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I. SUMMARY

Workers’ human rights are regularly violated in El Salvador. Because labor laws are weak and government enforcement is often begrudging or nonexistent, employers who flout the law have little worry that they will suffer significant consequences. Aggrieved workers, confronting intransigent employers, an unresponsive Ministry of Labor and Social Welfare (Ministry of Labor), and slow and cumbersome labor court procedures, often settle for minimal, one-time payments. Out of economic necessity, they exchange their human rights for a meager sum to help temporarily support themselves and their families.

Employers have come to see labor rights standards as optional, treating violations as something that can be cured, if need be, with these small payments, a cost of doing business. For workers, the result is a chill on union activity, heightened job insecurity, and, at times, loss of access to affordable health care and other benefits to which they are legally entitled. They are deprived of their right to freedom of association, and their right to health is seriously undermined.

This report uses eight representative case studies to illustrate how workers’ human rights in El Salvador are abused with virtual impunity. The cases highlight, in particular, the serious impediments workers face to enjoyment of their right to freedom of association and the failure of the government to provide an effective remedy.

In El Salvador, employers fire trade unionists and leaders, pressure workers to renounce their union membership, use labor suspensions to target union members, and label actual or suspected trade unionists as “troublemakers” and discriminate against them in hiring. Due in part to these practices, only about 5.3 percent of employees in the country have unionized.

Employers also routinely violate local labor laws by delaying salary payments, denying workers mandatory paid vacations and year-end bonuses, and failing to pay overtime. In some cases, employers also deduct social security dues from workers’ salaries without paying them to the government, thereby preventing workers from accessing free public health services.

Labor law enforcement in El Salvador is severely inadequate. Resource constraints are one obstacle. For example, thirty-seven labor inspectors reportedly cover a workforce of roughly 2.6 million people. The Ministry of Labor’s lack of political will to enforce existing laws and uphold workers’ human rights, however, is a much greater impediment to effective enforcement.

The Ministry of Labor’s General Directorate for Labor Inspection (Labor Inspectorate) routinely fails to follow legally mandated inspection procedures—conducting inspections without worker participation, denying workers inspection results, failing to sanction abusive employers, and refusing to rule on matters within its jurisdiction. In one case documented below, it also failed to report to the Salvadoran Social Security Institute (ISSS) evidence of social security law violations that prevented workers from receiving free medical treatment.

The Ministry of Labor’s General Directorate for Labor (Labor Directorate) routinely ignores employer anti-union conduct and impedes union registration, delaying and, in some cases, preventing union formation, even though it is charged with facilitating the establishment of workers’ organizations. In extreme cases, described below, the Ministry of Labor directly participates in employer labor law violations by honoring illegal employer requests that violate workers’ human rights.

Moreover, El Salvador’s laws governing the right to freedom of association would not adequately protect that right, even if they were effectively enforced. Legal loopholes and shortcomings allow employers to circumvent their obligations under the Constitution and Labor Code to respect workers’ right to organize. Worker suspensions can legally be manipulated to discriminate against union members; union registration procedures are excessively burdensome; anti-union hiring discrimination is not explicitly prohibited; public sector workers do not enjoy the right to form and join trade unions; and protections against anti-union dismissals and suspensions are inadequate and easily evaded.

Workers frustrated by the Ministry of Labor’s failures and those whose complaints fall outside the ministry’s mandate can turn to the labor courts for relief. Judicial proceedings, however, in most cases, not only last longer—at least one-and-a-half years if all rights of appeal are exhausted—but include procedural requirements that may be prohibitively burdensome for workers seeking legal redress. Workers must present a minimum of two witnesses to support their cases, but co-workers often are reluctant to testify out of fear of reprisals from their employers. El Salvador lacks effective “whistle-blower” protection that could quell these fears. Even when workers successfully fulfill the procedural requirements and prevail in court, enforcement of the judgment is, at times, elusive. In other cases, proceedings stall because the defendant employers close their factories and flee and the labor courts cannot find them to serve process. Salvadoran law fails to provide an alternative mechanism, such as the appointment of a curator ad litem, to allow labor court proceedings to go forward when a defendant cannot be found.

