V. Rights and Violations

Many of the conditions in the Choe factories violate numerous internationally recognized human rights, in addition to domestic labor laws.  International human rights, based on universally shared notions of justice, are legally enforceable.  An entire doctrine of human rights law, which falls under the rubric of the "right to work," has been created to protect and promote the rights of workers.  The following section provides a brief background on the international human rights framework, describes the right to work and lists the violations of workers' rights that took place in the Choe factories.

A. Human Rights

Human rights are rooted in notions of universal justice: All human beings are entitled to basic economic, social, political, cultural and civil freedoms that are necessary for a life of dignity.  Rights are held universally by all human beings against all other persons and institutions. ³⁷  The human rights framework defines both those who hold rights and those against whom rights are held.  For example, since the 1600s the international legal framework has been based on the principle of individuals as holders of rights and states as the holder of duties.  However, the narrow focus on states as duty holders ignores powerful non-state actors such as large wealthy corporations.

Fifty years ago most nations of the world participated in the drafting of international human rights norms.  The International Bill of Human Rights, which includes the Universal Declaration of Human Rights (UDHR),³⁸ one of the most universally accepted documents by states and individuals, the International Covenant on Economic, Social and Cultural Rights (ICESCR),³⁹ and the International Covenant on Civil and Political Rights (ICCPR) with its Optional Protocols,⁴⁰ began to represent the international community’s efforts to elaborate, define and legally enshrine these rights.  Subsequently, several declarations and treaties have been added indicating further international commitment to human rights.  These rights, which are still being defined and elaborated upon, include the rights to an adequate standard of living, housing, work, education, health, collective bargaining, freedom from hunger, freedom of association, and elimination of all forms of slavery, servitude, and forced or compulsory labor.  Although these rights are traditionally held against the state (that is, the state is held accountable if these rights are violated), given that powerful non-state actors around the world extend their control over the basic conditions of people’s lives without responsibility, it is critical to hold third parties, such as corporations, accountable for human rights violations.

B. The Right to Work

The right to work guarantees individuals the opportunity to earn a living wage in a safe work environment and also provides for the freedom to organize and bargain collectively.  Moreover, the right to work is more broadly defined and better protected in international law than in U.S. domestic law.  However, unions such as UNITE have expanded the rights and protections of workers through union contracts and are theoretically responsible for the enforcement of these rights through organizing at the workplace.  This section briefly describes international law, U.S. federal and New York State law, and UNITE provisions which covered workers in the Choe factories.

International Law

There is an extensive international system set up by the United Nations and the International Labor Organization (ILO) to protect workers' rights in and out of the workplace.  The norms and standards set by the International Bill of Rights (the Universal Declaration and the two accompanying covenants) that are directly related to work include the rights:

• to employment,
• to organize,
• to fair wages, particularly for women,
• to reasonable limitations on working hours,
• to rest and leisure,
• to holidays with pay,
• to special care and assistance before and after pregnancy,
• to protection against unemployment,
• to safe and healthy working conditions,
• to remuneration ensuring one's family an existence worthy of human dignity, and
• to join a trade union.

Table 2 summarizes the relevant articles relating to the right to work in various international documents.

The ILO labor standards are laid out in various conventions and recommendations.  Of the 200 conventions, the ILO has labeled seven as fundamental human rights conventions.  They include the rights to:

• organize and bargain collectively,
• equal pay for equal work,
• freedom from forced and compulsory labor,
• elimination of discrimination in the work place and
• abolition of child labor.⁴¹

However, it must be noted that these seven core ILO human rights standards are insufficient for improving working conditions, particularly those in the sub-contracting industry.

Table 2.  Summary of the Right to Work in the International Bill of Rights and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

Domestic Law

In the U.S., federal and state laws govern labor conditions and these laws are enforced by the appropriate – federal or state – agencies like the Department of Labor (DOL).  The federal minimum wage, which covers all workers working 40 hours in a week,⁴² is $5.15 per hour.  New York State (NYS) minimum wage law provides $4.25 per hour for a forty-hour workweek.  Federal and state law require that any time over 40 hours per week is to be considered overtime and compensated at 1.5 times the hourly wage.⁴³  All workers working 40 hours or more per week must receive one full day of rest in a week.  There are no limits, however, on the number of hours workers can be required to work and no protection for workers who lose their jobs for refusing to work overtime or excessively long hours.⁴⁴  Benefits, including maternity leave,⁴⁵ are at the discretion of employers.

