Many obstacles prevent workers in El Salvador from exercising their rights. The obstacles range from inadequate legal protections for workers' human rights, to cumbersome and lengthy labor court procedures, to the failure of the Ministry of Labor and Social Welfare (Ministry of Labor) to enforce labor laws with impartiality. The cumulative effect of these impediments has created a climate in which workers' human rights are systematically violated and workers have little hope for legal redress.

Workers' human rights protections enshrined in El Salvador's Constitution and Labor Code have major loopholes that allow employers to circumvent them. The Ministry of Labor does not effectively enforce even these inadequate protections. Instead, it fails to follow legally mandated inspection procedures, regularly turns a blind eye to employer anti-union conduct, obstructs workers' ability to register unions, and grants illegal employer requests to the detriment of workers. Labor courts impose often insurmountable procedural requirements and may be slow to enforce judgments in workers' favor.

Workers in El Salvador will not fully enjoy their internationally recognized human rights unless a multifaceted strategy of reform is adopted. The strategy must eliminate the obstacles workers face in exercising their rights through coordinated legal, administrative, and judicial reforms. The strategy must, at a minimum, include amending labor laws so that employers cannot circumvent existing protections; ensuring that the Ministry of Labor upholds the law and follows proper procedures; and implementing measures so that workers have meaningful access to redress in the labor courts.

This briefing presents preliminary findings from an eighteen-day fact-finding mission to El Salvador by Human Rights Watch in February 2003 and summarizes El Salvador's main shortcomings in protecting workers' human rights. The case studies cited below involve rights abuses that occurred between September 2001 and February 2003, with the exception of one case from late 1999 and another from early 2000. For the purposes of this preliminary document, however, Human Rights Watch does not identify the implicated employers by name nor the specific dates of the violations.

We issue these preliminary findings at this time to bring them to the attention of officials and policymakers considering labor rights provisions in the proposed United States-Central American Free Trade Agreement (CAFTA). The United States is scheduled to propose labor rights language for CAFTA in mid-May. Based on the shortcomings identified in this briefing, Human Rights Watch believes that such action would be premature. The systematic failure of El Salvador to protect and promote workers' human rights, documented in preliminary form below, highlights the importance of including in CAFTA meaningful labor rights provisions that address both labor laws and their enforcement and account for the serious workers' rights abuses in El Salvador. Human Rights Watch intends to publish a more detailed report on human rights violations in El Salvador's labor sector later this year.

II. INADEQUATE LABOR LAWS

Major loopholes in El Salvadoran labor laws allow employers to circumvent their legal obligation to respect workers' right to organize. For example, worker suspension procedures can be manipulated to target union members; union registration is excessively burdensome; and safeguards against anti-union dismissals and suspensions are weak. By allowing these loopholes, El Salvador violates its duty to adopt legislation to give effect to the right to freedom of association and to form and join trade unions, protected by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, which El Salvador ratified in November 1979, and by the American Convention on Human Rights, which El Salvador ratified in June 1978. El Salvador also fails to fulfill its obligation, as an International Labor Organization (ILO) member, to respect and promote the "fundamental rights" enumerated in the ILO Declaration on Fundamental Principles and Rights at Work, including freedom of association.¹

Weak Protections against Anti-Union Suspensions and Dismissals

El Salvador's laws and procedures fall short of ILO and United Nations human rights standards because they do not adequately protect workers against anti-union suspensions or dismissals, thereby undermining the right to freedom of association and to form and join trade unions. The ILO Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts) has said that the "best solution" for anti-union dismissal is reinstatement with payment of back wages. If reinstatement is impossible, compensation for anti-union firing should be higher than for other unjust dismissals.²

Under existing labor law in El Salvador, once union leaders are elected, it is illegal to fire or suspend them for one year after their terms expire, unless there is prior judicial approval.³ However, employers are not required to reinstate union leaders fired or suspended without judicial authorization. Instead, an employer can legally fire or suspend union leaders so long as it pays their salaries and benefits until the end of the protected period. As an interim justice for the Second Court of Labor Appeals explained to Human Rights Watch, "The principal [legal] obligation of the employer is not to give the worker work but to pay the worker."⁴ Thus, an employer who bars a union leader from the workplace but continues to pay her as if she were still laboring has not run afoul of the law, since the union leader, technically, is still considered an employee. This is an effective and widely used method of weakening or eliminating unions, as it prevents union leaders from entering the workplace and interacting with other union members.

