TRANSNATIONAL LEGAL CLINIC GITTIS CENTER FOR CLINICAL LEGAL STUDIES 3501 Sansom Street Philadelphia, PA 19104-­‐6204 January 20, 2014
Mr. Emilio Álvarez Icaza Longoria
Executive Secretary
Inter-American Commission on Human Rights
Organization of American States
1889 F. Street, N.W.
Washington, D.C. 20006
Re: Request for a Thematic Hearing (150th Period of Sessions) - Denial of Access to
Migrant Labor Camps in the United States and the Resulting Rights Violations
of Human Rights Defenders, including Outreach Workers representing Legal
Services, Healthcare and Community Service Organizations, Labor Rights
Organizations, and Migrant Farmworkers.
Dear Secretary Álvarez Icaza:
Pursuant to Article 64 of the Rules of Procedure of the Inter-American Commission on
Human Rights, the undersigned nongovernmental organizations request a thematic hearing
during the upcoming 150th Period of Sessions to examine the United States’ failure to ensure
human rights defenders’ access to migrant farmworker labor camps, and failure to ensure
farmworkers’, as human rights defenders themselves, rights to access human rights information
and protections, resulting in further violations of the American Declaration on the Rights and
Duties of Man (hereinafter, “American Declaration”),1 as well as other human rights instruments
to which the United States is bound. The lack of legal protections guaranteeing migrant labor
camp access violates the right to freedom of assembly and association, the right to freedom from
arbitrary arrest, the right to personal security, the right to due process, and the right to nondiscrimination. The United States’ failure to guarantee or enforce farmworkers’ access to legal
counsel or information, effective remedy to rights violations, and rights to freedom of association
violates the rights of farmworkers as human rights defenders.
I. BACKGROUND: THE DENIAL OF OUTREACH WORKER ACCESS TO
MIGRANT WORKERS IN LABOR CAMPS ACROSS THE UNITED STATES
1
The Organization of American States (OAS) adopted the American Declaration on May 2, 1948; although not
adopted as a treaty, the Inter-American Court of Human Rights and Inter-American Commission on Human Rights
oas.org/basicos/english/Basic1.%20Intro.htm (last visited Dec. 27, 2013). 1 Every year, the United States hosts between 1 and 3 million year-round and seasonal
migrant farmworkers.2 Those workers who reside in employer-provided migrant labor camps are
often isolated in remote locations, are dependent on their employers for both income and
housing, and remain culturally and linguistically separate from members of their surrounding
communities, leaving them vulnerable to exploitation and discrimination. Additionally,
farmworkers enjoy only limited protections under U.S. law: they are denied legal protections
under federal law when engaging in the right to freedom of association and collective action,3
and are often exempted from legal protections ensuring their right to receive a minimum wage
and pay for overtime work.4 The scarcity of such legal protections renders workers especially
vulnerable, a situation exacerbated by the treatment they often receive at the hands of housing
owners, most often their employers. The services offered by legal aid agencies, unions, religious
service providers, health workers and other outreach workers are a crucial means—sometimes
the only means—through which migrants can defend and exercise their basic rights.
Employers and camp managers regularly deny legal and other outreach workers access to
the camps where migrant workers are housed, often requiring that anyone wishing to visit
workers obtain advance approval before they can have “visitation rights.” Camp owners
frequently label such visitors trespassers, threaten them with physical harm, and call upon local
police who often further threaten outreach workers with arrest and criminal prosecution.5
The United States does not have a comprehensive or consistent legal framework to ensure
outreach workers’ access to migrant workers living in labor camps. The Migrant and Seasonal
Agricultural Worker Protection Act (AWPA), the federal law that outlines the legal rights of
2
U.S. Dep’t of Labor, Findings of the National Agricultural Workers Survey (NAWS) 2001–2002: A Demographic
andEmployment Profile of United States Farmworkers, at 43 (Mar. 2005), available at
http://www.doleta.gov/agworker/report9/naws_rpt9.pdf (last visited Dec. 12, 2012) (hereinafter “NAWS”). This
survey found that 21% of “crop workers” lived in housing supplied by the employer; 33% of migrant crop workers
lived in employer-provided housing; and two-thirds of this housing was located on the employer’s farm. While
there is little recent comprehensive data on farmworkers, it is believed the numbers of workers living in employerprovided housing presently may be higher. 3
See 29 U.S.C. § 152(3), explicitly excluding agricultural workers from the definition of covered employee under
the National Labor Relations Act (NLRA). Workers without employment authorization are further discriminated
against under Hoffman Plastic Compounds v NLRB, 535 U.S. 137 (2002), in which the U.S. Supreme Court held
that unauthorized workers were not entitled to the remedy of back pay under the NLRA, the only individualized
remedy available to a worker who is terminated for engaging in a concerted protected activity. See also, Int’l Labor
Org. [ILO], Comm. on Freedom of Ass’n, Complaints Against the Government of the United States Presented by the
American Federation of Labor and the Congress of Industrial Organizations (AFL-CIO) and the Confederation of
Mexican Workers (CTM), Report No. 332, Case No. 2227, Vol. LXXXVI, 2003, Series B, No. 3 (Oct. 18,
2002)(recognizing that the United States’ failure to ensure a remedy is tantamount to the denial of the right to
freedom of association). 4
See, federal Fair Labor Standards Act, 29 U.S.C. §§ 201-219. 29 U.S.C. § 213(b)(12), excluding agricultural
workers from overtime protections. 5
See, REENA K. SHAH ET AL., LEGAL AID BUREAU, INC., MIGRANT FARMWORKER HUMAN RIGHTS COMPLAINT TO
THE UNITED NATIONS SPECIAL RAPPORTEUR ON EXTREME POVERTY AND HUMAN RIGHTS [hereafter SPECIAL
RAPPORTEUR SUBMISSION], 1 (2012), submitted in conjunction with this hearing request, and available at:
http://users.frii.com/cls/Migrant%20Farmworker%20Camp%20Access%20Human%20Rights%20Complaint%20%
28Dec%2013%202012%29.pdf. 2 agricultural workers and the responsibilities of agricultural employers, is silent on the issue of
migrant labor camp access, and no other federal law creates a uniform legal framework
mandating a right to camp access for outreach workers. At the state level, virtually all states lack
a clear legal framework for protecting human rights defenders’ access to migrant workers
residing on labor camps. Where such legal protections do exist, they are often in the form of
court decisions or Attorney General Opinions, which many law enforcement officials are not
aware of or simply refuse to abide by.6 Employers who deny outreach workers access to camps
often call authorities who—even when their understanding of the law is incorrect—reiterate farm
owners’ threats and drive outreach workers from “private property.”
