I. BACKGROUND: THE DENIAL OF OUTREACH WORKER ACCESS TO MIGRANT WORKERS IN LABOR CAMPS ACROSS THE UNITED STATES

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1 TRANSNATIONAL LEGAL CLINIC GITTIS CENTER FOR CLINICAL LEGAL STUDIES 3501 Sansom Street Philadelphia, PA January 20, 2014 Mr. Emilio Álvarez Icaza Longoria Executive Secretary Inter-American Commission on Human Rights Organization of American States 1889 F. Street, N.W. Washington, D.C Re: Request for a Thematic Hearing (150 th Period of Sessions) - Denial of Access to Migrant Labor Camps in the United States and the Resulting Rights Violations of Human Rights Defenders, including Outreach Workers representing Legal Services, Healthcare and Community Service Organizations, Labor Rights Organizations, and Migrant Farmworkers. Dear Secretary Álvarez Icaza: Pursuant to Article 64 of the Rules of Procedure of the Inter-American Commission on Human Rights, the undersigned nongovernmental organizations request a thematic hearing during the upcoming 150 th Period of Sessions to examine the United States failure to ensure human rights defenders access to migrant farmworker labor camps, and failure to ensure farmworkers, as human rights defenders themselves, rights to access human rights information and protections, resulting in further violations of the American Declaration on the Rights and Duties of Man (hereinafter, American Declaration ), 1 as well as other human rights instruments to which the United States is bound. The lack of legal protections guaranteeing migrant labor camp access violates the right to freedom of assembly and association, the right to freedom from arbitrary arrest, the right to personal security, the right to due process, and the right to nondiscrimination. The United States failure to guarantee or enforce farmworkers access to legal counsel or information, effective remedy to rights violations, and rights to freedom of association violates the rights of farmworkers as human rights defenders. I. BACKGROUND: THE DENIAL OF OUTREACH WORKER ACCESS TO MIGRANT WORKERS IN LABOR CAMPS ACROSS THE UNITED STATES 1 The Organization of American States (OAS) adopted the American Declaration on May 2, 1948; although not adopted as a treaty, the Inter-American Court of Human Rights and Inter-American Commission on Human Rights oas.org/basicos/english/basic1.%20intro.htm (last visited Dec. 27, 2013). 1

2 Every year, the United States hosts between 1 and 3 million year-round and seasonal migrant farmworkers. 2 Those workers who reside in employer-provided migrant labor camps are often isolated in remote locations, are dependent on their employers for both income and housing, and remain culturally and linguistically separate from members of their surrounding communities, leaving them vulnerable to exploitation and discrimination. Additionally, farmworkers enjoy only limited protections under U.S. law: they are denied legal protections under federal law when engaging in the right to freedom of association and collective action, 3 and are often exempted from legal protections ensuring their right to receive a minimum wage and pay for overtime work. 4 The scarcity of such legal protections renders workers especially vulnerable, a situation exacerbated by the treatment they often receive at the hands of housing owners, most often their employers. The services offered by legal aid agencies, unions, religious service providers, health workers and other outreach workers are a crucial means sometimes the only means through which migrants can defend and exercise their basic rights. Employers and camp managers regularly deny legal and other outreach workers access to the camps where migrant workers are housed, often requiring that anyone wishing to visit workers obtain advance approval before they can have visitation rights. Camp owners frequently label such visitors trespassers, threaten them with physical harm, and call upon local police who often further threaten outreach workers with arrest and criminal prosecution. 5 The United States does not have a comprehensive or consistent legal framework to ensure outreach workers access to migrant workers living in labor camps. The Migrant and Seasonal Agricultural Worker Protection Act (AWPA), the federal law that outlines the legal rights of 2 U.S. Dep t of Labor, Findings of the National Agricultural Workers Survey (NAWS) : A Demographic andemployment Profile of United States Farmworkers, at 43 (Mar. 2005), available at (last visited Dec. 12, 2012) (hereinafter NAWS ). This survey found that 21% of crop workers lived in housing supplied by the employer; 33% of migrant crop workers lived in employer-provided housing; and two-thirds of this housing was located on the employer s farm. While there is little recent comprehensive data on farmworkers, it is believed the numbers of workers living in employerprovided housing presently may be higher. 3 See 29 U.S.C. 152(3), explicitly excluding agricultural workers from the definition of covered employee under the National Labor Relations Act (NLRA). Workers without employment authorization are further discriminated against under Hoffman Plastic Compounds v NLRB, 535 U.S. 137 (2002), in which the U.S. Supreme Court held that unauthorized workers were not entitled to the remedy of back pay under the NLRA, the only individualized remedy available to a worker who is terminated for engaging in a concerted protected activity. See also, Int l Labor Org. [ILO], Comm. on Freedom of Ass n, Complaints Against the Government of the United States Presented by the American Federation of Labor and the Congress of Industrial Organizations (AFL-CIO) and the Confederation of Mexican Workers (CTM), Report No. 332, Case No. 2227, Vol. LXXXVI, 2003, Series B, No. 3 (Oct. 18, 2002)(recognizing that the United States failure to ensure a remedy is tantamount to the denial of the right to freedom of association). 4 See, federal Fair Labor Standards Act, 29 U.S.C U.S.C. 213(b)(12), excluding agricultural workers from overtime protections. 5 See, REENA K. SHAH ET AL., LEGAL AID BUREAU, INC., MIGRANT FARMWORKER HUMAN RIGHTS COMPLAINT TO THE UNITED NATIONS SPECIAL RAPPORTEUR ON EXTREME POVERTY AND HUMAN RIGHTS [hereafter SPECIAL RAPPORTEUR SUBMISSION], 1 (2012), submitted in conjunction with this hearing request, and available at: 28Dec%2013%202012%29.pdf. 2