Human Rights Watch investigated three representative cases in which this anti-union tactic was employed, involving one private company and two state-owned entities. The private company fired eleven union leaders and withheld compensation until they judicially challenged their dismissals. At this writing, they have not been allowed back in the workplace. One public employer suspended six union leaders, all of whom enjoyed protected status. Workers did not demand their compensation through administrative or judicial procedures, and the employer did not pay the amount owed. The other public employer fired roughly six union leaders over the course of a year and, in at least two cases, agreed to pay their compensation due only if they signed resignations. In all three cases, the dismissals and suspensions severely weakened the unions, as the union leaders could not effectively represent their members while barred from the workplace. One of the private employer's eleven fired union leaders stated, "The goal of the company is that the union cease to exist. . . . The workers are afraid now . . . because the union leaders are outside."

Exercising the right to organize is also not a legal cause for dismissal under the Labor Code. Employers routinely cite other pretexts for firing union affiliates, however, or pay a nominal fine for ridding their facilities of trade unionists. For example, when the above-mentioned private company fired thirty union members and, roughly five months later, fired another twenty-two, the company paid workers the token payments due. A state-owned company also fired roughly thirty-one union members. Though the employer claimed that some resigned and others were fired with cause-including for "lack of confidence," "deficient work," "bad interpersonal relations," and "disrespect for management"- the company offered workers the minimal compensation owed. The workers claim that these were unjust firings or forced resignations in exchange for severance pay. Employers are not required to reinstate these fired union members, and the payment due an unjustly fired worker is thirty days' salary for every year of work-usually about U.S.$144 for each year of employment.⁵

Without the right to reinstatement for anti-union dismissals, existing labor law provisions do not fully protect workers from employer reprisals for exercising their right to freedom of association. One labor lawyer described these hollow safeguards as the commercialization of freedom of association, noting that the financial consequences for violating these provisions are merely a cost of doing business-an investment in a union-free workplace.

The El Salvadoran Constitution provides that the norms governing union formation "should not hinder freedom of association."⁶ Nonetheless, the Labor Code establishes numerous requirements that workers seeking to unionize must fulfill, including that six months pass before workers whose application to establish a trade union is rejected can submit a new application; that the union have a minimum of thirty-five members; and that workers in independent public institutions form enterprise-based, rather than industry-wide, unions. The ILO has observed that the list is so extensive and burdensome that it interferes with workers' right to organize and has issued recommendations to streamline union registration.⁷ None of the relevant provisions has been changed.

Suspensions to Circumvent Labor Law Protections

There are eighteen causes in the Labor Code for which an employer can legally suspend workers. Eleven can be unilaterally invoked without prior administrative or judicial authorization. One of the most commonly cited is an "act of God," defined to include such things as insufficient product orders, or "lack of raw material," when not the fault of the employer.⁸ Sometimes these provision are used legitimately to suspend operations temporarily, but often they are used to circumvent labor law protections governing worker dismissals.

A suspension for an "act of God" or "lack of raw materials" can legally last for nine months and often creates economic pressures for workers to resign, since they are rarely willing or able to wait that long, without pay, for possible reinstatement.⁹ As such, these provisions can be used as a tool to coerce workers. There is evidence that some employers use them in lieu of declaring plant closures, thereby avoiding paying workers the full severance pay due if operations are closed and workers fired. There is also some evidence that other employers have used them selectively against unionized workers. By invoking such provisions to force resignations, employers can avoid running afoul of the Labor Code prohibition on firing workers to destroy a union. They also can evade the provision that protects unions from dissolution for having insufficient membership when that low membership is caused by unjust dismissals.¹⁰ One public sector workers' union was severely weakened when the employer disproportionately suspended union members and union membership was reduced, as suspended affiliates resigned under economic duress. Roughly 59 percent of suspended workers-the vast majority of whom were union members-reportedly accepted the employer's offer of severance pay in exchange for resignation. Similarly, another private company suspended, rather than fired, its workers prior to plant closure. A union leader explained, "[the employer] knows that the majority of these [suspended workers] are affiliates of our union and that, in the face of the uncertainty of a suspension in the terms set forth by the company, [they] will choose to receive the money that the company offers" in exchange for submitting their resignations.

