Report: Freedom of association in the United States

Abstract

18 | International Union Rights | 23/3 REPORT | USA Freedom of association in the United States: When rights are needed most Observing that the US remains ‘an economic powerhouse, a military superpower, a global engine of technological development’, the Special Representative pointed to the historical foundations of the country’s present crisis: ‘on land stolen from its indigenous Native Americans… on race-based slavery against people of African descent; and successive waves of immigrants [who] have faced discrimination, harassment or worse’... The right to freedom of association includes the right of workers to form associations, including unions, and the right to strike. During this mission, I met with a number of workers and organisations that represent workers who described the challenges they face in asserting their right to freedom of association. I also met with representatives from the Department of Labor and the National Labor Relations Board. The overarching concern expressed by workers was the lack of robust protections of their labour rights. This was corroborated in discussions with State interlocutors who spoke to the neutrality that the State maintains in labour disputes between employers and employees; the limited resources provided for the monitoring and enforcement of labour standards; and a general lack of political will to strengthen these standards and penalties. International human rights law explicitly sets out the rights of workers, including the right to organise and the right to strike, and is equally clear about the State’s duties not only to respect these rights but also to protect and actively facilitate their enjoyment. I would like to touch on three issues that raised particular concerns in this context – the rights of migrant workers to organise, the ability to establish unions and the right to strike. Migrant workers From my discussions with various groups, I learned that the situation of migrant workers throughout the United States is characterised by the precariousness and exploitation of their employment situation, retaliation for drawing attention to adverse working conditions and a fear of taking action to seek improvement of the violations. A broad range of workers are affected – documented and undocumented, skilled and ‘unskilled’, seasonal and or long-term. Migrant workers, of whom I met many in Arizona and Louisiana, are routinely subjected to harassment, intimidation, physical, sexual and psychological abuse, with those attempting to form or belonging to unions and organisations such as the Congress of Day Laborers being targeted for reprisals. Compounding these challenges, many of these workers cannot return home voluntarily because of the debts they incur in order to cater for migration and settlement expenses, plus fees charged by recruitment agencies to find them work. Migrant workers’ rights are violated by multiple actors who are motivated by perverse incentives that often converge to the detriment of migrant workers, including private sector employers, recruitment agencies, union-busting firms, Immigration and Customs Enforcement Agency, local police forces and sheriffs’ offices, and private detention facilities. Undocumented migrants face tremendous challenges in exercising their right to freedom of association. I would like to emphasise that under international law all workers are entitled to their human rights, including the right to freedom of association. Crossing national borders – whether legally or otherwise – does not take away these rights. As such, the testimonies of undocumented workers subjected to raids, random stops and searches – especially based on racial profiling – and arrests were particularly troubling. In the context of my mandate, the harsh treatment in immigration detention centres, many of them run by private companies who slash services to boost profits, is also unacceptable. This is particularly concerning given that many employers threaten to (and do) report migrant workers to ICE if they attempt to organise. I heard incredibly disturbing reports about these detention centres, where migrants can face solitary confinement, physical abuse, and denial of medical attention. Documented workers fare no better. I met teachers from the Philippines who were brought into the United States on H-1B visas by a recruitment agency in circumstances that a court determined amounted to human trafficking. The recruitment agency provided the teachers false information about the terms and conditions of work, financially exploited them, restricted their freedom of association and movement, and threatened them with deportation and loss of...