As discussed in greater detail below, the denial of unhindered access for employees of
healthcare, legal aid and other social service organizations to migrant workers housed on labor
camps perpetuates and exacerbates the rights violations endured by migrant workers, and directly
violates the rights of the human rights defenders who seek to meet with them under the American
Declaration, the International Covenant on Civil and Political Rights (hereinafter, “ICCPR”),7
and the Convention on the Elimination of All Forms of Racial Discrimination (hereinafter,
“CERD”).8 The failure of the United States to provide legal guarantees to the right of access, and
to ensure the conditions necessary for free association without interference or fear of reprisal
among outreach workers and migrant workers further violates principles set forth in the UN
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms
(hereinafter, “Declaration on Human Rights Defenders”).9
In December 2012, a national coalition of 28 non-profit legal and social services
organizations submitted a complaint to the UN Special Rapporteur on Extreme Poverty and
Human Rights, raising the issue of U.S. denial of service providers’ access to migrant
farmworker labor camps. On December 27, 2012, Special Rapporteur Maria Magdalena
Sepúlveda Carmona, joined by UN Special Rapporteur on the Situation of Human Rights
Defenders Margaret Sekaggya, and UN Special Rapporteur on the Human Rights of Migrants
François Crépeau, transmitted to the U.S. government a request for a response within 60 days to
the allegations raised in the complaint, in light of applicable international human rights law. To
date, the United States has failed to respond, despite direct requests made to the U.S. State
6
Id. Court decisions in Texas, Louisiana, Maryland, New York, Indiana, and Michigan, for example, mandate camp
access, but enforcement of those decisions remains a challenge. 7
International Covenant on Civil and Political Rights (hereinafter, “ICCPR”), Dec. 16, 1966, 999 U.N.T.S. 171; S.
Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967), ratified by the U.S. Sept. 8, 1992. 8
International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter, “CERD”), Dec. 21,
1965, 660 U.N.T.S. 195, 212; S. Exec.Doc. C, 95-2 (1978); S. Treaty Doc. 95-18, ratified by the U.S. Nov. 20,
1994. 9
UN Doc. A/RES/53/144 (1998), Arts. 1-2. See also, Id., Art. 6, specifically guaranteeing the right, “individually
and in association with others: (a) to know, seek, obtain, receive and hold information about all human rights and
fundamental freedoms, including having access to information as to how those rights and freedoms are given effect
in domestic, legislative, judicial or administrative systems; (b) As provided for in human rights and other applicable
international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all
human rights and fundamental freedoms.” 3 Department on behalf of Petitioners. Petitioners therefore seek this thematic hearing before the
Inter-American Commission as an opportunity to bring to light the range of rights violations
experienced by outreach workers and migrant farmworkers seeking to exercise their fundamental
rights to freedom of association and access to justice. A hearing will serve as a catalyst for
developing and implementing a comprehensive framework for migrant labor camp access in a
manner that fully provides for the rights of all human rights defenders within the United States,
outreach workers and migrant farmworkers alike.