Some of the abuses described in this report have taken place in the context of the privatization of public services. All four of the service sector cases documented here involve formerly public industries recently opened for private-sector participation or public enterprises currently under consideration for privatization. Although Human Rights Watch takes no position on privatization per se, we are concerned about the alleged workers’ human rights abuses in these cases. These rights violations illustrate the government’s failure to include respect for labor rights as a vital component of the economic development program it describes as public-sector modernization.

In other cases, the local companies that abuse workers’ human rights are suppliers for larger corporate exporters or licensees or otherwise do business with foreign corporations. This occurred in all four of the manufacturing sector cases examined by Human Rights Watch below—four private employers that reportedly entered, directly or indirectly, into business relationships with at least sixteen corporations, most of them U.S. based. These foreign exporting, licensing, licensee, and distributing corporations profit from the labor rights violations in Salvadoran facilities by transacting in goods produced under abusive conditions. Human Rights Watch believes that such corporations have a responsibility to use their influence to demand respect for labor rights throughout their supply chains. When they fail to do so and benefit from or facilitate workers’ human rights abuses, they become complicit in human rights violations.

El Salvador’s failure to safeguard workers’ human rights in the private export sector not only allows local employers and multinational corporations to carry out and benefit from human rights violations but also helps create a model in which export goods are produced under abusive conditions. As El Salvador’s largest trading partner, importing roughly U.S. $2.05 billion annually—approximately 67 percent of El Salvador’s exports—the United States has publicly recognized the importance of addressing workers’ human rights in the context of its trade and foreign direct investment with the country. And it has taken some steps to do so. Unfortunately, as documented in this report, those steps have been seriously inadequate. The millions of dollars of development assistance the United States has directed to Central American countries, including El Salvador, have failed to address successfully the key obstacles to workers’ human rights in El Salvador: inadequate labor laws and lack of political will to enforce them.

The U.S.-Central America Free Trade Agreement (CAFTA) presents an important opportunity to raise labor standards in El Salvador and throughout the region. Negotiations for CAFTA among the United States, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua began in January 2003 and are scheduled to conclude in December 2003. Free trade alone, however, cannot guarantee greater respect for workers’ rights. Instead, meaningful labor rights protections should be built into CAFTA. The accord should require not only enforcement of local labor laws but that those laws meet international norms. And it should establish a phase-in mechanism to ensure that countries do not enjoy full CAFTA benefits until they effectively implement their own labor legislation.

By permitting legislative impediments to the right to freedom of association and inadequately enforcing the weak existing laws, El Salvador violates its United Nations (U.N.) and Organization of American States (OAS) treaty obligations and its duty as an International Labour Organization (ILO) member to respect, protect, and promote workers’ right to organize. By ineffectively enforcing its laws governing employer payments of social security dues, El Salvador impedes workers’ right to the “highest attainable standard of health” and, in particular, women workers’ right to “appropriate services in connection with pregnancy, confinement and the post-natal period,” also safeguarded by U.N. and OAS treaties to which El Salvador is party. Stronger labor rights requirements in CAFTA could pressure El Salvador to fulfill its international obligations to safeguard these rights.

This report is based on an eighteen-day fact-finding mission to San Salvador and Santa Ana, El Salvador, in February 2003 and follow-up interviews and research conducted between February and September 2003. Human Rights Watch’s research included interviews with workers; fired and active trade union leaders; non-governmental organization representatives; union organizers; labor lawyers; academics; labor court judges; representatives of business and industry groups; representatives from the government’s Human Rights Ombudsman’s Office; and current and former Ministry of Labor officials, including the minister of labor. In a few cases, explicitly noted in the text, workers’ and current and former government officials’ names have been changed, per their request, to protect them from potential employer reprisals. All other names are real and, in the case of workers, union organizers, and union leaders, are included with their express permission to do so, notwithstanding possible negative repercussions for them.


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December 2003