3 agricultural workers and the responsibilities of agricultural employers, is silent on the issue of migrant labor camp access, and no other federal law creates a uniform legal framework mandating a right to camp access for outreach workers. At the state level, virtually all states lack a clear legal framework for protecting human rights defenders access to migrant workers residing on labor camps. Where such legal protections do exist, they are often in the form of court decisions or Attorney General Opinions, which many law enforcement officials are not aware of or simply refuse to abide by. 6 Employers who deny outreach workers access to camps often call authorities who even when their understanding of the law is incorrect reiterate farm owners threats and drive outreach workers from private property. As discussed in greater detail below, the denial of unhindered access for employees of healthcare, legal aid and other social service organizations to migrant workers housed on labor camps perpetuates and exacerbates the rights violations endured by migrant workers, and directly violates the rights of the human rights defenders who seek to meet with them under the American Declaration, the International Covenant on Civil and Political Rights (hereinafter, ICCPR ), 7 and the Convention on the Elimination of All Forms of Racial Discrimination (hereinafter, CERD ). 8 The failure of the United States to provide legal guarantees to the right of access, and to ensure the conditions necessary for free association without interference or fear of reprisal among outreach workers and migrant workers further violates principles set forth in the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (hereinafter, Declaration on Human Rights Defenders ). 9 In December 2012, a national coalition of 28 non-profit legal and social services organizations submitted a complaint to the UN Special Rapporteur on Extreme Poverty and Human Rights, raising the issue of U.S. denial of service providers access to migrant farmworker labor camps. On December 27, 2012, Special Rapporteur Maria Magdalena Sepúlveda Carmona, joined by UN Special Rapporteur on the Situation of Human Rights Defenders Margaret Sekaggya, and UN Special Rapporteur on the Human Rights of Migrants François Crépeau, transmitted to the U.S. government a request for a response within 60 days to the allegations raised in the complaint, in light of applicable international human rights law. To date, the United States has failed to respond, despite direct requests made to the U.S. State 6 Id. Court decisions in Texas, Louisiana, Maryland, New York, Indiana, and Michigan, for example, mandate camp access, but enforcement of those decisions remains a challenge. 7 International Covenant on Civil and Political Rights (hereinafter, ICCPR ), Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc , 6 I.L.M. 368 (1967), ratified by the U.S. Sept. 8, International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter, CERD ), Dec. 21, 1965, 660 U.N.T.S. 195, 212; S. Exec.Doc. C, 95-2 (1978); S. Treaty Doc , ratified by the U.S. Nov. 20, UN Doc. A/RES/53/144 (1998), Arts See also, Id., Art. 6, specifically guaranteeing the right, individually and in association with others: (a) to know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic, legislative, judicial or administrative systems; (b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms. 3

4 Department on behalf of Petitioners. Petitioners therefore seek this thematic hearing before the Inter-American Commission as an opportunity to bring to light the range of rights violations experienced by outreach workers and migrant farmworkers seeking to exercise their fundamental rights to freedom of association and access to justice. A hearing will serve as a catalyst for developing and implementing a comprehensive framework for migrant labor camp access in a manner that fully provides for the rights of all human rights defenders within the United States, outreach workers and migrant farmworkers alike. II. THE DENIAL OF ACCESS TO MIGRANT LABOR CAMPS VIOLATES RIGHTS GUARANTEED UNDER THE AMERICAN DECLARATION A. The United States Fails to Protect Human Rights Defenders who Attempt to Access Migrant Farmworker Labor Camps i. Current Law and Practice Deny Human Rights Defenders Their Right to Freedom of Assembly and Protection From Arbitrary Arrest The failure of the United States to protect the rights of outreach workers to assemble with migrants employed at U.S. labor camps violates Article XXI of the American Declaration s guarantee that every person has the right to assemble peaceably with others, 10 as well as Article 21 of the ICCPR. 11 In the absence of a federal system of protection, and inadequate state level protections, employers and camp managers regularly interfere with outreach staff s and migrant workers ability to exercise their rights to assembly, responding harshly to those who attempt to visit labor camps, even when such visitation is authorized under law. Many health workers and legal aid representatives recount that employers have demanded they leave their property immediately, and have accused them of criminal trespass. Growers have physically prevented outreach workers from departing the labor camp by purposely blocking their vehicle in, so that the outreach workers would be unable to leave before the arrival of law enforcement. 12 After visiting migrant workers, some outreach workers have received letters from employers attorneys threatening prosecution for trespass if visitation attempts do not cease. In at least one recent case, an outreach worker in New Jersey, a state whose Supreme Court recognized a right to access in 1971, nevertheless was prosecuted for trespass after visiting workers in a labor camp American Declaration, Article XXI: Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature. 11 ICCPR, Article 21: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. 12 See Declaration of Clermont Fraser, on file with Petitioners; see also Declaration of Rodrigo Falcon Alaniz, on file with Petitioners. 13 from Keith Talbot, Legal Services of New Jersey, to Nathaniel Norton, MD Legal Aid Bureau, dated December 12, 2012, on file with Petitioners. 4

