Health & Safety Group: Final Portfolio

HEALTH & SAFETY GROUP

FINAL PORTFOLIO

Matthew Beckstead, Oscar Peralta, Candace Ruocco, and Silvia Villanueva

University of Nevada Las Vegas William S. Boyd School of Law

Human Rights Law Practicum: Spring 2014

HUMAN RIGHTS LAW PRACTICUM Health & Safety Group

Final Portfolio: Table of Contents

Table of Contents

PART ONE: Introduction ............................................................................................................ 1

PART TWO: International Laws & Treaties ................................................................................. 2 I. Introduction ..................................................................................................................................... 2 II. Discussion and Analysis ................................................................................................................. 4

(a) India’s Constitution and Labor Laws Expressly Favor Respect for Human Dignity and Workers’ Rights, Including Health and Safety, but the Government Rarely Enforces Its Own Laws ............................. 5

PART THREE: Fashion Industry .................................................................................................. 9 I. Hierarchical Scheme of the Fashion Production Process ................................................................ 9

(a) The Fashion Cycle .......................................................................................................................................... 9 (b) The “Fast Fashion” Phenomenon ................................................................................................................. 9

II. Contract Versus Employment Law ............................................................................................... 10 III. Forced Overtime ......................................................................................................................... 11

PART FOUR: Key Interview Themes ......................................................................................... 13 II. Coerced Overtime ........................................................................................................................ 13

(a) Sample Testimony of Interviewed Workers Regarding Coercion ......................................................... 14 III. Health Impact .............................................................................................................................. 14 IV. Coerced Overtime as Forced Labor ............................................................................................. 15 V. Sample Testimony of Interviewed Workers Regarding Wage Theft ............................................ 17 VI. Health Issues ............................................................................................................................... 18

PART FIVE: Industry Standards ................................................................................................ 21 I. CODES OF CONDUCT, COMPLIANCE, AND THE AUDITING PROCESS FOR MULTINATIONAL CLOTHING COMPANIES ..................................................................................................................... 21

PART SIX: Conclusion ............................................................................................................... 27

REFERENCES ............................................................................................................................ 28

APPEDIX ONE: Letter to ILO .................................................................................................... 30

APPENDIX TWO: Questionnaire .............................................................................................. 31

APPENDIX THREE: Letter to the Brands ................................................................................... 35

HUMAN RIGHTS PRACTICUM Health & Safety Group

Final Portfolio: Introduction

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PART ONE: Introduction

“We are told to do [overtime], and do not have a choice in the matter. If we say we will not… They tell us not to come back to work tomorrow.” – Rajesh,1 26-years old2

Rajesh is a Quality Controller in the Production Department of a garment factory in Gurgaon,

India. He works over twelve hours per day, every single day. Management tells employees to work

overtime, often regardless of whether production targets are met, despite consistently refusing to

pay workers the double-time wages they are entitled to. If workers rightfully object, they are told

“not to come back to work tomorrow.”

Rajesh’s situation is not uncommon. The coercive strategies leveraged by Rajesh’s

management are emblematic of garment worker oppression in the factories of Gurgaon. While

forced overtime negatively impacts all aspects of workers’ lives in- and outside of their factories,

these practices have particularly appalling effects on workplace health and safety.

From November 2013 through May 2014, the authors of this Final Portfolio devoted

substantial time, energy, and effort to studying and advocating for the oppressed workers in the

garment factories of Gurgaon. Through pre-trip Introductory Meetings (November), fieldwork in

and around Delhi, India (December – January), and post-trip analysis (February – April), the Health

and Safety Team has collected useful data, fostered meaningful dialogue, and drafted this Final

Portfolio.

1 In any published versions of this portfolio, all names will be changed to protect the identity of individual workers. Information regarding age, job, wages, etc. will remain unaltered. 2 Rajesh, Personal Interview, January 2014 (alias for publication will be “Gopal”).


Final Portfolio: Introduction

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This Final Portfolio summarizes major laws (Part Two), the relevant characteristics of the

fashion industry (Part Three), and key themes from our fieldwork interviews (Part Four). Part Five

discusses production standards and company audits within the garment industry. The Appendices

included in this Final Portfolio represent our recent advocacy work on behalf of the garment

workers in Gurgaon, India. We hope our efforts help lay the foundation for future research,

fieldwork, advocacy, and progress in this far-too-often overlooked sector of the global society and

economy.


International Laws & Treaties

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PART TWO: International Laws & Treaties

India’s Labor Laws and International Treaties & Conventions and Their Effect on

Gurgaon’s Factory-Based Garment Workers

I. Introduction

Though many people in today’s world look to labor laws to cure their particular country’s

societal ills to some degree, few of them are or ever have been a country’s prime minister. Enter

former Indian Prime Minister Dr. Manmohan Singh (Dr. Singh received his Ph.D. in economics at the

University of Oxford3), who once asked, back in November 2010, about India’s labor laws: "Is it

possible that our best intentions for labor are not actually met by laws that sound progressive on

paper but end up hurting the very workers they are meant to protect?" 4 Politicians and

commentators often discuss and debate whether certain laws actually help those to whom they are

directed. In the United States recently, the normally left-leaning billionaire from Microsoft, Bill

Gates, posited that raising the minimum wage causes “labor substitution,” and that employers will

eventually “go buy machines and automate things.”5 To the extent that Gates and Singh are correct

3 See CURRICULUM VITAE: DR. MANMOHAN SINGH, PRIME MINISTER OF INDIA 1, available at http://pmindia.nic.in/cv.pdf (last accessed 04/29/2014). To be sure, Dr. Singh’s C.V. indicates a vastly successful career that has extended far beyond the halls of Cambridge (where he also attended) and Oxford, and it should be of interest to anyone who seeks to learn some novel, informative information regarding the international economic system. For example, Dr. Singh was once governor of the Reserve Bank of India and later served as a prime-ministerial advisor. Id. 4 Mehul Srivastava, Why India Is Rethinking Its Labor Laws, BLOOMBERG BUSINESSWEEK (Jan. 13, 2011), www.businessweek.com/magazine/content/11_04/b4212013616117.htm. 5 Katie Spence, Minimum Wage, Unemployment, and Robots: Why Increasing One Could Affect the Others (Feb. 8, 2014), www.fool.com/investing/general/2014/02/08/will-a-minimum-wage-increase-cause-robotic-sales-a.aspx. Of interest, MSNBC, the infamously “liberal” and “left-wing” news organization apparently did not like Bill Gates’s comments (made on their television program), because The Motley Fool was the most reliable source found to date to document what Gates actually said. The Motley Fool specifically covers economic, market, and investing publications



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– and even very basic economics are beyond the scope of this report – that certain laws really can

hurt the people they mean to protect, politicians and commentators should examine how laws and

regulations affect their citizens; it is vital for everyday people, the citizens, to understand how their

country’s laws limit or advance their interests.