The federal DOL’s Occupational Safety and Health Administration (OSHA) administers workplace safety.  Job safety and health standards are the responsibility of the employer. For example, employers are responsible for the following: identification of all physical hazards, including safety signs and fire exits, regular inspection and maintenance of all machinery used on premises, clean sanitation facilities, and provision of potable water for drinking and washing. OSHA is authorized to conduct workplace inspections and can issue penalties of $7,000 to $70,000 for violations.

Given the recent burgeoning of sweatshops in NYC, the NYS DOL has set up an Apparel Industry Task Force "to help manufacturers and retailers identify and avoid sweatshops when seeking apparel contractors."⁴⁶  The Task Force has been responsible for disseminating information on sweatshops and pushing new legislation with the NYS DOL. According to the Task Force guidelines, workers should be paid the NYS minimum wage and an overtime pay at one and one-half times the hourly rate.  There should be no deduction in the employee's wages, except for those authorized under state and federal law.  Factories must comply with safety and federal occupational safety and health law and fire codes.

Since the mid 1990s, NYS has established two laws pertaining to sweatshops.  In 1996, NYS enacted the "Hot Goods" law, which prohibits the sale or distribution of clothing produced in sweatshops.⁴⁷  In 1998, Governor Pataki signed the "Joint Liability" law that holds contractors and manufacturers jointly liable for any wages not paid to contractors' employees.  According to Jay Mazur, the President of UNITE, this law recognizes the importance of joint responsibility: "We [UNITE] have long held that the manufactures who essentially control the garment industry should be held responsible for conditions in which their garments are made."  This legislation is a weak tool, however, as in order for manufacturers to be held accountable under this law their intent to contract with a sweatshop must be proven.  This law also makes it even more difficult to hold retailers accountable as retailers are specifically left out of this legislation.  Workers, however, have already set precedents for manufacturer accountability.⁴⁸

Rights and Protections of Unionized Garment Workers

In addition, in the U.S. any reference to labor rights implies the freedom of association and collective bargaining, i.e. the ability of workers to form and join unions.  In the case of the apparel industry, the Union of Needletrades Industrial and Textile Employees (UNITE) has a standard industry contract in which it represents all workers in unionized garment shops.⁴⁹ The official union contract contains provisions that are very protective of workers' rights, namely:

Hours and Overtime: Regular week's work shall consist of thirty-five hours per week and overtime shall be voluntary [emphasis added] and shall be paid for at the rate of one and one-half time.  All Saturday work shall be paid for at the rate of time and one-half.

Minimum Wage: Effective minimum wage, as of June 1996, was $6.15 with an increase of 3 percent thereafter.⁵⁰

Health, Safety, and Sanitation: The employer is to provide drinking fountains, toilets and washrooms, and work areas that should be clean, well lit and adequately heated.

Moving Shop or Abandoning Work: The employer is prevented from moving its shop without giving just cause and at least a 30-day notice to the Union.  In the event that the permanent contractor abandons or closes its operations through collusion or by other improper arrangement, "such contractor's workers shall be immediately be absorbed by the Employer."⁵¹

Despite this collective agreement, most employers with unionized shops violate workers' rights while producing under the union label.  An unreleased study by the NYS DOL estimated that three-quarters of all union shops were sweatshops according to the union's own standards.⁵²

C. Human Rights Violations in the Choe Factories

In light of the provisions under international and domestic law and the UNITE contract, conditions in the Choe factories described in Section IV are clearly in violation of international and domestic law and the workers’ union contract. The human rights violations in the factories are summarized in the following sections and accompanying tables.

Although manufacturers and retailers deny responsibility for worker conditions, under human rights law they – as third party actors with tremendous influence in the industry – are responsible for the blatant violations of workers' human rights.  In this case, clothes for working women designed by a working woman, Donna Karan, are made by denying women workers their human dignity.

Violations Related to Wages and Benefits

The women workers who stitched the high-end fashionable clothing for the "working woman" labored 10 to 11 hours, 6 days a week, for $4 to $6 per hour, earning a weekly wage of $240 to $300.  The workers worked more than the 35 hours specified by the union contract and the 40 hours specified by U.S. labor law.  However, they did not receive the one and one-half times pay specified in their union contract and provided under domestic and international human rights. The workers' annual earnings were below the federal poverty wage $16,000 for a family of four, despite the long hours and intense pace of work they endured.  In addition, Chung Suk Choe deducted 5% from their weekly earnings in direct violation of U.S. Federal and state law and the NY State Apparel Task Force guidelines.  In addition, in clear violation of the right to non-discrimination, Latina workers were paid less than the Chinese workers.

