ACCOUNTABILITY IN THE AGRICULTURAL SECTOR GENERAL INTEREST HEARING REGARDING THE RIGHTS OF MIGRANT WORKERS IN THE UNITED STATES Table of Contents Part I - The Human Rights Violations Facing Migrant Agricultural Workers in the U.S. I. Overview of Testimony Part II - Government and Corporate Responsibility for Human Rights Violations against Migrant Farmworkers I. Overview of Testimony Part III - Requests of Commission March 3, 2005 Testimony of Lucas Benitez, elected representative of the Coalition of Immokalee Workers. I. Overview of Testimony My name is Lucas Benitez, and I am a member of the Coalition of Immokalee Workers (CIW). The CIW is a grassroots, membership-led organization of migrant agricultural workers based in Immokalee, Florida, that seeks justice for a range of human rights abuses and promotes the fair treatment of workers in accordance with international labor standards. Its membership consists of over three thousand, who are largely Latino, Haitian, and Mayan Indian immigrants. The goal of this hearing is to introduce the Commission to the dire human rights situation of migrant farm workers in South Florida, which is representative of the situation of these workers across the United States. Currently, these workers endure “sweatshop” conditions, including wages below the federal minimum wage, exclusions from the legally guaranteed rights to organize and to overtime pay, a total lack of benefits such as health insurance or sick leave, and the continued and widespread existence of modern-day slavery. These conditions are directly attributable to the discriminatory and deficient regime of labor legislation governing migrant farm workers and the existing economic structures of the agricultural industry. There is no other industry in the United States where employers have as much power over their employees. Migrant farm workers have long been excluded from the country’s most basic labor laws, including the National Labor Relations Act (NLRA), and portions of the Fair Labor Standards Act (FLSA). Because of the absence of meaningful labor protections for these workers, such as the right to organize or earn overtime pay, the United States is in violation of several articles of the American Declaration, including Article II (Nondiscrimination), Article XIV (Right to Work and Fair Remuneration), and Article XXII (Right of Association). Furthermore, the United States is in contravention of the principles enunciated by the Inter-American Court in OC-18, specifically the right to nondiscrimination. These violations will be discussed in greater detail by my colleague Cathy Albisa. In short, the current labor regime in the United States fails to respect and ensure protected Inter-American human rights. Farm workers are among the poorest, if not the poorest, laborers in the United States economy. They earn roughly $7,500 per year, which is far below the national poverty line. This fact is in part due to the low wages migrant farm workers are paid. Tomato pickers in Florida are almost universally paid a piece rate, which is 40-50 cents for every 32-lb bucket of produce they pick. At this rate, workers must pick almost two tons of tomatoes to earn $50. Although there is a legal requirement that the piece rate must be at least equal to minimum wage under the FLSA, migrant farm workers often earn wages below this level. Typically eight-hour workdays are used to calculate the hourly wages reported to the United States government, when in reality farm workers work much longer hours per day. These additional hours, such as time spent traveling between fields and harvests, time waiting for fields to dry before picking, and time waiting for crops to ripen, frequently go unrecorded and unpaid. In addition, the piece rate has not changed significantly in over twenty-five years. Despite inflation, farm workers today are paid the same piece rate as workers were paid in 1978. Therefore, in real terms, considering inflation, wages have not remained stagnant, but have fallen for over twenty-five years. Another factor contributing to the poverty of migrant farm workers is their lack of overtime pay. During the harvest, workers typically work ten to twelve hours a day, seven days a week, but overtime pay is largely non-existent in the agricultural sector. Unlike employees in other sectors, employees engaged in agriculture are specifically exempted from the right to overtime pay under the FLSA. Besides not being adequately compensated for their time, workers often do not have a choice as to whether they want to work overtime. As Luisa Fernandez, a worker in Immokalee, describes, “[Overtime] is compulsory…because once in the field, you can’t get to your house. The boss is the one who takes you to the field and brings you back home.” In addition to the fact that they often earn wages below minimum wage and are not paid overtime, migrant farm workers also do not have any benefits to supplement their low incomes. They often lack, among other benefits, health insurance, sick leave, vacation pay, and a pension. In addition, the number of exceedingly few farm workers who have access to either benefits from their employers or contribution-based and