If India’s laws actually prevent people from entering the formal sector (or rather, prevent

businesses and employers generally from hiring workers, perhaps citing added costs, including the

costs of complying with the laws and regulations), then Prime Minister Singh was right that the labor

laws are actually hurting the people they intend to help – particularly if India does not use

legitimately useful methods (including changes to existing statutes such as the Factories Act) for

extending state benefits to the millions who would benefit from such a move; to do nothing would

mean leaving hundreds of millions in the status-quo reality of little pay and fewer concrete benefits.

In fact, looking now at India as a whole, the World Bank apparently stated, in 2007, that

"India could have added 2.8 million jobs to the formal economy in the decade through 2007 had

labor laws been less restrictive."6 Though 2.8 million jobs is a small portion of India’s working

population, it is estimated that “as few as” 30 million (of 1.237 billion-person population (2012

figure)7) “Indians work in the formal private sector or government, according to the Central

and resources, and they are anecdotally known for employing so-called “free market, laissez-faire” libertarians and conservatives, many of whom would gladly quote Dr. Singh and Bill Gates to make their point. Without further comment, this concludes this reports coverage of America’s political discourse. 6 See Srivastava, supra note 4. 7 Central Statistical Organization.



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Statistical Organization, the government statistics group.”8 So to the extent that those jobs might

have been added to India’s formal economy, with its accompanying benefits (e.g., Employee State

Insurance for certain health-and-safety, job-related issues), 2.8 million jobs would have meant a

substantial increase in the percentage of Indian workers who work in the formal sector of India’s

economy – 9.3%, in fact. By comparison, however, India lags behind China, which “has at least 260

million workers in manufacturing, mining, and nonfarming activities, according to International

Labor Organization estimates.”9

Many Indian workers, especially those who work in Gurgaon’s garment factories, would see

no immediate status change or quality-of-life boost even if the government amends or otherwise

alters India’s primary labor laws that benefit formal-sector workers, such as the Factories Act of

1948. Even assuming the World Bank’s aforementioned statement regarding India’s lost 2.8 million

jobs, that figure covered an entire decade – a mere 280,000 jobs per year. That number shows that

relaxing India’s labor laws is not a panacea; adequately employing India’s workforce using the

formal sector will take years, probably decades because relaxing India’s laws would apparently

mean slowly moving workers into the existing formal sector, to be protected under a decades-old

framework, itself often decades old and in need of updating.10

II. Discussion and Analysis

8 See Srivastava, supra note 4. 9 Id. 10 See id.



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(a) India’s Constitution and Labor Laws Expressly Favor Respect for Human Dignity and Workers’ Rights, Including Health and Safety, but the Government Rarely Enforces Its Own Laws

Little evidence exists to suggest that India’s government and governmental leaders have the

desire, political capital, or power to either amend India’s existing labor laws to expand the formal

sector. In recent years, India’s government has willfully and purposefully suppressed enforcement

of its own labor laws, and it has done so specifically to encourage economic growth. For example,

India has increased the flexible use of its laws in the past in order to encourage the information-

technology sector’s economic growth, including government-issued waiver, which waived “some

labor laws . . . starting in 2001 to encourage growth in the sector, India’s second-largest earner of

foreign exchange, by placing most of the workforce inside fenced-off zones.”11 Moreover, “[t] he

waivers allowed IT companies and call centers to operate 24 hours a day, recruit women to work

late at night without building single-gender facilities, and add staff freely without submitting layoff

decisions to the authorities.” So it is not surprising to see lax official oversight and non-enforcement

of existing laws – the government has actively utilized this lax approach to boost its economy. It is

not clear, however, what benefits accrued to those people not closely related to the IT industry.

However, India’s laws, including its Constitution, have several specific provisions regarding

worker health and safety; many created using unequivocal terms. As primary authority, India’s

Constitution speaks directly to the issue of worker health and safety and directly and expressly

covers health-and-safety issues. It also directly and indirectly addresses health-and-safety issues and

11 See id.



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espouses certain principles that enable India’s parliament to protect worker health and safety.12 The

Constitution of India’s Preamble declares that India has “solemnly resolved to constitute India into a

sovereign socialist secular democratic republic and to secure to all its citizens . . . equality of status

and of opportunity.”13

More importantly, the Constitution’s main text guarantees “equality before the law,” and

declares that “[t]he State shall not deny to any person equality before the law or the equal

protection of the laws within the territory of India.”14 The formal and informal statuses are not equal,

however, and India’s strongest and most protective labor provisions are reserved for a minority of

India’s working population. The Factories Act of 1948 (“the Factories Act”), discussed below,

happens to fit into both categories – it contains health-and-safety provisions and it is a general law

regarding laborers, specifically factory workers.

The spirit of India’s legal scheme for labor rights is not borne out in reality for many workers

in Gurgaon (and the rest of India). These workers face, among other things, unpaid overtime,

extended shifts, low pay, and few holiday breaks. This report examines whether forced overtime

causes health and safety issues for workers in Gurgaon. India’s laws outlaw “slavery,” “forced labor,”

and “bonded” labor.15

12 Id. 13 Id. 14 The Constitution of India, Pt. III, para. 14. 15 PUDR v. Union of India (1982) (holding that pay below minimum wage is “bonded labor”).



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The apparent disconnect between the lofty ideals enshrined in India’s constitution, laws, and

regulations and the reality that greets Gurgaon’s garment workers is apparent when walking

Gurgaon’s streets and examining the factories.16 Firstly, ineffective laws hurt workers’ long-term

health and safety because the legislatively-created social safety net does not protect them.

Secondly, ineffective laws also hurt businesses’ profits and even discourage potential

business owners from ever starting a business.17 Laws that unreasonably burden employers with

administrative and monetary obligations are overinclusive. Overinclusive laws are naturally

ineffective laws, to the extent that they create employer obligations that are objectively

unnecessary, inefficient, or otherwise ineffective for furthering any contemporary national interests;

this includes health and safety standards. The Factories Act of 1948 contains many provisions that

seem superfluous and reminiscent of a time when governments across the world had a healthy

habit of assuming total authority and control over their population. Indeed, “India’s labor laws have

their roots in the British raj and they were last fully updated in the Industrial Disputes Act of 1948.”18

The Contract Labor Act could help theoretically, but the aggrieved parties cannot sue in any court

of law, which seems to eviscerate any chance for Gurgaon’s garment workers and others to use it as

a sword in court.19

16 Construction-industry standards and commercial building codes could supplement the health-and-safety goals of Gurgaon’s garment workers and their advocates, perhaps. 17 See, e.g., Srivastava, supra note 4. 18 Id. 19 See The Contract Labour (Regulation and Abolition) Act, 1970, Act No. 37.



