- The Ministry of Labor should reject employer requests that fired workers sign resignations and liability waivers prior to receiving severance pay due or that employed workers make written commitments before being paid salaries already earned and deposited with the Ministry of Labor.
The president should propose and the Legislative Assembly should adopt legislation to close legal loopholes, identified above, that allow employers to circumvent the existing weak labor rights protections and violate workers’ human rights with impunity. The reforms should:
- Provide for the appointment of a curator ad litem in cases in which labor-related claims are pending against employers who are unavailable to receive process service;
- Create a protected status for “whistle-blower” witnesses testifying in judicial proceedings against their employers that prohibits their suspension, dismissal, transfer, or demotion, absent prior judicial approval, for at least one year after they testify;
- Extend Labor Code article 251, which provides that “the dissolution of a . . . union cannot be declared due to insufficient affiliates, when that insufficiency is a consequence of unjustified dismissals,” to also bar such union dissolution when insufficient membership is due to union member resignations tendered under employer pressure or coercion;
- Explicitly and narrowly define “employee of confidence” to prevent employers from intentionally impeding union formation by declaring founding members “employees of confidence” and, therefore, ineligible to unionize alongside other workers;
- Require that an employer obtain judicial certification that there exists a lack of raw material or force majeure, the consequences of which are not “attributable to the employer,” prior to suspending workers on those grounds;
- Reduce the maximum duration of suspensions for lack of raw materials or force majeure and require another judicial certification to renew the suspension period;
- Require that the Salvadoran Social Security Institute’s healthcare facilities provide treatment to all workers able to demonstrate their qualification for social security coverage, even when their employers have illegally failed to make mandatory ISSS payments;
- Explicitly require that labor inspectors who find employer violations of social security laws or regulations immediately inform the Salvadoran Social Security Institute’s Department of Affiliation and Inspection.
In May 2003, the United States proposed labor rights protections for CAFTA similar to those in the U.S.-Chile and U.S.-Singapore Free Trade Agreements, which only require countries to enforce their existing labor laws, regardless of whether they uphold international norms. To ensure that the accord leads to greater respect for workers’ human rights in El Salvador, CAFTA should include stronger, meaningful labor rights provisions modeled after the proposals below.
- CAFTA should require not only that countries enforce domestic labor laws but also that those laws meet international standards. Following the model of the U.S.-Jordan Free Trade Agreement, violations of all labor rights-related requirements, including those pertaining to domestic labor standards, should carry the same penalties as the failure to enforce national labor laws—the possibility of fines or sanctions.
- Recognizing that labor law reforms may take time, CAFTA should set forth a reasonable time period within which Central American countries must bring their laws into compliance with international standards. A short timeline, such as one year or eighteen months, should be set for laws governing the principles articulated by the ILO Declaration on Fundamental Principles and Rights at Work, including freedom of association. A longer time line, such as two or three years, could be set with respect to the non-core economic and social labor rights, such as wages, hours of work, and occupational safety and health, which, to some extent, depend on countries’ socio-economic development and available resources for their fulfillment.
- El Salvador’s failure to enforce adequately its domestic labor legislation is serious and widespread, in violation of the proposed CAFTA requirement that countries effectively enforce their labor laws. To ensure that El Salvador and other CAFTA countries do not enjoy full CAFTA benefits until their labor laws are, in practice, effectively enforced, a transitional mechanism should be established, modeled after the U.S-Cambodia textile agreement. Following that model, the United States should grant or phase in tariff reductions only if it determines, in annual reviews, that Central American countries are meeting the established benchmarks for effectively enforcing labor laws in the traded sectors. The reviews should be conducted and the reductions granted country by country and sector by sector.