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Health & Safety Group: Final Portfolio

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Health & Safety Group: Final Portfolio
Rajesh is a Quality Controller in the Production Department of a garment factory in Gurgaon, India. He works over twelve hours per day, every single day. Management tells employees to work overtime, often regardless of whether production targets are met, despite consistently refusing to pay workers the double-time wages they are entitled to. If workers rightfully object, they are told “not to come back to work tomorrow.”
Rajesh’s situation is not uncommon. The coercive strategies leveraged by Rajesh’s management are emblematic of garment worker oppression in the factories of Gurgaon. While forced overtime negatively impacts all aspects of workers’ lives in- and outside of their factories, these practices have particularly appalling effects on workplace health and safety.

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Health & Safety Group: Final Portfolio

  1. 1. HEALTH & SAFETY GROUP FINAL PORTFOLIO Matthew Beckstead, Oscar Peralta, Candace Ruocco, and Silvia Villanueva University of Nevada Las Vegas William S. Boyd School of Law Human Rights Law Practicum: Spring 2014
  2. 2. HUMAN RIGHTS LAW PRACTICUM Health & Safety Group Final Portfolio: Table of Contents Table of Contents PART ONE: Introduction ............................................................................................................ 1 PART TWO: International Laws & Treaties................................................................................. 2 I. Introduction.....................................................................................................................................2 II. Discussion and Analysis .................................................................................................................4 (a) India’s Constitution and Labor Laws Expressly Favor Respect for Human Dignity and Workers’ Rights, Including Health and Safety, but the Government Rarely Enforces Its Own Laws.............................5 PART THREE: Fashion Industry .................................................................................................. 9 I. Hierarchical Scheme of the Fashion Production Process ................................................................9 (a) The Fashion Cycle..........................................................................................................................................9 (b) The “Fast Fashion” Phenomenon.................................................................................................................9 II. Contract Versus Employment Law ...............................................................................................10 III. Forced Overtime .........................................................................................................................11 PART FOUR: Key Interview Themes......................................................................................... 13 II. Coerced Overtime........................................................................................................................13 (a) Sample Testimony of Interviewed Workers Regarding Coercion .........................................................14 III. Health Impact..............................................................................................................................14 IV. Coerced Overtime as Forced Labor.............................................................................................15 V. Sample Testimony of Interviewed Workers Regarding Wage Theft............................................17 VI. Health Issues ...............................................................................................................................18 PART FIVE: Industry Standards ................................................................................................ 21 I. CODES OF CONDUCT, COMPLIANCE, AND THE AUDITING PROCESS FOR MULTINATIONAL CLOTHING COMPANIES .....................................................................................................................21 PART SIX: Conclusion............................................................................................................... 27 REFERENCES ............................................................................................................................ 28 APPEDIX ONE: Letter to ILO .................................................................................................... 30 APPENDIX TWO: Questionnaire .............................................................................................. 31 APPENDIX THREE: Letter to the Brands................................................................................... 35
  3. 3. HUMAN RIGHTS PRACTICUM Health & Safety Group Final Portfolio: Introduction 1 of 36   PART ONE: Introduction “We are told to do [overtime], and do not have a choice in the matter. If we say we will not… They tell us not to come back to work tomorrow.” – Rajesh,1 26-years old2 Rajesh is a Quality Controller in the Production Department of a garment factory in Gurgaon, India. He works over twelve hours per day, every single day. Management tells employees to work overtime, often regardless of whether production targets are met, despite consistently refusing to pay workers the double-time wages they are entitled to. If workers rightfully object, they are told “not to come back to work tomorrow.” Rajesh’s situation is not uncommon. The coercive strategies leveraged by Rajesh’s management are emblematic of garment worker oppression in the factories of Gurgaon. While forced overtime negatively impacts all aspects of workers’ lives in- and outside of their factories, these practices have particularly appalling effects on workplace health and safety. From November 2013 through May 2014, the authors of this Final Portfolio devoted substantial time, energy, and effort to studying and advocating for the oppressed workers in the garment factories of Gurgaon. Through pre-trip Introductory Meetings (November), fieldwork in and around Delhi, India (December – January), and post-trip analysis (February – April), the Health and Safety Team has collected useful data, fostered meaningful dialogue, and drafted this Final Portfolio.                                                                                                                 1 In any published versions of this portfolio, all names will be changed to protect the identity of individual workers. Information regarding age, job, wages, etc. will remain unaltered. 2 Rajesh, Personal Interview, January 2014 (alias for publication will be “Gopal”).
  4. 4. HUMAN RIGHTS PRACTICUM Health & Safety Group Final Portfolio: Introduction 2 of 36   This Final Portfolio summarizes major laws (Part Two), the relevant characteristics of the fashion industry (Part Three), and key themes from our fieldwork interviews (Part Four). Part Five discusses production standards and company audits within the garment industry. The Appendices included in this Final Portfolio represent our recent advocacy work on behalf of the garment workers in Gurgaon, India. We hope our efforts help lay the foundation for future research, fieldwork, advocacy, and progress in this far-too-often overlooked sector of the global society and economy.
  5. 5. HUMAN RIGHTS PRACTICUM Health & Safety Group International Laws & Treaties 2 of 36   PART TWO: International Laws & Treaties India’s Labor Laws and International Treaties & Conventions and Their Effect on Gurgaon’s Factory-Based Garment Workers I. Introduction   Though many people in today’s world look to labor laws to cure their particular country’s societal ills to some degree, few of them are or ever have been a country’s prime minister. Enter former Indian Prime Minister Dr. Manmohan Singh (Dr. Singh received his Ph.D. in economics at the University of Oxford3 ), who once asked, back in November 2010, about India’s labor laws: "Is it possible that our best intentions for labor are not actually met by laws that sound progressive on paper but end up hurting the very workers they are meant to protect?" 4 Politicians and commentators often discuss and debate whether certain laws actually help those to whom they are directed. In the United States recently, the normally left-leaning billionaire from Microsoft, Bill Gates, posited that raising the minimum wage causes “labor substitution,” and that employers will eventually “go buy machines and automate things.”5 To the extent that Gates and Singh are correct                                                                                                                 3 See CURRICULUM VITAE: DR. MANMOHAN SINGH, PRIME MINISTER OF INDIA 1, available at http://pmindia.nic.in/cv.pdf (last accessed 04/29/2014). To be sure, Dr. Singh’s C.V. indicates a vastly successful career that has extended far beyond the halls of Cambridge (where he also attended) and Oxford, and it should be of interest to anyone who seeks to learn some novel, informative information regarding the international economic system. For example, Dr. Singh was once governor of the Reserve Bank of India and later served as a prime-ministerial advisor. Id. 4 Mehul Srivastava, Why India Is Rethinking Its Labor Laws, BLOOMBERG BUSINESSWEEK (Jan. 13, 2011), www.businessweek.com/magazine/content/11_04/b4212013616117.htm. 5 Katie Spence, Minimum Wage, Unemployment, and Robots: Why Increasing One Could Affect the Others (Feb. 8, 2014), www.fool.com/investing/general/2014/02/08/will-a-minimum-wage-increase-cause-robotic-sales-a.aspx. Of interest, MSNBC, the infamously “liberal” and “left-wing” news organization apparently did not like Bill Gates’s comments (made on their television program), because The Motley Fool was the most reliable source found to date to document what Gates actually said. The Motley Fool specifically covers economic, market, and investing publications
  6. 6. HUMAN RIGHTS PRACTICUM Health & Safety Group International Laws & Treaties 3 of 36   – and even very basic economics are beyond the scope of this report – that certain laws really can hurt the people they mean to protect, politicians and commentators should examine how laws and regulations affect their citizens; it is vital for everyday people, the citizens, to understand how their country’s laws limit or advance their interests. If India’s laws actually prevent people from entering the formal sector (or rather, prevent businesses and employers generally from hiring workers, perhaps citing added costs, including the costs of complying with the laws and regulations), then Prime Minister Singh was right that the labor laws are actually hurting the people they intend to help – particularly if India does not use legitimately useful methods (including changes to existing statutes such as the Factories Act) for extending state benefits to the millions who would benefit from such a move; to do nothing would mean leaving hundreds of millions in the status-quo reality of little pay and fewer concrete benefits. In fact, looking now at India as a whole, the World Bank apparently stated, in 2007, that "India could have added 2.8 million jobs to the formal economy in the decade through 2007 had labor laws been less restrictive."6 Though 2.8 million jobs is a small portion of India’s working population, it is estimated that “as few as” 30 million (of 1.237 billion-person population (2012 figure)7 ) “Indians work in the formal private sector or government, according to the Central                                                                                                                                                                                                                                                                                                                                                                                                                                     and resources, and they are anecdotally known for employing so-called “free market, laissez-faire” libertarians and conservatives, many of whom would gladly quote Dr. Singh and Bill Gates to make their point. Without further comment, this concludes this reports coverage of America’s political discourse. 6 See Srivastava, supra note 4. 7 Central Statistical Organization.