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Lastly, ineffective laws hurt India itself in terms of international economic competitiveness

and in terms of absolute economic growth. Although these concepts are abstract and appear too

far detached from daily life, the reality is that a nation’s economy matters, and it matters for reasons

that include benefiting citizens’ long-term health and safety, for anyone working in Gurgaon,

elsewhere in India, or Russia.

Activists and organizers should also be aware that India has signed several international

agreements regarding workers’ rights because doing so provides another avenue for informal-

sector workers and activists to urge or demand that the Indian government do something to honor,

at the very least, its international treaty obligations. India has been a member state of the UN's

International Labour Organization (ILO) since June 28, 1919. The original ILO Constitution was part

of the Treaty of Versailles, signed in 1919 and which ended World War I. India has signed many of

the ILOs conventions, and should honor these agreements in keeping with the spirit of international

progress toward more equitable living and working conditions for all.


Fashion Industry

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PART THREE: Fashion Industry

“At issue is the industry’s growing dependence on a business model that encourages some fashion chains to push for the lowest prices from subcontracted factories in countries that already have some of the leanest production costs… To keep their contracts, factories may put concerns about production schedules before those of worker rights or safety.”20

I. Hierarchical Scheme of the Fashion Production Process

(a) The Fashion Cycle

Since fashions are, by definition, transitory cyclical phenomena embraced by consumers for a

specific situation and duration, the survival of the fashion industry itself requires consistent style

changes.21 Describing the process through which clothing styles gain mass acceptance, the fashion

cycle consists of five stages: (1) introduction, (2) rise, (3) peak, (4) decline, and (5) obsolescence. In

1981, authoritative fashion theory recognized two time frames for the fashion cycle: secular, long-

run trends lasting tens to hundreds of years, and short-run acceptance of particular styles spanning

several months to years.22 With designers and retailers producing new garments annually or

seasonally, styles pushed through the cycle at a somewhat steady pace.

(b) The “Fast Fashion” Phenomenon

The term “fast fashion” describes the swift, powerful rise of retailers operating on business

models with faster fashion cycles – meaning trends (i.e. individual garments) enjoy sudden demand,

brief popularity, and imminent uselessness. Affording their garments shorter lifespans, consumers

20 Renee Dudley, Arun Devnath, & Matt Townsend, The Hidden Cost of Fast Fashion: Worker Safety, BUSINESSWEEK (Feb. 7, 2013), www.businessweek.com/printer/articles/95916-the-hidden-cost-of-fast-fashion-worker-safety. 21 George B. Sproles, Fashion Life Cycles: Principles and Perspectives, 45 J. MARKETING 116, 116, 118 (1981). 22 Sproles, supra note 21, at 116.


Fashion Industry

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seek more frequent replacement of obsolete items, from retailers offering frequent new items with

increased variations (color, size, fit, etc.). The advent of vertically-integrated mass “fast fashion”

retailers like Zara, H&M, and Forever 21 has completely warped the traditional fashion cycle, as

these stores push out new designs roughly every fourteen days.23

The substantial compression of the fashion cycle translates to a drastic shortening of

timelines in the fashion industry’s global supply chain. The major actors include designers,

brands/labels, factories, third party auditors, distributors, and retailers. This demanding market

compounds the already overburdened garment production segment.

Louis Vuitton Fashion Director Daniel Piette famously described Zara as, “possibly the most

innovative and devastating retailer in the world.”24 While he intended to highlight Zara’s ability to

undermine haute couture operations, his remarks quite aptly describe Zara’s troubling impact on

the garment production industry for many of the world’s most vulnerable workers.

II. Contract Versus Employment Law

During the production process, the brands, manufacturers, distributors, and auditors interact

as parties to contracts for services (production tasks) and/or goods (component or finished

garments). Through this arrangement, designers and brands can effectively shield themselves from

actual and perceived liability or endorsement of unfair, unsafe, or unsanitary working conditions.

Since contract law (rather than employment law) actually governs these business transactions, it is

23 Dudley, Devnath, & Townsend, supra note 20. 24 Anderson Antunes, Zara Accused of Alleged ‘Slave Labor’ in Brazil, FORBES (Aug. 17, 2011), www.forbes.com/sites/andersonantunes/2011/08/17/zara-accused-of-alleged-slave-labor-in-brazil.


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more difficult to hold U.S. brands accountable for actual working conditions overseen by

outsourced producers. Industry standards and common sense indicate that brands are, or

reasonably should be, aware of the conditions necessary to fulfill production orders. For example, if

Brand X orders 10,000 jackets to be produced in six weeks, and requests a design change to the

pockets during the fourth week, Brand X’s management knowingly forces the producer to keep

workers overtime with increased production speed requirements in order to met the shipping

date.25

Ambitious production targets require fast cutting, sewing, and other work with dangerous

tools and machines. Moreover, safety equipment can often hinder production speed. Safer

production requires more workers and/or slower work – both of which increase costs. As would be

expected, it simply costs more to produce garments in safe, fair labor environments than in unsafe,

unfair environments. While imposing legal liability on U.S. brands for labor violations at the

production level is difficult, human rights advocates can use publicity about violations to threaten

brand value and image – indirectly incentivizing slower, safer production for brands, lest consumers

avoid buying from them. Leveraging brand image helps hold U.S. companies accountable. Several

industry experts confirmed that brands’ intended “image” determines the health and safety

standards implemented during the production process, including Mr. Harit Sardana, Senior

Manager of the Technical Department at Intertek auditing company.

III. Forced Overtime

25 See Dudley, Devnath, & Townsend, supra note 20.


Fashion Industry

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Forced or “mandatory” overtime is an unfortunately common international practice that

affects myriad industries including garment production and nursing.26 Forced overtime reduces

the time workers have to attend to their basic daily needs. Physical needs include proper hygiene,

hydration, nutrition, and adequate, quality sleep. Lack of quality sleep decreases alertness,

increases fatigue, and impairs performance on basic and complex tasks. In fact, fatigue produces

higher levels of cognitive psychomotor impairment than alcohol intoxication (at proscribed legal

levels of intoxication for Western nations).27 Part Four summarizes the major patterns of forced

overtime that the Health and Safety Group uncovered during fieldwork.

26 Katherine Kany, Mandatory Overtime: New Developments in the Campaign, AM. J. NURSING, May 2001, at 67, 67 – 68, 70 – 71. 27 Drew Dawson & Kathryn Reid, Fatigue, Alcohol and Performance Impairment, 388 NATURE 235, 235 (1997).


