Informe final

Sarah Paoletti – University of Pennsylvania Law School / Rebecca Smith –

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Fecha de conversión01.07.2017
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Sarah Paoletti – University of Pennsylvania Law School / Rebecca Smith –

National Employment Law Project

  1. Introduction

The Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and their Families, deserves to be commended for its focus in taking a rights-based approach to addressing the challenges presented by global migration. As this Program develops and moves forward, it will be critical to recognize the central role of labor and employment rights of all migrant workers, regardless of their migration status, in guaranteeing the fundamental human rights of migrants. There is a clear need for more effective enforcement of labor and employment rights to eliminate exploitation of migrant workers – exploitation which, when permitted, has a negative impact not only on the rights of the migrants themselves, but on all workers, as well as on the communities in which they live and from which they come.

This submission seeks to provide some affirmative proposals for ensuring that migrant workers are not exploited, highlight the strengths of the pending Draft Resolutions currently pending as part of the work of the Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and their Families, and raise some areas of concern for consideration.

  1. Sources of Rights for Migrant Workers and their Families

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families provides a valuable enunciation of specific rights that should be afforded to all migrant workers, and is careful to do so in a framework that balances the sovereign right of all States to regulate the entry of non-citizens with their obligations to respect the human rights and dignity of all persons, recognizing special rights that shall be accorded certain categories of migrants. As such, it serves as a useful reference point for work within the Americas aimed towards achieving the same goal – respect for the human rights of all migrant workers and their families. Clearly, any resolution pending before this Committee, must address – as the Draft resolutions currently do – encouragement for all States to consider ratification of this important Convention, and to undertake steps aimed towards the recognition of all rights enunciated therein.

Because no major receiving State of migrants has ratified the Convention, however, it is important also to look to other sources of rights that are binding on all member States of the OAS in developing a comprehensive set of principles underlying migration programs and policies.

The Inter-American Court of Human Rights’ Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants (Opinión Consultiva 18)1 issued on September 17, 2003, provides a clear statement of the rights to be afforded to all migrant workers, regardless of migration status. The Court clearly identified the principle of equality and non-discrimination as a jus cogens norm resulting in affirmative obligations of all States to guarantee an expansive set of labor rights for all migrant workers, authorized and unauthorized alike. 2

OC-18 is a clear articulation of pre-existing obligations on all OAS member states under Article 2 of the American Declaration on the Rights and Duties of Man, Articles 2 and 26 of the International Covenant on Civil and Political Rights,3 and Articles 24 and 25 of the American Convention on Human Rights vis-à-vis migrant workers. Its importance in the protection of the human rights of all migrants has been recognized in the observations and recommendations of the annual report from the Inter-American Court, approved by the OAS General Assembly on June 8, 2004,4 and has also been recognized by the Human Rights Commission of the United Nations High Commission on Human Rights in resolution 2005/47.5 OC-18 merits similar recognition and an explicit endorsement in the final Resolution agreed upon by this Committee regarding the Human Rights of All Migrant Workers and Their Families.

  1. General Comments vis-à-vis Pending Resolutions

With regard, specifically, to the most recent draft Resolution submitted by the Delegation of the United States in January 2007, while it is within every State’s sovereign right to regulate immigration, that sovereign right must be balanced against a State’s obligations under international human rights law, international humanitarian law, and international refugee law, as recognized in the earlier Draft Resolution submitted by the delegation of Mexico in May 2006. As such, while it is within the authority of member States to regulate the entry and stay of non-citizens, and to determine the status of migrants, States’ authority to determine the “effect of that status” vis-à-vis certain legal rights, as well as economic, social and cultural rights, are constrained by the principle of equality and non-discrimination – as discussed in OC-18.

Furthermore, in a Resolution drafted for the protection of the human rights of all migrant workers and their families, we would urge this Committee to focus on those rights, rather than to confuse a rights-based approach with the rhetoric surrounding the political debate on immigration in receiving countries, and avoid language that pits migrants against other low-income families and individuals.6 Not only are these statements counter-productive in trying to develop a cooperative approach towards the recognition of the human rights of migrants, they are not supported by the evidence. A recent report by the National Employment Law Project provides information on numerous studies and judicial opinions finding that the presence of immigrant workers (both documented and undocumented) has little to no effect on the low-skilled and lower-paid workers.7 Rather than focusing on the migrants, greater attention needs to be given to equal and strenuous enforcement of existing labor and employment laws under domestic legislation, as well as international labor rights standards.

  1. Best Practices to Ensure the Rights of All Migrant Workers

The Inter-American Program and the OAS Member States have rightly paid attention to the global problem of trafficking, and the need to both investigate and prosecute parties responsible for the trafficking of humans, as well as to provide protection and assistance to the victims of trafficking. In order to fully redress trafficking, however, it is not enough to focus on crimes that rise to the level of trafficking alone, but also to address smuggling of migrants and the crimes that are committed upon migrants in the course of their being smuggled, as well as the environment of abuse and exploitation that can exist in all workforces predominated by migrants. Without investigating and addressing the underlying causes that allow for trafficking to occur and create an environment permissive of abuse of varying degrees of severity, migrant workers will remain vulnerable to the same harms as those who are abused by their smugglers or fall prey to trafficking. The prosecution traffickers and the criminalization of smuggling must be undertaken in conjunction with enforcement of all labor and employment rights of all migrants.