  7. 7. HUMAN RIGHTS PRACTICUM Health & Safety Group International Laws & Treaties 4 of 36   Statistical Organization, the government statistics group.”8 So to the extent that those jobs might have been added to India’s formal economy, with its accompanying benefits (e.g., Employee State Insurance for certain health-and-safety, job-related issues), 2.8 million jobs would have meant a substantial increase in the percentage of Indian workers who work in the formal sector of India’s economy – 9.3%, in fact. By comparison, however, India lags behind China, which “has at least 260 million workers in manufacturing, mining, and nonfarming activities, according to International Labor Organization estimates.”9 Many Indian workers, especially those who work in Gurgaon’s garment factories, would see no immediate status change or quality-of-life boost even if the government amends or otherwise alters India’s primary labor laws that benefit formal-sector workers, such as the Factories Act of 1948. Even assuming the World Bank’s aforementioned statement regarding India’s lost 2.8 million jobs, that figure covered an entire decade – a mere 280,000 jobs per year. That number shows that relaxing India’s labor laws is not a panacea; adequately employing India’s workforce using the formal sector will take years, probably decades because relaxing India’s laws would apparently mean slowly moving workers into the existing formal sector, to be protected under a decades-old framework, itself often decades old and in need of updating.10 II. Discussion and Analysis                                                                                                                   8 See Srivastava, supra note 4. 9 Id. 10 See id.
  8. 8. HUMAN RIGHTS PRACTICUM Health & Safety Group International Laws & Treaties 5 of 36   (a) India’s Constitution and Labor Laws Expressly Favor Respect for Human Dignity and Workers’ Rights, Including Health and Safety, but the Government Rarely Enforces Its Own Laws Little evidence exists to suggest that India’s government and governmental leaders have the desire, political capital, or power to either amend India’s existing labor laws to expand the formal sector. In recent years, India’s government has willfully and purposefully suppressed enforcement of its own labor laws, and it has done so specifically to encourage economic growth. For example, India has increased the flexible use of its laws in the past in order to encourage the information- technology sector’s economic growth, including government-issued waiver, which waived “some labor laws . . . starting in 2001 to encourage growth in the sector, India’s second-largest earner of foreign exchange, by placing most of the workforce inside fenced-off zones.”11 Moreover, “[t] he waivers allowed IT companies and call centers to operate 24 hours a day, recruit women to work late at night without building single-gender facilities, and add staff freely without submitting layoff decisions to the authorities.” So it is not surprising to see lax official oversight and non-enforcement of existing laws – the government has actively utilized this lax approach to boost its economy. It is not clear, however, what benefits accrued to those people not closely related to the IT industry. However, India’s laws, including its Constitution, have several specific provisions regarding worker health and safety; many created using unequivocal terms. As primary authority, India’s Constitution speaks directly to the issue of worker health and safety and directly and expressly covers health-and-safety issues. It also directly and indirectly addresses health-and-safety issues and                                                                                                                 11 See id.
  9. 9. HUMAN RIGHTS PRACTICUM Health & Safety Group International Laws & Treaties 6 of 36   espouses certain principles that enable India’s parliament to protect worker health and safety.12 The Constitution of India’s Preamble declares that India has “solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens . . . equality of status and of opportunity.”13 More importantly, the Constitution’s main text guarantees “equality before the law,” and declares that “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”14 The formal and informal statuses are not equal, however, and India’s strongest and most protective labor provisions are reserved for a minority of India’s working population. The Factories Act of 1948 (“the Factories Act”), discussed below, happens to fit into both categories – it contains health-and-safety provisions and it is a general law regarding laborers, specifically factory workers. The spirit of India’s legal scheme for labor rights is not borne out in reality for many workers in Gurgaon (and the rest of India). These workers face, among other things, unpaid overtime, extended shifts, low pay, and few holiday breaks. This report examines whether forced overtime causes health and safety issues for workers in Gurgaon. India’s laws outlaw “slavery,” “forced labor,” and “bonded” labor.15                                                                                                                 12 Id. 13 Id. 14 The Constitution of India, Pt. III, para. 14. 15 PUDR v. Union of India (1982) (holding that pay below minimum wage is “bonded labor”).
  10. 10. HUMAN RIGHTS PRACTICUM Health & Safety Group International Laws & Treaties 7 of 36   The apparent disconnect between the lofty ideals enshrined in India’s constitution, laws, and regulations and the reality that greets Gurgaon’s garment workers is apparent when walking Gurgaon’s streets and examining the factories.16 Firstly, ineffective laws hurt workers’ long-term health and safety because the legislatively-created social safety net does not protect them. Secondly, ineffective laws also hurt businesses’ profits and even discourage potential business owners from ever starting a business.17 Laws that unreasonably burden employers with administrative and monetary obligations are overinclusive. Overinclusive laws are naturally ineffective laws, to the extent that they create employer obligations that are objectively unnecessary, inefficient, or otherwise ineffective for furthering any contemporary national interests; this includes health and safety standards. The Factories Act of 1948 contains many provisions that seem superfluous and reminiscent of a time when governments across the world had a healthy habit of assuming total authority and control over their population. Indeed, “India’s labor laws have their roots in the British raj and they were last fully updated in the Industrial Disputes Act of 1948.”18 The Contract Labor Act could help theoretically, but the aggrieved parties cannot sue in any court of law, which seems to eviscerate any chance for Gurgaon’s garment workers and others to use it as a sword in court.19                                                                                                                 16 Construction-industry standards and commercial building codes could supplement the health-and-safety goals of Gurgaon’s garment workers and their advocates, perhaps. 17 See, e.g., Srivastava, supra note 4. 18 Id. 19 See The Contract Labour (Regulation and Abolition) Act, 1970, Act No. 37.
