A PRIMER ON ACCOUNTABILITY FOR CORPORATE ABUSE BY MAQUILADORA EMPLOYERS

ACCOUNTABILITY FOR CORPORATE ABUSE AT THE MEXICAN BORDER — ADMINISTRATIVE COMPLAINTS V. LAWSUITS**
by Elvia R. Arriola, J.D., M.A., Executive Director, Women on the Border

Justice in the maquiladoras can be an arduous and elusive project. While the labor rights articulated for Mexican workers are generous the biggest obstacle is enforcement of those rights. A worker who doesn’t know her rights is unlikely to know how to navigate the system of compliance under her country’s system. It is even more frustrating to discover that a factory is actually owned by a parent company headquartered far away in the Northern U.S. Distance, lack of access to the English language and lack of funds to hire someone to represent her present the typical obstacles.

Meanwhile the rights of human dignity guaranteed to workers by their Constitution are violated day in and day out. Now and then a worker can get help from supportive groups who have learned how to work the system and who may even seek alternative routes to seeking justice against corporations that don’t respect Mexican labor and health and safety laws or human rights principles. The following is an attempt to summarize the basic approaches such a worker might take.  Continue reading Accountability for Corporate…

JUSTICE IN THE MAQUILADORAS – GRIEVANCES, NAFTA COMPLAINTS, LAWSUIT?

Assume a worker named Lucia works for an electronics assembly factory that is just one of many such plants located in several towns along the Mexican border. All the factories are in turn owned by an American, U.S.-based multinational corporation. Because of issues that have involved wages or safety concerns she has turned to other workers for help in finding out how to bring about some change in her workplace. Soon she learns that she has rights under Mexican Labor Law (which happens to be based in the Mexican Constitution).

Lucia also realizes that although there are things she can do under the labor arbitration system, that there are some issues she may not be able to address by complaining for herself. Some of the problems are bigger than her or a few workers, like the lack of good safety clothing or masks or ventilation and exposure by some of her co-workers to dangerous chemicals that come in containers written in English they cannot read. She wants to understand if there is anyway to make the employer, or the owner of the employer, probably a huge multinational company (MNC) responsible. She wants them to make fundamental changes.

BASED ON THIS HYPOTHETICAL PERSON THE FOLLOWING WILL DETAIL THREE BASIC APPROACHES FOR LUCIA TO CONSIDER IN SEEKING JUSTICE:

A) a labor grievance using the labor arbitration system set up under Mexican law

B) an administrative complaint invoking the North American Agreement on Labor Cooperation (NAALC), aka the ‘NAFTA COMPLAINT’; and

C) a lawsuit in a U.S. court against the parent company of a maquiladora based in Mexico.

I. THE LABOR GRIEVANCE PROCEDURE IN HER OWN COUNTRY.

1. What are the most basic laws of Lucia’s own country that may apply to her concerns for justice against a factory?

The following are among the most relevant:

a) The Federal Labor Law (Ley Federal del Trabajo) http://natlex.ilo.org/scripts/natlexcgi.exe?lang=E

b) The General Health Law (Ley General de Salud) Download a pdf of Ley General de Salud pdf

c) The Social Security Law (Ley de Seguro Social) http://natlex.ilo.org/scripts/natlexcgi.exe?lang=E

d) Federal Regulations on Safety, Health and the Workplace Reglamento Federal de Seguridad, Higiene y Medio Ambiente de Trabajo

2. What kind of help can she get under the labor law enforcement system of her own country?

A worker can file an unfair labor practice charge before the Secretary of Labor in Mexico. It is best if she consult a Mexican attorney who is also qualified to practice before the labor board.

The most successful claimants on these grievances have not acted alone in efforts to challenge the unfair treatment by their supervisors or their unresponsive unions. Successful workers have usually worked in community with other workers who have had experience in filing such grievances or who support their cause. Numerous examples of such community effort is found in the activities and stories of border empowerment groups like the Comité Fronterizo de Obreras (CFO) (Women Workers at the Border). More about CFO

A fairly recent example of such community action involved the claims of five workers in Piedras Negras who were fired in the spring of 2000 by Dimmit Industries (now defunct) for trying to organize for justice in their factory. With the help and support of other CFO members and co-workers, the four women and one man endured lost wages and blacklisting for over a year before the Labor Board determined that they had been unjustly fired. An order was issued to pay for their lost wages and severance earnings they were entitled to under the Ley Federal del Trabajo.