III. MINISTRY OF LABOR FAILURE TO ENFORCE LABOR LAWS

Under El Salvadoran law, an inspector's inspection visit "must occur with the participation of the employer, workers, or their representatives."¹¹ A legal document-an Acta-must prepared in the workplace at the conclusion of the inspection, detailing the violations and establishing a time period, not to exceed fifteen days, within which violations must be remedied. An inspector is required to meet with both parties prior to preparing the Acta and to present the document to both parties to sign if they choose. A follow-up inspection must be conducted after the time period for remedying the violations expires. If the follow-up inspection reveals that an employer is still not complying with the law, an inspector must prepare another Acta and turn the case over to higher Labor Inspectorate authorities to levy the corresponding fines. Extending the fifteen day time period is not allowed. ¹² The Labor Inspectorate, however, often fails to follow these legally mandated inspection procedures, resulting in an inspection process that provides little or no effective redress for workers whose rights have been violated.

Failure to Allow Worker Participation in Inspection Visits

In many cases, inspectors fail to interview workers, basing their findings solely on employer testimony and potentially flawed company records. This is particularly common when workers allege economic violations, like a failure to pay salaries, vacation benefits, social security, or legally mandated end-of-the-year bonuses. According to Rolando Borjas Munguía, director general of the Labor Inspectorate, in such cases, "They [inspectors] don't speak with workers. . . . They just look at the records."¹³

Workers and their representatives are often not even present when inspections are conducted. None of the labor inspectors whom Human Rights Watch interviewed thought that workers who file complaints (complainant workers) must be present during an inspection. The flawed inspections of one private company for alleged employer failure to pay workers' year-end bonuses and of a public institution for allegedly taking improper salary deductions illustrate these problems. When labor inspectors recently conducted the private company inspection, they did not contact the union representative who submitted the inspection request or the workers' lawyer and interviewed no workers. Similarly, workers at the public institution learned twenty-one days after the fact that an inspection had occurred, as they were never interviewed.

Failure to Provide Workers Copies of Inspection Results

As workers are often not interviewed during an inspection and may not be present, they frequently miss the opportunity to obtain a copy of inspection results while the inspector is still in the workplace. In such cases, complainant workers submit a request to the Ministry of Labor if they want a copy of the results. When they do so, they may be illegally denied access to the inspection document, as in the above-mentioned private company and public institution inspections. Without inspection results, the private sector workers did not know how much their employer owed them, and their criminal complaint against the company for withholding their bonuses, in violation of Penal Code article 217 that bars illegal retention of a third-party's property, was dismissed for lack of evidence, since they had no inspection results to provide the court. And workers at the public institution never learned the justification for their salary deductions that inspectors declared legal. In another case, the Labor Inspectorate gave the employer a copy of an inspection report declaring a worker ineligible to be a union leader but denied that worker a copy under the pretense that the law required the report to be kept in "strict confidentiality."

Failure to Enforce Inspection Orders and Impose Sanctions

Inspectors also may fail to impose sanctions and illegally ignore or extend the time period provided for employers to remedy labor law violations. The head of the Ministry of Labor's Western Regional Office told Human Rights Watch that if Ministry of Labor officials can persuade employers to remedy violations, they will extend the deadline for them to do so and will not impose fines, saying, "We believe that we can be flexible."¹⁴ In some cases, the time period for remedying a labor law violation is illegally suspended indefinitely and inspectors' orders are not enforced. For example, inspectors declared worker suspensions at one private company illegal and ordered the company to pay suspended workers' back wages. Inspectors indefinitely suspended the deadline for remedying the situation, however, and at this writing, workers have been waiting for more than a year for their wages.

