Chapter VId - Migrants

... continued

1. Is there any discrimination against immigrant workers in your country? How is it manifested? Are there any laws to punish such acts?

2. Is there any discrimination against emigrant workers from your country in the countries of employment or the countries of transit? How is it manifested?

3. Are there cases in your country of illegal immigrant workers who have less favorable working conditions than those of your citizens and are these persons exploited or performing forced labor? If so, could you give any cases? Are there mechanisms or procedures to make sure that such situations do not occur? What are they?

4. Are immigrant workers, especially undocumented or irregular workers, employed at wages below the minimum wage in effect for citizens of your country? If so, could you give the reasons for this and the consequences?

5. Do you know whether any emigrant workers from your country are employed in the countries of transit or employment under working or wage conditions that are below the minimum applied or paid to the citizens of those countries? If so, could you indicate the country or countries where this occurs, the reasons and the consequences?

6. Does your country have any type of inspection or criminal, civil or other type of penalties to prevent employers from hiring irregular migrant workers?

Brazil

1. See answer of question 1 concerning xenophobia.

2. In general, Brazilians adapt easily to the culture and style of life in the countries to which they go, assimilating well into the local society.

In some cases, the type of work they do (which is normally avoided by the local population) and their status as illegal aliens in certain countries may cause some problems and difficulties fitting in, but there have been no cases of systematic discrimination against them because they are Brazilians.

3. As explained in item 17 above, less favorable treatment will take place to the extent that the migrant worker not legally in the country is subjected to discriminatory practices in the informal labor market (low wages and excessive hours), which are applicable not only to all foreigners but to informal workers in general, including Brazilians.

4. Answered above (Nº 3).

5. With regard to those who are illegal, there are no official data on salary levels or labor guarantees to which they may be entitled, although it is known that they usually take up informal jobs or accept what is considered unhealthy work. Those who work legally are generally contracted in accordance with local labor laws.

Some occasional problems have been reported. This is the case of Brazilian workers in Japan, who do not experience wage discrimination, but have problems concerning respect for their labor rights because of the special relationship they have with the employing agencies. Normally the workers are not contracted directly by the companies, but by employment agencies that do not always act properly and do not usually respect the labor rights guaranteed under Japanese law.

6. The Law Governing Foreigners (No. 6,815/80) specifies the rights and duties of the alien, as indicated below, and if employers fail to observe the law they can be assessed heavy fines. There are several other resolutions of the National Immigration Council that govern the granting of visas to aliens summoned to work in Brazil for pay.

Article 97. Aliens are permitted to engage in remunerative activity and enroll in an institution of learning subject to the restrictions established in this law and its regulations.

Article 98. Aliens who are in Brazil on tourist, transit, or temporary student visas, and dependents of persons with any temporary visa, are not permitted to engage in gainful employment. The holder of a temporary visa for correspondents of foreign newspapers, magazines, radio, television, or wire services may not receive remuneration from a Brazilian source.

Article 99. An alien with a temporary visa is prohibited from establishing his or her own business, or serving as an administrator, manager, or director of a corporation, or registering to exercise one of the regulated professions.

Sole Paragraph. Bearers of temporary visas who are professionals contracted by a private entity or a federal, state, or municipal agency are permitted to register for the temporary exercise of a regulated profession.

Article 100. Aliens admitted temporarily under contract may only exercise the activity with the contracting party at the time the visa was granted, unless otherwise authorized by express permission of the Ministry of Justice, upon recommendation of the Ministry of Labor.

Article 125, section VII. It is against the law to hire or use the services of an illegal alien or one who is precluded from engaging in gainful employment. The penalty for each alien is a fine of 30 times the reference index.

Canada

1. Please refer to answer 1 concerning xenophobia.

2. Not available.

3. The Canada Labour Code is the federal employment standards legislation applicable to types of employment that fall under federal jurisdiction. The Code applies to specific industries and sectors falling within the exclusive legislative authority of the federal government. Each province or territory has similar employment standards legislation.

Employment standards cover such topics as the minimum age of employment, minimum wages, equal pay, parental leave, other leave, hours of work and overtime pay, weekly rest-day, annual vacations with pay, general holidays with pay, notice of termination of employment, and recovery of unpaid wages. Minimum wages vary in each province.

Canadian labour laws would generally apply to all temporary foreign workers working in Canada. As well, all companies operating in Canada are subject to these laws.

4. In Canada, all immigrants are documented. However, it goes without saying that there are illegal movements of workers in almost all countries and the chances that such workers would be paid less than minimum wage or less than the going rate for whatever service they provide is appreciably higher.

5. Not known.

6. In an effort to discourage the hiring of illegals Canada has made it an offense under the Immigration Act, punishable by imprisonment or a fine or both, to employ a person who is not a citizen, permanent resident or does not possess the proper work authorization (section 96 of the Immigration Act).

Subsections 96(1) and (2) provide as follows:

96(1) Unauthorized Employment of Visitors and Others - Every person who knowingly engages in any employment any person, other than a Canadian citizen or permanent resident, who is not authorized under this Act to engage in that employment is guilty of an offence and is liable

(a) on conviction of indictment, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding two years or to both; or

(b) on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.