  11. 11. HUMAN RIGHTS PRACTICUM Health & Safety Group International Laws & Treaties 8 of 36   Lastly, ineffective laws hurt India itself in terms of international economic competitiveness and in terms of absolute economic growth. Although these concepts are abstract and appear too far detached from daily life, the reality is that a nation’s economy matters, and it matters for reasons that include benefiting citizens’ long-term health and safety, for anyone working in Gurgaon, elsewhere in India, or Russia. Activists and organizers should also be aware that India has signed several international agreements regarding workers’ rights because doing so provides another avenue for informal- sector workers and activists to urge or demand that the Indian government do something to honor, at the very least, its international treaty obligations. India has been a member state of the UN's International Labour Organization (ILO) since June 28, 1919. The original ILO Constitution was part of the Treaty of Versailles, signed in 1919 and which ended World War I. India has signed many of the ILOs conventions, and should honor these agreements in keeping with the spirit of international progress toward more equitable living and working conditions for all.
  12. 12. HUMAN RIGHTS PRACTICUM Health & Safety Group Fashion Industry 9 of 36   PART THREE: Fashion Industry “At issue is the industry’s growing dependence on a business model that encourages some fashion chains to push for the lowest prices from subcontracted factories in countries that already have some of the leanest production costs… To keep their contracts, factories may put concerns about production schedules before those of worker rights or safety.”20   I. Hierarchical Scheme of the Fashion Production Process (a) The Fashion Cycle Since fashions are, by definition, transitory cyclical phenomena embraced by consumers for a specific situation and duration, the survival of the fashion industry itself requires consistent style changes.21 Describing the process through which clothing styles gain mass acceptance, the fashion cycle consists of five stages: (1) introduction, (2) rise, (3) peak, (4) decline, and (5) obsolescence. In 1981, authoritative fashion theory recognized two time frames for the fashion cycle: secular, long- run trends lasting tens to hundreds of years, and short-run acceptance of particular styles spanning several months to years.22 With designers and retailers producing new garments annually or seasonally, styles pushed through the cycle at a somewhat steady pace. (b) The “Fast Fashion” Phenomenon The term “fast fashion” describes the swift, powerful rise of retailers operating on business models with faster fashion cycles – meaning trends (i.e. individual garments) enjoy sudden demand, brief popularity, and imminent uselessness. Affording their garments shorter lifespans, consumers                                                                                                                 20 Renee Dudley, Arun Devnath, & Matt Townsend, The Hidden Cost of Fast Fashion: Worker Safety, BUSINESSWEEK (Feb. 7, 2013), www.businessweek.com/printer/articles/95916-the-hidden-cost-of-fast-fashion-worker-safety. 21 George B. Sproles, Fashion Life Cycles: Principles and Perspectives, 45 J. MARKETING 116, 116, 118 (1981). 22 Sproles, supra note 21, at 116.
  13. 13. HUMAN RIGHTS PRACTICUM Health & Safety Group Fashion Industry 10 of 36   seek more frequent replacement of obsolete items, from retailers offering frequent new items with increased variations (color, size, fit, etc.). The advent of vertically-integrated mass “fast fashion” retailers like Zara, H&M, and Forever 21 has completely warped the traditional fashion cycle, as these stores push out new designs roughly every fourteen days.23 The substantial compression of the fashion cycle translates to a drastic shortening of timelines in the fashion industry’s global supply chain. The major actors include designers, brands/labels, factories, third party auditors, distributors, and retailers. This demanding market compounds the already overburdened garment production segment. Louis Vuitton Fashion Director Daniel Piette famously described Zara as, “possibly the most innovative and devastating retailer in the world.”24 While he intended to highlight Zara’s ability to undermine haute couture operations, his remarks quite aptly describe Zara’s troubling impact on the garment production industry for many of the world’s most vulnerable workers. II. Contract Versus Employment Law During the production process, the brands, manufacturers, distributors, and auditors interact as parties to contracts for services (production tasks) and/or goods (component or finished garments). Through this arrangement, designers and brands can effectively shield themselves from actual and perceived liability or endorsement of unfair, unsafe, or unsanitary working conditions. Since contract law (rather than employment law) actually governs these business transactions, it is                                                                                                                 23 Dudley, Devnath, & Townsend, supra note 20. 24 Anderson Antunes, Zara Accused of Alleged ‘Slave Labor’ in Brazil, FORBES (Aug. 17, 2011), www.forbes.com/sites/andersonantunes/2011/08/17/zara-accused-of-alleged-slave-labor-in-brazil.
  14. 14. HUMAN RIGHTS PRACTICUM Health & Safety Group Fashion Industry 11 of 36   more difficult to hold U.S. brands accountable for actual working conditions overseen by outsourced producers. Industry standards and common sense indicate that brands are, or reasonably should be, aware of the conditions necessary to fulfill production orders. For example, if Brand X orders 10,000 jackets to be produced in six weeks, and requests a design change to the pockets during the fourth week, Brand X’s management knowingly forces the producer to keep workers overtime with increased production speed requirements in order to met the shipping date.25 Ambitious production targets require fast cutting, sewing, and other work with dangerous tools and machines. Moreover, safety equipment can often hinder production speed. Safer production requires more workers and/or slower work – both of which increase costs. As would be expected, it simply costs more to produce garments in safe, fair labor environments than in unsafe, unfair environments. While imposing legal liability on U.S. brands for labor violations at the production level is difficult, human rights advocates can use publicity about violations to threaten brand value and image – indirectly incentivizing slower, safer production for brands, lest consumers avoid buying from them. Leveraging brand image helps hold U.S. companies accountable. Several industry experts confirmed that brands’ intended “image” determines the health and safety standards implemented during the production process, including Mr. Harit Sardana, Senior Manager of the Technical Department at Intertek auditing company. III. Forced Overtime                                                                                                                 25 See Dudley, Devnath, & Townsend, supra note 20.
  15. 15. HUMAN RIGHTS PRACTICUM Health & Safety Group Fashion Industry 12 of 36   Forced or “mandatory” overtime is an unfortunately common international practice that affects myriad industries including garment production and nursing.26 Forced overtime reduces the time workers have to attend to their basic daily needs. Physical needs include proper hygiene, hydration, nutrition, and adequate, quality sleep. Lack of quality sleep decreases alertness, increases fatigue, and impairs performance on basic and complex tasks. In fact, fatigue produces higher levels of cognitive psychomotor impairment than alcohol intoxication (at proscribed legal levels of intoxication for Western nations).27 Part Four summarizes the major patterns of forced overtime that the Health and Safety Group uncovered during fieldwork.                                                                                                                 26 Katherine Kany, Mandatory Overtime: New Developments in the Campaign, AM. J. NURSING, May 2001, at 67, 67 – 68, 70 – 71. 27 Drew Dawson & Kathryn Reid, Fatigue, Alcohol and Performance Impairment, 388 NATURE 235, 235 (1997).