5 When outreach workers are granted physical access to labor camps, employers and their agents often intimidate their employees so that they cannot freely communicate, eliminating the ability of outreach workers and their staff to hold meaningful meetings and rendering any right to freedom of assembly effectively null. Many immigrant workers already believe that speaking to aid organizations could lead them to have problems with immigration officials, the criminal justice system, or their employers. 14 Indeed, when camp managers realize their employees have asserted their legal rights, they often react violently physically grabbing workers, loudly chastising them, and threatening deportation to Mexico if migrant farmworkers attempt to pursue legal action. 15 One employer went so far as to tell a worker that he would never come back to the United States if he spoke to a legal aid organization. 16 Moreover, the intervention of law enforcement authorities in such cases far from correcting cases of unlawful employer conduct often reinforces employers illegal or inappropriate behavior. It further chills farmworkers attempts to defend their human rights and prevents access to information and official redress. Police frequently threaten to arrest outreach staff if they refuse to immediately vacate the premises, in direct contravention of outreach workers rights under Article XXV of the American Declaration (mandating that no one may be deprived of his liberty except in the cases and according to the procedures established by preexisting law ), as well as Article 9 of the ICCPR (dictating that [n]o one shall be subjected to arbitrary arrest or detention ). 17 When employers call police in cases of trespass, such officials generally grant employers deferential treatment, echoing claims that outreach staff who do not leave labor camps will be arrested and prosecuted, even when such action is unauthorized by law. In some cases, individuals who presented Attorney General opinions explicitly granting them access to labor camps were still refused visitation rights by employers, were threatened with arrest or legal action, and were forced to leave by police. 18 In Colorado, for example, one religious outreach worker who delivered food, water, and medicine to a migrant employee was prosecuted for criminal trespass even though the migrant had invited her onto the property, giving her a right to visit him under that state s law. 19 These incidents are not isolated to certain law enforcement officers or geographical regions. Outreach workers in states such as Kentucky, Maryland, and North Carolina have all reported similar practices. One Maryland law enforcement officer stated that he was told by co-workers to stay away from labor camps and not to get involved with the practices of camp employers SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at See Declaration of Rodrigo Falcon Alaniz, on file with Petitioners; see also Declaration of Lino Guevara Tovar, on file with Petitioners. 16 Declaration of Lino Guevara Tovar, at 1, on file with Petitioners. 17 ICCPR, Article 9(1); American Declaration, Article XXV. 18 SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Appendix D, page Id. at Appendix D, page 1; id. at attachment 14. Importantly, not all state laws affording outreach workers explicit access rights require that migrant workers invite such individuals onto camp property. See, e.g., SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at fns Id. at Appendix D, page 1. 5

6 Such incidents reflect a failure on the part of the U.S. government to ensure that employers and their agents respect the right to freedom of assembly, as well as the failure of the United States to act when law enforcement officials themselves directly interfere with the migrant workers and outreach workers right to freedom of assembly, guaranteed under the American Declaration and the ICCPR. These incidents further reflect the failure of the United States to take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the [Declaration on Human Rights Defenders], as set forth under Article 12 of said Declaration. ii. Limitations of Current Law or Ignorance of Legal Provisions Mandating Labor Camp Access Violate Human Rights Defenders Right to Personal Security In addition to the interference with the right to freedom of assembly discussed above, employers frequently engage in threatening, intimidating and abusive behavior toward outreach workers. 21 These actions directly infringe on the right of outreach workers and the migrant workers with whom they are seeking to meet to personal security, as provided for in Article I of the American Declaration and Article 9 of the ICCPR (guaranteeing every person the right to security of his person ). Outreach workers recount that employers have been aggressive in their interference with outreach workers seeking to visit and meet with migrant farmworkers. 22 One outreach worker reported that a grower banged her finger down repeatedly on the outreach worker's leg when she was sitting and meeting with an injured farmworker, complaining that the outreach worker should not have collected medical records from the farmworker. 23 A nurse in Maryland was banished from a migrant camp by the owner and then informed that if she returned, he will come to the camp with his shotgun. 24 Another grower told the employee of a healthcare organization that if she knew what was good for her, she would leave. 25 Another farm owner was more explicit; he told advocates that they did not belong on his property and that he could shoot people who chose to remain. 26 These actions are intended to create feelings of terror and fear in the outreach workers, such that they feel they cannot return to such camps out of fear for their own safety and the safety of other staff members. In one instance, after a farm owner slammed his fist on a student 21 SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Id. at Appendix D, page See Declaration of Rachel Wright, on file with Petitioners. 24 SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Appendix C, page Id. at Appendix C, pages Id. at Appendix C, page 2. 6