96(2) Deemed Knowledge - For the purposes of subsection (1), a person knowingly engages in any employment a person who is not authorized to engage in that employment where, by the exercise of reasonable diligence, he would have known that he person was not so authorized.

Periodic inspection are carried out by immigrant officers suspecting employers of violating the Immigration Act.

Colombia

1. No. Nonetheless, domestic legislation does establish mechanisms to protect nationals, as is evident in Article 74 of the Labor Code. “All concern with more than 10 employees shall assure that no less than ninety percent (90%) of unskilled workers and no less than eighty percent (80%) of skilled, specialized, managerial or positions-of-trust personnel are Colombian citizens.”

Article 100 of the Constitution stipulates that “Foreigners shall enjoy all civil rights enjoyed by Colombian citizens. For the maintenance of public order, however, the law may place special conditions on such rights or suspend the exercise of certain of them by foreigners.”

These regulations, in conformity with Articles 10 and 143 of the Substantive Labor Code and Article 179 of Decree 1275/70, place certain conditions on the hiring of foreign workers, but in no way permit discrimination against them.

These regulations safeguard workers and punish discriminatory behavior aimed against them.

Neither the Ministry of Labor nor the Office of the Assistant Secretary for Consular Affairs and Colombian Communities Abroad (Ministry of Foreign Affairs) has received complaints about discrimination against migrant workers in Colombia.

2. Yes, there are examples of discrimination. One example is the violation of labor and social security standards when a worker is undocumented. Another is the problems that arise when a person has to renew his/her visa and documents have disappeared or been lost.

3. The DAS has no knowledge of this happening. Moreover, the National Office for the Receipt and Processing of Complaints of the Ombudsman’s Office (Defensoría del Pueblo) has never registered comments or complaints from illegal foreign workers regarding less favorable treatment.

4. The level of remuneration of irregular migrant workers is unknown.

5. Yes, in most States of employment.

6. Yes, there are control mechanisms and/or criminal, civil and other kinds of sanctions to discourage employers from hiring irregular migrant workers.

The International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families stipulates:

Article25 Migrant workers shall enjoy treatment not less favorable than that which applies to nationals of the State of employment in respect of remuneration and:

a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms;

b) Other terms of employment, that is to say, minimum age of employment, restriction on home work and any other matters which, according to national law and practice, are considered a term of employment.

It shall not be lawful to derogate in private contracts of employment from the principle of equality of treatment referred to in paragraph 1 of the present article.

Article 54. Without prejudice to the terms of their authorization of residence or their permission to work and the rights provided for in articles 25 and 27 of the present Convention, migrant workers shall enjoy equality of treatment with nationals of the State of employment in respect of:

a) Protection against dismissal;

b) Unemployment benefits;

c) Access to public work schemes intended to combat unemployment;

d) Access to alternative employment in the event of loss of work or termination of other remunerated activity, subject to article 52 of the present Convention.

If a migrant worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State of employment, on terms provided for in article 18, paragraph 1, of the present Convention.

Article 68. States Parties, including States of transit, shall collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation. The measures to be taken to this end within the jurisdiction of each State concerned shall include:

a) Appropriate measures against the dissemination of misleading information relating to emigration and immigration;

b) Measures to detect and eradicate illegal or clandestine movements of migrant workers and members of their families and to impose effective sanctions on persons, groups or entities which organize, operate or assist in organizing or operating such movements;

c) Measures to impose effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers or members of their families in an irregular situation.

The States of employment shall take all adequate and effective measures to eliminate employment in their territory of migrant workers in an irregular situation, including, whenever appropriate, sanctions on employers of such workers. The rights of migrant workers vis-a-vis their employer arising from employment shall not be impaired by these measures.

The Constitution contains a provision on the right to work, applicable in conformity with Article 100 of the same document to foreigners, and in this case to migrant workers. Article 25 states: “Work is a right and a social duty, and in all its forms enjoys the protection of the State. All persons have the right to a job in fair and dignified conditions.”

Article 290 of the Criminal Code provides for punishment of any violation of the right to work.

Decree 2371 of 1996 “laying out provisions for the granting of visas, control of foreigners and immigration” stipulates: Article 191. The Director of Immigration (Extranjería) and the Section Directors of the Administrative Department of Security (DAS), and the heads of the Investigative Division, the Migration Unit of Eldorado Airport and the Division of Migration and Documentation, as well as the heads of Operational Posts may impose the sanctions herein described by reasoned decision. An administrative appeal may be lodged with execution suspended during the appeal… 3: Fines of 1 to 12 times the legal minimum monthly wage for each foreign worker can be imposed on the legal person, individual or public entity that contracts or gives employment to a foreigner without complying with all legal requirements, or who does not inform DAS that they have contracted or dismissed a foreigner within the 30 calendar days following such action.