  16. 16. HUMAN RIGHTS PRACTICUM Health & Safety Group Key Interview Themes 13 of 36   PART FOUR: Key Interview Themes I. Field Research and Interviews As noted in the introduction, research for this report included both fieldwork and interviews, which consisted of a cross section of workers from the garment industry in Gurgaon. The workers were each asked a set of approximately 50 questions pertaining to health and safety issues in their workplace. The questionnaire contained specific queries to assess the degree of compliance with particular legal provisions in the garment industry, as well as general questions about the workers’ subjective sentiments and concerns with respect to their employment for the purpose of understanding the workers’ actual needs and aspirations. In addition to demographic differences, the workers held a variety of occupations in different types of factories. Expectably, thus, their employment experiences were quite varied. While they all worked in the manufacture of garments, the workers’ anecdotes and grievances highlighted different problems in the industry, reflected different personal values, and illustrated varying levels of compliance with Indian labor and employment laws. There were, nevertheless, unifying themes throughout these interviews. Virtually all the interviewees reported having to contend with a lack of basic safety equipment, as well as coerced overtime, often coupled with wage theft. These recurrent issues are discussed below. II. Coerced Overtime
  17. 17. HUMAN RIGHTS PRACTICUM Health & Safety Group Key Interview Themes 14 of 36   For a vast majority of the interviewed workers, the acceptance of overtime work at the employer’s discretion was a tacit requirement of their employment. According to the workers, the frequency of overtime work is irregular and unpredictable; its duration indefinite; and advance notice is not provided. The workers reported that failing to work overtime hours as directed in any given occasion may result in termination, denial of entitlements, and blacklisting. (a) Sample Testimony of Interviewed Workers Regarding Coercion One worker stated that in order to retain his job, he has to be willing to work overtime whenever directed to do so, sometimes even over the three hours allowed by law and on Sundays. Another worker related that although he is scheduled to work an eight-hour shift beginning every morning at 9:00 a.m., he is regularly required to work until 9:45 p.m., and sometimes until 11:00 p.m. or later. When asked if he worked the overtime hours by choice, he said that he and his coworkers do not have a choice in the matter. “If we say we will not, they tell us not to come back to work tomorrow,” he said. One other worker explained that sometimes when there is an impending shipment, management puts pressure on the workers to stay as long as necessary after their regular shift is over to complete the work. He stated that his employer threatens to fire or withhold the earnings of any employees who do not stay to work the overtime shift. The worker stated that employees also feel compelled to work overtime to meet targets of production, as they also get terminated if they cannot keep up with said targets. It is important to note that a small minority of the interviewed workers expressed that they do not mind working overtime because it enables them to supplement their income. They did acknowledge that they do not have a choice either way. Moreover, they reported that they are not paid the legal overtime wage. III.Health Impact
  18. 18. HUMAN RIGHTS PRACTICUM Health & Safety Group Key Interview Themes 15 of 36   The prevalence of coerced overtime across India’s garment industry poses a significant danger to the health of workers. In numerous “studies addressing general health effects, overtime [has been] associated with poorer perceived general health, increased injury rates, more illnesses, or increased mortality.28 In terms of the physiological effects of high levels of overtime, studies have specifically identified “an increased risk of hypertension, cardiovascular disease, fatigue, stress, depression, musculoskeletal disorders, chronic infections, diabetes, general health complaints, and all-cause mortality.”29 Moreover, in terms of occupational safety, working overtime has been associated with a substantially higher injury hazard rate.30 IV.Coerced Overtime as Forced Labor While workers did not report being subject to physical restraint or threats of violence, several factors suggest that the practice of extracting excessive labor from workers under penalty of adverse employment action contravenes the spirit of the prohibition against forced labor by the International Labor Organization Convention, as well as basic principles of human dignity and justice. Some of these factors include the scarcity of work, the workers’ dependency on their employer beyond the employment relationship, and the workers’ perceived threat of being banished from the industry.                                                                                                                 28 See CENTER FOR DISEASE CONTROL, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, OVERTIME AND EXTENDED WORK SHIFTS: RECENT FINDINGS ON ILLNESSES, INJURIES, AND HEALTH BEHAVIORS, available at www.cdc.gov/niosh/docs/2004- 143/pdfs/2004-143.pdf. 29 A. E. Dembe et al., The Impact of Overtime and Long Work Hours on Occupational Injuries and Illnesses: New Evidence from the United States, OCCUPATIONAL & ENVIRONMENTAL MED. 588 - 597 (2005). 30 Id.
  19. 19. HUMAN RIGHTS PRACTICUM Health & Safety Group Key Interview Themes 16 of 36   Many of the interviewed workers were recruited for their job outside of the National Capital Region, the metropolitan area in which the garment industry is situated. In addition to being dislocated from their communities, which are often in distant rural areas of India, many of the workers also live in employer-provided housing. Thus, the workers are in a highly vulnerable position, which may effectively prevent them from refusing overtime work. With limited exceptions, Article 2 of ILO Convention 29 defines forced labor to mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”31 The ILO Director General’s 2005 report stated that under this definition, forced labor may occur if workers are threatened with dismissal for refusing to do overtime beyond the scope of their contract or of national law.32 According to the report, forced labor comprises two elements: lack of consent and menace of a penalty. Among the indicators for lack of consent is “psychological compulsion,” which includes “an order to work, backed by a credible threat of a penalty for non-compliance.”33 Factors indicating “menace of penalty” are the actual presence or credible threat of dismissal from current employment or exclusion from future employment.34 Under Indian law, “[n]o adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week . . . or nine                                                                                                                 31 Convention Concerning Forced or Compulsory Labour (No. 29), June 28, 1930, 39 U.N.T.S. 55. 32 THE ILO DIRECTOR GENERAL'S 2005 REPORT, 5, www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_081882.pdf. 33 Id. at 6. 34 Id. at 6.
  20. 20. HUMAN RIGHTS PRACTICUM Health & Safety Group Key Interview Themes 17 of 36   hours in any day.”35 While the law grants States the power to create certain exemptions to this requirement, the total number of hours of work may not exceed ten in any day or 60 in any week, inclusive of overtime. 36 In exceptional circumstances, States may issue a written order allowing further exemptions to the maximum overtime limit in a day, but the total number of hours still cannot exceed 12.37 Therefore, any requirement to work beyond the applicable hour limit in a given day or week, under threat of termination, would fall under the ILO’s current interpretation of forced labor as articulated in the 2005 Report. A handbook issued by the ILO titled “Combating Forced Labor” in 2008 reasserts this interpretation and adds that in some cases, employees work above the legal maximum to meet required productivity targets or to earn the minimum wage.38 “In these cases, although workers may in theory be able to refuse to work, their vulnerability may mean that they have no choice and are therefore obliged to [work overtime].”39 According to the ILO Committee of Experts on the Application of Conventions and Recommendations, “this then becomes a situation of imposing work under the menace of a penalty and can, thus, be considered forced labour.”40 V. Sample Testimony of Interviewed Workers Regarding Wage Theft                                                                                                                 35 Factories Act, 1948, Section 51 & Section 54. 36 Factories Act, 1948, Section 64. 37 Factories Act, 1948, Section 65. 38 ILO, COMBATING FORCED LABOR, 20, www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_101171.pdf. 39 Id. 40 Id.