Key Interview Themes

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PART FOUR: Key Interview Themes

I. Field Research and Interviews

As noted in the introduction, research for this report included both fieldwork and interviews,

which consisted of a cross section of workers from the garment industry in Gurgaon. The workers

were each asked a set of approximately 50 questions pertaining to health and safety issues in their

workplace. The questionnaire contained specific queries to assess the degree of compliance with

particular legal provisions in the garment industry, as well as general questions about the workers’

subjective sentiments and concerns with respect to their employment for the purpose of

understanding the workers’ actual needs and aspirations.

In addition to demographic differences, the workers held a variety of occupations in different

types of factories. Expectably, thus, their employment experiences were quite varied. While they all

worked in the manufacture of garments, the workers’ anecdotes and grievances highlighted

different problems in the industry, reflected different personal values, and illustrated varying levels

of compliance with Indian labor and employment laws. There were, nevertheless, unifying themes

throughout these interviews. Virtually all the interviewees reported having to contend with a lack of

basic safety equipment, as well as coerced overtime, often coupled with wage theft. These

recurrent issues are discussed below.

II. Coerced Overtime



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For a vast majority of the interviewed workers, the acceptance of overtime work at the

employer’s discretion was a tacit requirement of their employment. According to the workers, the

frequency of overtime work is irregular and unpredictable; its duration indefinite; and advance

notice is not provided. The workers reported that failing to work overtime hours as directed in any

given occasion may result in termination, denial of entitlements, and blacklisting.

(a) Sample Testimony of Interviewed Workers Regarding Coercion

One worker stated that in order to retain his job, he has to be willing to work overtime whenever directed to do so, sometimes even over the three hours allowed by law and on Sundays. Another worker related that although he is scheduled to work an eight-hour shift beginning every morning at 9:00 a.m., he is regularly required to work until 9:45 p.m., and sometimes until 11:00 p.m. or later. When asked if he worked the overtime hours by choice, he said that he and his coworkers do not have a choice in the matter. “If we say we will not, they tell us not to come back to work tomorrow,” he said. One other worker explained that sometimes when there is an impending shipment, management puts pressure on the workers to stay as long as necessary after their regular shift is over to complete the work. He stated that his employer threatens to fire or withhold the earnings of any employees who do not stay to work the overtime shift. The worker stated that employees also feel compelled to work overtime to meet targets of production, as they also get terminated if they cannot keep up with said targets.

It is important to note that a small minority of the interviewed workers expressed that they do

not mind working overtime because it enables them to supplement their income. They did

acknowledge that they do not have a choice either way. Moreover, they reported that they are not

paid the legal overtime wage.

III. Health Impact



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The prevalence of coerced overtime across India’s garment industry poses a significant

danger to the health of workers. In numerous “studies addressing general health effects, overtime

[has been] associated with poorer perceived general health, increased injury rates, more illnesses,

or increased mortality.28 In terms of the physiological effects of high levels of overtime, studies have

specifically identified “an increased risk of hypertension, cardiovascular disease, fatigue, stress,

depression, musculoskeletal disorders, chronic infections, diabetes, general health complaints, and

all-cause mortality.” 29 Moreover, in terms of occupational safety, working overtime has been

associated with a substantially higher injury hazard rate.30

IV. Coerced Overtime as Forced Labor

While workers did not report being subject to physical restraint or threats of violence, several

factors suggest that the practice of extracting excessive labor from workers under penalty of

adverse employment action contravenes the spirit of the prohibition against forced labor by the

International Labor Organization Convention, as well as basic principles of human dignity and

justice. Some of these factors include the scarcity of work, the workers’ dependency on their

employer beyond the employment relationship, and the workers’ perceived threat of being

banished from the industry.

28 See CENTER FOR DISEASE CONTROL, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, OVERTIME AND EXTENDED WORK SHIFTS: RECENT FINDINGS ON ILLNESSES, INJURIES, AND HEALTH BEHAVIORS, available at www.cdc.gov/niosh/docs/2004-143/pdfs/2004-143.pdf. 29 A. E. Dembe et al., The Impact of Overtime and Long Work Hours on Occupational Injuries and Illnesses: New Evidence from the United States, OCCUPATIONAL & ENVIRONMENTAL MED. 588 - 597 (2005). 30 Id.



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Many of the interviewed workers were recruited for their job outside of the National Capital

Region, the metropolitan area in which the garment industry is situated. In addition to being

dislocated from their communities, which are often in distant rural areas of India, many of the

workers also live in employer-provided housing. Thus, the workers are in a highly vulnerable

position, which may effectively prevent them from refusing overtime work.

With limited exceptions, Article 2 of ILO Convention 29 defines forced labor to mean “all

work or service which is exacted from any person under the menace of any penalty and for which

the said person has not offered himself voluntarily.”31 The ILO Director General’s 2005 report stated

that under this definition, forced labor may occur if workers are threatened with dismissal for

refusing to do overtime beyond the scope of their contract or of national law.32

According to the report, forced labor comprises two elements: lack of consent and menace

of a penalty. Among the indicators for lack of consent is “psychological compulsion,” which

includes “an order to work, backed by a credible threat of a penalty for non-compliance.”33 Factors

indicating “menace of penalty” are the actual presence or credible threat of dismissal from current

employment or exclusion from future employment.34 Under Indian law, “[n]o adult worker shall be

required or allowed to work in a factory for more than forty-eight hours in any week . . . or nine

31 Convention Concerning Forced or Compulsory Labour (No. 29), June 28, 1930, 39 U.N.T.S. 55. 32 THE ILO DIRECTOR GENERAL'S 2005 REPORT, 5, www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_081882.pdf. 33 Id. at 6. 34 Id. at 6.



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hours in any day.”35 While the law grants States the power to create certain exemptions to this

requirement, the total number of hours of work may not exceed ten in any day or 60 in any week,

inclusive of overtime. 36 In exceptional circumstances, States may issue a written order allowing

further exemptions to the maximum overtime limit in a day, but the total number of hours still

cannot exceed 12.37 Therefore, any requirement to work beyond the applicable hour limit in a given

day or week, under threat of termination, would fall under the ILO’s current interpretation of forced

labor as articulated in the 2005 Report.