Failure to Rule on Matters within the Labor Inspectorate's Jurisdiction

In some cases, particularly those involving worker suspensions, inspectors may declare certain matters outside their jurisdiction, even when the issues are within the Labor Inspectorate's legal mandate. In other cases, inspectors may conduct inspections but fail to issue findings. And sometimes inspectors improperly apply the law. In the case of one public employer, an inspection was conducted that failed to rule on the issue, raised in the workers' inspection request, of whether the employer was illegally pressuring workers to resign from the union. That inspection also upheld the legality of workers' suspensions without verifying that operations at the employer had, in fact, been temporarily shut down, as the employer claimed, even though a judge examining the same case previously had observed that "work is being realized with apparent and relative normalcy." Another inspection in a private company on the legality of worker suspensions found that there was "a lack of raw material," as stipulated in the relevant provision, but did not resolve the question of whether the cause was attributable to the employer and, therefore, whether the suspensions were legal. In another case, inspectors explicitly declined to rule on the legality of worker suspensions. And in a third case, the Labor Inspectorate refused to conduct an inspection on whether worker suspensions were legal, despite declaring prior suspensions at the same private company illegal roughly two months earlier.

When inspectors declare matters outside their jurisdiction, they force workers to turn to labor courts if they wish to challenge the legality of employer conduct. The judicial process, in most cases, lasts longer and is more arduous than the Ministry of Labor's administrative procedures. Furthermore, for suspended workers who have no income, time is of the essence. Economic necessity may press suspended workers to resign before judicial proceedings are completed and accept whatever compensation package may be offered. Thus, by declining to rule on the legality of certain employer conduct, particularly worker suspensions, the Labor Inspectorate increases the pressure on suspended workers to resign and helps employers take advantage of legal loopholes to circumvent workers' human rights protections, like those governing the right to organize.

In some cases, the Ministry of Labor indirectly participates in employer abuses of workers' human rights and labor law violations by honoring illegal employer requests that harm workers. Employers often require fired workers to sign resignations in exchange for their severance pay in order to circumvent Labor Code protections against anti-union dismissals and firing workers to destroy a union. In other cases, employers demand that workers confess to participating in certain activities, like workplace violence, or make written promises, such as promises to forgo strikes, as a condition for collecting their salaries. It is illegal for employers to impose any such conditions on payment of salary or benefits already owed to workers. Such actions by employers are bad enough in themselves, but the situation is made worse by the fact that employers sometimes enlist the assistance of the Ministry of Labor in such schemes. Sometimes employers deposit salaries and other payments owed to workers with the Ministry of Labor and request that the ministry honor these requirements-that workers tender resignations, confessions, or promises-before paying workers. For example, the Ministry of Labor illegally forced roughly twenty-two union members, illegally fired from a private company, to sign company-drafted resignation forms, in lieu of government-prepared receipts of payment, in exchange for their severance pay. This was also the case when the ministry withheld eleven private sector workers' earned salaries, pending signed confessions that they participated in violent strike activity.

Obstacles to Union Registration

The Labor Code has many requirements for registering a labor organization. The Labor Directorate is responsible for implementing them and is legally obligated "[t]o facilitate the constitution of union organizations and comply with the functions that the Labor Code and other laws set out with respect to their management and registration."¹⁵

The Labor Directorate tends to interpret these provisions narrowly, thus creating obstacles to the right to organize-unless the union is employer supported, in which case the Labor Directorate tends to apply an expansive interpretation, facilitating union registration. For example, Labor Code article 217(a) requires that union statutes state the "type, name, purpose, and address of the union."¹⁶ When workers attempted to register the Union of Telecommunications Workers, they submitted to the Labor Directorate documents that used the exact language from Labor Code article 229 to describe the union's purpose as-"the defense of the economic, social and professional interests of their members." The Ministry of Labor reportedly rejected the petition as setting forth an "unclear" purpose.¹⁷ In the case of the Trade Union Federation of Food Sector and Allied Workers, which was allegedly denied legal personality due to "procedural errors," the ILO Committee on Freedom of Association stated, "The Committee deeply regrets that, given that the problem arose from procedural errors which could easily have been rectified, the authorities did not attempt to obtain the further documentation or information required by asking the founders of the Federation to rectify procedural anomalies found in the constituent document within a reasonable period."¹⁸ In contrast, the employer-supported union formed at a state-owned company to compete with an independent union was granted legal personality, despite allegations that its members had failed to resign from the independent union first, in violation of the Labor Code's prohibition on dual union membership.

