Friday, December 13, 2013

US Secretary of Labor issues report under CAFTA-DR

U.S. Secretary of Labor issues report under CAFTA-DR on child and forced labor in Sugarcane Industry in the Dominican Republic

On September 27, 2013, the recently confirmed Secretary of Labor of the United States Thomas E. Perez released a report resulting from allegations that the Government of the Dominican Republic had not complied with its CAFTA-DR Chapter 16 labor obligations with respect to protection of fundamental labor rights of Haitian migrant agricultural workers on Dominican sugarcane plantations. The original petition was filed by Catholic missionary Father Christopher Hartley on December 22, 2011 and was accepted by U.S. DOL's Office of Trade and Labor Affairs (OTLA) on February 22, 2012. The Haitian Migrant Sugarcane Worker report is significant because it is the first report issued by the U.S. DOL under a free trade agreement (FTA) that contains extensive findings and discussion related to forced labor and child labor. The report is also significant because it represents a procedural break from past practice under the NAFTA labor side agreement, where U.S. DOL utilized a primarily adjudicatory model placing the burden of producing factual evidence supporting a petition on the submitters, and instead utilizes an investigatory model in which the OTLA conducts an independent investigation of the allegations. The report was accompanied by the simultaneous announcement of a $10 million grant by U.S. DOL to its Dominican counterpart to combat child labor in agriculture.

While a large number of NAFTA labor petitions filed with the OTLA's Mexican counterpart about labor practices in the U.S. have dealt with migrant workers and agriculture (such as the Washington Apple and De Coster Egg petitions filed in 1998 and numerous petitions related to H2A and H2B visa programs filed in the 2000s), the new report on labor practices in the Dominican sugar industry is the first issued by the U.S. DOL under an FTA in the past 20 years to address labor issues solely in the agricultural sector of a U.S. trading partner. In 1998, the U.S. DOL declined to pursue a 1997 petition made by the Florida Tomato Exchange about child labor in Mexican tomato fields because the Tomato Exchange did not supplement its original complaint letter with additional facts. In a report on a 2005 petition filed under the NAFTA labor side agreement, the U.S. DOL's findings regarding allegations that a manufacturer in the Mexican state of Hidalgo utilized child labor to manufacture popular children's toys were ambivalent due to conflicting evidence related to birth certificates of potentially under-aged workers. Similarly, the U.S. DOL had been ambivalent in past findings related to forced labor claims in NAFTA labor petitions related to work in garment and other manufacturing plants in Mexico.

Haitians have been working in the Dominican sugar industry for over a century - through government recruitment programs since 1919 and government-to-government arrangements between Haiti and the Dominican Republic until 1986, when recruitment became more informal through independent labor smugglers and brokers called buscones in Spanish or passeurs in Haitian Creole. It is estimated that there are about 40,000 Haitian migrants working in the Dominican sugar industry and that a majority of those are undocumented, though official and unofficial statistics are unreliable. Haitian migrant workers in the sugar sector tend to live in worker communities referred to bateyes on or near their employers' property. Due to physical and cultural isolation, they are frequently required to purchase food and other staples at privately owned stores referred to colmados located in the bateyes. The Dominican sugar sector has been the subject of a number of international reports by the U.S. Department of State, the U.S. Department of Labor Child Labor Program, the ILO and non-governmental entities such as Verité. The Government of the Dominican Republic has a 10-year national strategic plan to eradicate the worst forms of child labor (2010-2016) and has committed to eliminate all child labor by 2020.

The OTLA's report discusses and addresses methodological and procedural shortcomings its delegation observed in the Dominican process of conducting labor inspections on sugarcane plantations. One of the primary concerns noted in the report is that while most of the workers on sugarcane plantations speak Haitian Creole, the Dominican labor department lacks inspectors who speak Creole and Spanish-Creole interpreters, making it difficult to effectively interview workers during inspections. Other shortcomings observed in the inspection process include conducting worker interviews in the presence of employer representatives, not discussing topics related to the fundamental rights to organize and collectively bargain and failing to follow up on worker complaints, conduct follow-up inspections or verify remediation of violations.

