February 5, 2018 CHTCS

Interview With The Fair Food Standards Council

Every successful supply chain program has a designated third-party assessor providing due diligence to both the supplier and the buyer. In the case of the Fair Food Program (FFP), the Fair Food Standards Council (FFSC) is charged with monitoring participating growers’ operations for compliance with the Fair Food Code of Conduct. Unlike other social responsibility programs however, FFSC operates in the unique structure created by the Coalition of Immokalee Worker Fair Food Program agreements, with their emphasis on worker participation and effective market consequences for non-compliance.

In a face-to-face interview, CHTCS discussed the cause and effect of FFSC’s role in the supply chain with the Executive Director Judge Laura Safer-Espinoza (retired), Director of Development Lindsay Adams and Associate Director Matthew Wooten.

Judge Laura Safer Espinoza is a retired New York State Supreme Court Justice who served in New York and Bronx Counties for twenty years. She was Deputy Supervising Judge for five years. Justice Safer Espinoza helped to design, and became the first presiding judge of, the Bronx Treatment Court, an innovative alternative to incarceration for non-violent offenders. She currently serves as the Executive Director of the FFSC.

Lindsay Adams is a Senior Investigator/Analyst and Director of Development at the Fair Food Standards Council. At FFSC, Ms. Adams has led field investigations of forced labor, systemic wage theft, violence and sexual assault, illegal recruitment and extortion within the H-2A federal guest-worker program, and pesticide poisoning.

Matthew Wooten is the Associate Director of the Fair Food Standards Council. He joined the FFSC with an extensive background in applied research and program operations in the United States and Latin America, with a focus on economic development and human rights. He was a Fulbright Scholar and holds an MA from the University of Texas at Austin.

Was the Coalition of Immokalee Workers (CIW) and the Fair Food Standards Council (FFSC) originally designated to combat human trafficking?

Justice Safer Espinoza (JSE): The Coalition of Immokalee Workers (CIW) was established in the early 1990s. At that time, farm workers in Florida, many of whom were from Mexico, Guatemala or Haiti, were subjected to extremely degraded working conditions. Physical violence was common in the fields, and workers who stopped harvesting to rest and/or drink water in the 100-degree heat, or those who contested underpayment of wages, was routinely beaten and fired. Sexual harassment and sexual assault against female workers were rampant. That period of time also saw the arrival in Immokalee of immigrant workers who had participated in movements for human rights in their home countries. They brought that experience and those organizing skills with them to the situations they encountered in the fields of Florida.

Although they are now nationally and internationally recognized for their work against modern day slavery – and were the recipients of a Presidential Medal for Extraordinary Efforts to Combat Human Trafficking in 2015, as well as being the first domestic organization to win the U.S. State Department’s TIP Heroes Acting to End Modern Day Slavery award in 2010 – they (the founders of CIW) did not set out to become an anti-slavery organization.  Rather they were seeking very basic improvements in wages that had remained stagnant for thirty years and sub-standard working conditions. In the beginning they used traditional organizing methods including work stoppages and strikes, as well as marches and boycotts against the most abusive labor contractors. Over the course of their organizing, however, and at the far end of the spectrum of abusive work conditions in Immokalee, they found forced labor. CIW really developed and pioneered the worker-centered approach to the investigation and prosecution of slavery cases. Their members investigated these cases from the inside out, by either having people embedded in those operations or extracting people from those situations to eventually support 9 major slavery cases. Luis C. deBaca was a federal prosecutor at the Dept. of Justice (DOJ) at that time. Some of the investigations involved hundreds of workers and multi-state operations controlled by extremely violent people. Based on the trust CIW had established in the farmworker community and their dedication to pursuing these cases in multiple states, across borders, and over several years, they were able to successfully bring these cases to the attention of law enforcement and DOJ prosecutors. At that time, the DOJ had no framework for modern day slavery/forced labor prosecutions. The cases CIW worked on gave impetus to the passage of the Trafficking Victims Protection Act in 2000. Through this work CIW became a pioneering anti-slavery organization, whose expertise and training is now sought by local, state, national and international law enforcement, government agencies and NGOs.

Why aren’t buyers and growers using existing labor laws to protect against trafficking in their supply chains?

JSE: The problem with labor laws and the reason why this creative program grew up here (Florida) is that farmworkers are excluded from much of the national legislation and protections extended to other workers, including collective bargaining rights. As your readers probably know, when the National Labor Relations Act and the Fair Labor Standards Act were being considered, President Roosevelt needed the votes of southern senators, who would not support those rights for a workforce that was largely African American. Therefore, agricultural workers and domestic workers were, and remain, excluded. To date, the only FLSA protection that applies to agricultural workers is that requiring payment of minimum wage. Even the minimal protections for wages and working conditions that do exist are enforced by a very under resourced federal department of labor. And on the state level, in Florida, there is no Department of Labor.