Chile

1. Chile has incorporated a philosophy of non-discrimination into its legal and social systems, as outlined below.

a. The principle of equal protection of the law, understood as equal treatment both in terms of the letter of the law and its application, is embodied in domestic legislation (Article 19, paragraph 2 of the Constitution) and in international law binding on Chile (Article 7 of the Universal Declaration of Human Rights, Article 26 of the International Covenant on Civil and Political Rights and Article 24 of the San Jose Pact).

b. The principle of equal treatment without discrimination is embodied in domestic legislation (Article 19, paragraph 2 of the Constitution) and in international law binding on Chile (Article 1 of the San Jose Pact).

c. Both domestic and international law prohibit discrimination based on certain factors.

In this regard, Convention Nº 111 on Employment and Discrimination and Article 2 of the Labor Code of Chile must be mentioned. They both list factors that shall not be the basis of discrimination, such as race, color, sex, political opinion, national or social origin and religion.

The Constitution establishes the principles of equality and non-discrimination in two different manners:

- The obligation not to discriminate is extended from the State to individuals by Article 19, No. 16 of the Constitution.

- And by stating that the only valid criterion for hiring is the qualifications and skills of the individual seeking employment, the Constitution reinforces non-discrimination.

Taking the above as a starting point, we can examine Chile’s legal system (including its international law components) to see how equality and discrimination are approached. Two fundamental conclusions are readily apparent:

On the one hand, there is a personal right emanating from the constitutional guarantee that no one shall be discriminated against. This right means that one should receive from the State the same treatment and respect that is due to all persons.

Any conduct that can be defined as discriminatory goes against the law and is illegal to the extent that it negates or contravenes the right not to be discriminated against.

On the other hand, the Constitution allows the legislature to establish exceptions to absolute equality between nationals and foreigners. Such exceptions are found exclusively in the provisions of Articles 19 and 20 of the Labor Code:

Article 19. At least 85% of the workers in the service of a single employer shall be of Chilean nationality.

Article 20. For the purpose of calculating the percentage mentioned in the previous article, the following rules shall apply:

The number of workers in the service of a single employer shall be calculated as a national total and not broken down by regional or branch office;

Specialized technical positions that cannot be filled by Chilean nationals shall be excluded from the calculation;

Any foreigner whose spouse or children are Chilean nationals, or who is the widow/widower of a Chilean national, shall be considered as a Chilean national;

Any foreigner who has resided in Chile for more than five years, chance absences excluded, shall be considered as a Chilean national.

Thus, a migrant worker as defined in the introduction to this questionnaire enjoys the right of non-discrimination for nationality or for any other reason not connected to the qualifications and skills needed to perform a specific job, the only exceptions being those contained in the Labor Code.

2. This answer was not responded 3. From a strictly legal point of view, migrant workers do not receive less favorable treatment than nationals do, as both are regulated by the same legislation. This emanates from the principles of equal protection of the law, as provided for in Article 19, paragraph 2 of the Constitution, and of non-discrimination in the workplace, as embodied in Article 19, paragraph 16 of the same text.

Migrant workers considered to be in an irregular situation because they haven’t complied with immigration regulations still come under the Labor Code, as all work-related matters in Chile are regulated by it except for the exceptions expressly mentioned in law. Since legality of stay is not a requirement for employment and there is no express exclusion of illegal migrants, it must be concluded that they fall under the same regulations as all other workers in Chile.

Law enforcement regarding either irregular or legal foreign workers can be divided into two areas:

a) The Interior Ministry oversees enforcement of the entry, stay and exit requirements stipulated in immigration regulations.. It investigates potential infractions by workers or employers and has the authority to impose sanctions.

b) The National Labor Office oversees enforcement of job-related questions treated in the Labor Code, such as specific regulations governing contracts, work day, remuneration and termination of employment, and also has the authority to impose sanctions for violation.

4. This answer was not responded.

5. This answer was nor responded.

6. Neither labor law in general nor the Labor Code itself provides for sanctions against an employer that hires an irregular migrant worker.

Elsewhere, however, sanctions for such behavior are provided for. The regulations on immigration contained in DL No. 1094 of 1975 state:

Article 74. Employment shall not be given to foreigners that cannot prove that they are residing or staying in the country legally or that they are duly authorized to work.

Anyone employing or otherwise occupying a foreigner or foreigners must inform the Interior Ministry in Santiago and the regional authority or Provincial Governor, as appropriate, in writing of any circumstance that alters or modifies their residence status within 15 days of that occurring. If the Interior Ministry orders the expulsion of said foreigner(s), he must also cover any expenses related to the expulsion.

Article 75. Ministry of Labor and Social Welfare authorities discovering any infraction regarding the hiring of foreigners must inform the Interior Ministry or the regional authority or Provincial Governor, as appropriate, of said infraction. If it is determined that there was forgery or fraud in the contractual procedure that led to the granting of a visa, the foreign worker can be expelled from the country, without precluding indictment in the criminal courts of the country.

Any employer or person in charge of hiring who misrepresents facts when signing a contract with a foreign worker with the aim of obtaining residence permission for him shall be levied with a fine equal to 1 to 50 times his monthly salary. A repeat offense is punishable by the minimum time stipulated for medium-term imprisonment and a fine. Moreover, the offender must pay for the foreign worker’s passage out of the country.

