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Legal Responsibility, Not Voluntary Codes of Conduct, Is Necessary to Ensure Ethical Trade

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Last month, I spoke about Out of Sight to a class at Brown. These were, naturally enough, pretty wealthy kids. They liked the book, which was assigned to them in a class, but found one thing uncomfortable. That was the open contempt I have toward corporate behavior, seeing them as enemies of both labor standards and environmental sustainability. In their questions to me, they kept coming back to this, asking about “good corporations” or voluntary codes of conduct. I of course rejected all of this, stating that even if you have a “good” CEO, if that person leaves, the corporate culture can very easily change and that the ultimate point of corporations is to profit, not be responsible citizens. This story about the berry company Driscoll’s, which claims to have a fair trade standards and advertises that they do, is why I feel this way.

Farm workers, mostly undocumented and Indigenous, doubled their movement for a union contract this year, inspired by the winning Fight for 15 campaign but demanding more.

“It’s almost the same fight,” Ramon Torres, berry picker and director of Families United for Justice, told teleSUR. The differences, though, are important.

Since most migrant farm workers do not have U.S. citizenship, they are not protected under labor law, nor by their employees, no matter how progressive their labor policy. They also see much more cases of child labor and of wage theft.

The fruit producer is heavily backed by supermarket chains like Costco and Whole Foods, who insist that its practices comply with fair trade standards.

After the Sakuma workers brought attention to their dismal conditions — poor housing, up to 15 hours of work a day without no breaks, racial harassment — Driscoll’s responded that, “Sakuma is in compliance with our standards and is making continuous improvements in providing a forum for open dialogue and empowerment for their farmworkers.”

Because Families United for Justice is not able to register as a union under state law, Driscoll’s said there is nothing else they can do.

Still, Torres said that it proudly distributes a sticker that guarantees fair trade practices, essentially a lie that covers up continuing mistreatment of its employers.

Simply put, voluntary fair trade standards without legal requirements are utterly meaningless. That doesn’t mean they are terrible in themselves or anything. If a company wants to engage in fair trade standards and then actually does so, then good. But if nothing is forcing them to and there’s no monitoring of it by outside organizations, the chances is that it’s just the labor version of greenwashing.

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  • Frank Wilhoit

    italic tag not closed after book title

  • Nobdy

    Based on the fact that this whole blog is now in italics methinks that there may be an unclosed tag in this post.

    Unless it is some kind of weird intentional commentary on how a small act of pollution can fundamentally change a whole ecosystem.

  • Loomis, close your fucking italics tag before we all get hoarse!

  • Crusty

    The detail/assumption that these were pretty wealthy kids really ties the whole piece together.

  • Nobdy

    Since this farming is taking place in California why should we be regulating the supply chain instead of just directly regulating the labor? I understand the argument for overseas but it seems to me that for U.S. based operations direct labor regulation is more efficient. It is better to regulate the entity closest to the labor that you have regulation over for a variety of reasons. Here the U.S. has jurisdiction over the actual farm.

    • Vance Maverick

      Both/and? If California labor becomes even marginally more troublesome for the producers, they’ll race to the bottom by moving production to Braavos or wherever.

      • Nobdy

        The farm owners are unlikely to just up and sell their land and move over some labor regulations. Farm land is not nearly as portable as even a factory is.

        • rhino

          Sort of. It can become economically unfeasible to grow certain crops, so the land-use changes. That’s the original reasoning behind farm subsidies, the idea that it’s a bad idea to outsource all of your basic food production. How sound the reasoning is, is another question.

          I have a friend who runs a large cattle ranch and feedlot. One of the only truly wealthy men I know, and the only one I’ve even met who isn’t an asshole. My father taught him Finance in University, and I have been shooting his deer and drinking his wine since I was 12 years old. He currently grows all his own sileage (look it up) on his own land, but economic conditions are such that it is currently not the most efficient option, so he is debating outsourcing it. If he does, many square miles of land will switch to some other use…

  • Matt

    I wish people would be a bit more careful about saying things like this:

    Since most migrant farm workers do not have U.S. citizenship, they are not protected under labor law, nor by their employees, no matter how progressive their labor policy.