7 health worker s car while screaming at her for a period of minutes, the student became so afraid of this individual that she has since not returned to the labor camp. 27 Kathryn Cox, a program assistant for the Wake County Farmworker Health Program in North Carolina reported that one farm owner screamed at her from less than two feet away, making her anxious to return to [that] labor camp and concerned about the repercussions for herself and her staff if the owner contacted police. 28 Even when human rights defenders have broken no laws, they are subject to serious harassment, threats of arbitrary arrest, and violence. These abuses infringe on the right of these individuals to personal security, a right guaranteed by both the American Declaration and the ICCPR. The United States contravenes the human rights principle of due diligence by failing to investigate alleged human rights violations against legal service providers or implement appropriate measures to ensure access to migrant farmworker labor camps. 29 B. The Failure of the U.S. to Ensure Legal and Health Service Providers Access to Migrant Labor Camps Perpetuates and Even Exacerbates Violations of Migrant Workers Fundamental Human Rights i. Denial of the Right to Freedom of Assembly Perpetuates Discrimination Against Migrants Under the Law and Deprives Migrant Workers of Their Right to Due Process More than 80% of farmworkers are Latino, and at least half of all laborers lack legal immigration status. 30 Article II of the American Declaration and Article 26 of the ICCPR guarantee of the right to equality before the law, 31 and Article XXVI of the Declaration and Article 14 of the ICCPR, and Article 5 of the CERD provide for a right to due process for every individual without discrimination. 32 The failure to ensure legal service providers and outreach workers access to migrant labor camps effectively divests migrant farmworkers of both these rights, and prevents them from seeking a remedy for abuses that occur at the hands of their employers. As noted above, the working and housing conditions of migrant workers in the United States renders them extremely susceptible to violations of their rights: they are geographically, culturally, and linguistically isolated from their surrounding communities, are economically dependent upon their employers, and usually reside in labor camps situated in remote locations. 33 Employers frequently exploit such vulnerabilities, forcing migrants to live in 27 Id. at Appendix C, page Id. at Appendix C, page Report of the Special Rapporteur on the Situation of Human Rights Defenders, to the UN General Assembly, 65 th Session, Aug. 4, 2010, A/65/223, at FARMWORKER JUSTICE, UNFINISHED HARVEST: THE AGRICULTURAL WORKER PROTECTION ACT AT 30, 4 (2013). 31 American Declaration, Article II; ICCPR, Article American Declaration; Article XXVI; ICCPR, Article REENA K. SHAH AND LAUREN E. BARTLETT, HUMAN RIGHTS IN THE UNITED STATES: LEGAL AID ALLEGES THAT DENYING ACCESS TO MIGRANT LABOR CAMPS IS A VIOLATION OF THE HUMAN RIGHT TO ACCESS JUSTICE [hereafter DENYING ACCESS TO MIGRANT LABOR CAMPS], 20 Hum. Rts. Br. 15 (2012), available at