When State or municipal bodies or services hire foreign workers without proper authorization, the Interior Ministry must request the proper authority to undertake the corresponding administrative court procedures. Any public employees found to be guilty of an infraction can be fined an amount equal to 1 to 15 days of wages. A repeat offense is punishable with dismissal.

In addition, Articles 152 and 154 of the Immigration Regulation, Decree Nº 597 of 1984 of the Ministry of Labor and Social Welfare state:

Article 152. A foreigner must prove that he is a resident or otherwise legally in the country and that he is duly authorized and accredited to work before a potential employer can offer him a job.

It shall be the responsibility of the employer or any other person upon whom the foreigner is dependent to inform the competent authority, in writing and within 15 days, of any circumstance that alters or modifies the foreigners status as a resident.

If infraction of these regulations leads to expulsion from the country, the individual, company or institution employing the foreigner shall be responsible for covering the costs of his exiting the country.

Article 154. Any foreigner who uses forgery or fraud to obtain a work contract shall be subject to expulsion from the country, without precluding any criminal penalties that may apply.

Any employer or person in charge of hiring that commits such an offense shall be subject to a fine of between 0.22 and 11.14 the minimum income level. A repeat offense shall be punishable by the minimum time stipulated for medium-term imprisonment, any corresponding fine and the obligation to pay for the foreign worker’s passage out of the country.

Enforcement and application of administrative sanctions corresponds to the Interior Ministry or to the regional authority or provincial Governor, as appropriate and according to the pertinent regulations.

Dominica

1. (A) No, (B) Yes.

2. We are unable to furnish you with response to this questions.

3. No.

4. No.

5. We are unable to furnish you with response to this questions.

6. Yes.

Ecuador

1. There have been no such cases. There is no legislation except for the general legislation already mentioned.

2. Yes, mainly in Spain where Ecuadoreans have recently been treated in an inhuman fashion and have been mistreated and denied entry upon arrival.

The same situation exists in Central America, countries through which Ecuadoreans have to transit to reach the United States.

3. No incidents of this type are known.

There are no enforcement measures.

4. This may happen when the worker is in an illegal situation. Legal protections are weakened precisely by the irregular situation of the foreign worker, who would be hampered in making any legal claims.

5. Yes, there are workers in Spain and the United States.

Causes: They are in the country illegally and do not possess proper documentation.

Consequences: They live in degrading circumstances. They are mistreated and have no job security. Illegal immigration is growing due to the attractiveness of cheap labor.

Such conditions are accepted because even the low wages they earn in the countries in question are higher that what they could earn in Ecuador.

6. Yes, in the Immigration Law – Article 37; Section 3 (Offenses, Penalties and Infringement).

Grenada

1. No (ii) Not applicable (iii) Judicial System

2. No.

3. No (ii) Not (iii): Judicial System

4. No.

5. Not known.

6. Yes.

Guatemala

1. In Guatemala there is no discrimination against migrant workers. Guatemala’s Constitution and Labor Code outlaw all forms of discrimination, as was explained in out response to question 17.

2. Irregular and undocumented Guatemalan migrant workers in the United States are paid less than US nationals are. Moreover, Guatemalan migrant workers do not enjoy the same employment opportunities as US nationals do, and have even been denied access to social services and deported to their country of origin often under degrading circumstances.

According to a 1996 study done in Mexico by Carlos Cáceres Ruiz under the title “Contractors and Documented Temporary Farm Workers: Guatemala and Mexico,” there is discrimination in Mexico, as can be seen in the working conditions of Guatemalan women in Chiapas. In 1992, there were 8,420 Guatemalan women working as migrant farm workers in Chiapas. All were documented, but they still were not paid the minimum wage set by the state of Chiapas. Promises made to then, such as adequate meals and transportation, went unfulfilled.

3. In Guatemala itself there have been no complaints filed concerning illegal migrant workers being treated differently than Guatemalan workers, or of forced labor or exploitation. Article 4 of the Constitution states: “ In Guatemala all human beings are free and equal in regard to their rights and human dignity. Men and women, whatever their marital status, enjoy equal opportunity and responsibility. Nobody is to be subjected to slavery or to any other condition that impinges on human dignity…”

Work is a right recognized by the Constitution and the right to freely choose one’s livelihood is a basic social right underpinning labor law. On 10 November 1959, Guatemala ratified International Labor Convention No. 105 of the International Labor Organization on the Abolition of Forced Labor. Thus, illegal migrant workers have the right to equal opportunity in offering their services.

The Labor Inspection Office of the Ministry of Labor and Social Welfare is in charge of overseeing compliance with labor law. It does so through a body of Labor Inspectors, who undertake legal proceeding against employers before the Labor and Social Welfare Courts when uncovering a violation of labor regulations.

4. Guatemalan labor law protects the constitutional and inalienable rights of workers. Thus migrant workers have the right to the work benefits provided for under the Labor Code. The Ministry of Labor and Social Welfare has never registered a documented complaint or verified lack of compliance with minimum wage scales in the case of migrant workers.

