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Third Party Complaint Regarding a Facility
Contracted by Lands' End in El Salvador
*Please note: due to FLA's policy regarding third party complaints, we have withheld the name of the factory that was the subject of this complaint. More information about this factory is available in the factory tracking chart, which is posted on the FLA's website.
Overview
This report focuses on an apparel factory in an Export Processing Zone (EPZ) in El Salvador, which produces FLA university-licensed goods for Lands' End. The factory was the subject of a third party complaint about allegedly discriminatory practices, which excluded workers from a recently closed, unionized factory from being hired due to their previous union affiliation. In response to the third party complaint, the FLA worked with key actors including Lands' End and the Workers Rights Consortium (WRC), as well as a local union and other labor groups, to remediate the situation. The remediation plan that was finally implemented was the result of considerable collaboration, and aimed to reflect the desires of the workers, as expressed in interviews and through union leaders.
In Context: Freedom of Association in El Salvadoran EPZs
While the Constitution of El Salvador recognizes the right of employers and workers "to associate freely for the defense of their respective interests by establishing associations and trade unions," the unionization rate in maquilas is very low. Union leaders state that there is a general anti-union policy in EPZs, meaning that any attempt to organize is repressed. Tactics that are reportedly used by maquila management to keep unions out of their factories include "blacklists," which contain the names of workers who belong or have belonged to a union. Workers assert that those whose names appear on the lists are not hired by factories, because they are seen as a threat to the status quo.
Case History
In February 2002, union leaders from Sindicato de Trabajadores de la Industria Textil (STIT), a trade union for textile factory workers in El Salvador, initiated an organizing campaign in order to obtain enough representation to gain collective bargaining rights in Tainan, a factory that was located in the Salvadoran EPZ of San Bartolo, and owned by the parent company, Tainan Enterprises. Within a month of the union submitting an application to the Ministry of Labor to negotiate a collective bargaining agreement with factory management, it was announced that the factory would close. The closing had serious implications for the 600 workers who were employed there at the time.
According to available information, many of the dismissed Tainan workers tried to apply for jobs at different factories in the San Bartolo EPZ. However, they found that they were consistently asked if they had previously worked at the unionized facility of Tainan, or if they belonged to a union. If workers answered affirmatively, they were refused work. Union leaders, moreover, reported that they were not even able to pass through the gates to the EPZ, because zone guards were given their photos and instructions not to let them enter. Workers who entered the zone clandestinely through other entry points and succeeded in securing jobs were dismissed after several days. While employers alleged that these dismissals were due to low productivity, the workers believed that it was due to their union affiliation.
FLA Involvement
Late in 2002, after conducting an investigation of this situation, the Worker Rights Consortium (WRC) contacted the FLA about allegations of labor standards violations at a factory where Lands' End (an FLA Category B Licensee) sourced collegiate products. Consequently, the FLA reviewed the situation with local sources, and based on information collected, conducted an independent external monitoring (IEM) visit of the facility. The IEM was completed in April 2003 (see FLA factory report). Indeed, discrimination against union-affiliated workers from the closed factory was among the findings cited by the monitor. Following the visit, the FLA, the WRC, and Lands' End met to discuss remediation of the monitors' findings. During the meeting, Lands' End committed to a remediation plan that included the posting of a non-discriminatory hiring policy; efforts to encourage rejected union-affiliated applicants to re-apply for work at the factory; revision of the hiring manager's job description; supervisor and management training; and improvement of occupational health and safety.
Despite efforts to remediate noncompliance issues in the factory, the FLA received a third party complaint about the facility in May 2003 from an NGO in El Salvador that asked to remain anonymous (which is an option under the FLA's third party complaint process). The complaint focused on alleged violations of FLA Code provisions relating to freedom of association and non-discrimination. In response to the complaint, the FLA initiated a factory assessment, in accordance with the FLA's third party complaint procedure, to identify noncompliance issues and to assess management's understanding of the anti-discrimination policy and its implementation. During the assessment, the FLA found that there was a strong likelihood of continued noncompliance with the FLA Standards listed in the complaint and that such noncompliance had not been remediated following the first FLA monitoring visit in April.
The FLA worked with Lands' End, the contracted factory, local groups, the WRC and the workers to develop a remediation plan that was acceptable to all parties.Moreover, a preventive action plan focused on enabling workers to freely associate, and on ensuring that fair and objective criteria are used in the hiring process.
Remediation
A. Reinstatement of the Workers
Many of the former Tainan workers who had allegedly been subject to discrimination by factory management moved on to other occupations in the months following dismissal, including child care, buying and selling goods on the streets, or washing and cleaning houses. Others worked for several months in restaurants or in other factories, while still others were unemployed or could not be reached. During interviews with the FLA, however, several former Tainan workers reported that they would not be willing to return to the factory, even if policies there changed. They explained that they did not trust management, and/or were concerned that workers who feared that unionization would lead to the factory closing would harass them in the workplace.
Nonetheless, in January 2004, representatives of Lands' End hand-delivered letters to nine of the twenty-one former Tainan workers who had allegedly been subject to discrimination, inviting them to apply for positions at the factory. The letters explained that they would be given preference over other applicants for available jobs. Lands' End was not able to contact the other workers, but made a second trip to the region in an attempt to find the remaining workers and deliver their invitation letters.
B. Collaboration with Just Garments
During the same period that this third party complaint was in process, representatives from STIT and Tainan Enterprises participated in discussions that led to a final agreement in November 2002. As part of the agreement, Tainan Enterprises provided the resources to open a facility that would employ the dismissed Tainan workers, and as a result, Just Garments was formed in April 2003.
During interviews and other exchanges, former Tainan workers claimed that they wanted to be able to work in a factory with a non-hostile environment where rights are respected and where they can freely associate. They wanted to work at Just Garments. Therefore, instead of reinstatement at the factory or other compensation, the workers requested through their union that Lands' Endinvest in Just Garments. In response, in May 2004, Lands' End committed in May 2004 to provide cloth and machinery to the factory. It also committed to provide technical assistance in product quality, identification of full-package production requirements, export/duty issues, and customs procedures.
Preventive Action Plan
In consultation with Lands' End, the factory management revised its non-discrimination policy, which highlights employees' right to freedom of association, including affiliation or non-affiliation to the association of their choosing. Lands' End also reviewed the factory application and hiring processes, and states that changes have been made to the procedures to ensure fairness for applicants.
Furthermore, during the month of April 2004, factory management staff and workers received training on the updated employee handbook, which included legal awareness training on workers' legal rights. Lands' End also met with the Labor Minister, the Maquila Association, and the EPZ Authority to communicate Lands' End's policy supporting freedom of association and non-discrimination, and called on them to respect these basic rights.
As of writing this report, Lands' End reports that it has completed the remediation and preventive action plans that are detailed in the factory tracking chart. While the FLA verified that portions of the remediation plan have been completed, it has still to verify completion of other remediation and preventive actions at the factory. The FLA will use the tracking chart to report its verification activities in coming months.
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