  21. 21. HUMAN RIGHTS PRACTICUM Health & Safety Group Key Interview Themes 18 of 36   A common grievance shared by most workers relates to the nonpayment or underpayment of overtime wages. Indian law provides that any factory employee who works more than nine hours per day or more than 48 hours per week shall be awarded overtime in the amount of twice his or ordinary rate.41 Interviewed workers states that they are regularly not paid the overtime rate for overtime worker. One worker, for instance, produced a recent paystub, which showed 10 hours of overtime work, even though he asserted to have worked about 100 hours of overtime during the pay period in question. He stated that he was paid the overtime rate for the 10 hours reported on his paystub, but for the remaining 90 hours of overtime, he was paid his regular rate. Another worker said that he is paid the overtime rate only for 3 hours of overtime per pay period. For any additional hours, he receives the single rate. Other workers stated that they only receive the single rate for all of their overtime hours. “The Supreme Court of India has interpreted bonded labor as the payment of wages that are below the prevailing market wage or the legal minimum wage.”42 Since the legal minimum wage for overtime work is double the regular rate, the high Court’s expansive definition of bonded labor may be applicable to the types of violations illustrated above. VI.Health Issues                                                                                                                 41 Factories Act, 1948. Section 59. 42 Devin Finn, BONDED LABOR IN INDIA, TOPICAL RESEARCH DIGEST: HUMAN RIGHTS AND CONTEMPORARY SLAVERY, 7 (2008), available www.du.edu/korbel/hrhw/researchdigest/slavery/india.pdf.
  22. 22. HUMAN RIGHTS PRACTICUM Health & Safety Group Key Interview Themes 19 of 36   The workers reported adverse health effects which they attributed to the high levels of required overtime work. Many of them stated that they often feel very tired, overworked, and generally unwell. Some workers said that it’s common for coworkers to fall ill easily from working so hard. They stated that the problem is aggravated by several factors, including a lack of adequate first aid implements; the fact that workers are often not allowed to leave work to go to a government clinic unless it is a serious emergency; the fact that workers are not paid for any time they miss for this purpose; and the fact that on-call doctors do not typically provide an adequate response. The interviews also revealed that employees are under constant stress due to the pressure to meet targets. Employees reported feeling reluctant to take breaks because they’re worried about maintaining their productivity level. Many of them also do not feel comfortable asking for time off for health issues. One worker stated that when employees at the factory where he works have requested to leave work for health reasons, the employer has responded by telling them that if they leave, they cannot return the following day. Many of the interviewed workers who operate machines stated that they do not believe that the machines are safe for lack of safety measures. One worker stated that he feels scared to operate his machine as there are no guards and the needles may easily injure his fingers. Another worker stated that her sewing machine gives off electric shocks. She stated that she has complained repeatedly, to no avail. Supervisors tell her that with that much current, it is natural for that to occur. The worker stated that she and her coworkers wear shoes and wrap their hands to prevent getting
  23. 23. HUMAN RIGHTS PRACTICUM Health & Safety Group Key Interview Themes 20 of 36   electrocuted. She believes that masks and guards could make the machine safer, but this equipment is not provided. Other workers also expressed the same concerns about the possibility of being electrocuted by their machine. Interviewed workers reported numerous additional health and safety issues. They stated that first aid kits are normally missing essential items, that necessary gloves and masks are not supplied, that guards are removed from the machines, that trailing wires and cables abound, that restrooms are missing toiletries, that the premises are unsanitary, etc. Virtually all the interviewed workers stated, however, that all these issues are rectified when there are inspections at the factory, but only then, and everything goes back to normal afterward. Even when safety equipment is available, it may not improve safety. For example, one worker stated that although steel gloves are provided at his workplace, workers choose not to use them because there is constant pressure for them to work fast and the gloves slow them down. Another common complaint by the workers was that their factories lack adequate ventilation, which makes work almost unbearable in the summer, especially for those working near steam machines and boilers. Many of the workers stated that they are reticent about their grievances at work, as complaining about working conditions often results in termination.
  24. 24. HUMAN RIGHTS PRACTICUM Health & Safety Group Industry Standards 21 of 36   PART FIVE: Industry Standards I. CODES OF CONDUCT, COMPLIANCE, AND THE AUDITING PROCESS FOR MULTINATIONAL CLOTHING COMPANIES   Commencing with the adoption of the International Convention of Civil and Political Rights (ICCPR) by the United Nations General Assembly on December 16, 1966, followed by its March 23, 1976 effective date, signatories have shared the duty and obligation of ensuring civil and political rights to its people. This obligation further encompasses with it the duty to promote and encourage economic, social, and cultural freedoms.43 The ICCPR is a human rights treaty outlining broad fundamental rights believed to derive by virtue of “the inherent dignity of the human person.”44 The United States became a signatory to the ICCPR on October 5, 1977 and followed with ratification on June 8, 1992.45 Pursuant to the U.S. Constitution’s Supremacy Clause, the ICCPR has the same effect as federal law and is similarly binding.46 Accordingly, the ICCPR holds prominence over U.S. State and local law by way of preemption and is an implied representation our nation’s appreciation for human value. Unfortunately, with the rise of globalization and the increased rate of American clothing brands contracting with international suppliers for the purpose of clothing and apparel production,                                                                                                                 43 US Human Rights Network: Building a People Centered Movement, INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, www.ushrnetwork.org/our-work/project/iccpr-international-covenant-civil-political-rights (last visited Apr. 21, 2014) [hereinafter COVENANT]. 44 International Convention on Civil and Political Rights, Preamble, Dec. 16, 1966, www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. 45 COVENANT, supra note 43. 46 Id.