5. See answers to questions 1 an2 of xenophobia. 6. Article 80 of the Law on Migration and Immigration states: Without precluding the application of sanctions provided for by labor law, employers who hire foreigners without following the laws of the country shall be punished according to the provisions of paragraph 3 of Article 72 of the Law on Migration. Article 72 of that law states:

Without precluding other penalties provided for in this law, the law of the land and international conventions, any violation of this law and associated regulations shall result in the following penalties:

1. For foreigners:

a. A fine of from 50 to 1,000 quetzals.

b. Expulsion from the country.

2. For civil servants, Immigration authorities and other State employees:

a. Verbal or written warning, as appropriate.

b. Suspension for up to 30 days.

c. Loss of employment.

3. For all Guatemalan nationals not included in the preceding section:A fine of from 25 to 500 quetzals.

Honduras

1. No.

2. Discrimination against Honduran workers in other countries, such as the United States, takes the following forms:

          Unfair competition
          Violation of human rights
          Mistreatment at the hands of authorities and employers
          Exploitation
          Level of remuneration affected by their status as migrant workers
          Work carried out without accrual of social security benefits
          Inhuman working conditions
          Violation of their rights as migrant workers
          Violations of the Universal Declaration on Human Rights

3. No.

4. No.

5. In States of transit in general and specifically in Mexico, migrant workers must perform tasks for less than a survival wage as they make they way to the United States. Such exploitation occurs not only in States of transit, but also in the United States, where their rights as workers are violated and they perform the most arduous tasks for less than the minimum wage set under US labor law. Advantage is taken of their irregular situation and documentation, and they are often defined by a document that says “migrant” and not treated with the decency that any human being deserves.

6. Yes. The main task of the General Office on Population and Immigration Policy is to eradicate clandestine immigration and regularize the documentation of foreigners currently in an irregular situation.

Mexico

1. The government of Mexico can affirm that there has never been and today there is no racism, xenophobia or any other kind of discriminatory treatment of foreigners in our country.

The migration policy of the government of Mexico is based on the recognition that our country is a place of origin, destination and transit of major migratory movements. Mexican policy is thus consistent with the complexity of such flows and their structural underpinnings. Moreover, one of the main pillars of our policy is the commitment of all Mexican authorities to respect the human rights of migrants at all times.

Mexico has gained international recognition for its longstanding policy of offering refuge and asylum. Of note in this area is the implementation of the Migratory Stabilization Program undertaken in August 1996. This program granted Guatemalan refugees that had entered Mexico in the 1980’s the chance of formally immigrating if they intended to settle permanently in the country. They could thus acquire immigrant status and the associated right of applying for a Mexican naturalization card. The same program also gives Guatemalans who want to return their country the chance to regularize their situation in Mexico by acquiring non-immigrant status.

If any discriminatory practice were to occur, domestic legislation and international treaties are in place to punish it. Mexico has signed various international conventions, including the International Convention on the Elimination of All Forms of Racial Discrimination (in effect since 20 March 1975), the International Convention on the Prevention and Punishment of the Crime of Apartheid (in effect since 3 April 1980) and the International Convention on the Elimination of All Forms of Discrimination Against Women (in effect since 3 September 1981).

Moreover, any kind of discrimination against workers, be they migrants or not, is expressly prohibited by the provisions of Article 123, section VII, of the Constitution of the United Mexican States.

Article 123. Everyone has the right to dignified and socially useful employment. To this end and according to law, efforts will be made to promote the creation of jobs and the social organization of work. The National Congress, without contravening the following principles, shall pass labor legislation to regulate:

A. For workers, day laborers, employees, servants, artisans and in general for all employment contracts:

I…

VII. Equal pay for equal work, regardless of the sex or nationality of the person in question.

The Federal Labor Law goes on to stipulate that:

Article 56. Conditions attached to employment cannot be less than those set by this law. They must be proportionate to the service offered and include equal pay for equal work. No differences on the basis of race, nationality, sex, age, religious belief or political doctrine shall be established, except in ways expressly permitted by this Law.

It can thus be seen that migrant workers in Mexico are treated exactly as Mexican nationals are in regard to work.

Mexican legislation provides for sanctions for any violation of the labor rights of workers in general, including any discrimination that may be suffered at the hands of employers. Title XVI (Responsibilities and Sanctions) of the Federal Labor Law states:

Article 992. Any violation of labor regulations committed by employers or workers shall be punished in accordance with the provisions of this Title, independently of any responsibility they may have for failing to meet their obligations.

The amount of any fines established in this Title shall be calculated on the basis of the daily amount of the minimum wage in effect in the place and at the time that a violation occurs.

2. It is sad to note that Mexicans that have emigrated to the United States of America at times do suffer from xenophobic, racist and discriminatory acts at the hands of US authorities and various groups.

The National Human Rights Commission has studied and documented the situation of Mexican migrant workers in its “Report on Violations of the Human Rights of Mexican Migrant Workers as They Travel Toward the Northern Border, Cross It and Enter the Southern Border Zone of the United States.” This study covers the years from 1988 to 1990 and mentions progress made during the first half of 1991.