II. THE NAFTA/NAO STRUCTURE

The NAFTA complaint process is purely administrative. It is however, a potentially powerful organizing tool for workers. It involves the gathering of evidence and personal testimony about the problems for workers that are illegal under existing labor or healthy and safety laws.

The labor side agreement to the North American Free Trade Agreement (NAFTA), known as N.A.A.L.C. (North American Agreement on Labor Cooperation) http://www.naalc.org promises the improvement of “working conditions and living standards in each Party’s territory.”

Throughout this section when I say “NAFTA Complaint” I am referring to the process of invoking rights under the NAALC, the labor side agreement to NAFTA.

A NAFTA complaint has to be made against the country in which the company operates. In the case of maquiladoras a charge against the Mexican government would be submitted to the National Administrative Office (NAO) in Washington D.C.http://www.dol.gov/ilab/programs/nao/main.htm
The NAO’s public hearings, however, can be held away from Washington. In a fairly recent case involving manufacturing and assembly plants for automotive components in the Matamoros/Brownsville region (the Custom Trim Case) http://www.dol.gov/ilab/media/reports/nao/pubrep2000-1.htm for example, the NAO set up a public hearing in San Antonio, Texas on December 12, 2000.

When it receives a submission under NAALC the NAO follows up with an investigation of all the facts gathered, including the testimony at the public hearing. It then issues within a few months a thorough report of findings on whether or not Mexican government officials properly enforced their labor, health and safety standards.

3. What is involved in the filing of a NAFTA Complaint?

As described above it is generally a complaint intended to remind the Parties to the NAFTA that a promise was made to treat workers fairly in pursuit of free trade and open economic borders. Because it is about labor cooperation the hearings are meant to be public and anyone can attend, in theory, because citizens of each country that signed NAFTA have an interest in free trade actually fulfilling the promise of “mutual benefit.”

However, critics (and there are many) of both NAFTA and the labor side agreement known as NAALC do not think that the promises have been fulfilled. For public review and criticism of the effectiveness of NAALC a few years after its implementation follow the link below. http://www.naalc.org/english/publications/review_annex5_us.htm

4. What are the terms of NAALC that explain this public scheme of enforcement of a nation’s trade agreement?

NAALC sets out a series of labor related “obligations” to be met by the member countries. But, rather than enunciating specific criteria by which to judge existing labor conditions or specific standards by which to rate law enforcement, the Agreement, with great deference to each member nation’s laws and regulations, instead imposes minimum obligations on members.

The Agreement primarily encourages member nations to follow their existing labor laws “through appropriate government action”, and it mandates that persons with legally recognizable interests have recourse to their nation’s “administrative, quasi-judicial, judicial or labor tribunals” for the enforcement of labor laws.

Finally, members are required to ensure some adequate measure of due process (according to local Constitutional notions of fairness as opposed to Universal standards of fairness), including public hearings and with final decisions put into writing. But sometimes the language of the Agreement indicates the weakness identified by critics. For example it states that those decisions would be “preferably” the rationale for a ruling by the NAO.

5. Who are the people actually enforcing this NAFTA complaint process?

The NAALC administrative apparatus is known as the Commission for Labor Cooperation “COMM FOR LABOR COOPERATION,” (“the Commission”). It is made up of the Ministerial Council and the Secretariat and assisted by a National Administrative Office (or NAO) established within each country.

The Ministerial Council (“the Council) is staffed by cabinet level appointees from the US, Mexico, and Canada.

As the governing body of the Commission, the Council establishes the priorities and sets the agenda for the Secretariat or any other groups convened by the Council.

The Secretariat operates to support the Council, both by drafting the Commission’s budget for the Council’s approval and by preparing background reports and studies on labor issues in member countries.

6. Which is the most important body in this whole scheme?

It is the NAO. The charge is filed with the NAO, the NAO sets up the public hearing, an NAO official presides at the hearing, etc. It is the NAO that will ultimately issue an opinion.
The NAOs serve as the interface between member countries, between the government agencies within each country, and between each country and the Secretariat.

Each NAO in every country, also solicits public commentary on the labor practices of other member countries, a listing of which is periodically published.