needs-based services has been declining. Most troubling is farm workers’ lack of health insurance. Because these workers lack insurance, have little access to information about medical services, confront long travel times to medical facilities from their isolated labor camps, face language barriers, and often encounter hostility from employers reluctant to report workplace injuries or illnesses, farm workers live with poor health instead of obtaining proper treatment. The poverty of migrant farm workers, resulting from the lack of protections afforded them by United States labor law, is most accurately reflected in the sub-standard housing they inhabit. Workers have no telephones, no cars, and neither heat nor air conditioning in the shacks and trailers they inhabit. Overcrowding is both common and severe. Twelve to fifteen people, or roughly three families, may live in a single-wide trailer, hanging sheets as dividing walls. Far from being cheap, a trailer such as the one just described may be up to $1,200 per month in rent. Shacks can rent for upward of $200 a week, a square-footage rate approaching Manhattan’s. III. Migrant agricultural workers are particularly vulnerable because they are denied labor protections that other workers receive. In addition to being denied the rights described above, migrant farm workers also do not possess any ability to gain these important rights by collectively bargaining with growers. They cannot organize for better wages, overtime pay, or safer working conditions despite the fact that their job is routinely ranked as one of the most dangerous occupations in the country. Migrant farm workers are excluded from the NLRA, which protects the right to organize. Besides lacking a legal right to organize, migrant farm workers are also deterred from any type of organization because they fear retaliation by their employers for doing so. Further, the H2-A visa, which allows certain seasonal migrant workers to work legally in the U.S., does not allow “employer portability.” This means that the visa is valid only with regards to a stated employer. A laborer licensed to work with an abusive employer is faced with the choice of leaving the employer, losing their job and facing deportation, or remaining in the abusive operation. Many laborers are forced to choose the latter. Even if agricultural workers were given the same rights as employees
in other sectors of the United States economy, many would still
not be able to exercise these rights based on their status as undocumented
workers. This status-based discrimination was made permanent by
the Hoffman decision and its progeny, which our co-participants
emphasized in their presentation. Slightly more than half of migrant
farm workers are recent immigrants and undocumented workers. Because
they lack documentation, “United States farm workers tend
to face widespread workplace and human rights abuses, and rarely
are able to take the risk of challenging these abuses when they
occur.” In addition, undocumented workers are further marginalized
based on their income. They make roughly between $2,500 and $5,000
per year—far below their documented counterparts. The everyday reality of the sweatshop-like conditions just described cannot be overstated. These conditions are in part attributable to the deficient and discriminatory labor regime governing migrant farm workers in the United States. But recent changes in the economic structure of the agricultural and food services industries also contribute to the daily, systematic violation of human rights in United States fields. It is within this context that slavery, the most egregious form of labor rights violation, is allowed to flourish. The United States has failed to ensure rights protected under international law by failing to address the corporations and economic structures responsible for the continuing enslavement of migrant agricultural workers. This issue will be described in greater detail by my colleague Cathy Albisa. Currently, the agricultural industry is firmly in the control of large, consolidated buyers and retailers, such as Wal-Mart, which sells 19% of groceries in the United States, or Yum Brands Inc., the largest fast-food company in the world and owner of Taco Bell, which relies on one consolidated buyer, the Unified Foodservice Purchasing Cooperative (UFPC), for its fast-food chains. Buyers use their vast market power to obtain volume discounts, exerting a strong downward pressure on their supplier’s prices. This market power has vastly increased in recent years. In a March 2004 report on the conditions of migrant farm workers, Oxfam identified a significant shift in an important economic indicator, known as the marketing spread (the disparity between the price a consumer pays for a product and the price received by the grower), as concrete evidence of the growing economic power of major corporate buyers like Yum over prices at the farm level. Whereas in 1990 growers received 41% of the retail price of tomatoes, by 2000 they were receiving barely 25%. Furthermore farm gate prices, the prices paid to producers, have continuously dropped over the past 20 years, amounting to a 21% decrease for