This was followed by the “Second Report on Violations of the Human Rights of Mexican Migrant Workers as They Travel Toward the Northern Border, Cross It and Enter the Southern Border Zone of the United States,” covering 1991 to 1993 and incorporating events of 1994.

3. As has been mentioned in other responses, in Mexico migrant workers are not in any way treated differently than Mexican workers. Moreover, working conditions are the same for both groups. For example, the length of the working day and wages must be the same for nationals and foreigners. In this regard, Article 123 of the Constitution, the true cornerstone the employer/employee relationship in Mexico, states in section VII that there must be “Equal pay for equal work, regardless of the sex or nationality of the person in question.” Complementing this, Article 56 of the Federal Labor Law stipulates that, “Conditions attached to employment cannot be less than those set by this law. They must be proportionate to the service offered and include equal pay for equal work. No differences on the basis of race, nationality, sex, age, religious belief or political doctrine shall be established, except in ways expressly permitted by this Law.”

If a migrant worker at any time were to feel that his/her rights were being violated because of nationality, he/she can bring the case before a Federal or State Conciliation and Arbitration Board, which are the competent bodies to hear labor disputes.

The situation of migrant farm workers is tied to respect for their human and labor rights. Mexico has a legal and institutional framework that recognizes those rights and oversees respect for them. Various institutions have roles in this system. On the labor side these include: The Federal Department of Labor and Social Welfare; the State Departments of Labor; and the State Conciliation and Arbitration Boards. Other bodies whose activities are not specifically labor-oriented, but that are responsible for related areas include the National Migration Institute, the Department of Health, the Department of Social Development and the Department of Education.

Mexico recognizes the right of migrants to have access to essential services such as health and education. And it also recognizes their right to other services, such as legal aid and the social services offered by various governmental offices in general.

In the main, it is the State that is responsible for these rights. However, it has been seen in practice that other actors also have roles to play. On many occasions the consulates of the countries of origin of migrant workers have effectively contributed to the conciliation and resolution of work-related disputes.

In recent years Mexico has made major strides in opening lines of communication with the two countries with which it shares borders. In 1986, the Mexico-Guatemala Binational Committee was created. Its Subcommittee on Migrant Affairs brings together institutions working in various aspects of this field in the two countries.

4. Both the Constitution and domestic legislation prohibit the hiring of migrant workers at less than the general minimum wage in effect in the geographic area in question. Nevertheless, there have been cases of irregular and undocumented migrants being paid less by employers taking advantage of their vulnerability.

The Federal Labor Code provides for stiff sanctions for such offenses.

Article 104. An employer of any industrial, agricultural, mining, commercial or service concern that pays one or more workers a quantity of money inferior to the general minimum wage, or that has provided a payment slip showing an amount of money superior to the amount actually paid, shall be punished by:

I. Six months to 3 years imprisonment and a fine of up to 50 times the general minimum wage, as provided for in Article 992, when unpaid wages do not exceed the amount of a month’s salary at the general minimum wage in effect in the geographic area in question.

II. Six months to 3 years imprisonment and a fine of up to 100 times the general minimum wage, as provided for in Article 992, when unpaid wages exceed the amount of a month’s salary at the general minimum wage in effect in the geographic area in question, but are less than the equivalent of 3 months of salary.

III. Six months to 4 years imprisonment and a fine of up to 200 times the general minimum wage, as provided for in Article 992, when unpaid wages exceed the equivalent of 3 months of salary at the general minimum wages in effect in the geographic area in question.

The above-mentioned fines shall be doubled for any repeat offense.

Moreover, payment of less than the legally stipulated minimum wage is defined as a criminal offense in Articles 386 and 387 of the Criminal Code, both for the Distrito Federal (DF) and the country as a whole.

Article 386. An individual who deceives another person or takes advantage of his deficient knowledge to illegally take possession of a thing or to make undue profit shall be guilty of fraud.

Fraud shall be punished by:

I. Three days to 6 months imprisonment or a 30 to 180 day fine, when the value of the fraudulent gain does not exceed 10 times the salary;

II. Six months to 3 years imprisonment and a fine of 10 to 100 times the salary, when the value of the fraudulent gain exceeds 10 times, but does not exceed 500 times the salary;

III. Three to 12 years imprisonment and up to 120 times the salary, when the value of the fraudulent gain exceeds 500 times the salary.

Article 387. The same penalties mentioned in the preceding article will be applied:

III…

XVII. To a person who takes advantage of the deficient knowledge or the tenuous economic situation of a worker in his/her employ to pay less than the legally stipulated amount for the work performed, or to demand receipts or proof of payment of any kind that vouch for a larger sum than was actually paid.

5. In the United States, Mexican migrant workers are often contracted under conditions different from those of nationals and for less than the minimum wage.

Examples of Mexican workers employed in the United States under worse conditions and lower wages than those applied to US nationals have come to light, including in the apple industry of Washington State and in the bee keeping industry of Maine.