II. THE DENIAL OF ACCESS TO MIGRANT LABOR CAMPS VIOLATES
RIGHTS GUARANTEED UNDER THE AMERICAN DECLARATION
A. The United States Fails to Protect Human Rights Defenders who Attempt to Access
Migrant Farmworker Labor Camps
i. Current Law and Practice Deny Human Rights Defenders Their Right to
Freedom of Assembly and Protection From Arbitrary Arrest
The failure of the United States to protect the rights of outreach workers to assemble with
migrants employed at U.S. labor camps violates Article XXI of the American Declaration’s
guarantee that “every person has the right to assemble peaceably with others,”10 as well as
Article 21 of the ICCPR.11 In the absence of a federal system of protection, and inadequate state
level protections, employers and camp managers regularly interfere with outreach staff’s and
migrant workers’ ability to exercise their rights to assembly, responding harshly to those who
attempt to visit labor camps, even when such visitation is authorized under law. Many health
workers and legal aid representatives recount that employers have demanded they leave their
property immediately, and have accused them of criminal trespass. Growers have physically
prevented outreach workers from departing the labor camp by purposely blocking their vehicle
in, so that the outreach workers would be unable to leave before the arrival of law enforcement.12
After visiting migrant workers, some outreach workers have received letters from employers’
attorneys threatening prosecution for trespass if visitation attempts do not cease. In at least one
recent case, an outreach worker in New Jersey, a state whose Supreme Court recognized a right
to access in 1971, nevertheless was prosecuted for trespass after visiting workers in a labor
camp.13
10
American Declaration, Article XXI: “Every person has the right to assemble peaceably with others in a formal
public meeting or an informal gathering, in connection with matters of common interest of any nature.” 11
ICCPR, Article 21: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic
society in the interests of national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others.” 12
See Declaration of Clermont Fraser, on file with Petitioners; see also Declaration of Rodrigo Falcon Alaniz, on file
with Petitioners. 13
Email from Keith Talbot, Legal Services of New Jersey, to Nathaniel Norton, MD Legal Aid Bureau, dated
December 12, 2012, on file with Petitioners. 4 When outreach workers are granted physical access to labor camps, employers and their
agents often intimidate their employees so that they cannot freely communicate, eliminating the
ability of outreach workers and their staff to hold meaningful meetings and rendering any right to
freedom of assembly effectively null. Many immigrant workers already believe that speaking to
aid organizations could lead them to have problems with immigration officials, the criminal
justice system, or their employers.14 Indeed, when camp managers realize their employees have
asserted their legal rights, they often react violently—physically grabbing workers, loudly
chastising them, and threatening deportation to Mexico if migrant farmworkers attempt to pursue
legal action.15 One employer went so far as to tell a worker that he would “never come back to
the United States” if he spoke to a legal aid organization.16
Moreover, the intervention of law enforcement authorities in such cases—far from
correcting cases of unlawful employer conduct—often reinforces employers’ illegal or
inappropriate behavior. It further chills farmworkers’ attempts to defend their human rights and
prevents access to information and official redress. Police frequently threaten to arrest outreach
staff if they refuse to immediately vacate the premises, in direct contravention of outreach
workers’ rights under Article XXV of the American Declaration (mandating that no one may be
“deprived of his liberty except in the cases and according to the procedures established by preexisting law”), as well as Article 9 of the ICCPR (dictating that “[n]o one shall be subjected to
arbitrary arrest or detention”).17 When employers call police in cases of “trespass,” such officials
generally grant employers deferential treatment, echoing claims that outreach staff who do not
leave labor camps will be arrested and prosecuted, even when such action is unauthorized by
law. In some cases, individuals who presented Attorney General opinions explicitly granting
them access to labor camps were still refused visitation rights by employers, were threatened
with arrest or legal action, and were forced to leave by police.18 In Colorado, for example, one
religious outreach worker who delivered food, water, and medicine to a migrant employee was
prosecuted for criminal trespass—even though the migrant had invited her onto the property,
giving her a right to visit him under that state’s law.19 These incidents are not isolated to certain
law enforcement officers or geographical regions. Outreach workers in states such as Kentucky,
Maryland, and North Carolina have all reported similar practices. One Maryland law
enforcement officer stated that he was told by co-workers to “stay away from labor camps” and
“not to get involved” with the practices of camp employers.20
14
SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at 5. 15
See Declaration of Rodrigo Falcon Alaniz, on file with Petitioners; see also Declaration of Lino Guevara Tovar, on
file with Petitioners. 16
Declaration of Lino Guevara Tovar, at 1, on file with Petitioners. 17
ICCPR, Article 9(1); American Declaration, Article XXV. 18
SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Appendix D, page 1. 19
Id. at Appendix D, page 1; id. at attachment 14. Importantly, not all state laws affording outreach workers explicit
access rights require that migrant workers invite such individuals onto camp property. See, e.g., SPECIAL
RAPPORTEUR SUBMISSION, supra note 5, at fns. 19-22. 20
Id. at Appendix D, page 1. 5 Such incidents reflect a failure on the part of the U.S. government to ensure that
employers and their agents respect the right to freedom of assembly, as well as the failure of the
United States to act when law enforcement officials themselves directly interfere with the
migrant workers’ and outreach workers’ right to freedom of assembly, guaranteed under the
American Declaration and the ICCPR. These incidents further reflect the failure of the United
States to “take all necessary measures to ensure the protection by the competent authorities of
everyone, individually and in association with others, against any violence, threats, retaliation, de
facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of
his or her legitimate exercise of the rights referred to in the [Declaration on Human Rights
Defenders],” as set forth under Article 12 of said Declaration.
ii. Limitations of Current Law or Ignorance of Legal Provisions Mandating
Labor Camp Access Violate Human Rights Defenders’ Right to Personal
Security
In addition to the interference with the right to freedom of assembly discussed above,
employers frequently engage in threatening, intimidating and abusive behavior toward outreach
workers.21 These actions directly infringe on the right of outreach workers and the migrant
workers with whom they are seeking to meet to personal security, as provided for in Article I of
the American Declaration and Article 9 of the ICCPR (guaranteeing every person the right to
“security of his person”). Outreach workers recount that employers have been aggressive in their
interference with outreach workers’ seeking to visit and meet with migrant farmworkers.22 One
outreach worker reported that a grower banged her finger down repeatedly on the outreach
worker's leg when she was sitting and meeting with an injured farmworker, complaining that the
outreach worker should not have collected medical records from the farmworker.23 A nurse in
Maryland was banished from a migrant camp by the owner and then informed that if she
returned, he “will come to the camp with his shotgun.”24 Another grower told the employee of a
healthcare organization that if she “knew what was good for her, she would leave.”25 Another
farm owner was more explicit; he told advocates that they “did not belong” on his property and
that he could “shoot people” who chose to remain.26
These actions are intended to create feelings of terror and fear in the outreach workers,
such that they feel they cannot return to such camps out of fear for their own safety and the
safety of other staff members. In one instance, after a farm owner slammed his fist on a student
21
SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at 2. 22
Id. at Appendix D, page 1-2. 23
See Declaration of Rachel Wright, on file with Petitioners. 24
SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Appendix C, page 1. 25
Id. at Appendix C, pages 2-3. 26
Id. at Appendix C, page 2.