  25. 25. HUMAN RIGHTS PRACTICUM Health & Safety Group Industry Standards 22 of 36   some of our nation’s core values may be falling to the wayside. In many instances, this means losing sight of our nations commitment to promoting and encouraging human rights both nationally and internationally. Significantly, however, certain legal and non-legal strategies may potentially help to address international violations of human rights by American corporations. Of these, the Alien Tort Statute 28 U.S.C.A. § 1350 is one strategic outlet worth noting. Under the Alien Tort Statute an alien may bring, in district court, a civil action in tort committed in violation of the law of nations or a treaty of the United States.47 For example, violation of the ICCPR under the Alien Tort Statute may provide aliens a means for obtaining original jurisdiction in United State’s district courts for a civil claim in tort. 48 Nevertheless, with a current split in the circuits, there is limited legal traction to support international laborers’ tort claims under the Alien Tort Statute for human rights violations occurring throughout the global supply chain. Fortunately, over the years non-legal strategies have helped to bolster international human rights movements; specifically, those targeted at human rights violations occurring in the garment industry supply chains. In the 1990s, the discovery of labor abuses in Asian Factories prompted the “anti-sweatshop movement to target major apparel and footwear brands supplied by those factories.” 49 As a result, many companies targeted by the negative campaigns felt pressure to                                                                                                                 47 28 U.S.C.A. § 1350 (West). 48 Mara Theophila, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 FORDHAM L. REV. 2859, 2859 (2011). 49 Francisco Székely & Joana M. Comas Martí, From Commodity to Value-Added: Making Factory Audits Effective Again (Jun. 2013), available at www.imd.org/research/challenges/factory-audits-francisco-szekely-joana-comas-marti.cfm.
  26. 26. HUMAN RIGHTS PRACTICUM Health & Safety Group Industry Standards 23 of 36   initiate corporate social responsibility initiatives (CSR) meant to curb labor abuse.50 These initiatives served to ensure brand moguls that certain labor standards were being met within their supply chains and to protect their brands’ reputation.51 Research reveals three instruments frequently used by brands when imposing socially responsible behavior among their subcontractors: social labels, socially responsible investment, and codes of conduct.52 Codes of conduct often form the core of CSR programs and include provisions on “labor conditions covering human rights and occupational health and safety requirements.”53 Such provisions articulate a brands acceptable standard of conduct and may be found listed under its corporate policies and practices.54 In an effort to enforce and ensure compliance with CSR initiatives many brands have established compliance teams to conduct factory audits or will often hire third parties to perform audits on their behalf. For the unfamiliar consumer, the task involved in the auditing process can be difficult to understand, particularly for those unfamiliar with the supply chain process. Generally, CSR’s reflect a corporation’s obligations to society and to its shareholders.55 Nevertheless, each individual corporate brand monitors supplier CSR behavior differently and as a result suppliers may have a spectrum of compliance standards it must abide by depending on its buyers.                                                                                                                 50 Id. 51 Id. 52 ERIC BOYD ET. AL., CORPORATE SOCIAL RESPONSIBILITY IN GLOBAL SUPPLY CHAINS: A PROCEDURAL JUSTICE PERSPECTIVE (2007), at 342, 341. 53 Székely, supra note 49. 54 Boyd, supra note 52, at 343. 55 Id. at 342.
  27. 27. HUMAN RIGHTS PRACTICUM Health & Safety Group Industry Standards 24 of 36   According to Harit Sardana, Senior Manager of the Technical department at Intertek, a multinational third party auditing company, when a brand hires a third party like Intertek to perform audits the brand determines the specifics of the auditing processes. For example, Intertek offers three service divisions: inspections, certification, and testing, it is up to the brand to decide which of the three services it would like Intertek to perform. The reports are created by the brand and the audits are always scheduled, with the frequency of audits depending on a factory’s audit score. A good score may mean that a brand audit is conducted every two years and a low score may mean a factory is undergoing brand audits every six months. Notably, however, a good score varies with each brand. Because brands set the auditing standards based on its CSRs preferences, a supplier may score high with one buyer’s audit and score very low with another. Mr. Sardana has been in the garment industry for approximately 23 years and has spent the last year and a half with Intertek. According to Mr. Sardana, despite brands’ heavy hand in the auditing process, he contends that audits have made a difference over the years. In his experience, the audits have helped give rise to more fashion institutes, helped to improve the training of garment workers, and improved the quality of garments made in India. Additionally, Mr. Sardana reported that recent legislation and the increased prominence of National Government Organizations (NGO’s) in India have also helped to improve earlier issues of inadequate wages and child labor. For example, since the passing of India’s Right of Children to Free and Compulsory Education (RTE) Act in 2009, more children are attending school. Still, Mr. Sardana conceded that as old issues are slowly being overcome new ones are arising every year. Specifically, one regularly
  28. 28. HUMAN RIGHTS PRACTICUM Health & Safety Group Industry Standards 25 of 36   reported concern by factory workers, which the current state of the auditing process fails to address, is the issue of forced overtime. In an interview with one individual employed by Pride Integrated Services, a company that supplies labor to factories, he reported that to maintain employment a worker must be willing to work overtime whenever directed to do so, sometimes more than the three hours permitted by law and/or on Sundays despite certain preclusions under the 1948 Factories Act. Further, the interviewee stated that he is regularly not paid the overtime rate for overtime work. To demonstrate this he provided a pay stub that noted 10 hours of overtime but reported that he contributed much more. He added that although he was paid overtime for the 10 hours of noted overtime, he was only given his regular rate of pay for all additional hours of overtime. Currently, because the brands’ create the auditing reports and because the audits are brand specific, many audits fail to include worker interviews or obtain worker feedback. And, for those that do, the format of the interview depends on the preference of the brand. As a result, sample error often arises due to the method and format in which the interviews are conducted. For example, whether a worker interview is conducted inside with management, privately, or anonymously depends on the brand. These nuances are considerably important because of the involved risk of employer retaliation. If a brand chooses to include worker interviews to obtain feedback but does not ensure that such interviews are conducted privately or anonymously there is heightened risk that the audits are not recording less obvious issues like forced overtime. Without privacy or
  29. 29. HUMAN RIGHTS PRACTICUM Health & Safety Group Industry Standards 26 of 36   anonymity workers report they are too fearful to come forward about health and safety issues or other human rights abuses because of employer retaliation. Ultimately, although CSRs initiatives and audits created to curb labor abuse and protect brand reputation have aided to improve working conditions in some Indian garment factories, the discrepancies in the auditing process means that important issues are being overlooked or unidentified. Moreover, those factories supplying to less prominent brands lack an enforcement mechanism and likely have little to no incentive to abide by standard notions of human rights.