Public participation is further encouraged under the Agreement by allowing the creation of national committees in each country. Citizens of each nation, including labor and business organizations, may form a National Advisory Committee to advise their government on issues that arise under the agreement.

Representatives of federal, state or local governments may participate in Governmental Committees established for the same purpose.

7. Do non-public officials, i.e., ordinary citizens have a role to play in this process?

In theory yes, but the Agreement doesn’t explicitly encourage private citizen participation. While private parties are thus allowed the opportunity to publicly express their labor related concerns through the NAALC, the Agreement contains no provisions for private parties to take direct action against any party for compensation for their labor related injuries or to mandate the enforcement of existing labor laws.

The NAALC instead permits outside parties to submit their complaints to the Commission for dispute resolution, leading possibly to the issuance of a Final Report containing a “mutually satisfactory action plan”, by which the parties agree to resolve their dispute and carry out the recommendations of an arbitration panel established by the Council.

8. Can a country be filed for not abiding by the Agreement?

Only when the country complained against is found not to be fully implementing this action plan will monetary fines be assessed.

These fines may not exceed .007 percent of the total trade in goods between the countries in the most recent year on which data is available, and the money is to be spent by the Council to enforce labor laws in the country complained against. Even when this dispute system is operating efficiently, it can take well over two years for any final resolution to occur.

9. What kinds of labor matters does the NAO review?

Article 49 of the NAALC defines labor matters as:

laws and regulations, or provisions thereof, that are directly related to

(a) freedom of association and protection of the right to organize;
(b) the right to bargain collectively;
(c) the right to strike;
(d) prohibition of forced labor;
(e) labor protections for children and young persons;
(f) minimum employment standards, such as minimum wages and overtime pay, covering wage earners, including those not covered by collective agreements;
(g) elimination of employment discrimination….
(h) equal pay for men and women;
(i) prevention of occupational injuries and illnesses;
(j) compensation in cases of occupational injuries and illnesses; and
(k) protection of migrant workers.

10. Are NAFTA/NAALC complaints common?

Actually they are not. Since the signing of the NAALC in 1994 fewer than two dozen cases have been submitted to the NAO. One of the more recent cases receiving considerable press was filed by current and former workers of Auto Trim and Custom Trim/Breed Mexicana (“Custom Trim Case”pdf), the Coalition for Justice in the Maquiladoras and more than 20 additional unions and nongovernmental organizations in Canada, Mexico and United States.

The Custom Trim Case pdf was filed on July 3, 2000 and a decision largely in favor of the workers’ complaint was rendered on April 6, 2001. The lead attorneys worked out of the Human Rights Clinic at St. Mary’s University School of Law in San Antonio, Texas with the help of lawyers and student attorneys at Columbia College of Law in New York City. For over two years they worked on getting stories from workers about their injuries and medical problems, putting them together in sworn affidavits and using them together with scientific evidence to allege serious concerns about safety and health conditions in the factories that were located in Matamoros and Valle Hermoso, Tamaulipas and that were owned by Breed Technologies based in Lakeland, Florida.

11. Was this a complaint against Breed Technologies or against Custom Trim and Auto Trim?

No. This is the irony of a NAALC/NAFTA complaint. The companies were not the subjects of the complaint. While evidence and testimony may involve what goes on in a factory owned by a multinational corporation, the complaint involves getting the NAO to review compliance under NAFTA and NAALC by the host country, that is by a Party to the Agreement, in this case Mexico.

12. What were the problems raised by the workers’ testimony?

The workers in the Custom Trim Case pdf claimed that they suffered skin, respiratory, eye, central nervous system, and reproductive health problems due to their exposure to chemicals in their work which involved the assembly of steering wheels. They also claimed ergonomic ailments such as carpal tunnel syndrome and back and shoulder pain due to the repetitive nature of their work. And lastly they claimed that the workers who suffered these conditions were not properly treated or compensated.

13. How is the Mexican Government charged for responsibility for these problems?

The Custom Trim Case workers had to make a charge, not against their employers, but rather against the Mexican Government for its failure to communicate with workers about scheduled health and safety inspections the workers said had not been made, about its failure to ensure that workers received training in safety and health, medical exams, and adequate personal protective equipment; about the plant’s inadequate ventilation and improper functioning of safety and health committees and the plants’ improper reporting of workplace accidents and illnesses.