8 deplorable and overcrowded housing conditions, and threatening to fire or deport them if they complain about their living arrangements or seek legal or medical assistance. 34 The services offered by legal aid agencies and health workers are a crucial means often the only means through which migrants can defend and exercise their basic rights. 35 When legal aid workers cannot meet with farmworkers to inform them of their rights and guide them through legal processes, farmworkers rights to due process become useless, and the distorted migrant-employer power dynamic persists. The U.S. government s failure to provide legal redress related to labor camp access amounts to tacit authorization of employer violations against migrants, and stands in opposition to the rights of equality and due process guaranteed by the American Declaration and the ICCPR. ii. Legal Aid Workers Inability to Access Labor Camps Deprives Farmworkers of Their Rights to Work and Receive Fair Remuneration This lack of effective due process additionally prevents farmworkers from defending their rights to work and receive fair remuneration, as guaranteed under Article XIV of the American Declaration (providing for the right to work under proper conditions and to receive a fair wage that will assure every person a standard of living suitable for himself and his family ) and Article 5(e)(i) of the CERD (establishing a right to work and receive just and favorable remuneration without discrimination). Among the violations most frequently endured by migrant workers are wage violations. A 2011 study conducted in North Carolina found that one in five migrant farmworkers, and 45 percent of all workers without H-2A visas, experienced wage violations. 36 Without guaranteed access to the labor camps where migrant farmworkers live, legal service providers cannot provide critical rights information and needed legal assistance to migrant workers seeking to enforce even existing wage regulations. 37 This lack of access also dramatically interferes with workers pursuit of proper working conditions. The denial of camp access to legal service providers thus can effectively nullify migrants rights to work and receive fair remuneration and violates Article XIV of the American Declaration and Article 5(e)(i) of the CERD. 34 Id. at Id. at ERIN ROBINSON ET AL., WAGES, WAGE VIOLATIONS, AND PESTICIDE SAFETY EXPERIENCED BY MIGRANT FARMWORKERS IN NORTH CAROLINA, 7 (2011). Migrant farmworkers who come to the United States on H-2A visas face special risks: they have no choice but to work for their sponsoring employer, as their visa imposes a temporary, non-immigrant status that ties them to particular employers and makes their ability to obtain a visa dependent on the willingness of the employer to make a request to the U.S. government. This places the workers in an employment situation where they have no power to assert discontent with their situation, for fear of deportation or being denied future sponsorships. Even if protections are available, the likelihood of enforcement remains low due to these fears. See also, HUMAN RIGHTS WATCH, UNFAIR ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION IN THE UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS, 151 (2000). 37 Where minimum wage protections do exist, some migrant workers do not even know which ones apply to them, as AWPA provisions ensuring disclosure of job terms and conditions are not afforded to H2A temporary agricultural workers, small farm employees, or year-round farmworkers in many industries in the United States. 8

9 iii. Health and Legal Aid Workers Limited or Nonexistent Access to Migrant Labor Camps Divests Migrant Farmworkers of Their Right to Health and Preservation of Well-Being Finally, limitations on access to migrant labor camps deprive farmworkers of their right to health and preservation of well-being, a right guaranteed under Article XI of the American Declaration (ensuring every person s right to preserve his or her well-being through sanitary and social measures relating to food, clothing, housing and medical care ) and Article 5(e)(iv) of CERD (providing for the rights of public health and medical care without discrimination). 38 Again, this issue presents itself as a dual problem. First, farmworkers denied access to legal representatives have few means by which to enforce their existing legal rights to health and well-being, fight for greater rights protections, and ensure that employers provide them with safe and sustainable working conditions. Migrant farmworkers already face extraordinary on-the-job dangers, dangers from which they are only minimally protected under law. Injuries and illnesses disable farmworkers at a rate three times that of the general population, and work-related injuries at labor camps cause death at a rate more than seven times higher than that experienced by workers in general. 39 In one case, a 68-year-old diabetic farmworker suffering from a severe and painful dental abscess was told that if he left the camp to see a dentist, his position would be terminated. 40 In another incident, a camp manager opened gunfire on a migrant worker who had angered him, injuring the worker s leg. 41 In another case, a nurse in Maryland was informed of at least one migrant who had been beaten by a farm owner until he was bloody in the face. He later disappeared, and none of the workers could account for his whereabouts at the time of her testimony. 42 While the AWPA provides health and safety standards for farmworker housing and transportation, it does not apply these provisions to year-round workers in many industries (such as those employed at dairy and egg farms), and excludes temporary workers on H-2A visas and certain small employers. 43 The federal agency charged with regulating workplace safety, the Occupational Safety and Health Administration ( OSHA ), has authority to enforce field sanitation standards only for farms with 11 or more employees, leaving one third of all farmworkers unprotected. 44 And the Environmental Protection Agency ( EPA ), which has responsibility for enforcing sanctions against employers who use prohibited agricultural 38 American Declaration, Article XI; CERD, Article 5(e)(iv). 39 DENYING ACCESS TO MIGRANT LABOR CAMPS, supra note 33, at SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Appendix D, Attachment 8, page Id. 42 Id. 43 FARMWORKER JUSTICE, supra note 2, at Bon Appétit Mgmt. Co. Foundation & United Farm Workers, Inventory of Farmworker Issues and Protections in the United States, at 27 (Mar. 2011), available at 9