The report also sets a standard for what constitutes forced labor under the labor chapter of the CAFTA-DR and makes a number of observations about working and housing conditions in the sugar sector based on existing governmental and non-governmental reports and interviews the OTLA delegation conducted with workers, missionaries, employers and government authorities in 2012 and 2013. The OTLA noted that the minimum wage on sugarcane plantations is lower than in other sectors of the Dominican economy, and that workers often do not receive minimum wage or proper overtime compensation as employers tend not to keep records of hours worked due to use of a piece- or weight-based compensation system. The report cites an interview with a Haitian worker who has been working in the Dominican sugarcane industry for a decade who stated that he works from 4:00 am in the morning to 7:00 at night and that he must ask his mother in Haiti to send him money because he does not earn enough to survive, much less send money home to help out his family. In addition to observing inadequate wage and hour record keeping, the OTLA found that the weights and measures used to calculate the piece rate may not be accurate and that workers do not receive proper payment for other tasks performed on the plantation, such as clearing, planting and construction. Finally, workers' pay is reduced by deductions for the Dominican social system, though many workers are undocumented and it is unclear whether or not undocumented Haitian workers are entitled to pensions under Dominican law. While the OTLA noted that a few Haitian sugarcane workers with proper immigration had received pensions, in practice most documented and all undocumented Haitian sugarcane workers do not.

Using a 2012 Verité research study on forced labor in the sugar supply chain in the Dominican Republic as a guide, the OTLA found that extremely low wages, forced overtime and being placed in a position to purchase staples for inflated prices at colmados (often leading to incurrence of debt) were all indicators of forced labor. Other indicators include being threatened with loss of employment and housing if workers meet with one another, being threatened with termination and deportation for refusing to work illegal overtime, being subject to deceptive recruitment practices such as being told they would be performing different work (picking tomatoes, construction or working in an office) at higher pay and being specifically told by employers that they have no rights and cannot file complaints. The OTLA found, " Depriving workers of the ability to seek legal enforcement of their rights can contribute to worker isolation, disempowerment, and a culture of fear and employer control that makes workers particularly vulnerable to forced labor." In fact, the OTLA found that at least two workers were terminated as a result of speaking with the OTLA delegation - though the report indicates that they were rehired as a result of OTLA intervention.

With regard to the issue of child labor, the OTLA recounted observations made by workers and employers as well as in governmental and non-governmental reports and studies that children as young as 12 engage in sugarcane cutting, planting and other tasks in the sugar industry. One of the biggest complications in identifying and eradicating child labor in the Dominican sugar industry is the fact that many Haitian children born in the Dominican Republic do not have birth certificates and are not registered as citizens in either country. Lack of birth registration of Haitian children in the bateyes makes it difficult for employers and government authorities to properly address child labor on sugar plantations.

The OTLA's report recommended that labor authorities in the Dominican Republic conduct worker outreach and workplace inspections in Haitian Creole, train inspectors to identify forced and child labor and other workplace violations, formally and publicly commit to maintaining the confidentiality of workers who complain about labor law violations and strengthen enforcement of existing Dominican laws and policies prohibiting forced and child labor. The U.S. DOL plans on reviewing progress by Dominican labor authorities in the implementation of its recommendations in 6 months (March 2014) and 12 months (September 2014).

By Tequila J. Brooks, Esq.


Press Release, "US Labor Department issues report on labor concerns in Dominican sugar sector, announces $10 million project in agriculture," September 27, 2013:

U.S. Department of Labor Bureau of International Labor Affairs, Public Report Of Review Of U.S. Submission 2011-03 (Dominican Republic), September 27, 2013:

Verité, Research on Indicators of Forced Labor in the Supply Chain of Sugar in the Dominican Republic, Amherst, Massachusetts, 2012: Also in Spanish: