If your company is like many, your board of directors may be demanding that you put more effort into environmental, social, and governance issues, which have become known by the now-ubiquitous acronym “ESG.” Those demands don’t come from nowhere: consumers are demanding transparency and social responsibility. In addition, if your company does business internationally, regulators are now focused on international social justice issues (such as the use of forced labor) more than ever.
On July 6, 2021 the U.S. State Department publicly announced that the travel ban waivers related to the world-wide pandemic will now be good for 1 year and multiple entry. The effective date of this new decision is June 29, 2021. Previously they were only good for 30 days and a single entry. In addition, those that have received a waiver in the past may now use it for 12 months if it was granted after June 29, 2020. See: https://travel.state.gov/content/travel/en/News/visas-news/extension-validity-for-nies-for-china-iran-brazil-south-africa-schengen-uk-ireland-india.html
The travel bans imposed by the U.S. Government during the COVID-19 national pandemic created enormous logistical challenges for anyone seeking to fly to the U.S. from a country on the travel ban list. Even today, there is still a great deal of confusion regarding who is subject to the travel ban, what are the exceptions, and how to go about applying for a National Interest Exception (NIE) waiver. The checklist below is intended to help simplify an albeit complicated process. Of course, most U.S. Consulates are still operating at limited capacities so significant delays for waivers and visa stamping is still the norm.
In effect since July 1, 2020, the United-States-Mexico-Canada Agreement (“USMCA”) replaced the North American Free Trade Agreement (“NAFTA”). Although the worldwide COVID-19 pandemic largely overshadowed the effective date of this new international agreement, its new labor provisions should not go overlooked. While the USMCA retains most of the NAFTA commitments, it revamped the old agreement in key areas — including labor. Unlike NAFTA that included some labor commitments in a side agreement, the USMCA provides labor standards in the core text of the agreement (Chapter 23, Labor), making them fully enforceable.
The commitments on labor are not only relevant to manufacturers located in one or more of the USMCA countries, but also companies that rely on these goods as inputs into their supply chains. This article provides a broad overview of the labor standards contained in Chapter 23 of the USMCA — with a particular emphasis on the Facility-Specific Rapid Response Labor Mechanism.
Labor Standards in the USMCA
Article 23.3 of the USMCA requires that each party adopt, if applicable, and maintain laws that protect the following labor rights:
- The freedom of association and collective bargaining;
- The elimination of all forms of forced or compulsory labor;
- The effective abolition of child labor; and
- The elimination of discrimination in respect of employment and occupation.
The USMCA also requires each country to take measures to prohibit the importation of goods produced by forced labor, to address violence against workers who exercise their labor rights, to address sex-based discrimination in the workplace, and to ensure that migrant workers are protected under labor laws.
Indeed, as between these three parties, Mexico will likely be making the most changes to its laws and regulations in order to comply with its USMCA labor commitments. To that end, Mexico enacted historic labor reforms on May 1, 2019, and is implementing transformational changes to its labor regime, including new independent institutions for registering unions and collective bargaining agreements and new labor courts to adjudicate disputes under the judicial branch that were previously part of the executive branch.
The Rapid Response Mechanism and the Rights of Free Association and Collective Bargaining
With respect to the rights of freedom of association and collective bargaining noted above, the novel Rapid Response Mechanism (“RRM”) allows persons in the United States, Mexico and Canada to lodge complaints against “covered facilities” when there is a good faith basis that workers are being denied the right of free association and collective bargaining (collectively, “denial of rights”). Under the USMCA, a “covered facility” is a facility that either: (1) produces a good or supplies a service traded between the countries; or (2) produces a good or supplies a service that competes in the territory of a Party with a good or a service of the other Party.
From a U.S. perspective, at a high level, the RRM allows U.S. persons to file petitions on a public docket alleging the “denial of rights” by Mexican covered facilities. The petitions are reviewed by the Interagency Labor Committee for Monitoring and Enforcement (“Labor Committee”), which has 30 days to determine whether the petitions have “sufficient, credible evidence of a denial of rights.” If the petition satisfies this criteria, a complex process ensues, which includes government-to-government engagement; possible inspections of the target facility; and the potential formation of a USMCA Panel to resolve the disputes.
During this process, the United States may suspend liquidation of goods entered by the facility subject to the complaint until:
- a labor panel under the RRM determines there is no denial of rights;
- a course of remediation for a denial of rights has been agreed to and completed within the agreed-upon timeframe; or
- the denial of rights has been otherwise remedied.
A determination that there has been a denial of rights may be costly to facilities as penalties may include:
- suspension of preferential treatment for goods manufactured at the covered facility;
- imposition of “penalties” on covered facility; or
- denial of entry for such goods.