6 health worker’s car while screaming at her for a period of minutes, the student became so afraid
of this individual that she has since not returned to the labor camp.27 Kathryn Cox, a program
assistant for the Wake County Farmworker Health Program in North Carolina reported that one
farm owner screamed at her from “less than two feet away,” making her “anxious to return to
[that] labor camp” and “concerned about the repercussions” for herself and her staff if the owner
contacted police.28 Even when human rights defenders have broken no laws, they are subject to
serious harassment, threats of arbitrary arrest, and violence. These abuses infringe on the right of
these individuals to personal security, a right guaranteed by both the American Declaration and
the ICCPR. The United States contravenes the human rights principle of due diligence by failing
to investigate alleged human rights violations against legal service providers or implement
appropriate measures to ensure access to migrant farmworker labor camps.29
B. The Failure of the U.S. to Ensure Legal and Health Service Providers’ Access to Migrant
Labor Camps Perpetuates and Even Exacerbates Violations of Migrant Workers’
Fundamental Human Rights
i. Denial of the Right to Freedom of Assembly Perpetuates Discrimination Against
Migrants Under the Law and Deprives Migrant Workers of Their Right to Due
Process
More than 80% of farmworkers are Latino, and at least half of all laborers lack legal
immigration status.30 Article II of the American Declaration and Article 26 of the ICCPR
guarantee of the right to equality before the law,31 and Article XXVI of the Declaration and
Article 14 of the ICCPR, and Article 5 of the CERD provide for a right to due process for every
individual without discrimination.32 The failure to ensure legal service providers and outreach
workers access to migrant labor camps effectively divests migrant farmworkers of both these
rights, and prevents them from seeking a remedy for abuses that occur at the hands of their
employers. As noted above, the working and housing conditions of migrant workers in the
United States renders them extremely susceptible to violations of their rights: they are
geographically, culturally, and linguistically isolated from their surrounding communities, are
economically dependent upon their employers, and usually reside in labor camps situated in
remote locations.33 Employers frequently exploit such vulnerabilities, forcing migrants to live in
27
Id. at Appendix C, page 3. 28
Id. at Appendix C, page 3. 29
Report of the Special Rapporteur on the Situation of Human Rights Defenders, to the UN General Assembly, 65th
Session, Aug. 4, 2010, A/65/223, at ¶29.
30
FARMWORKER JUSTICE, UNFINISHED HARVEST: THE AGRICULTURAL WORKER PROTECTION ACT AT 30, 4 (2013). 31
American Declaration, Article II; ICCPR, Article 26. 32
American Declaration; Article XXVI; ICCPR, Article 14. REENA K. SHAH AND LAUREN E. BARTLETT, HUMAN RIGHTS IN THE UNITED STATES: LEGAL AID ALLEGES THAT
DENYING ACCESS TO MIGRANT LABOR CAMPS IS A VIOLATION OF THE HUMAN RIGHT TO ACCESS JUSTICE [hereafter
DENYING ACCESS TO MIGRANT LABOR CAMPS], 20 Hum. Rts. Br. 15 (2012), available at 16-17. 33
7 deplorable and overcrowded housing conditions, and threatening to fire or deport them if they
complain about their living arrangements or seek legal or medical assistance.34
The services offered by legal aid agencies and health workers are a crucial means—often
the only means—through which migrants can defend and exercise their basic rights.35 When
legal aid workers cannot meet with farmworkers to inform them of their rights and guide them
through legal processes, farmworkers’ rights to due process become useless, and the distorted
migrant-employer power dynamic persists. The U.S. government’s failure to provide legal
redress related to labor camp access amounts to tacit authorization of employer violations against
migrants, and stands in opposition to the rights of equality and due process guaranteed by the
American Declaration and the ICCPR.
ii. Legal Aid Workers’ Inability to Access Labor Camps Deprives
Farmworkers of Their Rights to Work and Receive Fair Remuneration
This lack of effective due process additionally prevents farmworkers from defending
their rights to work and receive fair remuneration, as guaranteed under Article XIV of the
American Declaration (providing for the right to work “under proper conditions” and to receive a
fair wage that will assure every person a “standard of living suitable for himself and his family”)
and Article 5(e)(i) of the CERD (establishing a right to work and receive “just and favorable
remuneration” without discrimination). Among the violations most frequently endured by
migrant workers are wage violations. A 2011 study conducted in North Carolina found that one
in five migrant farmworkers, and 45 percent of all workers without H-2A visas, experienced
wage violations.36 Without guaranteed access to the labor camps where migrant farmworkers
live, legal service providers cannot provide critical rights information and needed legal
assistance to migrant workers seeking to enforce even existing wage regulations.37 This lack of
access also dramatically interferes with workers’ pursuit of proper working conditions. The
denial of camp access to legal service providers thus can effectively nullify migrants’ rights to
work and receive fair remuneration and violates Article XIV of the American Declaration and
Article 5(e)(i) of the CERD.
34
Id. at 16. 35
Id. at 18. 36
ERIN ROBINSON ET AL., WAGES, WAGE VIOLATIONS, AND PESTICIDE SAFETY EXPERIENCED BY MIGRANT
FARMWORKERS IN NORTH CAROLINA, 7 (2011). Migrant farmworkers who come to the United States on H-2A visas
face special risks: they have no choice but to work for their sponsoring employer, as their visa imposes a temporary,
non-immigrant status that ties them to particular employers and makes their ability to obtain a visa dependent on the
willingness of the employer to make a request to the U.S. government. This places the workers in an employment
situation where they have no power to assert discontent with their situation, for fear of deportation or being denied
future sponsorships. Even if protections are available, the likelihood of enforcement remains low due to these fears.
