“Voluntary codes like the one promulgated by Wendy’s are too often little more than a sham…”

International labor rights expert James Brudney pens powerful op/ed for OSU campus newspaper comparing Fair Food Program and Wendy’s corporate code of conduct;

On the FFP: “Twenty-five years ago, few observers in this country would have thought that what CIW and FFP have accomplished was conceivable… The FFP and CIW have secured basic labor standards protections for tens of thousands of tomato pickers.”

On Wendy’s code: “Sadly, voluntary codes like the one promulgated by Wendy’s are too often little more than a sham.”

Concludes: “I hope that at Ohio State, administrators can listen to the students’ concerns…”

In today’s post, we are going to take a closer look at Professor Brudney’s game-changing new opinion piece (“Ohio State administrators should listen to concerns about Wendy’s,” 4/27/17) published last week in Ohio State University’s campus newspaper, The Lantern.  But, first, a bit of a prologue, a few paragraphs to establish for the reader the context on the OSU campus into which Prof. Brudney’s op/ed was released this past Friday.  And we’d like to begin that prologue with a hypothetical scenario.  

Imagine, if you will, that you have unexpectedly come upon the scene of a terrible auto accident, what would you do?  You’d probably do whatever you could to help the victims — attend to the injured, call 911, and provide whatever comfort you could until medical professionals arrive.  Right?

But — and this is the question that pertains to the subject of our post today — once the paramedics and doctors arrived on the scene, what would you do then?  Would you just wave them off?  Tell them thanks, but I’ve got this?  

No, of course not.  Instead, you would quickly step aside and let the professionals do their jobs, offering any help you could while staying out of their way.  That’s what anyone would do in a situation where he or she is not trained, people’s lives are on the line, and more experienced actors are available for advice and assistance.

OSU and the human rights crisis in the Mexico’s fields…

There is a human rights crisis in Mexico’s produce fields today.  Any objective observer allowed unobstructed access into the lives and workplaces of Mexico’s farmworkers would encounter widespread poverty and egregious labor abuses without any reasonable expectation of effective monitoring or redress for violations of generally accepted fundamental human rights standards.  Though that sort of unencumbered access is exceedingly rare, given the lawlessness and threats to human rights activists and journalists in Mexico today, the Los Angeles Times was able to publish a hard-hitting investigative series in December, 2014, titled “Hardship on Mexico’s farms, a bounty for U.S. tables,” that provides an extraordinary window into the appalling labor conditions in our southern neighbor’s fields.

When students at OSU called their administration’s attention to the brutal exploitation of farmworkers in Mexico two years ago — and to the fact that Wendy’s, which does business on the OSU campus, abandoned its longtime tomato suppliers in Florida and shifted its purchases to Mexico because Florida growers embraced the Fair Food Program, the most progressive workplace monitoring program in the produce industry today — President Michael Drake and his administration officials listened.  In fact, they did what the passerby in our thought experiment at the top of this post would do: they saw a crisis, a situation where people’s lives are literally on the line, they rolled up their sleeves, and they set about trying to help make things better.  That process led to the inclusion of an important promise in the Wendy’s latest contract with OSU, namely that the lease “shall be conditioned upon a satisfactory resolution of the concerns of Student Farm Workers Alliance with regard to the Tenant sourcing of tomatoes for the business that Tenant is operating on the premises.”  Otherwise, the contract would not be renewed.

Justice delayed is justice denied…

But for the better part of a year now — ever since students began to escalate their pressure on the administration to cut the university’s contract with Wendy’s unless the fast-food giant agrees to join the Fair Food Program — President Michael Drake and members of his administration have been engaged in a protracted process of investigation and dialogue with Wendy’s.  From their statements on the subject, it appears that President Drake’s administration undertook that process in an effort to better understand the company’s approach to protecting farmworkers’ human rights in its supply chain.  That dialogue has now dragged on past the end of the school year, however, and students are losing their patience.

Just last week, during a trip to Washington, DC, President Drake was asked by members of DC Fair Food why his administration is taking so long to resolve the ongoing campus dispute (and to honor its promise to the OSU Student/Farmworker Alliance).  Here he is, in his own words, describing the administration’s current posture:

What we’ve said is that we’ve been talking with them and looking toward policies that effectively protect workers, which I’ve been working on actually for my whole life and will continue to work on. So I appreciate your support and will continue working on it.

And this is where the analogy with the hypothetical scenario at the top of the post breaks down.