The history here (in FL) is that CIW members initially went straight to the farm gate – the growers – seeking improvements. They did have some success with a handful of grievances. For example, when a young worker was beaten bloody for asking for water, a group of hundreds of workers gathered at the crew boss’s house as a form of public shaming and a boycott of that labor contractor. They (CIW) also gained traction with some improvements, like fighting against reductions in piece-rate wages, but nothing major in overall conditions was giving or changing.

Ultimately, the seed of truly transformational change was planted in the early 2000s, when CIW began an economic analysis of the corporate supply chain. They found that large corporate retail food buyers were driving prices down, placing pressure on their suppliers – the growers of produce. This in turn led growers to economize in the one area they have power over, as opposed to the cost of fertilizer or seed, which is the cost of labor. The genius of CIW’s analysis was to look at the top of the supply chain to determine who was contracting for, and benefiting from, the product that farmworkers harvest, and then to make them part of the solution. With the initial slogan, “Taco Bell Makes Farmworkers Poor” in 2001, the Campaign for Fair Food was born. The campaign against Taco Bell successfully appealed to students, faith communities and other consumers of conscience. Four years after the Campaign for Fair Food began – and after Taco Bell stores had been removed from dozens of campuses – Yum Brands signed its Fair Food Program agreement with CIW. Now, in 2017, there are 14 major corporate buyers – from fast food chains, to supermarkets and food services – that have signed Fair Food Program agreements. Their participation – including the commitment to source only from FFP growers who are properly implementing the Code of Conduct on their farms – makes enforcement of human rights for farm workers possible.

What motivated subsequent buyers and growers to participate in the FFP?

JSE:  Initially, growers were motivated by the market share represented by buyers that had signed Fair Food Program agreements. Many growers signed because they felt they needed the ability to sell to those buyers. However, after several seasons of implementation, many growers have pointed out multiple ways in which their operations have been improved. Management tell us how they have become better companies with improved systems and a channel through which to receive information from their workforce about issues in their operations. They are now employers of choice for workers, with greatly reduced turnover, fewer accidents and reduced potential liability.

Matthew Wooten (MW): The legal fees and judgments associated with a worker’s compensation or sexual harassment case can be extremely costly to a grower’s operation. The Fair Food Program’s Code of Conduct mandates improvements that help prevent these issues from arising in the first place.

JSE: As you heard, the first buyer joined as a result of a consumer boycott. In the early years, others were also motivated by campaigns against them, or the fear of those consumer campaigns and the accompanying bad publicity.

The very positive benefit for the participating buyers, however, is better transparency in their supply chains. The Fair Food Program provides insurance against horrendous tragedies and their accompanying business damaging headlines. If there had been a program like the Fair Food Program at Rana Plaza in Bangladesh, where the workers knew that the building they worked in was unstable, that exits were inadequate and blocked, if those workers had had a trusted complaint line, an FFSC equivalent would have been in there looking at those conditions, fixing them and demanding corrective action long before the building fell killing over a thousand workers.

That is the business case for the buyers – those disasters don’t have to happen in your supply chain if workers, who are the best front-line monitors of conditions at your suppliers’ operations, have the mechanisms in place to report issues, without retaliation. The best risk preventers are the men and women who are in the workplace every day.

Similarly, for the Florida tomato industry, in 2008 there were front-page stories about slavery in the tomato fields when a case of workers who were chained up in a truck at night and forced to work in the fields by day was discovered. After implementation of the FFP in 2011, by 2014 a front-page story appeared in The New York Times describing the Florida tomato fields as the best work environment in U.S. agriculture.

What makes the FFP grievance mechanism superior to other programs?

Lindsay Adams (LA): First, you can’t have a grievance mechanism without a comprehensive education program for the workers. Workers are provided with the FFSC hotline number in booklets received at the time of hire, during CIW worker-to-worker training on the farms each season and on their paycheck stubs. They also view a video at the time of hire, which emphasizes their right to make complaints under the Code, free of retaliation. Workers receive hotline cards from FFSC staff during our audit visits to the field. In these ways, the FFP ensures every single worker has access to this number.

Second, when a worker calls the hotline, a bilingual investigator always picks up 24/7.  Investigators are on-call 7 days a week and must be ready to intake complaints at any point. These are the same investigators who carry out our audits, so they are very aware of and familiar with the conditions and grower staff that callers are describing.

Third, protections against retaliation for raising complaints are foundational to the program.  As auditors, if you can’t say to people “trust us”, you get nowhere.