10 pesticides, has failed to protect workers because of infrequent inspections and weak enforcement even though the EPA estimates that 10,000-20,000 farmworkers are poisoned on the job due to pesticide exposure every year. 45 Given these harsh realities, the denial of labor camp access to outreach workers only serves to exacerbate and perpetuate ongoing violations of migrant rights to health and wellbeing. Farmworkers unable to seek out legal recourse for subjection to dangerous, inhospitable or unsanitary living conditions must often continue to endure them, and face the constant threat of illness, or even death, that such conditions create. This situation is reflected in the experience of Rodrigo Falcon Analiz, a migrant farmworker in North Carolina who sought workers compensation for a fractured foot. When Mr. Falcon Analiz sought much-needed legal assistance from Legal Aid of North Carolina in applying for workers compensation benefits, Legal Aid staff members were harassed and assaulted by Mr. Falcon Analiz s employer and subjected to questioning by local deputies. 46 In the audio recording of the employer's 911 call, the grower states that the injured worker should not have called Legal Aid to receive legal information or to take legal action because, in the grower's opinion, he was already receiving workers' compensation benefits. 47 The denial of health workers access to labor camps effectively denies health care to farmworkers. It means that migrants like Mr. Falcon Analiz cannot seek remedies for the injuries they suffer, and that their right to preserve their health and well-being is clearly violated. Second, denial of labor camp access to outreach workers directly prevents farmworkers from receiving crucial medical care that such staff can provide. As farmworkers do not receive employment-related benefits such as health or disability insurance, and are almost always at the mercy of their employers for transportation from labor camps to medical facilities, outreach staff who visit labor camps often represent migrants only source of medical care and attention. 48 Yet like legal aid workers, healthcare staff often face severe barriers and physical threats, as discussed above, when seeking to access migrant labor camps to provide basic medical services to workers. The United States failure to address deficiencies in existing law and procedure that enable these rights violations contravenes Article XI of the American Declaration and Article 5(e)(iv) of the CERD. 45 SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at 7; Pesticide Safety, FARMWORKER JUSTICE, Website Information Page, Occupational Safety and Health: Pesticide Safety, available at (last visited Jan. 20, 2014). 46 See Declaration of Rodrigo Falcon Analiz, on file with Petitioners. 47 Transcript of September 11, 2013 Robertson 911 call, on file with Petitioners. 48 SPECIAL RAPPORTEUR SUBMISSION, supra note 5, at Appendix B, page 1. 10

11 iv. Migrant Workers Inability to Access Legal Service Providers and Outreach Workers Violates Their Rights to Freedom of Assembly and Association, Access to Human Rights Information and to Seek Redress for Human Rights Violations The rights to freedom of assembly and association recognized under Article XXI of the American Declaration, Article 21 of the ICCPR and Articles 5 through 8 of CERD extend to migrant farmworkers seeking to promote and defend their human rights, and the human rights of their coworkers and families. As the examples enumerated above illustrate, the U.S. government s failure to protect farmworkers, as human rights defenders, includes the migrants inability to seek and obtain information related to human rights from outreach workers and legal service providers; to engage in freedom of association, and to form or join labor unions (even in the limited states where such rights are legally protected); to seek meaningful redress against growers wage theft and other abusive practices; and to solicit, receive and utilize resources for the purpose of protecting their human rights. The Declaration on Human Rights Defenders further recognizes each of these rights. Due to migrant farmworkers geographic, linguistic and cultural isolation, the violation of unhindered access to and free communication with non-governmental and intergovernmental organizations (such as law enforcement or other local or state complaint bodies) compounds the gravity of limiting farmworkers ability to exercise their rights as human rights defenders. 49 The accounts of farmworkers threatened with termination and deportation when protesting harsh or unjust treatment, and examples such as Mr. Falcon Analiz harsh treatment and interrogation by local police following his attempt to access legal services discussed above, demonstrate the type of retaliation farmworkers face when defending their rights. Compounding the denial of meaningful access to legal and other services is the U.S. government s failure to protect farmworkers rights as human rights defenders. The U.S. government has not guaranteed farmworkers right to collectively organize or access to judicial remedies (including legal assistance and information). To allow migrant farmworkers to enjoy their rights as human rights defenders, the U.S. government must make efforts to educate local law enforcement, elected officials, employers and state agencies about the rights of migrant farmworkers to act as defenders and provide access to legal service providers and outreach workers to fulfill its obligations under the American Declaration, ICERD and the ICCPR. III. CONCLUSION The signatories to this hearing request are part of a national community of service providers and human rights advocates who have long sought to ensure the rights of migrant farmworkers, through local, state, and national advocacy, direct representation, and organizing. Despite their individual and collective actions, the rights associated with migrant labor camp access continue to be denied. The coalition is therefore seeking a hearing before the Inter- 49 See, REPORT OF THE SPECIAL RAPPORTEUR ON EXTREME POVERTY AND HUMAN RIGHTS, U.N. General Assembly, A/67/150, 67 th Session, 9 Aug. 2012, at 10-13; 21;