The point of the NAALC complaint then is to point the finger of blame towards the Mexican government for not doing their part in the free trade deal which is to not only invite in foreign investment but also to make sure that the companies don’t abuse the workers’ right to human dignity and safety and don’t violate international human rights principles.

14. What are the International Human Rights at stake in a case like the Custom Trim Case?

In addition to the claims involving Mexican labor and health and safety laws the petitioners claimed that Mexico was in violation of Conventions and Recommendations 155, 161 and 170 of the International Labor Organization (ILO) http://www.ilo.org, as well as the International Covenant on Economic, Social and Cultural Rights, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man , the Protocol of San Salvador, the Constitution of the World Health Organization pdf (WHO), and the constitution of the Pan American Health Organization (PAHO)

III. TAKING LEGAL ACTION IN THE COURTS AGAINST CORPORATE ABUSE IN THE MAQUILADORAS

16. Can an employer that is a subsidiary of a U.S.-American based multinational corporation be sued in the U.S. by Mexican workers?

This is not an easy answer. There are actually a number of ways a worker can try to seek justice against an American company that doesn’t involve going through the Mexican legal system. As noted earlier, one involves the filing of a grievance under the labor law scheme of her own country’s laws; another involves the filing of a “NAFTA (or NAALC Complaint).”

The third approach involves filing a lawsuit in a U.S. court against the parent company of the factory in Mexico, and it is usually headquartered on U.S. domestic soil. This is clearly the most difficult, the most expensive, the most complicated but if it could be done it would be the most satisfactory.

The litigation route involves getting an attorney to represent workers in a lawsuit directly against the factories and their owners. This can be expensive and very time consuming. If successful, however, it could provide direct relief to workers for their injuries or possibly even accomplish important changes by the employers in how they treat their workers.

But such lawsuits are not easy. Aside from the huge expenses that are involved in trying to prove a connection between the worker’s health concerns and the employer’s actions, there are difficult technical issues to consider. Her lawyers have to get the case filed in the right court, at the right time and with the confidence they can prove the claimed legal theories. These considerations are also very important – they involve witnesses, credibility, and expenses for gathering the scientific evidence and of course travel expenses.

A very typical technical hurdle involves questions of jurisdiction and venue, which are discussed below. A more political obstacle lies in the unfriendliness in general of American legal culture towards suits by non-citizens for alleged corporate abuse that happens outside of the U.S. And then there is the plain fact that so many maquiladoras are subsidiaries of very large, powerful and extremely well represented multinational corporations.

17. What kind of legal claims might a maquiladora worker make against the parent company of the factory she works for in Mexico?

In theory the employee can sue for what is called a toxic tort. This is a claim of personal injuries to her body, mental health and her sense of well being. In such a lawsuit the complainant, called the Plaintiff, alleges that she believes her problems are the cause of an employer (or his representatives – called agents) being careless or reckless in how they run a factory. Specifically it is a suit where she would try to prove to the courts that the way in which she works, is treated or is exposed to materials, machinery or dangerous chemicals by the Defendant (the employer or agents) violated her right to work in a safer environment. She has to show that the law says she is entitled to that safer environment.

18. What is the end goal of a personal injury lawsuit?

Usually the person suing in a civil suit, known as the plaintiff, wants the corporation, known as the defendant, to pay for the injuries caused to her and sometimes to pay for medical treatments so she can get better. Often such lawsuits also seek an order from the court that the employer has to clean up their act – literally improve the workplace by providing better prevention materials (safety gear) or training.

19. Can such lawsuits be brought on behalf of large numbers of employees?

Yes. Although not easily handled because of the complex evidence questions raised, the “class action” lawsuit accomplishes the goal of having one or a few people state that their situation is like that of many others in the factory who are being injured by the same or similar problematic work environments.

20. Suppose there is a maquiladora worker in a factory in Reynosa, Tamaulipas who has been doing soldering for a few years on her job. She learns through friends and other contacts that the factory she works for is actually owned by a very large corporation that has factories around the whole world. The “parent” corporation of these hundreds of plants (subsidiaries) is headquartered in the state of Pennsylvania. She complains that five years ago she was in good health but that over the years she felt her breathing got bad because of fumes she breathes in from the machinery she uses to do her job. What possibilities exist for her to make a personal injury claim against her employer?