The Labor Directorate may also look the other way when anti-union conduct prevents workers from exercising their right to organize. The Labor Code prohibits employers from "trying to influence workers regarding their right to association," "discriminating, through direct or indirect means, against workers due to the union membership or retaliating against them for the same motive," and "taking any action that directly or indirectly tends to restrict the rights that this Code and other sources of labor obligations confer on workers."¹⁹ In the case of one private company, however, the Labor Directorate accepted from the employer several workers' confessions that they did not attend the union's founding assembly, though union leaders allege the confessions were coerced, and accepted employer assertions that a worker was no longer with the company, though union leaders claim the worker was on maternity leave. The Ministry of Labor accepted the company's notarized documents over the union's and the employer's word over the workers' word. It concluded that the workers who signed the confessions and the alleged former employee were not union members and rejected the union registration petition for falling short of the minimum number required to form a union. Similarly, the Ministry of Labor accepted employer documents asserting that union leaders and union members at another private company voluntarily resigned during an organizing drive. The Labor Directorate denied the union legal personality for failing to meet the requirement of thirty-five workers to form a union. The ILO Committee on Freedom of Association wrote, "The Committee notes that the Government has not sent its observations on the allegations that the resignations of the [union's] founders were the result of coercion by the company representatives to sign blank sheets of paper. Under these circumstances, the Committee feels it has no choice but to conclude that the company attempted to block the establishment of [the union].^"

IV. OBSTACLES TO JUDICIAL ENFORCEMENT OF LABOR LAW

Labor court procedures, in most cases, not only last longer-at least one and a half years if all rights of appeal are exhausted-than Ministry of Labor administrative procedures, but they include procedural requirements that may prove prohibitively burdensome for workers seeking justice for human rights violations.²⁰ Workers must present a minimum of two witnesses to support their cases, yet workers and San Salvador labor court judges explained that finding witnesses willing and able to testify can be extremely difficult. There is no "whistle-blower" protection in El Salvadoran labor law nor protection against dismissal for testifying against an employer.

Employers have even prevented employees from testifying, as in the case of one private company. When a witness reportedly arrived at the courthouse to testify on behalf of a co-worker fired from the company, the head of human resources at the company was allegedly waiting at the courthouse for the employee. He instructed her to get in a taxi or be fired and paid the taxi driver to take her far from the courthouse. The taxi left with the employee, and the former co-worker lost the case, as she was missing one of her corroborating witnesses. The company reportedly fired the potential witness afterwards.

In some cases, even when workers successfully fulfill the procedural requirements and a judgment is rendered in their favor, enforcement of the judgment is elusive. For example, five workers allegedly won a court judgment ordering their former employer to pay 100 percent of their severance pay. The employer claimed he could not pay and offered machines instead. Five months after the judgment, the court had not taken sufficient steps to secure the sale of the machines and the workers had not received their payments.

In other cases, workers are unable to proceed even to the preliminary, conciliation phase because the defendant employers do not appear and the labor court cannot serve process. For example, over 350 cases have been filed in San Salvador's labor courts against a private company which reportedly closed without paying workers severance pay, annual bonuses, and other debts. The owner has reportedly fled, and the cases are stalled and will soon be dismissed without prejudice. Unlike civil and commercial cases, there is no legal provision allowing the appointment of a curator ad litem to represent absent employers in labor law proceedings.

V. RECOMMENDATIONS

To remedy El Salvador's failure to uphold internationally recognized workers' human rights, Human Rights Watch makes the following preliminary recommendations.

Labor Law Reforms

To close legal loopholes that allow employers to circumvent existing protections and violate workers' human rights with impunity, labor laws should be amended to:

• Streamline the requirements for union registration, including by implementing ILO recommendations that the mandatory minimum number of workers required to form a union be reduced; that the requirement that six months pass between workers' applications to establish a trade union be eliminated; and that workers in independent public institutions be allowed to form industry-wide unions;
  
• Require immediate reinstatement of fired or suspended union leaders, unless prior judicial authority verifying just cause was obtained;
  
• Require immediate reinstatement of workers fired or suspended for legal union activity;
  
• Provide for the appointment of a curator ad litem in cases in which labor-related claims are pending against employers who are unavailable to receive process service;
  