tomatoes. Because they are squeezed by the buyers of their produce and want to continue to maintain a reasonable profit margin, “growers pass on the costs and risks imposed on them to those on the lowest rung of the supply chain: the farm workers they employ.” Many farmers view their labor expenses as the only area where they are able to make significant cuts. While growers cannot demand cheaper tractors from John Deere, cheaper chemicals from Monsanto, or a break on the interest rate from the bank, they can hold wages stagnant, or even cut the piece rate, and still obtain desperately poor workers to pick their crops. As a result, this reality has created an economic incentive for growers to, at best, exploit and, at worst, enslave workers. While a similar incentive may exist in other sectors, few labor markets are as vulnerable and unprotected as United States farm workers for the reasons described above. In response to the difficulty of maintaining their profit margins, growers are also delegating many of their responsibilities to farm labor contractors (FLCs). Growers use labor contractors to avoid dealing with labor law. Farm labor contractors, who are known for their abusive labor practices, offer workers no benefits, but charge them for food, rent, transportation, and tools at inflated prices. Their low profit margins compel them to cut costs, even through exploitation, which, because of the dearth of labor protections, is easy. The economic climate of the agricultural sector has contributed to the practice of slavery in the United States. It has not merely created a context where slavery can occur, but has created a context that has and continues to give rise to slavery in Florida, called “ground-zero for modern-day slavery” by New Yorker magazine. There have been six criminal prosecutions involving Florida-based farm worker slavery operations that had held over 1000 workers, 5 of which were brought with the assistance of CIW. The CIW continues to work closely with the Department of Justice to combat modern-day slavery, working hand-in-hand on two active investigations, and also conducting trainings throughout the country for local, state, and federal law enforcement, social service agencies, and community organizations. The practice of slavery and trafficking in humans has been condemned by the international community and has been criminalized in the United States, yet it continues to exist in parts of the agricultural industry. Despite these prosecutions and condemnations, the prevalence of slavery in the agricultural sector has been described as “pattern of exploitation that can be understood only as a system of human rights abuses.” Furthermore, the situation in South Florida is not “virtual slavery” or “slavery-like” conditions, but actual slavery where workers were held against their will by threats and the actual use of violence, including beatings, shootings, and pistol-whippings. Actual slavery such as that endured by Julia Gabriel, another CIW leader, whose employer told her and the rest of the crew that everyone owed a debt for the transportation to the employers’ labor camp and that if anyone tried to escape, they would be killed. This employer, at the end of the week, would take out rent, food, transportation fees, and other charges, leaving the workers with as little as $20 for the week. The materials included in the appendix detail more of the personal stories of slavery in the agricultural sector which, unfortunately, are numerous. Until the United States addresses the economic structure of the agricultural industry, which is the root cause of the enslavement of migrant farm workers, this horrific human rights abuse has little hope of subsiding. March 3, 2005 Testimony of Cathy Albisa, Executive Director of the National Economic & Social Rights Initiative, before the Inter-American Commission on Human Rights I. Overview of Testimony My name is Cathy Albisa, and I am an attorney specializing in economic and social rights as applied to the United States. Thank you for the opportunity to speak before this Commission about key issues that significantly impact the human rights conditions of large numbers of workers in the agricultural sector. Specifically:
My colleague and fellow activist, Mr. Lucas Benitez of the Coalition of Immokalee Workers has clearly detailed many of the human rights abuses suffered by farmworkers in Florida – including substandard wages resulting in severe poverty, unsafe and unreasonable working conditions, lack of access to health care, and, for a smaller but significant number of workers, forced labor and slavery. I will therefore limit my comments to the relevant obligations that arise from the American Declaration on the Rights and Duties of Man [hereinafter “American Declaration”] , other related human rights standards, and the range of possible steps that may be taken to address the current situation. II. The American Declaration Requires Member States to Respect the Human Right to Equality Before The Law. Article II of the American Declaration states that: [a]ll persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor. The rights and duties established in the American Declaration