This section discusses issues of accountability for state and non-state actors. It identifies areas of human rights responsibility and failure to act upon that responsibility by the following actors:
Manufacture/Retailer responsibility: Donna Karan International, Inc.
Large retailers and manufacturers use the sub-contracting system to exploit workers in order to extract the greatest amount of profit, while escaping responsibility for working conditions by pleading ignorance. Their position in the apparel pyramid and control over pricing makes them the most influential actors in determining conditions in garment factories where their goods are produced. The high-end apparel manufacturer-retailer Donna Karan, Inc., monitored and controlled product quality, developed a long-term relationship with the contractor of the Choe factories and dominated all aspects of production. In this particular case, therefore, Donna Karan, Inc. was not only made aware of conditions but must have known of them since the factories were stitching the Donna Karan label for at least 12 years. A Donna Karan representative visited the factories every day to check the quality of the stitching. Donna Karan, Inc. with East Point International, Inc. settled an overtime claim in 1998 with one of the workers who spoke out.57 Yet the company continued to engage in business with the contractor of the Choe factories. The company was, therefore, responsible for all the human rights violations that took place at the Choe factories.
Besides abiding by the minimum wage and overtime laws, it is up to the discretion of the employer to provide any other benefits and ensure certain job and safety standards.58 The contractor/sub-contractor is directly responsible for workers' conditions and therefore most directly responsible for all the violations of international and domestic laws covering the workers.
Despite the complaints and the lawsuit against the Choe factories, the contractor did not change her practices. In fact, Chung Suk Choe closed down her factories and left without paying the workers any back wages or overtime.
The Departments of Labor (DOL) – both Federal and State – have failed to monitor the garment industry adequately and to punish employers who break the law. While the state did pass a "Hot Goods" law in 1996, it has been slow in enforcing it and the law allows manufacturers to escape responsibility while focusing the blame solely on contractors. The NYS-DOL claims that it is understaffed and under-funded and that it is up to the workers to come forward. Yet, the language barrier between workers and DOL officials, the bureaucratic nature of the organization, workers' lack of time (including the inability to go to the DOL between 9 am and 5 pm), and the fear and intimidation that many workers experience, make it difficult for workers to bring forth their complaints. The memorandum of understanding between the Federal DOL and the Immigration and Naturalization Services (see section III above) has only made it more difficult for workers to come forward. Chung Suk Choe had been operating sweatshops for about 13 years without any monitoring or enforcement of labor law by the federal or state DOL. Since manufacturers continue to work with contractors who violate labor laws, there is very little incentive for contractors/sub-contractors to abide by the law unless the agencies responsible for the enforcement of the law perform their responsibilities.
Under federal law, unions can negotiate a contract with sub-contractors on behalf of workers. The historical role of a union has been to fight on behalf of its members to make sure that the rights and protections agreed upon in the contract are enforced. Unions are supposed to strengthen workers' ability to defend their rights in the workplace and they are supposed to be an independent enforcer of labor law. Yet UNITE Local 89-22-1 failed to protect the workers from the Choe factories and has not even supported their claims. While the union rhetoric states that workers need to organize, it has failed to back them up when they have tried to do so. It is responsible for organizing its existing members and addressing the many problems that they face as immigrant women workers. However, the long-standing and well-documented violations of the union contract at the Choe factories clearly demonstrate the union's failure to enforce the rights of its own members.
Table 7. Responsibility for Human Rights Violations in the Choe factories
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Violations of the Human Rights to: |
Responsibility for Violations |
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B. Recommendations
1. Retailers must be held accountable.
Since retailers make the most profit and have the most control in the industry, they must be held accountable for workers' rights violations and abuses. In order to do so, the sub-contracting system must be dismantled or, at least, retailers must be held liable for sweatshop conditions in factories with which they subcontract. Retailers must not be allowed to hide behind excuses of ignorance.
2. Local production must be encouraged.
Clothes must be produced locally for local sale under just and fair conditions. Workers in local factories can monitor and expose human rights abuses and work with concerned citizens to hold retailers, contractors, the union and government agencies responsible for violations. Furthermore, factories in the U.S. must be prevented from closing down and leaving local communities without work while exploiting workers elsewhere, especially in the less developed countries. Instead, garment workers in NYC should continue to work in the garment industry but not under sweatshop conditions.
3. The law must provide more rights and protections for workers.
U.S. state and federal labor laws provide very few protections for workers and thus create and sustain sweatshop conditions. Changes in current domestic law are required to improve working conditions. Some concrete recommendations are as follows:
There should be a federal law that holds retailers accountable for sweatshop conditions in factories where their garments are produced.
The federal statute of limitations on claims for back wages (currently 3 years) should be increased to at least 10 years so that workers continue to have legal recourse for a significant amount of time against contractors who do not pay.
There should be a legal cap on the number of hours a worker can be asked to work daily so that workers are not forced to work long hours.
There should be protections for workers who refuse to work long hours/overtime as currently workers can be fired, without recourse, if they refuse overtime and excessively long hours.
Employers must face higher penalties for not paying wages and overtime.
Occupational health and safety standards must be expanded to include health conditions not currently recognized under the law, including health problems caused by long hours of work.
Most importantly, workplace harassment and abuse, including restrictions and verbal abuse, must be recognized and punished.
4. Existing laws must be enforced faster and more aggressively.
Timely review of violations and aggressive enforcement of existing laws by government agencies would encourage workers to come forward and make contractors and manufacturers less willing to exploit workers due to fears of liability.
5. Apply existing international human rights standards to sweatshops.
Workers' rights are an integral part of human rights standards, and violations of labor standards are violations of human rights. Workers must be treated with dignity and their rights must be respected. Some groups and individuals are suggesting codes of conduct as a response to garment sweatshops. However, these codes are problematic since the sheer number of codes undermines the existing human rights standards as corporations can selectively choose to enforce some codes with some standards/rights over others. Under international law, however, all human rights must be enforced. More importantly, the implementation of these codes is generally voluntary, making it highly unlikely that manufacturers/retailers would comply with these codes of conduct, when they choose not to comply with internationally accepted human rights and domestic labor laws. These codes also undermine workers' efforts to organize by distracting attention away from workers’ struggles and towards voluntary implementation and minor reforms undertaken by manufacturers/retailers.
57 Donna Karan International also settled on the Saipan class-action lawsuit. Saipan is an island in the Pacific annexed as a U.S. territory. American clothing companies were involved in producing their labels under sweatshop conditions. The New York Times. October 7, 1999).
58 Under current U.S. labor laws, however, the contractor is legally permitted to operate a sweatshop since many of the established human rights abuses and violations other than minimum wage, overtime and some health and safety issues are not even recognized under domestic law.