A handbook issued by the ILO titled “Combating Forced Labor” in 2008 reasserts this

interpretation and adds that in some cases, employees work above the legal maximum to meet

required productivity targets or to earn the minimum wage.38 “In these cases, although workers may

in theory be able to refuse to work, their vulnerability may mean that they have no choice and are

therefore obliged to [work overtime].”39 According to the ILO Committee of Experts on the

Application of Conventions and Recommendations, “this then becomes a situation of imposing

work under the menace of a penalty and

can, thus, be considered forced labour.”40

V. Sample Testimony of Interviewed Workers Regarding Wage Theft

35 Factories Act, 1948, Section 51 & Section 54. 36 Factories Act, 1948, Section 64. 37 Factories Act, 1948, Section 65. 38 ILO, COMBATING FORCED LABOR, 20, www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_101171.pdf. 39 Id. 40 Id.



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A common grievance shared by most workers relates to the nonpayment or underpayment

of overtime wages. Indian law provides that any factory employee who works more than nine hours

per day or more than 48 hours per week shall be awarded overtime in the amount of twice his or

ordinary rate.41 Interviewed workers states that they are regularly not paid the overtime rate for

overtime worker.

One worker, for instance, produced a recent paystub, which showed 10 hours of overtime

work, even though he asserted to have worked about 100 hours of overtime during the pay period

in question. He stated that he was paid the overtime rate for the 10 hours reported on his paystub,

but for the remaining 90 hours of overtime, he was paid his regular rate. Another worker said that

he is paid the overtime rate only for 3 hours of overtime per pay period. For any additional hours,

he receives the single rate. Other workers stated that they only receive the single rate for all of their

overtime hours.

“The Supreme Court of India has interpreted bonded labor as the payment of wages that are

below the prevailing market wage or the legal minimum wage.”42 Since the legal minimum wage

for overtime work is double the regular rate, the high Court’s expansive definition of bonded labor

may be applicable to the types of violations illustrated above.

VI. Health Issues

41 Factories Act, 1948. Section 59. 42 Devin Finn, BONDED LABOR IN INDIA, TOPICAL RESEARCH DIGEST: HUMAN RIGHTS AND CONTEMPORARY SLAVERY, 7 (2008), available www.du.edu/korbel/hrhw/researchdigest/slavery/india.pdf.



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The workers reported adverse health effects which they attributed to the high levels of

required overtime work. Many of them stated that they often feel very tired, overworked, and

generally unwell. Some workers said that it’s common for coworkers to fall ill easily from working so

hard. They stated that the problem is aggravated by several factors, including a lack of adequate

first aid implements; the fact that workers are often not allowed to leave work to go to a

government clinic unless it is a serious emergency; the fact that workers are not paid for any time

they miss for this purpose; and the fact that on-call doctors do not typically provide an adequate

response.

The interviews also revealed that employees are under constant stress due to the pressure to

meet targets. Employees reported feeling reluctant to take breaks because they’re worried about

maintaining their productivity level. Many of them also do not feel comfortable asking for time off

for health issues. One worker stated that when employees at the factory where he works have

requested to leave work for health reasons, the employer has responded by telling them that if they

leave, they cannot return the following day.

Many of the interviewed workers who operate machines stated that they do not believe that

the machines are safe for lack of safety measures. One worker stated that he feels scared to operate

his machine as there are no guards and the needles may easily injure his fingers. Another worker

stated that her sewing machine gives off electric shocks. She stated that she has complained

repeatedly, to no avail. Supervisors tell her that with that much current, it is natural for that to occur.

The worker stated that she and her coworkers wear shoes and wrap their hands to prevent getting



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electrocuted. She believes that masks and guards could make the machine safer, but this

equipment is not provided. Other workers also expressed the same concerns about the possibility

of being electrocuted by their machine.

Interviewed workers reported numerous additional health and safety issues. They stated that

first aid kits are normally missing essential items, that necessary gloves and masks are not supplied,

that guards are removed from the machines, that trailing wires and cables abound, that restrooms

are missing toiletries, that the premises are unsanitary, etc. Virtually all the interviewed workers

stated, however, that all these issues are rectified when there are inspections at the factory, but only

then, and everything goes back to normal afterward.

Even when safety equipment is available, it may not improve safety. For example, one worker

stated that although steel gloves are provided at his workplace, workers choose not to use them

because there is constant pressure for them to work fast and the gloves slow them down. Another

common complaint by the workers was that their factories lack adequate ventilation, which makes

work almost unbearable in the summer, especially for those working near steam machines and

boilers. Many of the workers stated that they are reticent about their grievances at work, as

complaining about working conditions often results in termination.


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PART FIVE: Industry Standards

I. CODES OF CONDUCT, COMPLIANCE, AND THE AUDITING PROCESS FOR

MULTINATIONAL CLOTHING COMPANIES

Commencing with the adoption of the International Convention of Civil and Political Rights

(ICCPR) by the United Nations General Assembly on December 16, 1966, followed by its March 23,

1976 effective date, signatories have shared the duty and obligation of ensuring civil and political

rights to its people. This obligation further encompasses with it the duty to promote and encourage

economic, social, and cultural freedoms.43 The ICCPR is a human rights treaty outlining broad

fundamental rights believed to derive by virtue of “the inherent dignity of the human person.”44 The

United States became a signatory to the ICCPR on October 5, 1977 and followed with ratification on

June 8, 1992.45 Pursuant to the U.S. Constitution’s Supremacy Clause, the ICCPR has the same effect

as federal law and is similarly binding.46 Accordingly, the ICCPR holds prominence over U.S. State

and local law by way of preemption and is an implied representation our nation’s appreciation for

human value.

Unfortunately, with the rise of globalization and the increased rate of American clothing

brands contracting with international suppliers for the purpose of clothing and apparel production,

43 US Human Rights Network: Building a People Centered Movement, INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, www.ushrnetwork.org/our-work/project/iccpr-international-covenant-civil-political-rights (last visited Apr. 21, 2014) [hereinafter COVENANT]. 44 International Convention on Civil and Political Rights, Preamble, Dec. 16, 1966, www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. 45 COVENANT, supra note 43. 46 Id.


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some of our nation’s core values may be falling to the wayside. In many instances, this means losing

sight of our nations commitment to promoting and encouraging human rights both nationally and

internationally. Significantly, however, certain legal and non-legal strategies may potentially help to

address international violations of human rights by American corporations. Of these, the Alien Tort

Statute 28 U.S.C.A. § 1350 is one strategic outlet worth noting. Under the Alien Tort Statute an alien

may bring, in district court, a civil action in tort committed in violation of the law of nations or a

treaty of the United States.47 For example, violation of the ICCPR under the Alien Tort Statute may

provide aliens a means for obtaining original jurisdiction in United State’s district courts for a civil

claim in tort. 48 Nevertheless, with a current split in the circuits, there is limited legal traction to

support international laborers’ tort claims under the Alien Tort Statute for human rights violations

occurring throughout the global supply chain.