Although benefits, such as paid vacation and national holidays are at the discretion of the employer in the U.S., workers in the Choe factories did not receive paid vacation, paid sick days, maternity leave or any paid national holidays.  Moreover, none of the workers received maternity leave or special care before and after pregnancy and could not even take unpaid time off for doctors' appointments.  Even though the contractor employed over 50 persons and the Choe factories were subject to the Federal Family Medical Leave Act (i.e. each employee had the right to 3 months of unpaid maternity leave without losing work) workers were afraid to take more than two weeks of unpaid maternity leave because they feared losing their jobs.  In addition, workers were generally fearful of asking for any unpaid time off since they felt that they might lose their work. These are all violations under international human rights law and US domestic law.

Table 3. Violations Related to Wages

b indicates that a violation occurred under the legal framework listed at the top of the column

Violations Related to Hours and Forced Labor

Although U.S. domestic labor law does not recognize long hours of work as a human rights violation, work without sufficient rest is considered a violation under international human rights law.  Long hours at work impact on all aspects of a worker’s life.  Long hours of work over a prolonged period are clearly detrimental to one's physical and mental health. They also take a toll on one's personal life, including infringing on time spent with family  In the case of the Choe factories, women were spending 10-11 hours a day, 6 days a week at work. Most of their time was spent working since they only received a 30-minute break for lunch and another 10-minute afternoon break. The workers felt that they were unable to spend sufficient time at home or with their children.  These are clear violations of international human rights law.

Furthermore, the atmosphere of fear and intimidation, whereby workers were afraid to ask for time off even for emergencies and felt compelled to work overtime though they did not receive overtime pay, amounted to conditions of forced labor that are also in violation of international human rights.

Table 4. Violations Related to Hours

b indicates that a violation occurred under the legal framework listed at the top of the column

Intimidation and Restriction of Bodily Functions⁵³

Workers at the Choe factories were not allowed to go to the bathroom until they had finished stitching their quota.  They were forbidden from making and receiving phone calls.  The supervisors were constantly yelling and screaming at the workers to speed up work and to stitch faster.  The workers were afraid to ask for time off to treat a sick child or other family member.  They were afraid to leave after eight hours of work even though they did not receive overtime pay.  This atmosphere of intimidation and restriction on contacts with the outside world, including family, and the imposition of strict rules that control the workers’ bodily function are all human rights violations of the worst sort.

Occupational Health & Safety Violations

Although the workers at the Choe factories regularly experienced neck-aches, backaches, and other work-related physical aches and pains, most workers could not rest or take a break during the workday.  Also, those not covered by the union health insurance (all except one worker interviewed) were without health coverage.  Most workers took over-the-counter painkillers for their aches and pains.  In addition, the constant harassment in the workplace affected workers' mental health.  Most of the women workers suffered from anxiety and even experienced bouts of depression.  Yet these symptoms are not currently recognized as occupational health problems under domestic and international labor law.  Moreover, the restrictions placed on bathroom use may also have had adverse health impacts.

Table 5. Health and Safety Rights Violations

^b indicates that a violation occurred under the legal framework listed at the top of the column

Violations of the Right to Organize and Bargain Collectively

The right to organize and bargain collectively is a basic principle of international and domestic law.  Although the Choe factories were unionized under UNITE Local 89-22-1, workers were unwilling to speak out against the oppressive and exploitative working conditions for several reasons. First, they did not want to be labeled troublemakers. Second, they were afraid of losing their jobs.  And third, they did not receive any support from their union. The workers, mostly immigrant women, had limited contact with the union representative. Most of the workers had never seen the union contract.  Moreover, since the contract was in English most of the immigrant workers would not have been able to read the contract without translation assistance.

It is notable that for 12 years Chung Suk Choe was allowed to operate her unionized factories under conditions that were in complete violation of the union contract.  When one of the factory workers began to protest against the telephone restrictions and long hours of work, she did not receive union support and was ostracized at the workplace.⁵⁴  Under the Fair Labor Standards Act the worker filed an independent case against the contractor and Donna Karan International. They have settled out of court with the worker.  Even though the worker was a dues-paying union member covered by the contract and entitled to overtime compensation, the worker did not receive any support from her union.

When Chung Suk Choe suddenly closed down one of the factories, seven workers joined together and filed a lawsuit for overtime back wages against the contractor⁵⁵ and Donna Karan, Inc.  The lawsuit was filed without the support of UNITE. In fact, the workers who have come forward reported that during negotiations with members from Donna Karan, Inc., the union lawyers have not responded to their complaints and grievances.⁵⁶

Table 6: Violations of the Right to Organize

b indicates that a violation occurred under the legal framework listed at the top of the column

The failure of the union to support workers in their efforts to organize and to bargain collectively is in direct violation of the UNITE contract, as well as international human rights law and domestic labor law.