include the right to association and to form labor unions, see article XXII, and the right to work under proper conditions and to receive such remuneration as will assure a suitable standard of living, see article XIV. Article 2 of the International Covenant on Civil and Political Rights, which has been ratified by the United States, requires: [e]ach State Party to the present Covenant . . . to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Indeed, this fundamental principal of equality before the law is found in all major regional human rights instruments, as well as international instruments, and is so well-settled that it has “entered the domain of jus cogens.” Specifically, with regard to prohibited distinctions based on “any other factor,” this Commission has commented on article 24 of the American Convention on Human Rights, which is substantially identical to article II of the American Declaration. This Commission has noted that not all distinctions in treatment are discriminatory, and stated that: there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind. Conversely, the Commission has determined that a distinction is prohibited if: a) The treatment in analogous or similar situations is different The Inter-American Court has also found that “the State has the obligation to respect and guarantee the labor human rights of all workers, irrespective of their status as nationals or aliens” and thus rejected distinctions based on immigration status as illegitimate. Yet, as a result of the Hoffman decision, discussed in detail by our hearing co-participants, the U.S. labor regime clearly does make distinctions based on immigration status which harms undocumented workers in the agricultural sectors. Further, the U.S. Fair Labor Standards Act (FLSA) which covers the vast majority of non-professional workers in the U.S. specifically excludes agricultural workers from eligibility for overtime pay, while the National Labor Relations Act (NLRA), which protects most workers’ right to collective bargaining and to form unions, excludes “agricultural laborer[s]” from its definition of “employee.” Note that while there are right to information provisions in the Migrant and Seasonal Agricultural Workers Protection Act, these provisions do nothing in purpose or effect to mitigate the damage of the sectoral discrimination in the FLSA or NLRA. There is no objective or reasonable justification to deny farmworkers rights afforded to most other categories of workers. As detailed in Mr. Benitez’s testimony, farmworkers face the same or greater need for labor protection than other categories of workers. Finally, while exclusions of farmworkers from major labor legislation, such as the National Labor Relations Act which protects the right to form unions, was originally justified as a means to protect small farmers, the means employed – denying large numbers of farmworkers mostly working on large corporate farms basic labor protections – are far from proportionate to the aims being sought. Moreover, the historical decline of the small family farm, with the agricultural industry increasingly being constituted of large corporate farms, further demonstrates the lack of proportionality. In order to meet its human rights obligation to equality before the law, the U.S. should propose and implement legislative changes guaranteeing equal levels of labor protections for undocumented workers and farmworkers. III. The American Declaration Requires Member States to Ensure the Fundamental Rights to Work Under Proper Conditions, Fair Remuneration, Health and Well-Being, and Social Security The human right to equality before the law does not stand alone
but is intended to protect other rights, including fundamental economic
and social rights. As this Commission has consistently noted: The Commission has reiterated this position on several occasions, reaffirming a basic premise of the human rights framework that “[a]ll human rights, economic, social, cultural, civil and political, are universal, indivisible and interdependent and interrelated.” Moreover, where overt discrimination exists – as in the case
of farmworkers – there is even a greater likelihood that fundamental
economic and social rights are inadequately protected. The poor human rights conditions faced by farmworkers in the U.S. call for immediate remedial action. Practically every regional and international instrument regarding the implementation of economic and social rights recognizes the obligation both to respect and ensure rights, the latter of which requires states to protect, promote and fulfill rights. With regard to protecting rights, the State must take action to ensure that third parties, i.e. private actors, do not violate economic and social rights guarantees. In this context, this would, at minimum, require improved enforcement mechanisms for existing laws. For example, under the FLSA farmworkers are entitled to the federal minimum wage. Although the current minimum wage in the United State does not guarantee access to decent housing or basic health care, nonetheless it would be a step forward in the protection of economic and social rights of farmworkers if at least the