First the worker is going to have to gather strong evidence that her medical problems are linked to her working conditions. This means showing that the contaminants that injure one’s lungs are in the air that she is breathing in and around her workstation. Then she has to prove that those contaminants in fact caused her own medical problems. She would need to be examined by an independent doctor who knows about these contaminants and who could say that the direct cause of her medical problems relate back to her work.

21. Where would such a lawsuit be filed?

The most likely place to start may be in the state courts where the factory’s parent corporation conducts business.

The rules that govern the civil lawsuit process (civil litigation) require that a claim be brought in a court that has the power to hear such a case. This is known as “appropriate jurisdiction.” It is an extremely important first step in the process because if the lawyer doesn’t choose the right court or doesn’t invoke the right law that has been violated then the corporation’s lawyers can get the complaint kicked out of court (dismissed).

22. Which would be the courts that would most likely have appropriate jurisdiction over a claim by a maquiladora worker?

There are two court systems to consider for a U.S. lawsuit – the state court system and the federal court system. In the state courts the plaintiff would be filing a personal injury lawsuit. Some of the proof issues would probably involve identifying whether the person sued is in fact authorized to act on behalf of the defendant (is an agent). These are known as agency issues and they relate to the corporate structure from the top leaders and CEOs down to the lowest level factory supervisor.

23. Example: Suppose the factory in Reynosa has a main office in Pittsburgh, Pennsylvania and business managers in Dallas, Texas, a factory VP in Mexico City, and several U.S. citizen factory supervisors in Reynosa, including the head manager who rents a house in Reynosa, and has his permanent home in San Antonio, Texas.

A suit could hypothetically be brought either in Pennsylvania, in Dallas or in San Antonio, that is wherever there is someone who represents the company, is authorized to take actions that have an impact in the factory in Reynosa and is actually doing business there on behalf of the company. Ultimately the lawyer representing the worker might decide where to file based on the ease or difficulty of getting evidence. Unfortunately, questions of jurisdiction are not always easy, especially when one is thinking of filing against a company that does business in so many pl.

V E N U E

Jurisdiction can also involve the actual physical location where the case is to be filed. This is called proper venue. One should make a choice of venue that makes sense given the facts of the case. For example, in the hypothetical Reynosa factory case, there might be jurisdiction in Pennsylvania and in Texas, but venue might make more sense in Dallas than in Pittsburgh because it is closer and more convenient to the witnesses in Reynosa.

The main jurisdictional question raised for maquiladora workers is the fact that they are not U.S. citizens and they happen to work for a factory that might be located in Mexico. Yet those with the power to do things like increase wages or improve benefits or working conditions might not be in Mexico or even anywhere near the border at all.

FORUM NON CONVENIENS

There is still one final issue that surrounds questions of jurisdiction and venue. It is an issue that comes up a lot in cases involving trans-national companies, and it is the doctrine of “forum non conveniens.” This is a legal theory that says if the party who is suing (plaintiff) has alternative choices of where to sue (forum) then it may not matter that the court where her lawyer chose to file the complaint has appropriate jurisdiction. On its own, or at the request of the defendant, the judge has the power to dismiss the case on grounds of forum non conveniens.

The bottom line of such a dismissal is that there’s another court that is better suited for handling this particular lawsuit. Arguments are made to the judge about what requires this court to get rid of the case; for example that it’s too expensive, too cumbersome for the courts or somehow unfair to the defendant. This kind of motion is always a potential risk in cases involving multinational corporations as defendants.

24. Is the issue of forum non conveniens one that maquiladora workers and their lawyers really need to worry about?

Probably. Every state has its own rules about how and when a court will apply the doctrine of forum non conveniens. The move to dismiss based on forum non conveniens can happen because the judge decided so on his own or because he thought the corporation’s lawyer made the better argument that a different court has better venue.

On a more positive note, it is the responsibility of the corporation’s lawyers to make a strong case for dismissing on grounds of forum non conveniens. Judges know that there is a presumed right of the plaintiff to choose the court as long as there is appropriate jurisdiction.

25. If the corporate defendant does make such a motion to get a worker’s case kicked out; does that mean she has nowhere to go?

Absolutely not. It means the judge must be convinced that there is another place where the worker can take her case. Justice requires that before the case is taken from one court, that it be appropriately heard in another.