12 American Commission on Human Rights, in an effort to engage the U.S. government in a critical dialogue that will move towards guaranteeing rights to accessing farmworker labor camps, and the protection of the underlying rights that are violated when such access is denied. The United States has failed to respond to a December 2012 communication from the UN Special Rapporteurs on Extreme Poverty and Human Rights, Migrants, and Human Rights Defenders. The signatories below therefore seek an opportunity to bring the United States to a hearing before the Commission to respond to the rights violations asserted herein. The signatories respectfully request, as well, the following: We respectfully request a site visit to investigate and bring attention to rights violations inherent in and resulting from denial of free and unhindered migrant labor camp access. We further request the Commission recommend the U.S. government respond to the United Nations Special Rapporteurs' December 2012 request for information on what measures are being taken to protect the right of access to labor camps (submitted in conjunction with hearing request). We further request recommendations that the U.S. take affirmative measures to provide for and ensure the right of freedom of assembly and association, freedom from arbitrary arrest, the right to personal security, the right to due process, and the right to non-discrimination of outreach workers as well as farmworkers through ensuring migrant labor camp access. Such measures could include: (1) U.S. Department of Justice, through its statutory authority found in 42 U.S.C investigate and monitor local law enforcement agencies, and monitor actions that interfere with the right to migrant labor camp access through intimidation or threats of arrest. (2) U.S. Department of Labor use and enforce existing regulations, policies and practices that support the right of access for outreach workers and: - Increase the agency's role in investigation and enforcement of access rights violation; - Collaborate with state and local mechanisms to ensure effective protection of human rights defenders and migrants; - Utilize Coordinated Enforcement Committees mandated by Wagner-Peyser Act, (29 U.S.C.S. 49, et seq.) regulations to ensure state workforce agencies, state monitor advocates and other local mechanisms are taking action as needed to enforce the right of access. This would include training of federal, state and local officials related to the right of access by outreach workers. State monitor advocates would be responsible for reporting of observed interference with outreach workers' right of access; - Condition farm labor contractors' registration certificate, and housing authorization, on adherence with the right of access for outreach workers; 12

13 We further recommend the following measures for employers utilizing the H-2A federal guestworker program: - Enforce regulation prohibiting unfair treatment (20 C.F.R (h)) as it applies to the right of access and make this clear in clearance orders; - Deem denial of access rights to outreach workers a substantial violation of a material term or condition of the job order justifying debarment under 20 C.F.R ; and, - Require that access rights be included in the working conditions investigated during field checks executed pursuant to 20 C.F.R We further recommend the U.S. government develop a complaint mechanism for outreach workers at the U.S. Department of Labor or U.S. Department of Justice to track violations committed by growers and local law enforcement agencies; the development of policies and procedures for responding to those violations; and mechanisms to monitor and investigate recurring problems. Finally, we recommend the U.S. government educate the public and government agencies, including local law enforcement agencies, city and state elected officials, and state regulatory agencies about the rights of human rights defenders, who they are, and the range of rights they seek to protect. *** We therefore respectfully request a thematic hearing before the Commission to address the denial of access to migrant farmworker labor camps and the abrogation of farmworkers rights as human rights defenders. We further urge the U.S. government to take measures to ensure the rights guaranteed under the American Declaration, the ICCPR, and ICERD, as well as the principles set forth under the UN Declaration on Human Rights Defenders. Respectfully Submitted, On behalf of below signatory organizations: Sarah Paoletti, Esq. Practice Associate Professor Director, Transnational Legal Clinic Sunita Patel, Esq. Visiting Clinical Supervisor and Lecturer University of Pennsylvania Law School 3501 Sansom Street Philadelphia, PA The Legal Aid Bureau, Inc., or Maryland Legal Aid, is a state-wide non-profit law firm that has provided free legal services to low-income people and communities for over 100 years. It is the 13

14 first legal services organization in the country to adopt a human rights framework and attempts to use international human rights norms in advocating for real and sustainable change in the lives of the poor and disenfranchised. Maryland Legal Aid s Farmworker Program serves agricultural workers in Maryland and Delaware. The Farmworker Unit of Legal Aid of North Carolina is a non-profit legal services organization that provides free legal services to agricultural workers throughout North Carolina. Texas RioGrande Legal Aid (TRLA) is a non-profit legal services organization that provides free legal services to low-income residents in 68 counties of Southwest Texas. It is the third largest legal services provider in the country. TRLA serves agricultural workers throughout the State of Texas and in six southeastern states through its project. The Border Agricultural Workers Project is based in El Paso, Texas and works in the US- México border region around El Paso, Texas and was initiated with the objective of improving the lives of the poor agricultural workers and their families. Center for Constitutional Rights, located in New York, NY is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. The Section for Underserved Occupational Populations of the American College, Inc. (ACOEM) provides a forum for American College of Occupational and Environmental Medicine (ACOEM) members who are interested in the special occupational health problems experienced by underserved populations which include more than 1.5 million migrant and seasonal agricultural workers; migrant construction workers, off-shore commercial fisherman, loggers, and hospitality workers. Advocates for Basic Legal Equality (ABLE) is an unrestricted legal services program that represents low-income persons and groups in civil matters. The Migrant Farmworker and Immigration Program of ABLE provides free legal services to agricultural workers throughout Ohio. Hispanic Affairs Project (HAP) is a non-profit organization serving the Hispanic immigrant population in six communities in Western Colorado. HAP envisions Western Colorado communities where cultural diversity is recognized and Hispanic immigrants have opportunities to contribute as integral members through active civic participation. A key component of HAP s work is outreach to migrant agricultural workers who reside in employer provided housing. hapgj.org California Rural Legal Assistance (CRLA) serves low-income individuals residing in over 22 California counties. As rural areas and small cities of California continue to change, so does our outreach and service to diverse communities. Today, CRLA serves a wide array of clients, while 14