• Create a protected status for "whistle-blower" witnesses testifying in judicial proceedings against their employers that prohibits their suspension, dismissal, transfer, or demotion, absent prior judicial approval, for at least one year after they testify;
  
• Extend Labor Code article 251 that provides that "the dissolution of a . . . union cannot be declared due to insufficient affiliates, when that insufficiency is a consequence of unjustified dismissals" by adding the phrase "or union member resignations, tendered under employer pressure or coercion";
  
• Require that an employer obtain judicial certification that there exists a lack of raw material or an "act of God," neither the cause nor consequences of which are "attributable to the employer," prior to suspending workers on those grounds;
  
• Reduce the maximum duration of suspensions for lack of raw materials or an "act of God" to three months and require another judicial certification to extend that period.

Ministry of Labor Commitment to Uphold the Law

The Ministry of Labor should follow legally mandated procedures that require ministry officials to:

• Conduct worksite inspections with the participation of workers or their representatives;
  
• Prepare an official document-an Acta-at the conclusion of each worksite inspection and make that document available to all parties to the complaint;
  
• Meet with the parties, prior to preparing the Acta, to examine means available to remedy labor law violations;
  
• Provide the parties the opportunity to sign the Acta if they so choose;
  
• Immediately initiate and conclude without delay the sanctions process against employers who fail to remedy violations within the time period provided by an inspector;
  
• Conduct inspections, upon request, on any matter legally within the jurisdiction of the Labor Inspectorate and determine compliance or violation of the law in question;
  
• Reject employer requests to demand that fired workers sign resignations or employed workers make certain commitments prior to receiving money due and salaries earned, deposited with the Ministry of Labor.

1 According to the ILO Declaration on Fundamental Principles and Rights at Work, "all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions." Therefore, even countries like El Salvador that have not ratified the ILO Convention concerning Freedom of Association and Protection of the Right to Organise and the ILO Convention concerning the Right to Organise and Collective Bargaining are bound by this obligation. International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work, 86^th Session, Geneva, June 18, 1998.

2 International Labour Conference, 1994, Freedom of association and collective bargaining: Protection against acts of anti-union discrimination, Report of the Committee of Experts on the Application of Conventions and Recommendations, 81^st Session, Geneva, 1994, Report III (Part 4B), paras. 219-221. The ILO Committee of Experts is composed of a group of independent experts that reviews reports submitted by ILO member states on their ratification of and compliance with ILO conventions and recommendations. Once a year the committee produces one report on its general observations concerning certain countries and another on a particular theme covered by ILO conventions and recommendations.

3 Labor Code, article 248.

4 Human Rights Watch interview, Arnoldo Alvarez, interim justice, Second Court of Labor Appeals, San Salvador, February 11, 2003.

5 Labor Code, article 58.

6 Constitution, article 47.

7 ILO, Complaint against the Government of El Salvador presented by Communications International (CI), Report No. 313, Case No. 1987, Vol. LXXXII, 1999, Series B., No. 1, para. 117(a).

8 Labor Code, articles 36-38.

9 Labor Code, article 44.

10 Labor Code, article 251.

11 Law of Organization and Functions of the Labor and Social Welfare Sector (LOFSTPS), article 47.

12 LOFSTPS, articles 49, 50, 53, 54.

13 Human Rights Watch interview, Rolando Borjas Munguía, director general, Labor Inspectorate, San Salvador, February 13, 2003.

14 Human Rights Watch interview, Hernán Guerra Hernández, director, Ministry of Labor Western Regional Office, Santa Ana, February 17, 2003.

15 LOFSTPS, article 22(b).

16 Labor Code, article 217(a).

17 Labor Code, article 229.

18 ILO, Complaint against the Government of El Salvador presented by the Trade Union Federation of Food Sector and Allied Workers (FESTSA), the Company Union of Workers of Doall Enterprises S.A. (SETDESA) and the Ministry of Education Workers' Union (ATRAMEC), Report No. 323, Case No. 2085, Vol. LXXXIII, 2000, Series B, No. 3, para. 172.

19 Labor Code, article 30(4), (5), (11).

20 Human Rights Watch interview, Carlos Aristedes Jovel, judge, First Labor Court, San Salvador, February 14, 2003.