26. Can the worker’s attorney argue against sending the case to another court?

Yes, the worker’s attorney would have to argue that an alternate forum isn’t available. Forum non conveniens is a theory that depends on there being more than one place where a worker could file a lawsuit. The obvious “other place” for a Mexican worker would be a court in Mexico since that is where she works and that is where the problems are taking place.

27. What kinds of arguments might be made to show that the case shouldn’t be heard in a Mexican court?

One argument is that the Mexican courts may not have authority to provide the full relief in Mexico, especially where it can be proved that although the factory is incorporated in Mexico, most of the shares of stock are being held by a U.S. company.

An argument can also be made that the Mexican courts aren’t equipped to handle this kind of case because of a conflict of interest in public policy – that is between wanting foreign investors to come to Mexico and between issuing judgments against them that would encourage them to go away.

A final argument might be that the courts are too embroiled in politics themselves and may be corrupt and thus unable to render justice for the maquiladora workers.

Although it’s unlikely that a US Court would publicly condemn the Mexican judicial system in order to grant a forum non conveniens motion solely on this basis, there are cases showing that some expert testimony can help in raising discreetly the problems with suing in the country where the subsidiary is operating (and therefore letting the plaintiff keep her case in a U.S. court). (See Bhatnagar v. Surendra Overseas, Ltd. (3rd Cir. 1995)). This could be a good strategy for opposing the corporation’s motion to dismiss a worker’s case.
Filártiga v. Peña-Irala,  630 F.2d 876 (U.S. App. , 1980)

28. What other things is a judge looking at before s/he decides a motion of forum non conveniens?

Mainly it has to balance public and private interests. The judge will consider –

  • Who’s affected by this and how?
  • How easy is it for the parties to get the evidence they need,
  • Or how easy or difficult will it be to get witnesses to and from court?
  • In other words the judge is interested in making the case easy, expeditious, and inexpensive. It wants to make sure that staying in one court versus another isn’t going to cause a lot of practical problems for either party.

As a matter of public interest the judge is also going to see how much of an impact there is on the court administration. Sometimes there is a really good reason to keep a case locally, where the action is happening; sometimes it is good to have it removed (i.e., if the parties feel the threat of violence from people at the local level).

All of these kinds of questions go into the analysis of what to do with a forum non conveniens motion. Other things to consider would be, what’s the law at stake, is there going to be a conflict of laws between nations that impacts on the health and safety of the worker?

Remember that a judge has the power to decide that she doesn’t want to hear this case because the American courts can’t be “trying to right all the wrongs of the world.”

But it could also be argued that judges shouldn’t be afraid of taking a role in regulating the socially irresponsible conduct engaged in by corporations, that they play a crucial role in preventing negligent or criminal acts or arrogant behavior by corporations who think they can just avoid justice by moving a few feet or hundred miles across the border.

In other words, it should also be argued that valuable profits, and taxes, flow into this country through the operations of the Mexican subsidiaries, so it would be a false argument to say, “it’s not our concern because the defendant is over there – meaning Mexico.”

Why shouldn’t a worker who knows that her labor is making profits for a company and shareholders who live in the U.S., and whose money and taxes support its legal system, have the right to enjoy the benefits of that very legal system that is sustained by the general wealth of these U.S. beneficiaries of overseas/transnational operations?

Perhaps in the wake of the Enron hearings, and at least from a public relations standpoint, the US courts will begin to be more receptive to arguments implicating stronger corporate accountability.

INTERNATIONAL COMITY

29. Is it at all possible that a court would dismiss a case out of considerations of international comity (i.e., a policy of mutual respect for another legal system?)

No judge wants to find herself in direct contention with the Mexican government over law and policy matters. Under the doctrine of international comity, one nation allows within its borders the legislative, executive, or judicial acts of another nation. Courts of one nation generally accord deference to the official position of a foreign state.

But the analysis of international comity goes much like the questions for forum non conveniens. It has to consider where there is an alternate forum and whether the defendant can be sued in the Mexican courts or wants to be sued there. Before the judge dismisses the case she’s going to want to be sure that the defendant agrees to be sued in an adequate foreign forum, unless there is something extremely important standing in the way of trying the lawsuit outside of the U.S.

30. You said earlier that there are two court systems to consider for lawsuits against multinationals, the state courts and the federal courts. What’s the difference between suing in federal court versus state courts?