15 maintaining specialized programs that focus on services for farmworker populations. Centro de los Derechos del Migrante, Inc. (CDM) empowers Mexico-based migrant workers to defend and protect their rights as they move between their home communities in Mexico and their workplaces in the United States through education, training and outreach, referral services and direct representation, and policy advocacy. El Comité de Apoyo de las Trabajadores Agrícolas (CATA) was founded by migrant farmworkers in southern New Jersey in Today, CATA works and has members in New Jersey, Pennsylvania, Maryland and Delaware. CATA is governed by and comprised of farmworkers who are actively engaged in the struggle for better working and living conditions. CATA's mission is to empower and educate farmworkers through leadership development and capacity building so that they are able to make informed decisions regarding the best course of action for their interests. The Migrant Farm Worker Division of Colorado Legal Services is a non-profit legal services organization that provides free legal services to agricultural workers throughout Colorado coloradofarmworkers.org Farmworker Association of Florida (FWAF) has been building power among Florida s farmworkers for more than 25 years. With roots in the Hispanic, Haitian, and African-American communities across Central and South Florida, the organization has a solid history of leadership development and generating effective action for social change. As a grassroots, farmworkermembership, community-based organization, FWAF is lead and governed by the farmworker communities in which its works. floridafarmworkers.org Farmworker Justice is a nonprofit organization that seeks to empower migrant and seasonal farmworkers to improve their living and working conditions, immigration status, health, occupational safety, and access to justice. We work with farmworkers and their organizations throughout the nation. Farmworker & Landscaper Advocacy Project (FLAP) is committed to improving the working conditions for thousands of migrant and seasonal workers in the agricultural and landscaping industries in Illinois through employment related litigation, outreach and education. fwadvocacy.org The Farm Labor Organizing Committee, AFL-CIO (FLOC), is both a social movement and a labor union. Our immediate constituency is migrant workers in the agricultural industry, but we are also involved with immigrant workers, Latinos, our local communities, and national and international coalitions concerned with justice. The FLOC vision emphasizes human rights as the standard and self-determination as the process for achieving these rights. We struggle for justice for those who have been marginalized and exploited for the benefit of others and we work to change the structures of society to enable workers to have a direct voice in their own conditions. 15

16 Hispanic Affairs Project (HAP) is a non-profit organization serving the Hispanic immigrant population in six communities in Western Colorado. HAP envisions Western Colorado communities where cultural diversity is recognized and Hispanic immigrants have opportunities to contribute as integral members through active civic participation. A key component of HAP s work is outreach to migrant agricultural workers who reside in employer provided housing. hapgj.org Illinois Migrant Legal Assistance Project, a project of the Legal Assistance Foundation of Metropolitan Chicago, provides free legal services to agricultural workers throughout Illinois. North Carolina Farmworkers Project s mission is to promote the organization of farm workers so they can find solutions to their problems collectively, to promote the political participation of workers and strive to improve their living conditions. The Project focuses on farmworker health. Northwest Workers' Justice Project is a non-profit dedicated to improving enforcement of the workplace and organizing rights of low-wage, contingent, and immigrant workers in the Northwest, and especially in metropolitan Portland, Oregon. nwjp.org North Carolina Justice Center s mission is to eliminate poverty in North Carolina by ensuring that every household in the state has access to the resources, services and fair treatment it needs to achieve economic security. The North Carolina Justice Center is a leading progressive research and advocacy organization and the state s preeminent voice for economic, social and political justice. Public Justice Center, located in Maryland, works with people and communities to confront the laws, practices, and institutions that cause injustice, poverty, and discrimination. The Public Justice Center advocates for Maryland s low-income people in the courts, legislatures, government agencies, and through public education and coalition building. Southern Migrant Legal Services (SMLS). SMLS serves agricultural workers in the states of Kentucky, Tennessee, Alabama, Mississippi, Louisiana and Arkansas. The Southern Poverty Law Center is dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of our society. Using litigation, education and other forms of advocacy, we work toward the day when the ideals of equal justice and equal opportunity will be a reality. SPLC employs a three-pronged strategy to battle racial and social injustice: They track the activities of hate groups and domestic terrorists across America, and launch innovative lawsuits that seek to destroy networks of radical extremists; they use the courts and other forms of advocacy to win systemic reforms on behalf of victims of bigotry and discrimination; and they provide educators with free resources that teach school children to reject hate, embrace diversity and respect differences. 16