  30. 30. HUMAN RIGHTS PRACTICUM Health & Safety Group Final Portfolio: Conclusion 27 of 36   PART SIX: Conclusion Forced overtime in the garment production factories of Gurgaon is largely a product of the fast fashion phenomenon. Management practices that actually force, coerce, or unduly pressure employees to work longer hours impair performance and create serious healthy and safety risks. In the attached appendices, our four-student Health and Safety Team has created several documents to help advocate for garment workers. Our experience in the Human Rights Law Practicum was truly perspective- and life-altering. We hope our efforts will make a meaningful contribution to the ongoing struggle for Gurgaon’s garment workers (and the rest of the world’s oppressed workers) to create
  31. 31. HUMAN RIGHTS PRACTICUM Health & Safety Group References 28 of 36   REFERENCES 28 U.S.C.A. § 1350 (West). A. E. Dembe et al., The Impact of Overtime and Long Work Hours on Occupational Injuries and Illnesses: New Evidence from the United States, OCCUPATIONAL & ENVIRONMENTAL MED. 588 - 597 (2005). Anderson Antunes, Zara Accused of Alleged ‘Slave Labor’ in Brazil, FORBES (Aug. 17, 2011), www.forbes.com/sites/andersonantunes/2011/08/17/zara-accused-of-alleged-slave-labor-in-brazil. CENTER FOR DISEASE CONTROL, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, OVERTIME AND EXTENDED WORK SHIFTS: RECENT FINDINGS ON ILLNESSES, INJURIES, AND HEALTH BEHAVIORS, available at www.cdc.gov/niosh/docs/2004-143/pdfs/2004-143.pdf. Convention Concerning Forced or Compulsory Labour (No. 29), June 28, 1930, 39 U.N.T.S. 55. CURRICULUM VITAE: DR. MANMOHAN SINGH, PRIME MINISTER OF INDIA 1, available at http://pmindia.nic.in/cv.pdf (last accessed 04/29/2014). Devin Finn, BONDED LABOR IN INDIA, TOPICAL RESEARCH DIGEST: HUMAN RIGHTS AND CONTEMPORARY SLAVERY, 7 (2008), available www.du.edu/korbel/hrhw/researchdigest/slavery/india.pdf. Drew Dawson & Kathryn Reid, Fatigue, Alcohol and Performance Impairment, 388 NATURE 235 (1997). Eric Boyd et. al., Corporate Social Responsibility in Global Supply Chains: A Procedural Justice Perspective (2007), at 342, 341. Francisco Székely & Joana M. Comas Martí, From Commodity to Value-Added: Making Factory Audits Effective Again (Jun. 2013), available at www.imd.org/research/challenges/factory-audits- francisco-szekely-joana-comas-marti.cfm. George B. Sproles, Fashion Life Cycles: Principles and Perspectives, 45 J. MARKETING 116 (1981). ILO, COMBATING FORCED LABOR, 20, www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_101171.pdf.
  32. 32. HUMAN RIGHTS PRACTICUM Health & Safety Group References 29 of 36   International Convention on Civil and Political Rights, Preamble, Dec. 16, 1966, www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. Katherine Kany, Mandatory Overtime: New Developments in the Campaign, AM. J. NURSING, May 2001, at 67 – 68, 70 – 71. Katie Spence, Minimum Wage, Unemployment, and Robots: Why Increasing One Could Affect the Others (Feb. 8, 2014), www.fool.com/investing/general/2014/02/08/will-a-minimum-wage- increase-cause-robotic-sales-a.aspx. Mara Theophila, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 FORDHAM L. REV. 2859, 2859 (2011). Mehul Srivastava, Why India Is Rethinking Its Labor Laws, BLOOMBERG BUSINESSWEEK (Jan. 13, 2011), www.businessweek.com/magazine/content/11_04/b4212013616117.htm. PUDR v. Union of India (1982). Renee Dudley, Arun Devnath, & Matt Townsend, The Hidden Cost of Fast Fashion: Worker Safety, BUSINESSWEEK (Feb. 7, 2013), www.businessweek.com/printer/articles/95916-the-hidden-cost-of- fast-fashion-worker-safety. The Constitution of India, Pt. III, para. 14. The Contract Labour (Regulation and Abolition) Act, 1970, Act No. 37. THE ILO DIRECTOR GENERAL'S 2005 REPORT, 5, www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_081882.pdf. Factories Act, 1948, Section 51 & Section 54. US Human Rights Network: Building a People Centered Movement, INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, www.ushrnetwork.org/our-work/project/iccpr-international-covenant- civil-political-rights (last visited Apr. 21, 2014).
  33. 33. HUMAN RIGHTS PRACTICUM Health & Safety Group APPENDIX: Letter to ILO 30 of 36   APPEDIX ONE: Letter to ILO Guy Rider Director-General International Labour Organization 4 route des Morillons CH-1211 Genève 22 Switzerland Dear Mr. Ryder, The occasion of the 103rd Session of the International Labour Conference presents an opportune time for the body to consider strengthening existing protections against forced labor, by expanding its definition under ILO Convention 29 to include coerced overtime labor. Since Item IV of the Conference Agenda in the upcoming 103rd Session is aimed to supplement the Forced Labour Convention, 1930 (No. 29) for the purpose of achieving the elimination of forced labor, we respectfully request that the Committee established to address this item closely assay the issue of coerced overtime labor, which often is practically indistinguishable from other instances of forced labor. The realities of modern labor practices across myriad industries, coupled with scientific data concerning the effects of said practices on the health of workers, not only justify, but compel the foregoing supplementation of ILO Convention 29. With limited exceptions, Article 2 of ILO Convention 29 defines forced labor to mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” Convention Concerning Forced or Compulsory Labour (No. 29), June 28, 1930, 39 U.N.T.S. 55. While the ILO currently interprets forced labor under this provision to include situations in which workers are threatened with dismissal for refusing to do overtime beyond the scope of their contract or of national law, as expressed in the ILO Director General’s 2005 report, this principle should form part of the definition of forced labor under ILO Convention 29. Workers throughout the world deserve the right to work free of coercion, within reasonable limits of their physical capacity. This right should be expressed unequivocally in the highest instrument of international law governing the rights of workers. Sincerely, Matthew Beckstead Oscar Peralta Candace Ruocco Silvia Villanueva
  34. 34. HUMAN RIGHTS PRACTICUM Health & Safety Group APPENDIX: Questionnaire 31 of 36   APPENDIX TWO: Questionnaire 1 of 4 Interview Schedule & Procedures INTERVIEW SCHEDULE & PROCEDURES for Garment Worker Health & Safety Interviews January 2014 ! Introduction: Students from UNLV, SLU & JGLS working for the enforcement and advancement of workers’ rights in partnership with SLD. ! Confidentiality statement ! Permission to record interview Name: Gender: Phone: Best time to reach you: BACKGROUND/EMPLOYMENT (1) How old are you? (2) How long have you been working at this factory? (3) For what position were you hired? (4) What does your current job entail? (5) What is your shift? How many hours do you work per day? Per week? PRODUCTION SAFETY (6) What machines do you operate? (7) Do you feel that the machines you use are safe? (8) Is there safety equipment that can make their use safer? (a) Are you provided this safety equipment? (9) Are you ever nervous/scared to use any machine? If so, why? (10) Do you feel your workplace is safe in other ways? WORKPLACE SAFETY (11) Is there adequate ventilation? (12) What is the temperature like? (13) Are there clear walkways & safe stairwells?
  35. 35. HUMAN RIGHTS PRACTICUM Health & Safety Group APPENDIX: Questionnaire 32 of 36   2 of 4 Interview Schedule & Procedures (14) Is there adequate lighting? During daytime and nighttime? (15) Are there identifiable and accessible exits? (16) Does management provide fire emergency training? (drills, alarms, extinguishers) (17) Are there drills for earthquakes, tornados, or other natural disasters? (18) Do your work conditions or equipment change during inspections? INJURY & MEDICAL PROCEDURES (19) Have you ever been injured at work? If so, what happened? (20) What happens in case of an injury or medical emergency? What is the procedure? (a) Does management report workplace injuries to the police? (b) Does management report workplace injuries to ESI? (c) Does management report workplace injuries to the Labor Department? (21) Have you been provided with an ESI card? (a) When did you receive it? (22) Do you have a “punch card”? Regularly? (23) Do you receive pay slips? Regularly? PRODUCTION INCENTIVES (24) Are there minimum targets of production that you have to meet? (25) Do you receive incentives if you meet certain targets? (26) Do you feel reluctant/scared to take breaks, because you’re worried about meeting targets or receive incentives? OVERTIME (27) Do you ever work overtime? How often? How many hours per day/week/month? (28) Why do you work overtime? (by choice/coercive) (29) Do you receive premium pay for overtime hours? (30) Do you ever feel compelled to work overtime to meet targets or receive incentives? (31) Do you ever feel compelled to work overtime for any other reasons?