    Labor law applies to everyone in the US. Citizenship doesn’t matter at all. Even people working without authorization are covered, though they often (but not always!) face serious up-hill battles in enforcement. (I have friends who do legal work with farm workers and others, and enforcement, while hard, isn’t impossible.) I’m not sure what the last part is supposed to mean. There are real and important issues here, but I do wish that those writing about them would put a small amount of effort into getting things right and properly stating what the real problems are. It’s not that hard.

    • MaxUtility

      Yeah, the original article is a bit confusing about the legal issues involved. I think that group they are mainly discussing cannot legally register as a union which is part of the problem. But they also discuss guest workers replacing these workers which makes me think they are talking about undocumented. While they may technically be covered by labor laws in some sense, of course you cannot get any enforcement of laws when that is just as likely to get the workers booted as to actually address any of the actual conditions.

      OF course, the broader point is that voluntary measures by corporations or verification systems like “fair trade” labeling are very weak and prone to co-option and cheating.

    • efc

      All people in the US are covered by labor law, but Hoffman Plastics ruled undocumented workers were covered by the NLRA but were not eligible for back pay from their employer’s violation.

      “We affirmed the Board’s determination that the NLRA applied to undocumented workers, reasoning that the immigration laws “as presently written” expressed only a “ ‘peripheral concern’ ” with the employment of illegal aliens. 467 U.S., at 892 (quoting De Canas v. Bica, 424 U.S. 351, 360 (1976)). “For whatever reason,” Congress had not “made it a separate criminal offense” for employers to hire an illegal alien, or for an illegal alien “to accept employment after entering this country illegally.” Sure-Tan, supra, at 892—893. Therefore, we found “no reason to conclude that application of the NLRA to employment practices affecting such aliens would necessarily conflict with the terms of the INA.” 467 U.S., at 893”

      But:

      “We therefore conclude that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. However broad the Board’s discretion to fashion remedies when dealing only with the NLRA, it is not so unbounded as to authorize this sort of an award.”

      Employment laws, like the Fair Labor Standards Act still apply and to the best of my knowledge the SCOTUS hasn’t been able to gut the remedies for violations in regards to undocumented workers as of yet.

      Edit: The NLRA is the National Labor Relations Act which is the law governing union/employer/employee relations. The NLRB is the National Relations Board, the federal agency with oversight over the NLRA.

  • DrDick

    Relying on the good faith and honor of a corporation, or its CEO is a fool’s errand and recipe for disaster.

    • KithKanan

      Industry-wide regulation, properly enforced, really is necessary. It prevents bad companies from crowding good companies out of the market in a race to the bottom.

    • JustRuss

      Indeed. If you buy into ethos that the corporation’s only mission is to increase shareholder value, and hell of a lot of people do, then what we think of as “good” behavior is in fact unethical, because treating employees decently and protecting the environment take money that “should” be going to shareholders. You can’t square that circle. And yet the folks who insist that we can trust corporations to police themselves are the same ones who will forgive any corporate behavior because “they’re required to maximize profits for their shareholders.”

      • DrDick

        That is certainly what they teach in business schools.

  • Robespierre

    “What about the good firms?” is like saying “What about people who don’t commit crimes?”

    What kind of argument is that?

  • rhino

    I have never understood why the concept of corporate personhood can’t simply be extended. Expect the same moral, ethical, and legal standards of corporations, and then make the executives liable for infractions.

    The reason for having incorporation shield from liability is to protect investors, who have no real control over behaviour, why on earth should this extend to the people who make the decision?

    If criminal behaviour happens, all the people involved in it need to be punished as though that corporation was a person. If Joe Blow dumps hazardous waste, Joe Blow goes to jail, along with the guy who told him to, and their direct report, and all the way up the line to the top.

    This shit would stop almost instantly. The guys at the bottom wold be scared to follow illegal orders, the guys in the middle wold make damned sure any bad behaviour under them was rooted out and stopped, and the guys in charge would be *highly* motivated to stop turning a blind eye, because plausible deniability would no longer be a thing.

    Of course, I know why this doesn’t happen. What I don’t get is why it doesn’t seem obvious to everyone.

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