6. The National Migration Institute (Secretaría de Gobernación) can impose administrative sanctions on employers that hire irregular or undocumented workers. Article 74 of the LGP states, “Work shall not be offered to foreigners who have not first proven that they are in the country legally and are authorized to work.” Article 140 of the same text states that any transgression is punishable by a fine that can be commuted for up to 36 hours of administrative detention.

The Federal Work Inspection Office has competence in this area. When carrying out any general inspection, they will also check to see if any foreigners are in the employ of the company being inspected. If there are, the owner or his representative is asked to produce the migration forms that shows that the workers are in the country legally and are authorized to work.

The inspector will note in his report whether or not he was shown the documents requested. If documents are presented, he will take note of the kind of documentation shown him.

The inspector will also check to see that all provisions on foreign workers stipulated in the Federal Labor Code are being met.

The next stage is analysis and qualification of the inspection report. The Federal Work Inspection Office and the Federal Labor Delegations, without making any assumption on the legality or validity of the documents presented to the inspector, officially notify the National Migration Institute. They inform it of the existence of any foreign workers and attach a copy of the pertinent report. The National Migration Institute will then decide if it should take any action within its sphere of competence.

If any potential violation of the provisions of the Federal Labor Code on the hiring of foreigners is detected, the case will be passed on to the authorities legally responsible for sanctioning such behavior. That body will then undertake administrative proceedings against the employer within the framework of the Federal Labor Code, the Federal Law on Administrative Proceeding and the General Regulations for Inspection and Application of Sanctions for Violations of Labor Law, and apply sanction as appropriate.

Saint Lucia

1. Not applicable.

2. Not applicable.

3. Not applicable.

4. Not applicable.

5. Not applicable.

6. Immigration Ordinance Act 2,5000.00 penalty.

Trinidad and Tobago

1. There is no discrimination against immigrant workers in this country.

2. There is no discrimination against emigrant workers from this country in the countries of employment.

3. There are no cases of illegal immigrant workers who have less favourable working conditions than those of our citizens and those persons are not exploited nor perform forced labour. There are mechanisms and procedures to ensure that such situations do not occur.

4. Not known.

5. Not known.

6. This country has inspection and penalties to prevent employers from hiring irregular migrant workers.

United States

1. Of the anti-discrimination laws mentioned in the answer to Question # 17 (1 about xenophobia), one specifically protects non US. citizens who are authorized to work --the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S. C. 1324b. The law was enacted in response to concerns that employers, faced with new employee verification procedures imposed by IRCA, would refuse to hire people who look or sound "foreign." The law prohibits citizenship status and national origin discrimination with respect to hiring, firing or referral or recruitment for a fee. The law also prohibits unfair documentary practices with respect to employment eligibility verification. All U.S. citizens, nationals and work‑authorized immigrants are protected from national origin discrimination and unfair documentary practices. U.S. citizens and nationals, permanent residents, asylees, refugees and temporary residents are protected from citizenship status discrimination. Employers that violate the law are subject to civil penalties (ranging from $110 to $11,200 per violation) and the payment of full back pay to victims.

The United States Department of Justice, Civil Rights Division, Of fice of Special Counsel for Immigration‑Related Unfair Employment Practices (OSC), investigates and prosecutes charges of immigration‑related unfair employment practices in an effort to ensure that work authorized individuals are not discriminated against by employers. Examples of cases brought by OSC include:

- An airline that refused to hire non‑citizens for pilot positions,

- Airlines that refused to hire asylees or refugees for airline attendant positions,

- A manufacturing corporation that refused to hire an applicant born in Puerto Rico because she was unable to present a green card,

- An electric power company that refused to hire an asylee because his work authorization contained a future expiration date,

- Companies that apply employment verification requirements more harshly on one ethnic group or on individuals perceived to be unauthorized aliens.

2. Please refer to response in 2 above of xenopbobia.

3. The Department of Labor is responsible for enforcing the nation's laws protecting workers from abusive labor conditions. These laws apply to both native and migrant workers, and both regular and irregular migrants. The issue of whether a worker is legally in this country is not a part of the Labor Department's mandate, and therefore, the DOL does not attempt to ascertain the immigration status of workers. Nonetheless, we do know that undocumented workers fill many low wage jobs in this country, and that many of these workers are too often employed in violation of labor standards. One of the primary criteria used by the DOL in targeting its enforcement resources is the presence of immigrant workers in the work force. For instance, the industries currently being targeted for examination by the DOL are residential health care, garment production, and agriculture all industries with a substantial percentage of immigrant workers.

The Department of Labor engages in a proactive, nationwide program of education and outreach combined with enforcement (including the imposition of sanctions and initiation of judicial proceedings), in an effort to educate both workers and employers as to their rights and obligations under the law.

4. Undocumented or irregular migrant workers are entitled to the same labor protections as U.S. nationals. Data by legal status are not available because the United States does not differentiate between documented and undocumented workers in our enforcement of minimum wage laws. In FY '98, the Department of Labor conducted over 18,000 investigations in the seven low wage industries targeted for enforcement emphasis (agriculture, garment manufacturing, restaurants, health care, hotels and motels, janitorial services, and guard services). These low wage industry investigations disclosed a total of $40,000,000 in unpaid wages owed to over 80,400 workers. Many businesses in the low wage industries are known to be heavily dependent upon undocumented workers.