The main difference is that the federal court system covers larger territories and the federal courts only hear specific kinds of cases. (This is called limited jurisdiction – as opposed to general jurisdiction which state courts have). Their judicial power is set by a specific part of the U.S. Constitution – Article III. Very generally, the most typical limitation on a federal court deciding the case is that it should involve a federal law, a treaty, an international human right or some section of the constitution.

31. So, can a non-U.S. citizen use the federal courts to sue a parent corporation?

Sure. Most likely a claim for personal injuries could be brought under a federal law known as the Alien Torts Claims Act (ATCA) (1789), which must be filed in a federal district court. The Alien Torts Claim Act, an old law that was revived in 1980 in the groundbreaking case of Filártiga v. Peña-Irala1 held that U.S. federal courts can try cases involving a non-citizen who charges a defendant with tortuous personal injury that violated international law. It is an amazing power given to U.S. federal courts to take a case where the plaintiff is a foreign citizen who is alleging the violation of “universally accepted norms of the internationally accepted law of human rights” by a foreign defendant.

The most successful” alien torts” have involved outrageous violations of individual human rights, such as genocide and war crimes. (In the facts of the Filártiga case pdf the plaintiff was a non-citizen living in New York City who had been the victim of torture connected to political oppression. Years later she discovered that she and the person who had tortured her were now working side by side in the same company as part of a janitorial crew!).

32. What is required to make a successful complaint under the ATCA?

A number of lawsuits since Filartiga have summarized the requirements as
1) the plaintiff being an alien-non-citizen;
2) there is a claim for a tort;
3) The tort is committed in violation of the law of nations or an international treaty.

33. As a practical matter how would a maquiladora worker fit into these requirements for federal court jurisdiction in an ATCA case?

Requirement 1 is easy since most maquiladora workers are non-citizens; Requirement 2 says that the complaint must be based in tort, meaning a civil claim in which the relief sought involves “damages” (money to pay for the injuries and treatment); Requirement 3 is probably the most difficult test.

34. Why?

In Requirement 3 the Plaintiff has to allege that the defendant (here a hypothetical corporation) or his representatives (called “agents), clearly committed a violation of international law; and this is often a hotly contested subject. A lot of scholars have made arguments that the real purpose of the Alien Tort Claims Act is to give the government more control over foreign policy matters, and that enforcement of “international law” is therefore not the business of individual persons rather it is the business of governments and states.

In contrast, other scholars believe that the language of the Alien Tort Claims Act is quite clear and that it gives rights to individuals. Of course, to avoid having the case dismissed, she has to allege facts that sufficiently show the defendant violated well established principles of international law. This part could be quite tricky in the case of multinational companies. Their lawyers are bound to make very strong arguments against the idea that just because a worker in another factory doesn’t make U.S. level wages she is the victim of human rights abuse.

35. Are you saying that transnational companies can’t be sued for violations of international law?

No. They can be sued. But the basis for a lawsuit has gotten narrower in the last twenty years. Before the courts will say that a defendant has violated international law it has to be convinced that what is at stake is a “well-established, universally recognized norms of international law.”

This is probably more obvious where the charge is a claim of genocide or torture. It’s much more difficult where it is an allegation that the corporate defendant conspired with the worker’s own country to not pay her very well. A lot of people would see that is wrong and maybe unethical but not necessarily as a crime or as a human rights problem.

Are there some labor issues that could easily be seen as violations of human rights by corporate subsidiaries doing business in Mexico?

Yes, there are two such situations. One is the possibility of showing that the employer is reckless in hiring children in violation of International labor conventions that have been incorporated in Mexico’s labor law: LEY PARA LA PROTECCION DE LOS DERECHES DE NINAS, NINOS Y ADOLESCENTES

Another situation would be to show that workers are paid so little and worked so long that they are virtually engaged in slavery, in violation of international labor conventions and human rights principles. Some maquiladora workers have complained about companies coming in for short terms and offering jobs to very young workers, only to leave abruptly after a few weeks without notice and leaving behind unpaid workers.

Stories about such cases were revealed in May 2002 in a workshop between CFO organizers and young women in Nuevo Laredo who had friends that had been victims of employers in the “coupon industry.” If such a case could be proved it would probably constitute a clear case of illegal slave labor in violation of international human rights law.

** – The author is greatly indebted to the valuable research assistance of Edward Campbell, 2003 Graduate of the Northern Illinois University College of Law.