JSE: If we failed to protect people from retaliation our hotline would have gone quiet in the first 6 months. Workers will tell us if they are experiencing retaliation. Typically, the program’s complaint resolution process is a non-adversarial or alternative dispute resolution process. No formal hearings are required, unless there is an appeal that goes to arbitration. Growers in the FFP have now committed not to bring lawsuits, but rather to submit appeals of complaint resolutions and corrective actions to arbitration. Thus far, however, there has been only one such appeal; the program’s collaborative and reasonable corrective action process has ensured agreement on resolutions in the overwhelming majority of cases.

What this means is that workers’ concerns receive prompt resolutions. Particularly for migrant workers, justice delayed is justice denied. The vast majority of our cases are resolved in under one month; most are resolved in two weeks or less.

MW: Our only real currency both with workers, buyers and growers is our credibility.

What is the growth for FFP outside the Florida tomato industry?

JSE: The program has already expanded to six additional states – Georgia, North and South Carolina, Virginia, Maryland and New Jersey and two additional crops grown by some participating growers -strawberries and peppers. Additionally, a number of participating buyers have agreed to pay the premium on their purchases from Fair Food Program growers outside Florida. Spreading the model further requires buyers that are willing to put commitmentbehind it. As the program began gaining momentum and recognition, buyers started coming to the table on their own, without a public campaign – Walmart is a good example of that – seeking real change in their supply chain. Some participating buyers are willing to pay the Fair Food Program Premium for their products and to introduce the FFP to their suppliers. Making participation mandatory for their grower-suppliers requires sufficient leverage.

As we speak, there are confidential negotiations ongoing between CIW, buyers, and funders interested in bringing the program to other geographic regions and crops. We all want this program with its incredible gains for all partners to grow. CIW and FFSC also receive many inquiries from outside the US – from buyers, suppliers, governments and NGOs – that are interested in this work-driven social responsibility model. At this time, however, resources limit our ability pursue all of them.

How does FFP compare to other “certified” labels?

MW: One of the challenges at the grocery store is that there are a lot of stickers on the produce you buy. However, there are very few examples – we argue no other examples – that do what we do in effectively guaranteeing that when abusive working conditions are found in the buyer’s supply chain, they are resolved without retaliation against workers. The Fair Food is a tremendous risk-prevention program that has virtually eradicated forced labor (modern day slavery), sexual violence, systemic wage theft, severe health and safety violations, and a series of other abuses.

Most consumers just want the label and don’t know how to differentiate the standards and enforcement behind those labels. Shouldn’t the standard differentiate between voluntary and self-assessed certifications and between programs that impose serious consequences – namely an inability of suppliers who violate human rights standards to sell to participating buyers – and those programs that do not impose those consequences?

LA: Even if they were not self-assessed certifications, the consequence of failure to comply in most other programs is that you don’t get to use the label; it’s not that you are cut out of the market. Equating the Fair Food Program with these other programs assumes that the economic consequences of removing a label are as strong as having sourcing restrictions, which is an unproven and dangerous assumption.

Fair Food Standards Council Fights Forced Labor: A Case Study

In January 2017, subsequent of the first forced labor violation in the history of the Fair Food Program (FFP) on a participating farm, two unlicensed labor subcontractors were sentenced to six years in federal prison for conspiracy to provide and obtain forced labor, in violation of Title 18, United States Code, Section 1594(b).

Initially Agustin Mendez-Vazquez, 44, and his son, Ever Mendez-Perez, 24, both originally of Mexico, were listed on the Fair Food Standards Council’s (FFSC) website prohibited list and publicized to all Participating Growers as ineligible for hire on FFP farms. Despite the ban, the perpetrators were hired as unlicensed labor subcontractors for a tomato farm in the Homestead, Florida area. Within three weeks of hire, workers and witnesses called the FFSC complaint hotline alleging the father and son had utilized physical force, threats of physical force, threats of deportation, and debt bondage to maintain control over the other migrant workers.

Immediately in response, a team of FFSC investigators was dispatched to perform an on-the-ground investigation collecting sufficient evidence to meet with the U.S. Attorney’s office.  Within a month of the initial calls to FFSC’s complaint line, arrests were made and an indictment for charges related to forced labor was filed.

The forced labor victims have since received legal assistance and counseling through VIDA Legal Assistance, as well as job referrals to safe situations at other FFP farms.  The grower who violated the FFP Code was suspended based on the FFP’s zero tolerance provisions for forced labor, and FFSC’s decision to suspend was affirmed by an arbitrator following appeal.

Two Mexican Nationals Sentenced to Prison for Participating in Forced Labor Scheme, United States Attorney’s Office Southern District of Florida, 2016. Fair Food Standards Council, 2016.