minimum wage were guaranteed in practice, not just in theory. Farmworkers regularly are denied minimum wage by employers who undercount hours worked or fail to consider travel time between fields. There are no truly effective enforcement structures to ensure existing minimum wage guarantees. Thus, ensuring access to free legal counsel and protection from immigration sanctions and/or retaliation by employers while seeking to recover wages, are possible means for complying with the obligation to take steps to ensure these rights. There are also existing minimal protections against certain pesticide exposure under the Occupational Safety and Health Act (OSHA). It has been well documented that these protections are regularly denied to farmworkers, and yet government efforts to enforce these protections continues to decline rather than increase. With regard to fulfilling rights, international and regional instruments have adopted the principle of progressive realization, including the Commission’s Annual Reports, the American Convention (art. 26), and the International Covenant on Economic Social and Cultural Rights. International law experts have also universally endorsed this juridical approach. “The rationale behind the principle of progressive rights is that governments are under the obligation to ensure conditions that, according to the state's material resources, will advance gradually and consistently toward the fullest achievement of these rights." Despite the progressive nature of the duty to “fulfill,” it gives rise to clear and immediate obligations, in particular the obligation to take concrete steps. Taking steps in this context involves developing new human rights protections within U.S. law. Developing health insurance programs specifically targeting farmworkers, with appropriate outreach, is one example. Other possibilities include addressing the acute housing crisis that farmworkers face and developing affordable housing specifically for this population of workers. The human rights framework does not dictate with particularity the steps that must be taken, but it does require that such steps be taken and they “should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations….” IV. The American Declaration Requires Member States to Take Preventive Measures to Protect the Right to Liberty and to Freedom from Slavery and Forced Labor. As Mr. Benitez’s testimony notes, there is a significant problem of slavery and forced labor in the State of Florida. Slavery is universally condemned by human rights law. While the Declaration does not explicitly prohibit slavery, its focus on individual dignity, liberty and equality, could not tolerate such an institution. Moreover, slavery is a multiple and continuous violation of many civil, political, social and economic rights under the Declaration that the United States is obligated to protect. Among the rights violated by slavery are the rights to life, liberty, and security of person (article I); preservation of health and well-being (article XI); work and fair remuneration (article XIV); leisure time (article XV); social security (article XVI); recognition of juridical personality and civil rights (article XVII); assembly (article XXI); association (article XXII); and arbitrary detention (article XXV). Furthermore, slavery has been prohibited in many international agreements and has routinely been identified as jus cogens by U.S. courts. Indeed, the U.S. has made slavery illegal in its Constitution and its statutory law including one, the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), which was passed in part to better punish trafficking in persons and the various forms of coercion that accompany slavery. The U.S. government has done an admirable job of prosecuting slavery cases, and in fact, has succeeded in obtaining convictions in six criminal cases for forced labor and slavery in Florida. However, the obligation to protect against slavery and forced labor extends beyond criminal and civil remedies after the fact. As the Inter-American Court of Human Rights noted in the Velásquez Rodríguez Case, as part of its duty to ensure fundamental rights, a State also must prevent violations. Moreover, the duty to ensure extends to “all the structures through which public power is exercised” and “includes all those means of a legal, political, administrative and cultural nature.” Thus, the obligation to ensure rights is not “fulfilled by the existence of a legal system designed to make it possible to comply with this obligation—it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights.” Moreover, a State has obligations of due diligence to prevent human rights violations perpetrated by private actors. Forced labor and slavery are driven by the economic and legal context in which farmworkers find themselves. The discriminatory legal exclusions described above, along with the failure to ensure basic economic and social rights are one contributing factor. There are also restrictions on immigration visas for farmworkers that enable abuse. In particular, the H2-A visa increasingly used by farmworkers to work legally in the U.S. has no employer portability – in other words it