5. It is unlikely that many American workers are employed in such conditions abroad. No specific information is available.

6. Under U.S. immigration and labor laws, there are significant legal and financial penalties for employers who knowingly hire illegal, or irregular, migrant workers. All new employees for any position within the United States are required by immigration and labor law to show valid proof of authorized employment in the United States. This is done through proper citizenship, legal alien, visa, or authorized employment identification. Employers are to complete and maintain on file a valid "I‑9" form for each individual employee certifying the employee's eligibility to work in the United States. The Immigration and Naturalization Service (INS) conducts inspections of employer records to determine whether an employer has complied with his or her obligation to verify that a job applicant may lawfully be employed. This inspection process is referred to as "employment eligibility verification." If the inspection reveals that an employer violated the INA, the INS has the authority to impose civil penalties or initiate criminal proceedings.

The Department of Labor also has a limited role in the employment eligibility verification process. When conducting a non‑complaint based investigation, DOL investigators conduct a concurrent review of an employer's records to determine whether the employer is complying with the employment eligibility verification requirements. The findings of these reviews are forwarded to INS for any appropriate further action. DOL does not conduct employment eligibility verification investigations when the investigation was initiated by a complaint.

Venezuela

1. No. There is no discrimination against foreigners in Venezuela, as can be seen from the pertinent legislation, which safeguards inhabitants of all nationalities. The Constitution of Venezuela provides for equality of rights and duties for nationals and foreigners, except for any limitations expressly made by the Constitution or legislation (Article 45). Thus there is no legal discrimination against foreign workers and they have the right to work and obtain a job that will give them a decent and dignified living in Venezuela.

Nevertheless, there are certain limitations on the right to work of foreigners, as we will now explain.

The Labor Law stipulates that in all companies, concerns, establishments and workplaces covered by the law, 90% of jobs shall be reserved for Venezuelans and 10% for foreigners in urban areas, with these figures changing to 80% and 20% respectively in rural areas (Article 27). The Ministry of Labor may grant temporary waivers to these rules for technical reasons (Article 28). The law also states that heads of industrial relations or personnel departments, captains of ships or airplanes, and foremen or their equivalent must be Venezuelan nationals.

2. No.

3. No. Venezuelan law provides for the equal treatment of national and foreign workers, except for certain exceptions stipulated by law. Article 26 of the Organic Labor Law states, “There shall be no work-related discrimination based on age, sex, race, marital status, religion, political belief or social condition…”.

Thus, an illegal migrant worker enjoys the same rights and duties as national and legal foreign workers in regard to wages and working conditions, as established in the Organic Labor Law and the Organic Law on Working Conditions and Work Environment. But illegal migrants do not enjoy social security, housing or unemployment benefits, and are not covered by the right to unionize.

Furthermore, Article 30 of the Law Adopting the Andean Labor Migration Instrument (Decision 116) states that member countries have the obligation to establish penalties for recruiters, middle-men and employers involved in the hiring of undocumented migrants once the instrument has entered into force.

Venezuela has not complied with that requirement, as it has not yet incorporated penalties into its domestic legislation. There are, however, sanctions that can be applied for other acts related to the hiring of illegal migrant workers. These include violations of industrial safety and health regulations and the wrongful hiring of women or children, which are covered by the Organic Labor Law. Corruption of minors, inducement to begging and other acts are covered by the Criminal Code.

The Labor Inspection Division of the Ministry of Labor makes regular visits to companies to check compliance with the law. The Labor Migration Office provides legal advice to both companies and migrant workers.

4. No. A look at current law shows that migrant workers, including undocumented and irregular migrants, enjoy the same work-related rights and duties as Venezuelan nationals, except for certain exceptions provided for by the Constitution and domestic legislation. Thus, a migrant worker cannot receive a wage inferior to that established by the Executive. Equal treatment is provided for by Article 10 of the Organic Labor Law, which states: “The provisions of this law are in the public domain and applicable nationally. They shall apply to Venezuelans and foreigners for work done or contracted in the country and cannot be renounced or modified by agreement between private parties…”

5. We have no knowledge of this.

6. Article 30 of the Law Adopting the Andean Labor Migration Instrument (Decision 116) states that member countries have the obligation to establish penalties for recruiters, middle-men and employers involved in the hiring of undocumented migrants once the instrument has entered into force.

Venezuela has not yet complied with that requirement, as it has not yet incorporated penalties into its domestic legislation. There are, however, sanctions that can be applied for other acts related to the hiring of illegal migrant workers. These include violations of industrial safety and health regulations and the wrongful hiring of women or children, which are covered by the Organic Labor Law. Corruption of minors, inducement to begging and other acts are covered by the Criminal Code.

The Draft Organic Law on Migration and Regularization of Foreigners currently being studied by the Ministry of Justice and other ministries includes an article (currently No. 44) that states: “Any employer that hires illegal foreigners to work for him shall be fined the equivalent of 80 tax units.”

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