LEL Flash | Issue: June/July 2014

FLASH header

Issue: June/July 2014

Comments from the Chair

LEL Section's International Committee Midyear Meeting and Technology Symposium Highlights

The May 2014 edition of The Flash focused on the historic and cultural significance of the religious sites visited by members of the Committee on the tour in Jerusalem. Additional photos of those sights appear here in the margin, and they are scenes from the Church of the Holy Sepulchre, the church identified in the New Testament as the place both of the crucifixion and the Tomb of Jesus of Nazareth. This church has long been a major pilgrimage center for Christians all around the world. The Church of the Holy Sepulchre contains the tomb of Christ and itself is the holiest Christian site in the world.

The three primary custodians of the Church, first appointed when Crusaders held Jerusalem, are the Greek Orthodox, the Armenian Apostolic and Roman Catholic churches. In the 19th Century, the Coptic Orthodox, the Ethiopian Orthodox, and the Syrian Orthodox acquired lessor responsibilities, which include shrines and other structures within and around the building. A complex agreement regulates the times and places of worship for each church, the custodian of the keys to the property and the movement of objects within the church. For instance, a ladder seen in the photograph in the margin has remained in that spot for the last 150 years. There has been no agreement to move it, according to one of the Committee's guides.

The importance of this Church and many other sites seen by Committee members explains why one of them wrote: "What a fantastic conference! I have to admit: when we first discussed the location in Rome, I was skeptical but finally I have to say that it was one of the most interesting places I have ever been!" Others had similar thoughts and expressions of great thanks to the Committee co-chairs for their planning of this Committee.

Bangladesh Accord for Fire and Building Safety

Probably the most moving panel discussion focused on the workplace disaster in Bangladesh which occurred approximately one year prior to the Tel Aviv meeting. This discussion was an excellent supplement or addition to the panel on core standards for employers, employees and unions and in the application of the ILO labor principles on the freedom of association, Convention No. 87, and the right to organize and bargain collectively, Convention No. 98. The Bangladesh disaster was noted by the moderator, Claire Murray of London, who talked about the time she spent working on preparation for this panel and learning about the problems created by the collapse of the building that housed a textile manufacturing company. As a result of the collapse, over 1,100 workers were killed, mostly young women. Ms. Murray talked about how humbling it was for her to learn about the basic problems of feeding families, the hardship of the workers, and what compelled them to continue working, even though there was a fear of an unsafe working condition.

Christy Hoffman is working in the forefront of workplace safety issues that have arisen since the Bangladesh building collapse. She reported that this was the largest structural failure in modern history and that the building violated applicable building laws. The top four floors were constructed without building permits and there was a problem with the foundation. Workers in the first two floors were evacuated the day before the accident, when cracks were seen in the walls. However, the factory textile owner and employer of the textile workers ordered them to work the next day or face discharge and loss of pay the month. They followed the order to come to work, and at 9:00 AM the building collapsed and 1,129 workers were killed.  Bangladesh is attractive to world manufacturers because it is the cheapest place to make a garment. The workers earn $70 U.S. per month, and if the wage had increased by a multiple of three, it still would have been the cheapest place to manufacture the garments.

As a result of this collapse in Rana Plaza, manufacturers of brand names scrambled to deal with the fallout. In the United Kingdom, as a consequence of this disaster, a human trafficking law was passed. Ms. Hoffman regards this collapse as an industrial homicide, and since then, she has been working on a new model to promote workplace safety. An initial survey of factory buildings in Bangladesh noted many are poorly constructed buildings, an almost complete lack of proper fire exits, missing safety systems, an absence of a worker role ensuring safety, locked doors to control workers and more than 2,000 dead workers since 2005.

In an effort to protect workers in this environment, organizations have created the Bangladesh Accord for Fire and Building Safety. By early May 2014, 166 major retail brand companies have signed the Accord, which covers 1,600 factories and two million workers. It is signed by labor representatives, local rights groups, and representatives from 166 global brands from every continent. The Steering Committee consists of three members from labor and brand name companies, and the International Labor Organization is the independent Chair. The advisory board consists of stakeholders from Bangladesh, including the government and representatives of a manufacturing association. The two million workers covered by the Accord represent one-half of the garment industry in Bangladesh.

Under the terms of the Accord, factories will be inspected, factory reports are to be made public, factories are to be repaired, and brands must assure resources are available to do this kind of work. If a factory refuses to remediate problems found in an inspection, the brand company must stop using that factory to manufacture its retail products. Ms. Hoffman reported that inspections are currently underway involving 100 safety experts and that three teams a day are inspecting 45 factories a week. The electrical and fire safety components of the buildings as well as the structures are being inspected. Each building that has been inspected has a critical problem: none have fire exits, many are at the risk of collapse, and eleven buildings have been evacuated as of May 2014. There has been considerable tension over the closing of a factory as a result of a workplace inspection. The workers at one company rioted because of their concern over a loss of pay. Obviously, the consortium that administers the Accord plans on doing a better job when closing buildings. Attempts will be made to assure that workers will continue to be paid. Fifteen thousand workers are not working as a result of building closures, but they are getting paid, and a key problem exists with owners who do not want to fix the buildings. These appear to be the most contentious issues involved in the operations of the Accord.