This presentation seeks simply to highlight several best practices that can be undertaken by States to ensure the protection of rights of all migrant workers, and can by extension all workers, citizen and non-citizen alike. Many of these practices were outlined in greater detail in our submission for last year’s Special Meeting, with attention given specifically to both good and bad practices arising out the United States’ treatment of unauthorized migrants. Below we seek to extract basic principles that arise out of those experiences that can have application throughout the Americas.

  1. Sanctions for Abusive Employers

Rather than focusing on worksite enforcement aimed towards identifying and removing all migrants in an irregular status, resources should be devoted to sanctioning abusive employers. This means more emphasis on enforcement of workplace violations, with meaningful penalty structures, adequate enforcement personnel, and more focus on industries that are known violators of wage and hour laws (such as construction, domestic work, home health care, hotel and restaurant, and childcare workers), so that all workers receive the wages they are entitled to under current law. In addition to wage and hour violations, meaningful enforcement on health and safety in the workplace requires emphasis on targeted sector-specific enforcement (such as agriculture, food processing and construction), higher penalties for employers who put their worker health and safety at risk, and strong anti-retaliation protections for those who refuse unsafe work.

Furthermore, companies should not be allowed to evade legal responsibility by contracting it away to labor brokers (a problem that is prevalent with the migrant labor pool), or by misclassifying workers as “independent contractors” who may not be covered by various wage and hour provisions.

  1. Ensure Equal Rights and Remedies for All Workers Regardless of Migration Status

In keeping with the principle of equality and non-discrimination, as provided for in the American Declaration on the Rights and Duties of Man, the American Convention, and the International Covenant on Civil and Political Rights, all workers, regardless of migration status, state parties cannot discriminate against migrants, regardless of their immigration status, in the affordance of rights and benefits under the law. While a State may distinguish among authorized and unauthorized workers with respect to who may legally work – as part of a State’s sovereign right to govern migration – once a migrant is employed, a State party must ensure that migrant is not discriminated against. This applies in the area of citizenship discrimination (in addition to race, national origin, ethnicity and gender-based discrimination), social security or pension benefits, and all other labor and employment laws.

Not only must States work to ensure that workers are not discriminated against in the actual text of the laws designed to protect workplace rights, States must also take affirmative steps to ensure that all workers, regardless of their migration status, have equal access to all remedies available under the law. Rights without a remedy are meaningless. And individuals without legal representation are often denied both rights and remedies, as the judicial system remains inaccessible to those without legal representation, in addition to interpreters and translators to assist in their communication. Failure to ensure equal rights and equal access to equal remedies to all workers, both in a regular and irregular status, not only violates the principle of equality and non-discrimination, it also undermines the efficacy of the labor, employment and health and safety laws as applied to all workers.

  1. Confidentiality and (non) Cooperation Policies of Administrative Enforcement Agencies

Worker advocates in the US believe that the only way to adequately enforce labor rights of all workers is to establish a clear “firewall” between labor enforcement and immigration enforcement; that is, to make it clear that a workers’ immigration status is never a subject of questioning in a labor dispute. In an attempt to ensure that “firewall” is in place, they have developed a number of tools within the court and administrative systems. In general, the policies represent a step forward in protecting migrant workers’ access to remedies for violation of labor rights. To be truly meaningful, however, a specific policy that governs the rights of all workers in all situations should be developed. Such a policy should clearly delineate the distinct responsibilities of the federal agency charged with enforcement of immigration laws, and those agencies charged with enforcement of labor and employment laws, including health and safety laws.

Direct workplace enforcement against undocumented workers at their place of employment, the misuse by employers of government information stating that a workers’ Social Security Number in the United States, for example, does not match government records, and the series of databases that are being used and developed to cross-match employee information in a wide variety of contexts, work against efforts to ensure the workplace rights of all workers. A system of focusing immigration enforcement in the workplace creates confusion among immigrant workers with respect to whether or not they can expect confidentiality if they have a complaint for violation of labor rights, and trust state and federal agencies whose purpose it is to ensure employers’ compliance with all labor laws.

  1. Protections From Disclosure of Immigration Status in Formal Legal Proceedings

In the United States, when formal legal claims are filed in court, both parties are allowed to ask a broad range of questions, and ask for a broad range of documents, from the other party in a process called “discovery.” The subject matter of discovery covers anything relevant to a claim or defense, or anything that might become relevant. Attorneys representing employers in claims brought by migrants are increasingly using the discovery process to inquire into a plaintiff’s immigration status, ostensibly to obtain information that is allegedly relevant to the damages claimed. These measures clearly serve to intimidate the plaintiff into dropping the charges altogether, due to fear of retaliation and potential immigration consequences. They also have a chilling effect on workers who are forced to endure a range of abusive workplace conditions, because they fear that if they complain, they and/or their colleagues will be deported. The result is that in a legal system that relies on individuals to step forward as the enforcer of labor and employment law violations, unscrupulous employers can wield their workers’ fear as a shield towards liability.

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