Fortunately, over the years non-legal strategies have helped to bolster international human

rights movements; specifically, those targeted at human rights violations occurring in the garment

industry supply chains. In the 1990s, the discovery of labor abuses in Asian Factories prompted the

“anti-sweatshop movement to target major apparel and footwear brands supplied by those

factories.” 49 As a result, many companies targeted by the negative campaigns felt pressure to

47 28 U.S.C.A. § 1350 (West). 48 Mara Theophila, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 FORDHAM L. REV. 2859, 2859 (2011). 49 Francisco Székely & Joana M. Comas Martí, From Commodity to Value-Added: Making Factory Audits Effective Again (Jun. 2013), available at www.imd.org/research/challenges/factory-audits-francisco-szekely-joana-comas-marti.cfm.


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initiate corporate social responsibility initiatives (CSR) meant to curb labor abuse.50 These initiatives

served to ensure brand moguls that certain labor standards were being met within their supply

chains and to protect their brands’ reputation.51

Research reveals three instruments frequently used by brands when imposing socially

responsible behavior among their subcontractors: social labels, socially responsible investment,

and codes of conduct.52 Codes of conduct often form the core of CSR programs and include

provisions on “labor conditions covering human rights and occupational health and safety

requirements.”53 Such provisions articulate a brands acceptable standard of conduct and may be

found listed under its corporate policies and practices. 54 In an effort to enforce and ensure

compliance with CSR initiatives many brands have established compliance teams to conduct factory

audits or will often hire third parties to perform audits on their behalf.

For the unfamiliar consumer, the task involved in the auditing process can be difficult to

understand, particularly for those unfamiliar with the supply chain process. Generally, CSR’s reflect

a corporation’s obligations to society and to its shareholders. 55 Nevertheless, each individual

corporate brand monitors supplier CSR behavior differently and as a result suppliers may have a

spectrum of compliance standards it must abide by depending on its buyers.

50 Id. 51 Id. 52 ERIC BOYD ET. AL., CORPORATE SOCIAL RESPONSIBILITY IN GLOBAL SUPPLY CHAINS: A PROCEDURAL JUSTICE PERSPECTIVE (2007), at 342, 341. 53 Székely, supra note 49. 54 Boyd, supra note 52, at 343. 55 Id. at 342.


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According to Harit Sardana, Senior Manager of the Technical department at Intertek, a

multinational third party auditing company, when a brand hires a third party like Intertek to perform

audits the brand determines the specifics of the auditing processes. For example, Intertek offers

three service divisions: inspections, certification, and testing, it is up to the brand to decide which of

the three services it would like Intertek to perform. The reports are created by the brand and the

audits are always scheduled, with the frequency of audits depending on a factory’s audit score. A

good score may mean that a brand audit is conducted every two years and a low score may mean a

factory is undergoing brand audits every six months. Notably, however, a good score varies with

each brand. Because brands set the auditing standards based on its CSRs preferences, a supplier

may score high with one buyer’s audit and score very low with another.

Mr. Sardana has been in the garment industry for approximately 23 years and has spent the

last year and a half with Intertek. According to Mr. Sardana, despite brands’ heavy hand in the

auditing process, he contends that audits have made a difference over the years. In his experience,

the audits have helped give rise to more fashion institutes, helped to improve the training of

garment workers, and improved the quality of garments made in India. Additionally, Mr. Sardana

reported that recent legislation and the increased prominence of National Government

Organizations (NGO’s) in India have also helped to improve earlier issues of inadequate wages and

child labor. For example, since the passing of India’s Right of Children to Free and Compulsory

Education (RTE) Act in 2009, more children are attending school. Still, Mr. Sardana conceded that

as old issues are slowly being overcome new ones are arising every year. Specifically, one regularly


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reported concern by factory workers, which the current state of the auditing process fails to

address, is the issue of forced overtime. In an interview with one individual employed by Pride

Integrated Services, a company that supplies labor to factories, he reported that to maintain

employment a worker must be willing to work overtime whenever directed to do so, sometimes

more than the three hours permitted by law and/or on Sundays despite certain preclusions under

the 1948 Factories Act. Further, the interviewee stated that he is regularly not paid the overtime

rate for overtime work. To demonstrate this he provided a pay stub that noted 10 hours of overtime

but reported that he contributed much more. He added that although he was paid overtime for the

10 hours of noted overtime, he was only given his regular rate of pay for all additional hours of

overtime.

Currently, because the brands’ create the auditing reports and because the audits are brand

specific, many audits fail to include worker interviews or obtain worker feedback. And, for those that

do, the format of the interview depends on the preference of the brand. As a result, sample error

often arises due to the method and format in which the interviews are conducted. For example,

whether a worker interview is conducted inside with management, privately, or anonymously

depends on the brand. These nuances are considerably important because of the involved risk of

employer retaliation. If a brand chooses to include worker interviews to obtain feedback but does

not ensure that such interviews are conducted privately or anonymously there is heightened risk

that the audits are not recording less obvious issues like forced overtime. Without privacy or


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anonymity workers report they are too fearful to come forward about health and safety issues or

other human rights abuses because of employer retaliation.

Ultimately, although CSRs initiatives and audits created to curb labor abuse and protect

brand reputation have aided to improve working conditions in some Indian garment factories, the

discrepancies in the auditing process means that important issues are being overlooked or

unidentified. Moreover, those factories supplying to less prominent brands lack an enforcement

mechanism and likely have little to no incentive to abide by standard notions of human rights.


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PART SIX: Conclusion

Forced overtime in the garment production factories of Gurgaon is largely a product of the

fast fashion phenomenon. Management practices that actually force, coerce, or unduly pressure

employees to work longer hours impair performance and create serious healthy and safety risks.