Peter Talibart of Seyfarth Shaw's London's office spoke about the terrible history of fires in Bangladesh workplaces and the absence of the rule of law for which building codes can enforce. Marley Weiss of the University of Maryland School of Law noted that politicians in Bangladesh have ownership interests and personal investments in the garment industries and that plays a big role in the country and explains the meager enforcement of applicable laws.

One building owner when threatened with loss of access for goods produced in his building to the European market due to workplace hazards, stated: "This building has not fallen yet in 15 years, so why is there a risk?" It is clear to Ms. Hoffman that some building and factory owners are not willing to face the risks that result in workers' lives being lost. She noted that more than a voluntary effort is needed to audit workplaces in Bangladesh and that is why the consortium is trying to shift responsibility away from building owners to the retail brand companies which place textile orders in those factories.

Talibart also remarked that from his perspective this was a health and safety matter and the consortium has done a good job working on it, but he is quite worried about the issues raised in 2013 with employees earning lower wages and being compelled to run back into a dangerous building for fear of losing their jobs and pay. He asked, "How can this happen with international law and the social concern of companies? How can companies be committed to social standards and still be involved disasters such as this?" Ms. Hoffman noted that the participants in this Accord are determined to train workers' safety committees and that workers need a voice to be able to refuse to work in dangerous working conditions. The United Kingdom is considering a legal response by amending an existing corporation law to demand the manufacture of products in fair and safe working conditions with full transparency in the supply chain. Such a bill is currently being considered, but a recent draft was tabled.

Committee participants believed that the discussion on this issue was more complete and satisfying than the one last year and that the Committee members learned more about the importance of these issues and how brand name retail companies are responding. Ms. Hoffman believes that brand name companies will have to put dollars into this problem and raise money and to sign the Accord in order to assure that the factories are regularly inspected and that workers are not jeopardized by being required to work in unsafe conditions.

Related to this most pressing issue of workplace safety, were the panel discussions on core labor standards and trade agreements. International free trade agreements between Jordan and the United States, Israel and the United States and NAFTA were discussed in the context of workplace problems. Philip Fishman, a representative of Better Work Jordan, has spent eight years in Amman, Jordan working on developing jobs in manufacturing for Jordanian workers and a relatively large number of migrant workers who have come to Jordan. Of the 50,000 workers working in the Jordanian Free Trade Zone, 40,000 are immigrant workers and one-third have come from Bangladesh. Because of language in the Jordanian Free Trade Agreement, mechanisms have developed to improve working conditions and there has been a transformation in that sector. The growth element is supported by the FTA, and a lot of employers are happy the sector is growing. Factories owned by Israeli companies are operating in Jordan and employ only Jordanian workers. A major contribution from this development is that it strengthens the relationship between Israel and Jordan.

Robert Forden, the economic counselor to the United States' Embassy in Israel, and a member of the U.S. senior foreign service, noted that under the Free Trade Agreement between the United States and Israel, a qualified industrial zone was created in both Jordan and Egypt, and work opportunities have been provided to manufacture textile goods that can be exported duty free to the United States based upon the percentage of material content made in Israel.

Fishman also noted that some migrant workers in Jordan work as many as 100 hours per week, live in dormitories close to the factories and have little social life outside of the area in which they work. He said, "There is nothing else for them to do." There is little labor mobility for the migrant workers working in the textile industry. For those companies operating under the Free Trade Agreement, there are requirements to comply with collective bargaining agreements, and unions and employers meet with the Jordanian government to negotiate agreements based on the relationships they have had, which is an outgrowth of having done sectorial collective bargaining agreements. Jordanian and migrant workers working under the FTA have a unified contract based upon international labor organization standards. Nike is a company operating under the FTA and has zero tolerance for allowing workers to exceed much more than 40 hours a week. Its factories therefore avoid requiring workers to work much more than 40 hours per week and bar their supervisors and managers from confiscating workplace documents.

The discussions on free trade agreements also covered NAFTA and the significant problems that have been created for workers pursuant to it and ongoing discussions with Canada and the European Union for a free trade agreement. Celeste Drake of the AFL-CIO reported that after twenty years of NAFTA, trade flows have increased, but the standards for workers have decreased. Union density and wages have decreased in all three NAFTA countries. The Mexican poverty rate is the same as it was twenty years ago, and wages have declined relative to purchasing power. The Canadian Labor Congress claims the reduction of manufacturing in that country due to on NAFTA and noted an increased amount of work done in the mineral extraction industry. Danny Kaufer of Quebec, a longtime member of the Section, presented a paper on the cautions countries should have in dealing with and creating free trade agreements, and he did not disagree with Celeste Drake on her views concerning the overall impact of NAFTA.

