February 18, Nearly two and one-half years ago, on September 19, 2011, three H-2B workers in the

Transcription

1 February 18, 2014 SUPPLEMENT TO PUBLIC COMMUNICATION MEX on LABOR LAW MATTERS ARISING IN THE UNITED STATES submitted to the NATIONAL ADMINISTRATIVE OFFICE (NAO) OF MEXICO under the NORTH AMERICAN AGREEMENT ON LABOR COOPERATION (NAALC) REGARDING THE FAILURE OF THE U.S. GOVERNMENT TO EFFECTIVELY ENFORCE ITS DOMESTIC LABOR LAWS, PROMOTE COMPLIANCE WITH MINIMUM EMPLOYMENT STANDARDS, AND PROTECT MIGRANT WORKERS Nearly two and one-half years ago, on September 19, 2011, three H-2B workers in the traveling fair and carnival industry and several U.S. and Mexican nongovernmental organizations (Petitioners) submitted a public communication (Mex ) to the Mexican National Administrative Office (Mexican NAO) pursuant to the North American Agreement on Labor Cooperation (NAALC). The public communication alleged that the U.S. government had violated the NAALC by failing to effectively enforce its domestic labor laws, promote compliance with minimum employment standards, and non-discriminatorily protect migrant workers. On August 16, 2012, the Petitioners submitted a supplemental filing describing in detail the legal framework that governs H-2 workers in the United States and the rights violations occurring under that framework. In November 2012, the Mexican NAO within the Mexican Department of Labor and Social Welfare (STPS) issued a report responding to Mex and two other public communications (Mex and Mex ). In the report, the Mexican NAO recommended that the STPS Minister request ministerial consultations with the U.S. Secretary of Labor, pursuant to the stipulations set out in Article 22 of the NAALC to examine what the U.S. government is doing to guarantee H-2 workers rights.

2 Ten months after the Mexican NAO issued its report, the ministerial consultations had not commenced. In response, in September 2013, the Comité de Defensa del Migrante, an organization of 75 migrant and ex-migrant leaders and their families, two of whom are petitioners, submitted letters to the STPS and the International Labor Affairs Bureau of the U.S. Department of Labor (DOL), urging that the STPS initiate and press for ministerial consultations and that the DOL accept the request. Shortly after that letter was sent, Petitioners learned that the governments had begun to discuss the parameters of the ministerial consultations. In the months that followed, the Mexican and U.S. NAOs continued to discuss parameters. No concrete plans have been publicized. In the two and one-half years that the Petitioners have repeatedly requested a meaningful response and a concrete plan of action from the U.S. and Mexican governments, the grave violations that Petitioners alleged in Mex have continued. Lawsuits have been filed against fair and carnival operators in California, Florida, and Massachusetts all of which allege egregious violations of H-2B workers employment rights. (See Doe I et al v. Butler Amusements, Inc., 3:13-cv JSW, pending in the U.S. District Court for the Northern District of California; Morales Toledano v. Deggeller Attractions, Inc., 2:13-cv JEM, filed in the U.S. District Court for the Southern District of Florida and voluntarily dismissed for filing in a new jurisdiction; and Garcia et al v. E.J. Amusements of New Hampshire, Inc. D/B/A Fiesta Shows, et al, 1:13-cv PBS, pending in the U.S. District Court of Massachusetts). The lawsuits allege numerous labor violations, including the failure to reimburse workers for international labor recruitment and travel expenses, and minimum wage and overtime violations. H-2B workers risk retaliation including blacklisting at the hands of international labor recruiters and employers for participating in litigation. Courts have 2