is valid only with regards to the existing employer regardless of any abuses suffered within that employment situation. This hampers workers from protecting themselves against abuses as the only other option is illegal work or returning home to where there may be no viable work. This clearly enables human rights violations. In addition to the legal context, the economic structure of the agricultural sector promulgates slavery and forced labor. As described in greater detail by Mr. Benitez there has been a increase in concentrated purchasing power in the produce sector, and large corporate purchasers have placed extreme downward pressure on wages by systematically underpaying growers. The only viable place to cut costs is labor, and the only viable way to do that, given the level of existing wages, is through abusive practices. Indeed, growers normally contract out the dirty work to farm labor contractors who then have used forced labor and slavery as a way of cutting costs. The prosecutions for slavery thus far have focused on these farm labor contractors, and that is an inadequate means to prevent further slavery. The federal judges that have presided over slavery trials in Florida have come to the same conclusion. For instance, United States Judge K. Michael Moore of the Southern District of Florida noted at the sentencing of one defendant found guilty of running a slavery operation: It was an interesting trial in educating me to see how this industry works . . . . I think the government was correct and appropriate to bring this case and make sure that these workers are protected. . . . [However,] it seems that there are others at another level in this system of fruit-picking, at a higher level, that to some extent are complicit in one way or another in how these activities occur. . . . I think there is a broader interest out there that the government should look at as well, and it goes beyond a single incident. Later, at the same sentencing hearing, Judge Moore identified those in the “higher level” as large packing companies and “corporate individuals who are more sophisticated in the ways in which they can victimize the illegal immigrants coming to the United States.” Opportunities to pass measures that would have accomplished just that have been lost due to inappropriate corporate protectionism at the national level. For example, acknowledging the root cause of slavery operations in the agricultural industry, the initial draft of the VTVPA contained language that punished any person who profits, “knowing, or having reason to know” that a worker will be subject to involuntary servitude. This language would have allowed prosecutors to go up the supply chain and punish the corporations that have knowingly profited off of human slavery. Efforts, however, by Senator Orin Hatch resulted in the language being removed from the final legislation. Thus, in order to meet its immediate obligation to prevent slavery
and forced labor, the U.S. must address the discriminatory aspects
of its legal system, ensure basic economic and social rights, remove
restrictions in it immigration law that enable abuse by employers,
and develop legislative and other mechanisms for ensuring corporate
accountability (ideally targeting both growers and purchasers) for
actions that profiteer off severe human rights abuses such as slavery.
Moreover, that accountability should extend to profiteering both
in the national and international context so as to avoid merely
exporting the system of enabling forced labor to other countries
in the region. The Inter-American human rights system has yet to comment on the evolving debate on independent corporate accountability to human rights standards. However, it is settled law that private actor accountability attaches at the very minimum in the case of slavery and forced labor. Thus, private actors, including the growers and purchasers, have human rights responsibilities to respect and ensure the right to be free from slavery. Additionally, the U.N. Norms on the Responsibilities of Transnational
Corporations and other Business Enterprises with Regard to Human
Rights state that “[w]ithin their respective spheres of activity
and influence transnational corporations and other business enterprises
have the obligation to promote, secure the fulfillment of, respect,
ensure respect of and protect human rights recognized in international
as well as national law ....” While the Norms are not of a
binding character at this point, they provide valuable guidance
for civil society actors, particularly those with great influence
on human rights conditions in their fields. In light of the above legal and factual considerations, and on behalf of the Coalition of Immokalee Workers and the human rights community as a whole, see amici letter from human rights organizations in support of CIW’s testimony before the Commission, we respectfully request that the Commission, in addition to considering the complimentary requests of our co-participants: 1. Grant an on-site visit to the Immokalee region of Florida to
document the human rights violations there; |
Human Rights Amici Letter in Support of CIW before the Inter-American Commission |