International frame work agreements were a center of the discussion on core standards for employers, employees and unions. Such agreements are considered to be innovative ways to change corporate behavior toward social responsibility. They are known as global frame work agreements and have been negotiated between organizations represented by labor unions and multi-national corporations. Although companies have corporate social responsibility programs, they are created, shaped and implemented by outside consultants and specialists who create social responsibility programs so that primarily corporations can repair a company's tarnished public image. Codes of conduct have been presented as a solution to negative consumer campaigns after incidents involving mistreatment of workers were reported. These codes of conduct do not placate all groups, and have been criticized by organized labor, primarily because they are unilaterally developed, implemented and enforced by companies with little or no input or participation by workers they are intended to help.

Committee member Owen W. Hernstadt talked about the use of such agreements. They are considered to be an alternative when national labor laws fail to preserve core labor rights and when codes of conduct adopted by corporations do not protect human rights. Negotiating a framework agreement between a global company and workers across the globe requires a powerful union in the home country of the corporation that has a good relationship with the multi-national corporation. Such negotiations also involve a global network of unions that represent workers of the corporation in different parts of the world. The corporations willing to negotiate such agreements are those that have experience in engaging social dialogue with unions. Most international trade work agreements have been negotiated between European-based multi-national corporations, European unions and works councils. Hernstadt, Corporate Social Responsibility, International Frame Work Agreements, and the Changing Corporate Behavior in the Global Workplace Labor and Employment Law Forum (January 2013).

Successful international frame work agreements contain clear and comprehensive labor standards that will apply anywhere in the world and are consistent with those labor standards developed by the International Labor Organization; they must be broad enough to cover the entire enterprise including subsidiaries, suppliers and joint ventures and this includes the global supply chains as they continue to expand; meaningful implementation of such agreements requires both communication and educational activities, and the agreement will have little relevance if it cannot be enforced. Hernstadt's paper summarized the international frame work agreement between Siemens AG and IG Metall (the German Metal Workers Union) and the Central Works Council of Simemens AG, and the agreement between IKEA and a building and woodworkers union. The lack of a binding enforcement mechanism such as arbitration has led to problems with the frame work agreements at both Siemens and IKEA.

These comments, unfortunately, cover only a small number of the very interesting and important subjects that were discussed at this meeting. For those of you who want to learn more about the issues under international labor law, the Section's website contains all of the papers that were presented at the May 2014 conference, and there is an archive of papers presented over the past years.

A small irony to the panel discussion on technology and the important role Israel has played in being an incubator of start-up companies can be seen in the attached wall art or graffiti: It is an anti-technology piece and take off on Facebook.

National Symposium on Technology in Labor & Employment Law

This year's National Symposium on Technology in Labor & Employment Law, which was sponsored by the Section's Technology in the Practice & Workplace Committee, featured dynamic speakers in the law and technology fields and provided access to these great minds. Richard F. Griffin, Jr., General Counsel, National Labor Relations Board, and Harry I. Johnson, Member, National Labor Relations Board, spoke on employees in non-traditional and traditional labor settings taking their organizing to the "streets" of social media. They also discussed the conflicts between the freedoms of social media and the restrictions in the NLRA.

Gavin Manes, Avansic-E-Discovery & Digital Forensics, and Bart Sims, Devon Energy, presented a fascinating panel on how to use technology when conducting internal investigations and the top ten mistakes employers and employees make when touching, using and finding evidence.

The Symposium concluded with a panel on how social media can (and in some instances must) be effectively used in discovery as well asthe legal obligations for preserving social media and the practical realities of truly "preserving" it. The panel addressed unique issues in using social media evidence in employment litigation, including the evolving scope and use of social media discovery in individual employment and class actions.

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Joel A. D'Alba
Chair, ABA Section of Labor and Employment Law

Contents

Opening Page

Special Feature
U.S. Supreme Court Strikes Down Agency Fees Required from Illinois In-Home Care Personal Assistants

First Feature
Supreme Court Cases: 2013-2014

Second Feature
The Minimum Wage: An Ongoing Debate

Selpuchre

Church of the Holy Sepulchre.

cityscape

By day or night, there were plenty of activities for everyone.

night time

dinner

Committee members enjoy dinner and networking opportunities.

dinner02

Orna Lin

Orna Lin, Tel Aviv.

panel discussion

Pierre Moreau, Montreal, and Tzach Shanny, Haifa.

graffiti

Graffiti.

All photos used by courtesy of Joel A. D'Abla.

Flash Co-Chairs:
Jeremy J Glenn, Meckler Bulger et al | Monique R. Gougisha, Ogletree Deakins | Amy F. Shulman, Broach & Stulberg LLP | Jennifer R. Spector, National Labor Relations Board

American Bar Association Section of Labor and Employment Law
321 N Clark | Chicago, IL 60654 | (312) 988-5813