In the attached appendices, our four-student Health and Safety Team has created several

documents to help advocate for garment workers. Our experience in the Human Rights Law

Practicum was truly perspective- and life-altering. We hope our efforts will make a meaningful

contribution to the ongoing struggle for Gurgaon’s garment workers (and the rest of the world’s

oppressed workers) to create


References

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REFERENCES

28 U.S.C.A. § 1350 (West). A. E. Dembe et al., The Impact of Overtime and Long Work Hours on Occupational Injuries and Illnesses: New Evidence from the United States, OCCUPATIONAL & ENVIRONMENTAL MED. 588 - 597 (2005). Anderson Antunes, Zara Accused of Alleged ‘Slave Labor’ in Brazil, FORBES (Aug. 17, 2011), www.forbes.com/sites/andersonantunes/2011/08/17/zara-accused-of-alleged-slave-labor-in-brazil. CENTER FOR DISEASE CONTROL, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, OVERTIME AND EXTENDED WORK SHIFTS: RECENT FINDINGS ON ILLNESSES, INJURIES, AND HEALTH BEHAVIORS, available at www.cdc.gov/niosh/docs/2004-143/pdfs/2004-143.pdf. Convention Concerning Forced or Compulsory Labour (No. 29), June 28, 1930, 39 U.N.T.S. 55. CURRICULUM VITAE: DR. MANMOHAN SINGH, PRIME MINISTER OF INDIA 1, available at http://pmindia.nic.in/cv.pdf (last accessed 04/29/2014). Devin Finn, BONDED LABOR IN INDIA, TOPICAL RESEARCH DIGEST: HUMAN RIGHTS AND CONTEMPORARY SLAVERY, 7 (2008), available www.du.edu/korbel/hrhw/researchdigest/slavery/india.pdf. Drew Dawson & Kathryn Reid, Fatigue, Alcohol and Performance Impairment, 388 NATURE 235 (1997). Eric Boyd et. al., Corporate Social Responsibility in Global Supply Chains: A Procedural Justice Perspective (2007), at 342, 341. Francisco Székely & Joana M. Comas Martí, From Commodity to Value-Added: Making Factory Audits Effective Again (Jun. 2013), available at www.imd.org/research/challenges/factory-audits-francisco-szekely-joana-comas-marti.cfm. George B. Sproles, Fashion Life Cycles: Principles and Perspectives, 45 J. MARKETING 116 (1981). ILO, COMBATING FORCED LABOR, 20, www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_101171.pdf.


References

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International Convention on Civil and Political Rights, Preamble, Dec. 16, 1966, www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. Katherine Kany, Mandatory Overtime: New Developments in the Campaign, AM. J. NURSING, May 2001, at 67 – 68, 70 – 71. Katie Spence, Minimum Wage, Unemployment, and Robots: Why Increasing One Could Affect the Others (Feb. 8, 2014), www.fool.com/investing/general/2014/02/08/will-a-minimum-wage-increase-cause-robotic-sales-a.aspx. Mara Theophila, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 FORDHAM L. REV. 2859, 2859 (2011). Mehul Srivastava, Why India Is Rethinking Its Labor Laws, BLOOMBERG BUSINESSWEEK (Jan. 13, 2011), www.businessweek.com/magazine/content/11_04/b4212013616117.htm. PUDR v. Union of India (1982). Renee Dudley, Arun Devnath, & Matt Townsend, The Hidden Cost of Fast Fashion: Worker Safety, BUSINESSWEEK (Feb. 7, 2013), www.businessweek.com/printer/articles/95916-the-hidden-cost-of-fast-fashion-worker-safety. The Constitution of India, Pt. III, para. 14. The Contract Labour (Regulation and Abolition) Act, 1970, Act No. 37. THE ILO DIRECTOR GENERAL'S 2005 REPORT, 5, www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_081882.pdf. Factories Act, 1948, Section 51 & Section 54. US Human Rights Network: Building a People Centered Movement, INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, www.ushrnetwork.org/our-work/project/iccpr-international-covenant-civil-political-rights (last visited Apr. 21, 2014).


APPENDIX: Letter to ILO

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APPEDIX ONE: Letter to ILO

Guy Rider Director-General International Labour Organization 4 route des Morillons CH-1211 Genève 22 Switzerland Dear Mr. Ryder, The occasion of the 103rd Session of the International Labour Conference presents an opportune time for the body to consider strengthening existing protections against forced labor, by expanding its definition under ILO Convention 29 to include coerced overtime labor. Since Item IV of the Conference Agenda in the upcoming 103rd Session is aimed to supplement the Forced Labour Convention, 1930 (No. 29) for the purpose of achieving the elimination of forced labor, we respectfully request that the Committee established to address this item closely assay the issue of coerced overtime labor, which often is practically indistinguishable from other instances of forced labor. The realities of modern labor practices across myriad industries, coupled with scientific data concerning the effects of said practices on the health of workers, not only justify, but compel the foregoing supplementation of ILO Convention 29. With limited exceptions, Article 2 of ILO Convention 29 defines forced labor to mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” Convention Concerning Forced or Compulsory Labour (No. 29), June 28, 1930, 39 U.N.T.S. 55. While the ILO currently interprets forced labor under this provision to include situations in which workers are threatened with dismissal for refusing to do overtime beyond the scope of their contract or of national law, as expressed in the ILO Director General’s 2005 report, this principle should form part of the definition of forced labor under ILO Convention 29. Workers throughout the world deserve the right to work free of coercion, within reasonable limits of their physical capacity. This right should be expressed unequivocally in the highest instrument of international law governing the rights of workers. Sincerely, Matthew Beckstead Oscar Peralta Candace Ruocco Silvia Villanueva


APPENDIX: Questionnaire

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APPENDIX TWO: Questionnaire

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Interview Schedule & Procedures

INTERVIEW SCHEDULE & PROCEDURES for Garment Worker Health & Safety Interviews

January 2014

! Introduction: Students from UNLV, SLU & JGLS working for the enforcement and advancement of workers’ rights in partnership with SLD.

! Confidentiality statement ! Permission to record interview

Name: Gender: Phone: Best time to reach you: BACKGROUND/EMPLOYMENT

(1) How old are you?

(2) How long have you been working at this factory?

(3) For what position were you hired?

(4) What does your current job entail?

(5) What is your shift? How many hours do you work per day? Per week?

PRODUCTION SAFETY

(6) What machines do you operate?

(7) Do you feel that the machines you use are safe?

(8) Is there safety equipment that can make their use safer?

(a) Are you provided this safety equipment?

(9) Are you ever nervous/scared to use any machine? If so, why?

(10) Do you feel your workplace is safe in other ways? WORKPLACE SAFETY

(11) Is there adequate ventilation?

(12) What is the temperature like?

(13) Are there clear walkways & safe stairwells?



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(14) Is there adequate lighting? During daytime and nighttime?

(15) Are there identifiable and accessible exits?

(16) Does management provide fire emergency training? (drills, alarms, extinguishers)

(17) Are there drills for earthquakes, tornados, or other natural disasters?

(18) Do your work conditions or equipment change during inspections? INJURY & MEDICAL PROCEDURES

(19) Have you ever been injured at work? If so, what happened?

(20) What happens in case of an injury or medical emergency? What is the procedure?

(a) Does management report workplace injuries to the police?

(b) Does management report workplace injuries to ESI?

(c) Does management report workplace injuries to the Labor Department?

(21) Have you been provided with an ESI card?

(a) When did you receive it?

(22) Do you have a “punch card”? Regularly?

(23) Do you receive pay slips? Regularly?