3 recognized the serious threats of retaliation for participating in Fair Labor Standards Act litigation. See e.g. Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000); Doe I et al v. Butler Amusements, Inc., 3:13-cv JSW. 1 The order permitting Plaintiffs to proceed under fictitious names in Doe I et al v. Butler Amusements, Inc., was based on a brief that Petitioner Centro de los Derechos del Migrante, Inc. (CDM) and its co-counsel the Legal Aid Society-Employment Law Center filed describing the threats of retaliation against H-2B fair workers who complain about rights violations or defend their rights in U.S. courts. 2 Additionally, in February 2013, petitioner CDM and its partner the American University Washington College of Law Immigrant Justice Clinic released a groundbreaking report Taken for a Ride: Migrant Workers in the U.S. Fair and Carnival Industry. 3 The report, which is based on interviews with H-2B fair workers in Maryland, Virginia, and Mexico, describes systemic rights violations in the fair industry, including unlawful and deceptive recruitment practices; high preemployment fees; minimum wage and overtime violations; substandard housing; lack of access to medical attention; threats of retaliation; and lack of access to legal assistance. Taken for a Ride reveals, The fair and carnival industry epitomizes what is currently most problematic with the H-2B temporary worker program, as employers are often able to mistreat their workers and claim exemption from basic worker protection laws with very little scrutiny. 4 Finally, in March 2013, several Petitioners, including Mr. Cortez, and representatives from the AFL-CIO, CDM, and the Southern Poverty Law Center, testified before the Inter- 1 Order Granting Motion to Permit Plaintiffs to Proceed Under Fictitious Names, filed Nov. 15, 2013, in Doe I et al v. Butler Amusements, Inc., 3:13-cv JSW, pending in the U.S. District Court for the Northern District of California. 2 Plaintiffs Reply in Support of Motion to Permit Plaintiffs to Proceed Under Fictitious Names, filed Oct. 10, 2013, in Doe I et al v. Butler Amusements, Inc., 3:13-cv JSW, pending in the U.S. District Court for the Northern District of California. 3 Centro de los Derechos del Migrante, Inc. & The American University Washington College of Law, Taken for a Ride: Migrant Workers in the U.S. Fair and Carnival Industry (2013), available at 4 Id. at vi. 3

4 American Commission on Human Rights (IACHR) about systemic violations in the H-2 visa programs, and highlighting the situation in the U.S. traveling fair industry and other industries. 5 Representatives from the U.S. Department of Labor, U.S. Department of Homeland Security, and U.S. Department of State also testified about how they are responding to the H-2 program abuses. At the hearing, an IACHR Commissioner expressed concern about the fact that existing U.S. policies deter H-2 workers from denouncing abuses because they have very few protections against retaliation. 6 The following petitioners and new petitioners join in support of Public Communication Mex and in support of this Supplement: Leonardo Córtez Vitela, AFL-CIO, Alianza de Trabajadores Agrícolas, Centro de los Derechos del Migrante, Inc., Comité de Defensa del Migrante, Foro Migraciones, Friends of Farmworkers, Inc., FUNDAR-Centro de Análisis e Investigación, Global Workers Justice Alliance, Instituto de Estudios y Divulgación Sobre la Migración (INEDIM), Interfaith Worker Justice, Jorge Palafox Juarez, Proyecto Jornaleros SAFE, La Fundación para la Justicia y el Estado Democrático de Derecho, North Carolina Justice Center, Northwest Workers' Justice Project, Paso del Norte Civil Rights Project, Red Mexicana de Lideres y Organizaciones Migrantes, Sin Fronteras, Southern Poverty Law Center, UFCW Canadá, Workers' Center of Central New York, Mesa Nacional de Migrantes y Refugiados (Panamá), Instituto Centroamericano de Estudios Sociales y Desarrollo INCEDES (Guatemala), Grupo de Monitoreo Independiente de El Salvador (GMIES), Instituto Salvadoreño del Migrantes (INSAMI), SOLETERRE, Asociación Salvadoreña de Educación Financiera (ASEFIN), Iglesia episcopal anglicana, Instituto de Derechos Humanos de la UCA (IDHUCA), 5 See Agencia EFE, Migrant workers said [to be] systematically exploited in U.S. (March 12, 2013), available 6 See CDM, Hearing Before the Inter-American Commission on Human Rights on H-2 Recruitment Abuse (March 2013), available 4