Labor and trade experts predicted that the RRM would open the floodgates to a “flurry” of petitions against Mexican covered facilities. However, to date, there have not been any petitions filed, even though certain labor organizations publicly announced their intention in 2020 to employ the RRM. One potential reason why petitions have not yet been filed is that the “sufficient, credible evidence of a denial of rights” standard will likely require significant corroborating evidence to meet the threshold. In other words, plain allegations of denial of rights will likely be dismissed by the Labor Committee.
Takeaways for Covered Employers
The following list of “best practices,” which is not exhaustive, should be considered by employers on both sides of the border seeking to reduce the likelihood that they will become USMCA enforcement targets.
- Wage and hour audits, including issues of calculating workers’ overtime rate of pay, issues of meal and rest period compliance, and sufficient rest and recovery periods when working in heat, for example;
- Equal Pay Act audits;
- Updated employee handbook, to include clear written anti-harassment/discrimination policies to which employees agree to adhere;
- Anti-harassment training;
- Child labor law compliance; and
- Health and safety compliance measures in the workplace, which have elevated in importance on both sides of border due to COVID-19.
Sheppard Mullin has a bilingual, interdisciplinary team of lawyers with backgrounds in Labor, International Trade, and Corporate law that stand ready to assist your team on these complex international issues involving the USMCA. Please do not hesitate to reach out to any member of this team for further information.
 A covered facility must also be in a “priority sector,” such as sectors that manufacture goods, supply services, or involve mining. Manufactured goods include, but are not limited to, “aerospace products and components, autos and auto parts, cosmetic products, industrial baked goods, steel and aluminum, glass, pottery, plastics, forgings, and cement.”
 This is the most egregious penalty and can be invoked if a covered facility has received at least two prior denial of rights determinations.
On January 2, 2021 the National Defense Authorization Act (“NDAA”) became law. Importantly, the NDAA included sweeping legislative reforms to anti-money laundering (“AML”) laws, which are now codified in the Anti-Money Laundering Act of 2020 (“AMLA”) (NDAA §§ 6001-6511). Designed to enhance national security concerns, these AML amendments will significantly impact financial institutions, certain types of businesses—both domestic and foreign, and High Net Worth Individuals (“HNWIs”). While HNWIs legitimately seek to maintain confidentiality in their corporate entities or wealth management structures, the AMLA will make that more difficult and potentially more dangerous. Continue Reading
The Biden Administration took office on January 20, 2021. Many executive orders have been executed since that date, some of which directly change the manner of handling immigration matters. However, the U.S. and the world are still dealing with the global pandemic and this directly affects submissions, filings, and consular appointments. This update provides a list of the latest updates to U.S. visas and immigration matters, as well as what we forecast for the months to come. Continue Reading
Over the past few weeks, we have been speculating on the international trends and tides we expect to see in the next four years under a new U.S. presidential administration. So that you can enjoy our prognostications (before our program gets greenlighted as a Netflix special) we provide here:
- A recording of our webinar, entitled “The Four Years in International Business Webinar”
(for those playing along at home, see if you can spot the part where Scott’s power goes out while we’re discussing tariff reductions!)
- A bulleted summary of the key takeaways of our webinar.
Since 2005, California employers with 50 or more employees were required to provide at least 2 hours of sexual harassment training every 2 years to each supervisory employee, and to new supervisory employees within 6 months of their assumption of a supervisory position. However, all employers may not yet know that the California anti-harassment training requirements were significantly expanded by the California legislature (SB 1343 and SB 788 – to read the prior article, click here). Now, California employers with 5 or more employees must provide sexual harassment training and education by January 1, 2021 to not just supervisory employees, but non-supervisory employees as well. This new law requires many California employers to provide anti-harassment training, for the first time, in both English and Spanish. Continue Reading
Following lots of legislative uncertainty, Brazil has now formally enacted the country’s first general data protection law, Lei Geral de Proteção de Dados, or “LGPD.” While administrative sanctions do not go into effect until August 1, 2021, individuals and public prosecutors can now bring claims for losses and damages. Indeed, at least one public civil action has already been filed. LGPD is the first comprehensive general data protection law in Latin America. It was modeled after the EU’s GDPR. While there are many similarities, LGPD does introduce new concepts. Below are some of the key elements to keep in mind. Continue Reading
Hiring employees does not usually call to mind international trade compliance obligations. However, together U.S. export controls and anti-discrimination laws create a web that is overlooked or misunderstood by many types of employers of all sizes across many industries. Anti-discrimination laws prohibit unlawful citizenship status restrictions when hiring, and U.S. export controls prohibit disclosing controlled information to foreign nationals without authorization. Together, these laws limit acceptable job descriptions and hiring practices. Continue Reading