Like the passerby in the thought experiment, neither President Drake nor his fellow administration officials are, in fact, experts in the field of business and human rights.  Despite President Drake’s assertion that protecting workers is something “I’ve been working on my whole life,” he has, according to his own bio, been working in higher education for nearly four decades.  And surely no one else in his administration can claim significant experience in the highly complex and thorny world of monitoring and enforcing fundamental human rights in the farm labor context, much less in the context of a dysfunctional civil society like Mexico’s, where violence is endemic and accountability is observed only in the breach — the context in which the tomatoes served at the OSU campus Wendy’s restaurant are largely picked.

But unlike the passerby, President Drake and his administration have thus far refused to cede to the advice and assistance of those with far greater expertise in the field of farm labor reform and corporate social responsibility.  Indeed, the administration has not only waved off the advice of its own students, but even that of farmworkers themselves, whose experience in the fields — and in building the Presidential Medal-winning Fair Food Program — would presumably be invaluable to the university’s deliberation.  When workers from Immokalee visited briefly with administration officials last month alongside student fasters, their advice appeared to fall on deaf ears.  In the words of Emily Evans, an OSU student who spoke at last week’s march on OSU campus:

“During our weeklong fast, we met with Provost Bruce McPherson, Geoff Chatas, and other top administrators.  We had farmworkers with us, sharing their direct experiences of oppression in the fields.  And what did these administrators do?  They laughed in our faces.  President Drake, human rights are not up for interpretation!  Listen to Buckeye Nation!”

In effect, the administration told the workers and their student allies, “Thanks, but we’ve got this.”

But just last week, yet another internationally-recognized expert in the field of labor rights, Professor Jim Brudney of Fordham Law School, weighed in on the subject, and his advice might not be quite as easy to ignore.  

An expert opinion: “The Wendy’s approach — a voluntary corporate code of conduct, backed by corporate self-monitoring — has for many years been dismissed as inadequate…”

Professor Brudney began his article with a quick mention of his qualifications for sharing his thoughts on the OSU campus debate, writing:

As a professor of labor law at the [Ohio State University] Moritz College of Law from 1992 to 2011, and a member of the University Labor Advisory Committee for the final ten years of my service, I have followed with interest the efforts at OSU to get Wendy’s to join the Fair Food Program. I understand one issue that has arisen involves comparisons between the FFP code of conduct and Wendy’s recently updated code of conduct for its suppliers. I want to offer my thoughts on this comparison… (read more) 

What he didn’t mention, perhaps out of an excess of humility, is that not only did he teach labor law at OSU for nineteen years, but, according to his bio:

  • Professor Brudney is a member of the Committee of Experts of the International Labor Organization, providing expert advice to the United Nation’s labor agency on international labor standards and enforcement policies;
  • his scholarly writing is on workplace law;
  • and his latest work is a chapter devoted entirely to a study of the Fair Food Program for a new textbook on the subject of Business and Human Rights.

It suffices to say that, between his professional experience, his detailed familiarity with the Fair Food Program, and his twenty years of living in and serving the Ohio State University community, Professor Brudney is uniquely qualified to offer expert advice of the highest caliber to OSU administration officials on the students’ concerns about labor conditions in Wendy’s supply chain.

Fair Food Program vs. Wendy’s supplier code of conduct…

His article goes on to offer a detailed comparison of the Fair Food Program and Wendy’s supplier code of conduct, focusing on the two pillars of the FFP’s unique success, rigorous rules of enforcement and worker participation:

… Two features of the FFP stand in stark contrast to the approach adopted by Wendy’s. One is that the FFP program involves a mandatory code, with meaningful enforcement through careful and comprehensive monitoring. Between 2010 and 2017, participating buyers — including Wendy’s major fast-food competitors — contributed almost 25 million dollars in wage premiums to improve farm worker wages. The FFP code also sets forth certain provisions that carry immediate consequences if violated: prohibitions against forced labor and child labor of any kind, the use or threat of physical violence, and sexual harassment involving physical contact. Growers have been suspended from the program for violations of these provisions. As the culture of compliance has become imbedded in the Florida tomato fields, there are far fewer violations in 2017 than there were in 2010.

By contrast, the 2017 Wendy’s code for its suppliers — many operating in Mexico — is entirely voluntary. The document is filled with hortatory statements that carry no consequences for non-compliance: what Wendy’s “expects” of its suppliers (e.g. “our suppliers are expected to fairly compensate” their employees; “we expect our suppliers to provide a work environment free of discrimination and harassment”) and how Wendy’s thinks its suppliers “should” treat their workers (e.g. “our suppliers should not utilize” forced labor; “our suppliers should ensure all employees work in compliance with applicable laws and regulations”)…

… The second notable contrast between the FFP and Wendy’s 2017 code relates to the active and unthreatened participation of workers. Under the FFP, the tomato workers, now together with a committee of growers, determine the contents of the code. They also play an essential role in monitoring its effectiveness — through worker-to-worker education sessions; compliance interviews with FFP staff; establishment of safety and health committees at every farm; and use of a 24-hour worker hotline.