PRODUCTION INCENTIVES

(24) Are there minimum targets of production that you have to meet?

(25) Do you receive incentives if you meet certain targets?

(26) Do you feel reluctant/scared to take breaks, because you’re worried about meeting targets or receive incentives?

OVERTIME

(27) Do you ever work overtime? How often? How many hours per day/week/month?

(28) Why do you work overtime? (by choice/coercive)

(29) Do you receive premium pay for overtime hours?

(30) Do you ever feel compelled to work overtime to meet targets or receive incentives?

(31) Do you ever feel compelled to work overtime for any other reasons?



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(32) Do you ever have to take work home?

WORKDAY EXPERIENCES: BREAKS & LEAVE

(33) How many breaks do you get during the day? How long are they?

(34) What days do you have off? How often?

(35) Does your factory have rest or break areas?

(36) Do you feel comfortable asking for maternity leave?

(a) Do people generally use/receive maternity leave?

(b) If you requested maternity leave, would your employer grant your request?

(37) Do you feel comfortable asking for time off for other health issues?

(a) Do people generally use time off for health issues?

(b) If you requested time off for health issues, would your employer grant your request? WORKDAY EXPERIENCES: PERSONAL NEEDS

(38) Are you allowed to go to the restroom whenever you need to?

(a) Are the restrooms close to your workstation?

(b) Are restrooms separate for men and women?

(c) How many restrooms are there? How many toilets? Sinks?

(d) How many floors are there?

(39) What’s the ratio of restrooms per worker? (i.e. How many RRs? How many workers? We can calculate).

(40) Are the premises sanitary? The restrooms?

(41) Do you have access to potable water (i.e. filtered drinking water)?

(42) Are workers provided canteens? Are workers allowed canteens? (to keep at the workstation)

(43) Does your factory provide a Day Care Center?

GENERAL WORKPLACE CONDITIONS

(44) How many workers are employed at your factory?

(45) Is there a Safety Officer at your factory?



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(a) Is s/he always on duty?

(b) What is his/her role?

(46) Have you ever felt unsafe at work?

(47) Have you ever felt uncomfortable at work?

(48) Have you ever found an unsafe condition at work?

(49) Have you ever complained about any work conditions?

(a) If so, please describe what happened.

(50) Do you feel like you can complain about work conditions or express any grievance to a supervisor or management?

(51) Do you think that is an effective method of resolving the problem?

(52) If you wanted to complain – what other options would you have? Could SLD help?

(a) Do you have other ideas for filing complaints anonymously?

OTHER GENERAL INFORMATION

(53) Do you have any other employment? Odd jobs?

(54) How do the conditions at this factory/employer compare with other employers (that you’ve worked for or heard about)?

(55) Have you ever had any health problems? Please explain.

(56) Would you be willing to talk to us more on Sunday January 5, 2014?

(a) Any other time this week? We’ll make it convenient/easy for you!

(b) Other locations: SLD, Sage Hotel, JNU, any other location?

(c) Do you have friends or family who might want to talk to us?

(57) Is there anything else you want to tell us? Anything that we didn’t ask about?


APPENDIX: Letter to Brands

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APPENDIX THREE: Letter to the Brands

UNIVERSITY OF NEVADA, LAS VEGAS William S. Boyd School of Law

4505 S. Maryland Pkwy., Las Vegas, NV 89119

April 26, 2014

FREE THE PEOPLE Compliance Department 30 Industrial Park Blvd. Trenton, SC 29847, USA Dear Sir or Madam: Please allow this letter to serve as an informational tool on the labor conditions observed during a two-week period of field study in New Delhi, India focused on the health and safety conditions facing garment workers in Indian garment factories. Working in partnership with local Indian students, our team of law students from the University of Nevada, Las Vegas William S. Boyd School of Law conducted a series of research centered on investigating the employment conditions of laborers working in garment factories that produce clothing for Tier 1 multinational corporations like your company. Through the use of critical analysis, observation, evaluation, and personal interviews with Indian garment workers, management, government officials, and third-party auditing firms, we aimed our efforts at identifying and documenting health and safety issues and employment abuses occurring within these factories and are currently in the process of finalizing a report on our findings. Fortunately, we were pleasantly surprised to see how recent corporate social responsibility initiatives and compliances audits have aided to improve the health and safety conditions in some of the Indian factories we observed. Nevertheless, based on personal interviews with garment workers, we found a giant gap in the bran auditing process that, if properly modified and corrected, could greatly improve some of the modern day human rights abuses occurring in these factories. As you are aware, multinational brands like Urban Outfitters and Free the People establish its own auditing guidelines and/or create the auditing reports provided to third-party auditing agencies based on its own corporate social responsibility policies and procedures. Unfortunately, one major flaw, among many we found with this system, was that many of the auditing processes fail to include worker interviews or obtain worker feedback. Moreover, for those brands that do incorporate worker interviews into its auditing process, these audits often encounter the very overlooked problem of sample error, which arises due to the method and format in which the interviews are conducted. For example, whether a worker interview is conducted inside with management, privately, or anonymously is considerably important because of the involved risk of employer retaliation. If a brand chooses to include worker interviews to obtain feedback


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UNIVERSITY OF NEVADA, LAS VEGAS William S. Boyd School of Law

4505 S. Maryland Pkwy., Las Vegas, NV 89119

but does not ensure that such interviews are conducted privately or anonymously there is heightened risk that the audits are not recording less obvious issues like forced overtime. In an interview with one worker employed by Pride Integrated Services, a company that supplies labor to factories, he reported that “to maintain employment a worker must be willing to work overtime” whenever directed to do so, sometimes more than the three hours permitted by law and/or on Sundays despite certain preclusions under the 1948 Factories Act. During our interviews we found that without privacy or anonymity workers report they are too fearful to come forward about health and safety issues or other human rights abuses. We hope this letter serves to put you on notice and inform you that although corporate social responsibility initiatives and audits created to curb labor abuse have aided to improve working conditions in some Indian garment factories, many important issues are being overlooked or unidentified due to a failure to include worker interviews or fallible employee interviews. We recommend that your company incorporate private or anonymous worker interviews into its auditing procedures in an effort to correct less obvious human rights abuses in its supplier factories.

Sincerely, ! Matthew Beckstead Oscar Peralta !University of Nevada-Las Vegas University of Nevada-Las Vegas J.D. Candidate, 2014 J.D. Candidate, 2014 Candace Ruocco Si lvia Vil lanu !eva Saint Louis University University of Nevada-Las Vegas J.D. /PhD Candidate, 2015 J.D. Candidate, 2014

Health & Safety Group: Final Portfolio

Government & Nonprofit

Transcript of Health & Safety Group: Final Portfolio