See also, HUMAN RIGHTS WATCH, UNFAIR ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION IN THE UNITED
STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS, 151 (2000). 37
Where minimum wage protections do exist, some migrant workers do not even know which ones apply to them, as
AWPA provisions ensuring disclosure of job terms and conditions are not afforded to H2A temporary agricultural
workers, small farm employees, or year-round farmworkers in many industries in the United States. 8 iii. Health and Legal Aid Workers’ Limited or Nonexistent Access to Migrant
Labor Camps Divests Migrant Farmworkers of Their Right to Health and
Preservation of Well-Being
Finally, limitations on access to migrant labor camps deprive farmworkers of their right
to health and preservation of well-being, a right guaranteed under Article XI of the American
Declaration (ensuring every person’s right to preserve his or her well-being through “sanitary and
social measures relating to food, clothing, housing and medical care”) and Article 5(e)(iv) of CERD
(providing for the rights of public health and medical care without discrimination).38 Again, this
issue presents itself as a dual problem. First, farmworkers denied access to legal representatives
have few means by which to enforce their existing legal rights to health and well-being, fight for
greater rights protections, and ensure that employers provide them with safe and sustainable
working conditions. Migrant farmworkers already face extraordinary on-the-job dangers, dangers
from which they are only minimally protected under law. Injuries and illnesses disable farmworkers
at a rate three times that of the general population, and work-related injuries at labor camps cause
death at a rate more than seven times higher than that experienced by workers in general.39
In one case, a 68-year-old diabetic farmworker suffering from a severe and painful dental
abscess was told that if he left the camp to see a dentist, his position would be terminated.40 In
another incident, a camp manager opened gunfire on a migrant worker who had angered him,
injuring the worker’s leg.41 In another case, a nurse in Maryland was informed of at least one
migrant who had been beaten by a farm owner until he was bloody in the face. He later
disappeared, and none of the workers could account for his whereabouts at the time of her
testimony.42
While the AWPA provides health and safety standards for farmworker housing and
transportation, it does not apply these provisions to year-round workers in many industries (such
as those employed at dairy and egg farms), and excludes temporary workers on H-2A visas and
certain small employers.43 The federal agency charged with regulating workplace safety, the
Occupational Safety and Health Administration (“OSHA”), has authority to enforce field
sanitation standards only for farms with 11 or more employees, leaving one third of all
farmworkers unprotected.44 And the Environmental Protection Agency (“EPA”), which has
responsibility for enforcing sanctions against employers who use prohibited agricultural
38
American Declaration, Article XI; CERD, Article 5(e)(iv). 39
DENYING ACCESS TO MIGRANT LABOR CAMPS, supra note 33, at 16. 40
SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Appendix D, Attachment 8, page 3. 41
Id. 42
Id. 43
FARMWORKER JUSTICE, supra note 2, at 4. 44
Bon Appétit Mgmt. Co. Foundation & United Farm Workers, Inventory of Farmworker Issues and Protections in
the United States, at 27 (Mar. 2011), available at http://www.ufw.org/pdf/farmworkerinventory_0401_2011.pdf. 9 pesticides, has failed to protect workers because of “infrequent inspections and weak
enforcement”—even though the EPA estimates that 10,000-20,000 farmworkers are poisoned on
the job due to pesticide exposure every year.45
Given these harsh realities, the denial of labor camp access to outreach workers only
serves to exacerbate and perpetuate ongoing violations of migrant rights to health and wellbeing. Farmworkers unable to seek out legal recourse for subjection to dangerous, inhospitable
or unsanitary living conditions must often continue to endure them, and face the constant threat
of illness, or even death, that such conditions create. This situation is reflected in the experience
of Rodrigo Falcon Analiz, a migrant farmworker in North Carolina who sought workers’
compensation for a fractured foot. When Mr. Falcon Analiz sought much-needed legal assistance
from Legal Aid of North Carolina in applying for workers’ compensation benefits, Legal Aid
staff members were harassed and assaulted by Mr. Falcon Analiz’s employer and subjected to
questioning by local deputies.46 In the audio recording of the employer's 911 call, the grower
states that the injured worker should not have called Legal Aid to receive legal information or to
take legal action because, in the grower's opinion, he was already receiving workers'
compensation benefits.47 The denial of health workers’ access to labor camps effectively denies
health care to farmworkers. It means that migrants like Mr. Falcon Analiz cannot seek remedies
for the injuries they suffer, and that their right to preserve their health and well-being is clearly
violated.
Second, denial of labor camp access to outreach workers directly prevents farmworkers
from receiving crucial medical care that such staff can provide. As farmworkers do not receive
employment-related benefits such as health or disability insurance, and are almost always at the
mercy of their employers for transportation from labor camps to medical facilities, outreach staff
who visit labor camps often represent migrants’ only source of medical care and attention.48 Yet
like legal aid workers, healthcare staff often face severe barriers and physical threats, as
discussed above, when seeking to access migrant labor camps to provide basic medical services
to workers.
The United States’ failure to address deficiencies in existing law and procedure that
enable these rights violations contravenes Article XI of the American Declaration and Article
5(e)(iv) of the CERD.
45
SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at 7; Pesticide Safety, FARMWORKER JUSTICE, Website
Information Page, “Occupational Safety and Health: Pesticide Safety,” available at
http://www.farmworkerjustice.org/content/pesticide-safety (last visited Jan. 20, 2014).
