Labor Flexibility Violates Labor Rights in Central America

By Vanessa León, Intern, International Labor Rights Forum

Our close friends over at La Campaña Regional Contra la Flexibilidad Laboral (Regional Campaign against Labor Flexibility) recently published a report entitled, Labor Flexibility Violates Labor Rights in Central America: Tendencies & Cases. As hinted in the name, the report is consists of a series of preliminary reports drafted by national members of the Campaign during 2008 and 2009. The Campaign’s members in Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica and Panama all contributed in creating a framework of cases explaining how labor flexibility is used as a strategy to maximize profits though the direct violation of workers’ rights. Labor flexibility, defined as the freedom of companies to hire and distribute workforce according to the interests and needs of the company, reduces and often eliminates rules and regulations of the labor market that protect workers’ rights.  Although a direct violation to labor rights, the elimination of such rules is unfortunately considered a removal of “barriers to the economic development of the region” by the companies promoting flexible labor practices.

The report focused on six key violations that flexibility strategies impose. The first is the use of flexible employment contracts; substituting labor contracts for civil or more commercial contracts takes away the most immediate instrument a worker has to his or her rights. By disguising the employment relationship with such “contracts”, companies avoid the minimum social and ethical guarantees established by law for the protection of workers. For example, in situations involving subcontracting or home-based work, workers do not receive the benefits, such as minimum wage and the right to unionize, that formal workers are entitled to. The outcome of this practice oftentimes drives subcontracted or home-based workers, usually women, children and migrants, even deeper into poverty, creating an endless cycle of vulnerability in the workplace.

Second, the Campaign’s report stressed how labor flexibility affects the right to job security. Firing masses of workers citing “economic reasons”, replacing staff frequently so as to prevent anyone from reaching seniority, and shutting down a factory and re-opening it under a different name are just a few of the strategies that companies partake in the effort to evade paying workers their due compensation at the time of dismissal. These violations threaten the principle of continuity in the workplace that provides not only job security but also economic, social and psychological stability as well. Without job security, workers hesitate to fight for their rights out of fear of losing their job, thus forcing them to put up with labor rights violations on a daily basis.

Furthermore, flexibility strategies have enabled companies to circumvent the legislation enacted by all Central American countries concerning the right to limits on working hours. There are many cases where companies have illegally expanded regular working hours every day of the week. Even if workers get paid overtime, the strategy is still in violation of the right to limited working hours because overtime is perceived as “ordinary”.  Other ways organizations are abusing this right is eliminating rest periods so as to increase working hours and establishing contracts based on production goals rather than workdays, forcing workers to work more in order to reach a production target that cannot otherwise be met in eight hours. As noted by the Campaign, overwork decreases a worker’s physical and psychological health. Workers risk diseases and accidents and are deprived of pursuing other activities not associated with work, like education, recreation and time with their families.

Essentially, infringement of the right to working hours directly affects a worker’s right to a living wage. These two abuses go hand in hand because as workers are being overworked, they rarely see an increase in their finances.  Ideally, the expansion of working hours should result in workers being paid at higher values since minimum wage is based on an ordinary workday. Set production targets that increase the time, amount and intensity of work unfortunately do not do the same for pay. Likewise, bonuses that are promised for reaching such fluctuating targets are almost never paid to the workers as these unrealistic goals are rarely met.

Another parallel distinction is that flexible labor strategies disregard the right of working people to social security. As the Campaign mentioned earlier, the uncertainty of job security has enabled companies to not pay workers their due compensation and benefits at the time of [unfair] dismissal, including social security. For example, it is extremely difficult for a worker to claim or even track down the social security owed to them when their employer organization has shut down and re-opened under a different name. Additionally, companies take it even a step further in sometimes acquiring in-house physicians that are hired to protect the institution’s interests. Workers are treated without having to leave work and oftentimes forced to keep working despite having fallen ill.

Lastly, the report highlights the effects that flexible labor strategies have on the right to organize unions. The Campaign indicates that the right to trade union organization is made up of three basic rights: the rights to organize, collectively bargain and strike. Some of the most common flexible labor tactics thwart all said rights. For example, outsourcing, temporary contracting, subcontracting and utilizing commercial contracts in place of labor contracts all prohibit workers from being recognized as formal workers and therefore impede on their right to form unions. Moreover, union members and especially leaders are gravely persecuted when attempting to exercise any of their due rights. From surveillance to public arrests during demonstrations, union affiliates endure harassment on a daily basis and in the most severe of cases, unjust assassination.

We thank the Campaign for their informative report on the major labor rights violations occurring in Central America. It’s important to note that any flexible labor strategy that abuses workers’ rights also abuses human rights. After all, workers’ rights should not be seen as “barriers to the economic development of the region” but rather the essentials to developing the sustainable equitable development of a region. To learn more about the violations mentioned above, check out ILRF’s Freedom at Work project and join workers in the their fight to rights in the workplace.