Monday, July 1, 2019
Editor's Note: This post is Part II on the Guiding Principles and US Human Rights Advocacy.
Guiding Principles Can Provide a Framework for US-Based Advocates Where the State Fails to Protect Against Human Rights Abuses
The reason the Guiding Principles may not have been used by community-based groups to advocate for workers here in the United States is the assumption that workers here enjoy labour and employment protections, and that these laws guard against any corporate abuse of labour rights. While true that under the Guiding Principles, consistent with human rights law, it is the State’s role to guard against human rights abuses by companies against persons in their jurisdiction, corporations are obligated to do no harm. However, what we observe is that the ‘State’ under human rights law or federal government in the United States, particularly now under the Trump administration, is actively working to deny workers their rights. Former United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association Maina Kiai’s statement on his visit to the United States, captured this illusion of labour rights in the country well:
In law, workers are not prevented from forming unions. However, in practice the ability to form and join unions is impeded by a number of factors: the inordinate deference given to employers to undermine union formation; a so-called ‘neutral’ stance on unions by authorities, when in fact international law requires that they facilitate unions; weak remedies and penalties for intimidation, coercion and undue influence by employers; and political interference and overt support for industry at the expense of workers. The pervasiveness of employer interference practices are vividly illustrated by the strength of the $4 billion dollar ‘union-busting’ industry.
Now, under Chairman Ring, appointed by Trump to the National Labor Relations Board (NLRB) which is authorized to enforce the NLRA, we see a weakening of workers’ rights. For example, the NLRB seeks to undermine the joint employer standard which has been used to hold multinationals with complex organizational structures to be viewed as a single employer responsible under labour and employment laws. This weakened standard allows companies to avoid collective bargaining by contracting out services. In May 2019, the NLRB declared that Uber drivers are independent contractors not employees within the meaning of the NLRA which means they do not have a legal right to organize or have their organizing activities protected from retaliation. This declaration comes after decisions by the New York State Department of Labor’s Unemployment Insurance Division that Uber drivers were employees and eligible for unemployment insurance benefits. We are witnessing a federal agency seeking to defeat efforts by state and local governments to ensure that drivers are protected by labour and employment laws consistent with human rights. In this vacuum where the United States and its federal agencies are not fulfilling their obligations to workers, the Principles, though non-binding, can provide an advocacy framework for advocates and civil society organizations to ensure fundamental labour rights guaranteed by the ILO.
Municipalities Should Pass Local Laws to Hold Multinational Companies Accountable Based on the Guiding Principles
With Uber and the US federal government abdicating their obligations under the Guiding Principles, municipal government can play a crucial role. New York City Council can pass local laws that would assess the human rights impact of multinational companies, incorporating the Guiding Principles to give it operational effect. Oxfam’s partnership with the Farm Labor Organizing Committee (FLOC) to assess the tobacco industry’s impact in North Carolina on farmworkers using a Human Rights Impact Assessment (HRIA) tool is a model worth exploring. An HRIA of private actors would document actual human rights impacts and failures to respect human rights. While civil society organizations like FLOC can use this tool, it is time intensive and costly. Requiring such an assessment akin to already existing City Environment Quality Review (CEQR) process, would ensure that corporations are accountable to local communities.
The need for such a local law was most demonstrated in the fight against the placement of Amazon headquarters in New York City. Substantial benefits and incentives were promised to Amazon without any meaningful study using human rights criteria on how the siting of the headquarters would impact the local communities. This also revealed how the Governor of the State of New York was courting Amazon and how, in addition to the federal government, local state governments can too be ineffective in protecting against harms to every day workers. In contrast, the passage of legislation providing a minimum pay rate for app drivers and a cap on app-based vehicles is an indication that local implementation of human rights norms may be more effective than at the federal and state level. Whatever the strategy, the case of app-based drivers shows that the Guiding Principles can be creatively applied to low-wage workers in United States to protect their fundamental labour rights.
This post also appears in Cambridge Care Blog.