46
See Declaration of Rodrigo Falcon Analiz, on file with Petitioners. 47
Transcript of September 11, 2013 Robertson 911 call, on file with Petitioners. 48
SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Appendix B, page 1. 10 iv. Migrant Workers’ Inability to Access Legal Service Providers and Outreach
Workers Violates Their Rights to Freedom of Assembly and Association,
Access to Human Rights Information and to Seek Redress for Human Rights
Violations
The rights to freedom of assembly and association recognized under Article XXI of the
American Declaration, Article 21 of the ICCPR and Articles 5 through 8 of CERD extend to
migrant farmworkers seeking to promote and defend their human rights, and the human rights of
their coworkers and families. As the examples enumerated above illustrate, the U.S.
government’s failure to protect farmworkers, as human rights defenders, includes the migrants’
inability to seek and obtain information related to human rights from outreach workers and legal
service providers; to engage in freedom of association, and to form or join labor unions (even in
the limited states where such rights are legally protected); to seek meaningful redress against
growers’ wage theft and other abusive practices; and to solicit, receive and utilize resources for
the purpose of protecting their human rights. The Declaration on Human Rights Defenders
further recognizes each of these rights.
Due to migrant farmworkers’ geographic, linguistic and cultural isolation, the violation of
unhindered access to and free communication with non-governmental and intergovernmental
organizations (such as law enforcement or other local or state complaint bodies) compounds the
gravity of limiting farmworkers’ ability to exercise their rights as human rights defenders.49 The
accounts of farmworkers threatened with termination and deportation when protesting harsh or
unjust treatment, and examples such as Mr. Falcon Analiz’ harsh treatment and interrogation by
local police following his attempt to access legal services discussed above, demonstrate the type
of retaliation farmworkers’ face when defending their rights.
Compounding the denial of meaningful access to legal and other services is the U.S.
government’s failure to protect farmworkers’ rights as human rights defenders. The U.S.
government has not guaranteed farmworkers’ right to collectively organize or access to judicial
remedies (including legal assistance and information). To allow migrant farmworkers to enjoy
their rights as human rights defenders, the U.S. government must make efforts to educate local
law enforcement, elected officials, employers and state agencies about the rights of migrant
farmworkers to act as defenders and provide access to legal service providers and outreach
workers to fulfill its obligations under the American Declaration, ICERD and the ICCPR.
III. CONCLUSION
The signatories to this hearing request are part of a national community of service
providers and human rights advocates who have long sought to ensure the rights of migrant
farmworkers, through local, state, and national advocacy, direct representation, and organizing.
Despite their individual and collective actions, the rights associated with migrant labor camp
access continue to be denied. The coalition is therefore seeking a hearing before the Inter 49
See, REPORT OF THE SPECIAL RAPPORTEUR ON EXTREME POVERTY AND HUMAN RIGHTS, U.N.
General Assembly, A/67/150, 67th Session, 9 Aug. 2012, at ¶¶10-13; 21; 24. 11 American Commission on Human Rights, in an effort to engage the U.S. government in a critical
dialogue that will move towards guaranteeing rights to accessing farmworker labor camps, and
the protection of the underlying rights that are violated when such access is denied. The United
States has failed to respond to a December 2012 communication from the UN Special
Rapporteurs on Extreme Poverty and Human Rights, Migrants, and Human Rights Defenders.
The signatories below therefore seek an opportunity to bring the United States to a hearing
before the Commission to respond to the rights violations asserted herein.
The signatories respectfully request, as well, the following:
We respectfully request a site visit to investigate and bring attention to rights violations
inherent in and resulting from denial of free and unhindered migrant labor camp access.
We further request the Commission recommend the U.S. government respond to the
United Nations Special Rapporteurs' December 2012 request for information on what measures
are being taken to protect the right of access to labor camps (submitted in conjunction with
hearing request).
We further request recommendations that the U.S. take affirmative measures to provide
for and ensure the right of freedom of assembly and association, freedom from arbitrary arrest,
the right to personal security, the right to due process, and the right to non-discrimination of
outreach workers as well as farmworkers through ensuring migrant labor camp access. Such
measures could include:
(1) U.S. Department of Justice, through its statutory authority found in 42 U.S.C. § 14141
investigate and monitor local law enforcement agencies, and monitor actions that
interfere with the right to migrant labor camp access through intimidation or threats of
arrest.
(2) U.S. Department of Labor use and enforce existing regulations, policies and practices that
support the right of access for outreach workers and:
-­‐ Increase the agency's role in investigation and enforcement of access rights
violation;
-­‐ Collaborate with state and local mechanisms to ensure effective protection of
human rights defenders and migrants;
- Utilize Coordinated Enforcement Committees mandated by Wagner-Peyser Act,
(29 U.S.C.S. 49, et seq.) regulations to ensure state workforce agencies, state
monitor advocates and other local mechanisms are taking action as needed to
enforce the right of access. This would include training of federal, state and local
officials related to the right of access by outreach workers. State monitor
advocates would be responsible for reporting of observed interference with
outreach workers' right of access;
-­‐ Condition farm labor contractors' registration certificate, and housing
authorization, on adherence with the right of access for outreach workers;
12 We further recommend the following measures for employers utilizing the H-2A federal
guestworker program:
-­‐ Enforce regulation prohibiting unfair treatment (20 C.F.R. §655.135(h)) as it
applies to the right of access and make this clear in clearance orders;
-­‐ Deem denial of access rights to outreach workers a substantial violation of a
material term or condition of the job order justifying debarment under 20
C.F.R. §655.182; and,
-­‐ Require that access rights be included in the working conditions investigated
during field checks executed pursuant to 20 C.F.R. §653.503.
We further recommend the U.S. government develop a complaint mechanism for outreach
workers at the U.S. Department of Labor or U.S. Department of Justice to track violations
committed by growers and local law enforcement agencies; the development of policies and
procedures for responding to those violations; and mechanisms to monitor and investigate
recurring problems.
