VI. OBSTACLES TO JUDICIAL ENFORCEMENT OF LABOR LAW

We act according to the law, although maybe against justice.It is not fair.They [the workers] lose all rights.

-OvidioRamrezCullar, judge for the Third Labor Court of San Salvador.[113]

Labor court procedures, in most cases, not only last longer than Ministry of Labor administrative procedures, but they include procedural requirements that may prove prohibitively burdensome for workers seeking justice for human rights violations.[114]

Data is not kept on the average duration of cases before El Salvador's labor courts, but the estimates of the four labor court judges of San Salvador ranged from three to nine months.[115]Cases then can be appealed to the labor courts of second instance and, ultimately, to the Supreme Court, a process which takes at least one-and-a-half years from the time of filing in most cases.[116]

Workers must present a minimum of two witnesses to support their cases before the labor courts, yet workers and San Salvador labor court judges explained to Human Rights Watch that finding witnesses willing and able to testify can be extremely difficult.[117]A Labor Ministry official, speaking on condition of anonymity, similarly commented, "It is hard to get evidence because workers do not want to testify.They are afraid they will lose their jobs."[118]There is no "whistle-blower" protection in Salvadoran labor law nor protection against dismissal for testifying against an employer.As such, a co-worker may have to choose between testifying and her job.

In at least one case, an employer even reportedly prevented an employee from testifying.According to a labor lawyer, a potential witness informed him that, in early 2002, when she arrived at the courthouse to testify on behalf of a fired co-worker, the head of human resources at the company was waiting at the courthouse for her.The head of human resources reportedly instructed her to get in a taxi or be fired and paid the taxi driver to take her far from the courthouse.The taxi left with the employee, and the former co-worker lost the case, as she was missing one of her corroborating witnesses.Afterwards, the company reportedly fired the potential witness.[119]

In some cases, even when workers successfully fulfill the procedural requirements and a judgment is rendered in their favor, enforcement of the judgment is elusive.For example, in the ConfeccionesNinos case, described in chapter VII below, five former workers reportedly won a court judgment ordering the company to pay 100 percent of their severance pay.The employer claimed he could not pay and offered twelve machines instead.The judgment was reportedly issued in September 2002, but as of the end of July 2003, the court had not sold the machines and the workers had not received their payments.[120]

In other cases, workers are unable to proceed even to the preliminary, conciliation phase because the defendant employers do not appear and the labor court cannot find them to serve process.The employers close their factories and flee without fulfilling their legal obligations to their workers.For example, as discussed below, over 320 cases have been filed in San Salvador's labor courts against Anthony Fashions, which reportedly closed without paying workers severance pay, annual bonuses, and other debts.The owner has allegedly fled, and the cases are stalled and being dismissed without prejudice.Unlike civil and commercial cases,[121] there is no legal provision allowing the appointment of a curator ad litem to represent absent employers in labor law proceedings.Commenting on the strict service of process requirements in labor-related cases, the judge for the Second Labor Court of San Salvador noted, "Many times [employers leave], and the workers are left without severance pay. . . .A labor reserve does not exist. . . .Labor law should contemplate a guarantee for these cases so that the workers' [rights] are not violated."[122]