  36. 36. HUMAN RIGHTS PRACTICUM Health & Safety Group APPENDIX: Questionnaire 33 of 36   3 of 4 Interview Schedule & Procedures (32) Do you ever have to take work home? WORKDAY EXPERIENCES: BREAKS & LEAVE (33) How many breaks do you get during the day? How long are they? (34) What days do you have off? How often? (35) Does your factory have rest or break areas? (36) Do you feel comfortable asking for maternity leave? (a) Do people generally use/receive maternity leave? (b) If you requested maternity leave, would your employer grant your request? (37) Do you feel comfortable asking for time off for other health issues? (a) Do people generally use time off for health issues? (b) If you requested time off for health issues, would your employer grant your request? WORKDAY EXPERIENCES: PERSONAL NEEDS (38) Are you allowed to go to the restroom whenever you need to? (a) Are the restrooms close to your workstation? (b) Are restrooms separate for men and women? (c) How many restrooms are there? How many toilets? Sinks? (d) How many floors are there? (39) What’s the ratio of restrooms per worker? (i.e. How many RRs? How many workers? We can calculate). (40) Are the premises sanitary? The restrooms? (41) Do you have access to potable water (i.e. filtered drinking water)? (42) Are workers provided canteens? Are workers allowed canteens? (to keep at the workstation) (43) Does your factory provide a Day Care Center? GENERAL WORKPLACE CONDITIONS (44) How many workers are employed at your factory? (45) Is there a Safety Officer at your factory?
  37. 37. HUMAN RIGHTS PRACTICUM Health & Safety Group APPENDIX: Questionnaire 34 of 36   4 of 4 Interview Schedule & Procedures (a) Is s/he always on duty? (b) What is his/her role? (46) Have you ever felt unsafe at work? (47) Have you ever felt uncomfortable at work? (48) Have you ever found an unsafe condition at work? (49) Have you ever complained about any work conditions? (a) If so, please describe what happened. (50) Do you feel like you can complain about work conditions or express any grievance to a supervisor or management? (51) Do you think that is an effective method of resolving the problem? (52) If you wanted to complain – what other options would you have? Could SLD help? (a) Do you have other ideas for filing complaints anonymously? OTHER GENERAL INFORMATION (53) Do you have any other employment? Odd jobs? (54) How do the conditions at this factory/employer compare with other employers (that you’ve worked for or heard about)? (55) Have you ever had any health problems? Please explain. (56) Would you be willing to talk to us more on Sunday January 5, 2014? (a) Any other time this week? We’ll make it convenient/easy for you! (b) Other locations: SLD, Sage Hotel, JNU, any other location? (c) Do you have friends or family who might want to talk to us? (57) Is there anything else you want to tell us? Anything that we didn’t ask about?
  38. 38. HUMAN RIGHTS PRACTICUM Health & Safety Group APPENDIX: Letter to Brands 35 of 36   APPENDIX THREE: Letter to the Brands UNIVERSITY OF NEVADA, LAS VEGAS William S. Boyd School of Law 4505 S. Maryland Pkwy., Las Vegas, NV 89119 April 26, 2014 FREE THE PEOPLE Compliance Department 30 Industrial Park Blvd. Trenton, SC 29847, USA Dear Sir or Madam: Please allow this letter to serve as an informational tool on the labor conditions observed during a two-week period of field study in New Delhi, India focused on the health and safety conditions facing garment workers in Indian garment factories. Working in partnership with local Indian students, our team of law students from the University of Nevada, Las Vegas William S. Boyd School of Law conducted a series of research centered on investigating the employment conditions of laborers working in garment factories that produce clothing for Tier 1 multinational corporations like your company. Through the use of critical analysis, observation, evaluation, and personal interviews with Indian garment workers, management, government officials, and third- party auditing firms, we aimed our efforts at identifying and documenting health and safety issues and employment abuses occurring within these factories and are currently in the process of finalizing a report on our findings. Fortunately, we were pleasantly surprised to see how recent corporate social responsibility initiatives and compliances audits have aided to improve the health and safety conditions in some of the Indian factories we observed. Nevertheless, based on personal interviews with garment workers, we found a giant gap in the bran auditing process that, if properly modified and corrected, could greatly improve some of the modern day human rights abuses occurring in these factories. As you are aware, multinational brands like Urban Outfitters and Free the People establish its own auditing guidelines and/or create the auditing reports provided to third- party auditing agencies based on its own corporate social responsibility policies and procedures. Unfortunately, one major flaw, among many we found with this system, was that many of the auditing processes fail to include worker interviews or obtain worker feedback. Moreover, for those brands that do incorporate worker interviews into its auditing process, these audits often encounter the very overlooked problem of sample error, which arises due to the method and format in which the interviews are conducted. For example, whether a worker interview is conducted inside with management, privately, or anonymously is considerably important because of the involved risk of employer retaliation. If a brand chooses to include worker interviews to obtain feedback
  39. 39. HUMAN RIGHTS PRACTICUM Health & Safety Group APPENDIX: Letter to Brands 36 of 36   UNIVERSITY OF NEVADA, LAS VEGAS William S. Boyd School of Law 4505 S. Maryland Pkwy., Las Vegas, NV 89119 but does not ensure that such interviews are conducted privately or anonymously there is heightened risk that the audits are not recording less obvious issues like forced overtime. In an interview with one worker employed by Pride Integrated Services, a company that supplies labor to factories, he reported that “to maintain employment a worker must be willing to work overtime” whenever directed to do so, sometimes more than the three hours permitted by law and/or on Sundays despite certain preclusions under the 1948 Factories Act. During our interviews we found that without privacy or anonymity workers report they are too fearful to come forward about health and safety issues or other human rights abuses. We hope this letter serves to put you on notice and inform you that although corporate social responsibility initiatives and audits created to curb labor abuse have aided to improve working conditions in some Indian garment factories, many important issues are being overlooked or unidentified due to a failure to include worker interviews or fallible employee interviews. We recommend that your company incorporate private or anonymous worker interviews into its auditing procedures in an effort to correct less obvious human rights abuses in its supplier factories. Sincerely, ! Matthew Beckstead Oscar Peralta! University of Nevada-Las Vegas University of Nevada-Las Vegas J.D. Candidate, 2014 J.D. Candidate, 2014 Candace Ruocco Silvia Villanu!eva Saint Louis University University of Nevada-Las Vegas J.D. /PhD Candidate, 2015 J.D. Candidate, 2014

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