Finally, we recommend the U.S. government educate the public and government agencies,
including local law enforcement agencies, city and state elected officials, and state regulatory
agencies about the rights of human rights defenders, who they are, and the range of rights they
seek to protect.
***
We therefore respectfully request a thematic hearing before the Commission to address
the denial of access to migrant farmworker labor camps and the abrogation of farmworkers’
rights as human rights defenders. We further urge the U.S. government to take measures to
ensure the rights guaranteed under the American Declaration, the ICCPR, and ICERD, as well as
the principles set forth under the UN Declaration on Human Rights Defenders.
Respectfully Submitted,
Sarah Paoletti, Esq.
Practice Associate Professor
Director, Transnational Legal Clinic
Sunita Patel, Esq.
Visiting Clinical Supervisor and Lecturer
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
On behalf of below signatory organizations:
The Legal Aid Bureau, Inc., or Maryland Legal Aid, is a state-wide non-profit law firm that has
provided free legal services to low-income people and communities for over 100 years. It is the
13 first legal services organization in the country to adopt a human rights framework and attempts
to use international human rights norms in advocating for real and sustainable change in the lives
of the poor and disenfranchised. Maryland Legal Aid’s Farmworker Program serves
agricultural workers in Maryland and Delaware. www.mdlab.org
The Farmworker Unit of Legal Aid of North Carolina is a non-profit legal services
organization that provides free legal services to agricultural workers throughout North Carolina.
www.farmworkerlanc.org
Texas RioGrande Legal Aid (TRLA) is a non-profit legal services organization that provides
free legal services to low-income residents in 68 counties of Southwest Texas. It is the third
largest legal services provider in the country. TRLA serves agricultural workers throughout the
State of Texas and in six southeastern states through its project. www.trla.org
The Border Agricultural Workers Project is based in El Paso, Texas and works in the USMéxico border region around El Paso, Texas and was initiated with the objective of improving
the lives of the poor agricultural workers and their families. www.farmworkers.org/bawppage
Center for Constitutional Rights, located in New York, NY is dedicated to advancing and
protecting the rights guaranteed by the United States Constitution and the Universal Declaration
of Human Rights. CCR is a non-profit legal and educational organization committed to the
creative use of law as a positive force for social change. http://ccrjustice.org/
The Section for Underserved Occupational Populations of the American College, Inc.
(ACOEM) provides a forum for American College of Occupational and Environmental
Medicine (ACOEM) members who are interested in the special occupational health problems
experienced by underserved populations which include more than 1.5 million migrant and
seasonal agricultural workers; migrant construction workers, off-shore commercial fisherman,
loggers, and hospitality workers. www.acoem.org/underserved_section.aspx
Advocates for Basic Legal Equality (ABLE) is an unrestricted legal services program that
represents low-income persons and groups in civil matters. The Migrant Farmworker and
Immigration Program of ABLE provides free legal services to agricultural workers throughout
Ohio. www.ablelaw.org
Hispanic Affairs Project (HAP) is a non-profit organization serving the Hispanic immigrant
population in six communities in Western Colorado. HAP envisions Western Colorado
communities where cultural diversity is recognized and Hispanic immigrants have opportunities
to contribute as integral members through active civic participation. A key component of HAP’s
work is outreach to migrant agricultural workers who reside in employer provided housing.
hapgj.org
California Rural Legal Assistance (CRLA) serves low-income individuals residing in over 22
California counties. As rural areas and small cities of California continue to change, so does our
outreach and service to diverse communities. Today, CRLA serves a wide array of clients, while
14 maintaining specialized programs that focus on services for farmworker populations.
www.crla.org
Centro de los Derechos del Migrante, Inc. (CDM) empowers Mexico-based migrant workers
to defend and protect their rights as they move between their home communities in Mexico and
their workplaces in the United States through education, training and outreach, referral services
and direct representation, and policy advocacy. www.cdmigrante.org
El Comité de Apoyo de las Trabajadores Agrícolas (CATA) was founded by migrant
farmworkers in southern New Jersey in 1979. Today, CATA works and has members in New
Jersey, Pennsylvania, Maryland and Delaware. CATA is governed by and comprised of
farmworkers who are actively engaged in the struggle for better working and living conditions.
CATA's mission is to empower and educate farmworkers through leadership development and
capacity building so that they are able to make informed decisions regarding the best course of
action for their interests. www.cata-farmworkers.org
The Migrant Farm Worker Division of Colorado Legal Services is a non-profit legal services
organization that provides free legal services to agricultural workers throughout Colorado
coloradofarmworkers.org
Farmworker Association of Florida (FWAF) has been building power among Florida’s
farmworkers for more than 25 years. With roots in the Hispanic, Haitian, and African-American
communities across Central and South Florida, the organization has a solid history of leadership
development and generating effective action for social change. As a grassroots, farmworkermembership, community-based organization, FWAF is lead and governed by the farmworker
communities in which its works. floridafarmworkers.org
Farmworker Justice is a nonprofit organization that seeks to empower migrant and seasonal
farmworkers to improve their living and working conditions, immigration status, health,
occupational safety, and access to justice. We work with farmworkers and their organizations
throughout the nation. www.farmworkerjustice.org
Farmworker & Landscaper Advocacy Project (FLAP) is committed to improving the
working conditions for thousands of migrant and seasonal workers in the agricultural and
landscaping industries in Illinois through employment related litigation, outreach and education.