5 Iglesia Scabrini, Scalabrini International, Migración Network (El Salvador), and Centro Internacional para los Derechos Humanos de los Migrantes (CIDEHUM) (Costa Rica). Petitioner Jorge Palafox Juarez and his co-workers other unnamed migrant workers suffered unpaid wage violations due the continued failure of the United States government to effectively enforce its domestic labor laws in accordance with the North American Agreement on Labor Cooperation ( NAALC ). Petitioner is a Mexican national who worked for JLQ Amusements, Inc. (JLQ) in 2013 on an H-2B visa. While employed in the United States, Petitioner was paid a wage below the federal minimum, was deprived of overtime wages, and was not paid for all hours worked. Petitioner was also required to pay substantial preemployment costs for which he was never reimbursed and was subject to unlawful deductions from his wages during his employment with JLQ. In light of the grave, ongoing abuses in the U.S. fair and carnival industry against H-2B workers, in this Supplement to the Public Communication Mex , Petitioners urge that the STPS and the U.S. Department of Labor (DOL) should take swift action and immediately begin ministerial consultations. The ministerial consultations should focus on the substance of the serious allegations raised in Public Communication Mex Substantive ministerial consultations must be informed by the experiences of H-2 workers. To this end, H-2 workers and their advocates must have opportunities to participate in the consultations. Specifically, H-2 workers and their advocates should testify and provide recommendations during the consultations. H-2 workers and their advocates should also have a timely opportunity to review and comment on draft declarations and proposed resolutions, and the NAOs should consider their comments in writing a final declaration. 5

6 Furthermore, the consultations should be transparent and the NAOs should be accountable for their actions. Information about this consultation and past consultations should be made available online in a timely manner, so that petitioners and the public can understand what steps the NAOs have taken and are taking to rectify the grave violations of migrant rights alleged in Mex and in other public communications. The current NAALC website contains very little information and documentation about past public communications and ministerial consultations and does not include information about pending public communications. Additionally, the calendar on the website has not been updated. To achieve transparency, petitioners urge that the NAOs should publish all filings, including public communications, supplements, and declarations online within 48 hours of their filing. Additionally, the NAOs should advise the public online about all meetings related to the resolution of public communications online as soon as events are scheduled and no later than two weeks before the events from the time the public communication is filed with an NAO until the time it is resolved. The NAOs should publish detailed information, including transcripts, of all meetings and events related to the resolution of public submissions, within 48 hours of the meetings and events. These steps will ensure that petitioners and the public are well informed about and can participate in the NAALC process. Finally, STPS and DOL should promptly issue a joint ministerial declaration that addresses Petitioners serious allegations and creates a concrete timeline for implementing reforms that are needed to bring the United States into compliance with the NAALC and to protect H-2 workers rights. Sincerely, Leonardo Córtez Vitela 6

7 AFL-CIO Alianza de Trabajadores Agrícolas Centro de los Derechos del Migrante, Inc. Comité de Defensa del Migrante Foro Migraciones Friends of Farmworkers, Inc. FUNDAR-Centro de Análisis e Investigación Global Workers Justice Alliance Instituto de Estudios y Divulgación Sobre la Migración (INEDIM) Interfaith Worker Justice Jorge Palafox Juarez Proyecto Jornaleros SAFE La Fundación para la Justicia y el Estado Democrático de Derecho North Carolina Justice Center Northwest Workers' Justice Project Paso del Norte Civil Rights Project Red Mexicana de Lideres y Organizaciones Migrantes Respuesta Alternativa, A.C. Sin Fronteras Southern Poverty Law Center UFCW Canadá Workers' Center of Central New York Mesa Nacional de Migrantes y Refugiados (Panamá) 7

8 Instituto Centroamericano de Estudios Sociales y Desarrollo INCEDES (Guatemala) Grupo de Monitoreo Independiente de El Salvador (GMIES), Instituto Salvadoreño del Migrantes (INSAMI), SOLETERRE, Asociación Salvadoreña de Educación Financiera (ASEFIN), Iglesia episcopal anglicana, Instituto de Derechos Humanos de la UCA (IDHUCA), Iglesia Scabrini, Scalabrini International, Migración Network (El Salvador) Centro Internacional para los Derechos Humanos de los Migrantes (CIDEHUM) (Costa Rica) 8