Again by contrast, the Wendy’s code for suppliers is notably silent on worker participation, let alone worker voice in determining code contents or effectiveness. The code states that “suppliers must not threaten or penalize employees as a result of any lawful efforts to organize or bargain effectively.”  This statement begs certain critical questions. What exactly are the “lawful efforts to organize or bargain collectively” in U.S. farm fields, given that agricultural workers are not covered by the National Labor Relations Act? How does the law protect worker voice in Mexican farm fields, where reports of violence and retaliation against such efforts are regrettably common? And what mechanism does the Wendy’s suppliers’ code offer for workers to participate in formulating its contents, or for workers to enjoy meaningful protections when they seek to improve conditions in the fields controlled by these suppliers?

Professor Brudney’s summary and conclusion…

Professor Brudney then provides a particularly unflattering summary of Wendy’s approach to social responsibility before closing with a plea to the OSU administration to take the students’ concerns seriously: 

… The Wendy’s approach — a voluntary corporate code of conduct, backed by corporate self-monitoring — has for many years been dismissed as inadequate with respect to supply chain production.  Countless studies and reports — by human rights specialists, international organizations, and scholars — confirm that internal corporate monitoring effectively invites suppliers to engage in deceptive practices. These widespread practices include keeping double sets of books; concealing workplace hazards; scripting worker participation while chilling genuine worker input; and relying on top-down examination of documentary records rather than time-consuming investigation of working conditions on the shop floor or in the fields. Sadly, voluntary codes like the one promulgated by Wendy’s are too often little more than a sham…

… Twenty-five years ago, few observers in this country would have thought that what CIW and FFP have accomplished was conceivable, given centuries of oppressed farm labor in the U.S. — including over 200 years of slavery, a century of sharecropper exploitation, and decades of abusive conditions for the migrant workers who today comprise the bulk of the agricultural workforce. The FFP and CIW have secured basic labor standards protections for tens of thousands of tomato pickers. But they have not achieved total success, and their campaigns continue in Florida and elsewhere. It is unfortunate that Wendy’s, virtually alone among major fast food brands in the U.S., has so far chosen not to join this effort. I hope that at Ohio State, administrators can listen to the students’ concerns and recognize the difference between a genuine and effective program preventing supply chain exploitation of workers and a set of expectations.

You can read the article in its entirety here.

Our conclusion…

An auditor from the Fair Food Standards Council, the third-party monitoring body tasked with ensuring the implementation of the Fair Food Program, conducts an interview with workers on a participating tomato farm in Florida.

It is one thing for OSU administration officials to ignore their own students.  Presumably, they dismiss the members of the OSU Student/Farmworker Alliance and their fellow students who support the SFA’s call for higher ethical standards in the university’s food procurement policies as overly idealistic, perhaps admirable for their passion, but ultimately unrealistic.  [It should be noted, however, that the administration has dismissed the students’ advice despite the fact that many of those same students have taken a far closer look than the administration officials themselves into the question at hand, including trips to Immokalee to see working conditions there and the Fair Food Program firsthand.]

But it is clearly another thing altogether to ignore the advice of internationally-recognized experts in the field, whether those experts be farmworkers themselves — who know farm labor conditions here and in Mexico from painful experience, and who have built the single most respected and officially acclaimed social responsibility program in the produce industry today — or scholarly experts like Professor Brudney.

Instead of waving off Professor Brudney’s assistance, President Drake should, like the passerby at the top of this post, make way for the expert and heed his advice.  Professor Brudney’s no nonsense opinion piece should close the books on the administration’s year-long equivocation between the Fair Food Program and Wendy’s supplier code of conduct.  In his uniquely informed expert opinion, there is, quite simply, no comparison.  The Wendy’s code is “inadequate… little more than a sham.”  The Fair Food Program, on the other hand, has, against all odds, “secured basic labor standards protections for tens of thousands of tomato pickers.”

As such, Professor Brudney’s piece should lay any debate as to the merits of Wendy’s code of conduct to rest.  To continue to pretend at this point that there is some sort of equivalency between the FFP and Wendy’s is to be complicit in the labor abuses that happen every day in the fields where the tomatoes served to OSU students are picked. 

Instead, thanks to Professor Brudney’s article, President Drake and his fellow administrators can concentrate now on the real question at hand: Is Wendy’s approach to human rights consistent with the values that OSU seeks to instill in its students?

In other words: Is OSU truly determined to take a stand against its students’ legitimate concerns in defense of Wendy’s sham?  And if so, to what end?

Stay tuned…