By César F. Rosado Marzán*
And did the Countenance Divine,
Shine forth upon our clouded hills?
And was Jerusalem builded here,
Among these dark Satanic Mills?
-- William Blake
When I was a child I was horrified by the anti-Christ movies, where victims of Satan’s son died the most terrible deaths. Some were buried alive. Others burned. It seems that garment workers are tied to a similar destiny of demonic deaths. Yesterday’s [April 24th] lamentable incident in Bangladesh—where an 8-story factory building collapsed, killing more than 200 workers—comes on the heels of a garment factory fire in November, where hundreds perished in the flames and the black smoke. That fire, in turn, is reminiscent of our own New York Triangle Shirtwaist Factory fire of 1911, where scores of immigrant girls died in one of the worst industrial accidents of the United States. Similar darkness had already been described by William Blake in his 19th Century depiction of the English “Satanic Mills” that spurred the industrial revolution.
What should make all of us particularly angry about the death toll in Bangladesh—600 in garment factories since 2006—is that these workers produced garments for international brands, including for Wal-Mart.
In the past decade or so there has been a movement supported by some academics to create and enforce standards through “self-regulation.” Following this line of thought, Wal-Mart created a “Code of Conduct” for foreign suppliers to self-monitor factory conditions. However, Wal-Mart was not interested in taking legal responsibility for its own Code. In 2005, a group of plaintiffs, including Bangladeshi workers making goods for Wal-Mart suppliers, sued Wal-Mart in the USA for failing to enforce its Code of Conduct. The workers argued that they suffered wage theft, overwork, and substandard working conditions as a result of Wal-Mart’s breach of its Code. Unfortunately for the plaintiffs, in a 2009 case decided by the 9th Circuit, Doe v. Wal-Mart, the court affirmed a judgment dismissing the plaintiff’s suit on the grounds that the plaintiffs had no contractual relationship with Wal-Mart.
The de facto and de jure failures of “self-regulation” are clear.
Researchers critical of corporate self-regulation have provided evidence showing that the traditional columns of labor law enforcement are still relevant in today’s global economy: labor unions and public regulation. In her book on international boycotts, Beyond the Boycott, Gay W. Seidman showed that only boycotts backed by some kind of state action—including that provided by international organizations such as the International Labor Organization—are the ones that have proven effective. Moreover, in my own research in Chile I observed how state action decoupled from robust labor unions is ineffective. In the 2010 Chilean mine accident that buried 33 miners under the rubble, the Chilean labor inspectorate had inspected the mine prior to the accident and had found dangerous mine conditions. A labor inspector fined the mine, but the mine continued to operate. Workers could have walked out of the mine in protest of unsafe working conditions, but Chilean labor law does not protect workers who strike for health and safety reasons. Workers had to depend solely on the inspectorate. So the workers remained in the mine until they were trapped by the rubble. Similarly, the Bangladeshi workers in yesterday’s accident had informed management of cracks in the building’s structure before the collapse, but they were ordered back to work. A strong union would have made the difference. It could have led a walkout until management found an alternative place to work. But especially after the torture and murder of a prominent Bangladeshi labor activist last year, labor rights in Bangladesh seem nonexistent.
We have a choice in the USA. We can change our trade policies. We can demand that in return for commercial relationships, Bangladesh and other trade partners permit that our labor inspectors visit their factories. We can demand that international labor activists can visit factories with national labor officers to inspect workplace conditions abroad. We can demand amending the Fair Labor Standards Act so that our Department of Labor can embargo goods reaching U.S. soil when those goods are made in violation of work laws and international standards anywhere in the world. Leveraging the purchasing power of the American economy will buttress the power and influence labor authorities at home and abroad. But while we turn a blind eye and let the lawbreakers police themselves, our clothes will continue to reek of sulfur and blood.
* Professor Rosado-Marzán
is Assistant Professor of Law at IIT-Chicago-Kent College of Law and member of the Regulating Labour and Markets programme at Stockholm University. You can reach him at email@example.com
or follow him on Twitter @cfrosado