fwadvocacy.org
The Farm Labor Organizing Committee, AFL-CIO (FLOC), is both a social movement and
a labor union. Our immediate constituency is migrant workers in the agricultural industry, but we
are also involved with immigrant workers, Latinos, our local communities, and national and
international coalitions concerned with justice. The FLOC vision emphasizes human rights as the
standard and self-determination as the process for achieving these rights. We struggle for justice
for those who have been marginalized and exploited for the benefit of others and we work to
change the structures of society to enable workers to have a direct voice in their own conditions.
www.supportfloc.org
15 Hispanic Affairs Project (HAP) is a non-profit organization serving the Hispanic immigrant
population in six communities in Western Colorado. HAP envisions Western Colorado
communities where cultural diversity is recognized and Hispanic immigrants have opportunities
to contribute as integral members through active civic participation. A key component of HAP’s
work is outreach to migrant agricultural workers who reside in employer provided housing.
hapgj.org
Illinois Migrant Legal Assistance Project, a project of the Legal Assistance Foundation of
Metropolitan Chicago, provides free legal services to agricultural workers throughout Illinois.
www.lafchicago.org
North Carolina Farmworkers Project’s mission is to promote the organization of farm
workers so they can find solutions to their problems collectively, to promote the political
participation of workers and strive to improve their living conditions. The Project focuses on
farmworker health. www.ncproyecto.org
Northwest Workers' Justice Project is a non-profit dedicated to improving enforcement of the
workplace and organizing rights of low-wage, contingent, and immigrant workers in the
Northwest, and especially in metropolitan Portland, Oregon. nwjp.org
North Carolina Justice Center’s mission is to eliminate poverty in North Carolina by ensuring
that every household in the state has access to the resources, services and fair treatment it needs
to achieve economic security. The North Carolina Justice Center is a leading progressive
research and advocacy organization and the state’s preeminent voice for economic, social and
political justice. www.ncjustice.org
Public Justice Center, located in Maryland, works with people and communities to confront the
laws, practices, and institutions that cause injustice, poverty, and discrimination. The Public
Justice Center advocates for Maryland’s low-income people in the courts, legislatures,
government agencies, and through public education and coalition building.
www.publicjustice.org
Southern Migrant Legal Services (SMLS). SMLS serves agricultural workers in the states of
Kentucky, Tennessee, Alabama, Mississippi, Louisiana and Arkansas.
www.trla.org/office/nashville-smls
The Southern Poverty Law Center is dedicated to fighting hate and bigotry, and to seeking
justice for the most vulnerable members of our society. Using litigation, education and other
forms of advocacy, we work toward the day when the ideals of equal justice and equal
opportunity will be a reality. SPLC employs a three-pronged strategy to battle racial and social
injustice: They track the activities of hate groups and domestic terrorists across America, and
launch innovative lawsuits that seek to destroy networks of radical extremists; they use the courts
and other forms of advocacy to win systemic reforms on behalf of victims of bigotry and
discrimination; and they provide educators with free resources that teach school children to reject
hate, embrace diversity and respect differences. www.splcenter.org
16 The Migrant Farmworker Unit of South Carolina Legal Services (SCLS) provides free legal
services in a wide variety of civil (non-criminal) legal matters to eligible low income residents
of South Carolina. SCLS is a non-profit corporation, funded by grants from the federally funded
Legal Services Corporation, the South Carolina Bar Foundation, local United Ways, state court
filing fees, and other federal, state and local funding http://www.sclegal.org/
Student Action with Farmworkers (SAF) works with farmworkers, students, and advocates in
the Southeast and nationwide to create a more just agricultural system. Since 1992, SAF have
engaged thousands of students, farmworker youth, and community members in the farmworker
movement. SAF uses actions, presentations, publications and email alerts, to inform and
mobilize students and community members around current legislation, consumer boycotts, and
other justice efforts initiated by farmworkers. www.saf-unite.org
Vecinos, Inc., located in Sylva, North Carolina, provides health care to farmworkers in Jackson,
Swain, Macon and Transylvania counties through mobile medical outreach, case management,
and health education. www.vecinosinc.org
Contributing organizations:
These organizations provided information and/or technical assistance to the coalition of
advocates represented above, in developing a human rights response to the denial of access to
migrant farmworker labor camps, but are not complainants.
Through the Transnational Legal Clinic at the University of Pennsylvania Law School,
students represent individual and organizational clients in a myriad of cases and projects that
require them to grapple with international and comparative legal norms in settings that cut across
borders, legal systems, cultures, and languages. Founded in 2006, the Clinic has represented
individuals and organizations before the Inter-American Commission on Human Rights and
various UN bodies on issues pertaining to immigration, immigrant rights, and the rights of
migrant and other low-wage workers. https://www.law.upenn.edu/clinic/transnational/
For over 20 years, the Center for Human Rights and Humanitarian Law at the American
University College of Law has worked with students, faculty and the international legal
community to provide scholarship and support for human rights initiatives around the world. The
Center is dedicated to creating opportunities for students, practitioners and activists through
training, complementary education, outreach, workshops and conferences, and research and
publications.
http://www.wcl.american.edu/humright/center/
The Columbia Law School Human Rights Institute draws on Columbia Law School’s deep
human rights tradition to support and influence human rights practice in the United States and
throughout the world. The Institute focuses on three different axes of human rights (Human
Rights in the United States, Counterterrorism and Human Rights, and Human Rights and the
Global Economy) and works to build bridges between scholarship and activism, develop
capacity within the legal community, engage governments, and model new strategies for
progress. The Columbia Law School Human Rights Clinic works in partnership with the
17 Human Rights Institute to provide students with hands-on experience working on active human
rights cases and projects. http://web.law.columbia.edu/human-rights-institute
The Farmworker Project of Legal Services of New Jersey provides free civil legal assistance to
migrant and seasonal agricultural workers throughout New Jersey. www.lsnjlaw.org
18