No free passes: Wendy’s return to US doesn’t obviate duty to respect workers’ rights… It only puts them back where they started.

Nearly two hundred farmworkers and consumer allies protested in the rain outside Wendy’s annual shareholder meeting in Dublin, Ohio, last week. Photos by Ralph Orr.

Despite repatriation of tomato purchases from Mexico, the imperative remains the same: Farmworkers in Wendy’s supply chains must be protected by the Fair Food Program, the only effective human rights program in the produce industry!

Following Wendy’s announcement last week that that the company would be repatriating the vast majority of its tomato purchases from Mexico to greenhouses in the US and Canada by the end of the year, many in the media turned to the CIW for an idea of how the news might affect the farmworkers’ demand that Wendy’s join the award-winning Fair Food Program.  Because the Campaign for Fair Food had been casting an unrelenting spotlight on Mexico’s horrific human rights record and, in particular, the country’s exceptionally high rate of sexual violence, the questions seemed to suggest that Wendy’s move might somehow satisfy the demands of the farmworkers and their allies. 

Nothing could be further from the truth.  The ticker-tape parade will have to wait.

Let us be very clear.  Wendy’s move to leave Mexico’s produce industry and its culture of violence and corruption was the right one, but it merely remedied its earlier indefensible decision to go to Mexico in the first place.  The CIW’s position today is the same as it always has been: Wendy’s must join the Fair Food Program.  The farmworkers in Wendy’s tomato supply chain deserve to enjoy the same, best-in-class human rights protections as workers in the supply chains of Wendy’s competitors Taco Bell, McDonald’s, Burger King, and Subway.  Nothing about Wendy’s return to purchasing from US producers changes that.  

And if an article released this week by the Presbyterian Church (U.S.A.) is any indication, Campaign for Fair Food allies agree.  Here’s an excerpt:

LOUISVILLE – Halfway there, but not far enough. That’s the reaction from the Presbyterian Hunger Program(PHP), the Coalition of Immokalee Workers (CIW) and other supporters following last week’s announcement by Wendy’s corporate executives to purchase a majority of its tomatoes in the U.S. instead of Mexico. The announcement came during the restaurant chain’s annual shareholders meeting in Dublin, Ohio…

… “There is still no guarantee that the workers are receiving the dignified treatment that they deserve,” said Gerardo Reyes Chavez with CIW. “How can you demonstrate that your code of conduct is effectively addressing and eliminating child labor, sexual violence and forced labor in your supply chain?”

Rebecca Barnes, coordinator for PHP, said they would continue to advocate alongside the Coalition for as long as it takes to get Wendy’s to join the Fair Food Program.

“Presbyterians have been clear that they want to feel good about the food they purchase, and the ways that the people growing it are treated,” said Barnes. “Presbyterians have stood with tomato pickers for over 15 years now, since the beginning of the Coalition of Immokalee Workers’ campaign to engage Taco Bell. We will continue to stand for Fair Food and pressure companies to do the right thing.”

Wendy’s, however, would have its customers believe that the move to US-based greenhouse growers should satisfy the concerns of consumers who care about human rights.  In an article published in the produce industry journal The Packer following last week’s announcement, Wendy’s spokesperson Linda Esposito addressed the question of human rights:

“… All of our suppliers are bound to a strict code of conduct that requires ethical practices, and certain fresh produce suppliers, including all tomato suppliers, undergo third party-certified human rights assessments.

“This is an initiative that we’ve been working on for quite some time,” Esposito said. “We’ve been focused on tomatoes, but are exploring similar strategies for other whole, fresh produce. We are certainly encouraged by the social and environmental sustainability benefits we expect to see as a result of this new tomato sourcing strategy, including the inherent benefits of safe, indoor working conditions.” (emphasis added)

There it is again, that now infamous word “expect.”  Wendy’s has always said that it expects much of its suppliers, but has never demonstrated that it requires anything.  In the interest of understanding this important moment fully, let’s take a closer look at Wendy’s arguments.

Are greenhouses, in fact, “inherently” better when it comes to working conditions?

The short answer is simple: No.

At the Campaign for Fair Food, we use logic and evidence to support our positions, and don’t make unsubstantiated claims like Ms. Esposito’s contention that there are “inherent benefits” for workers in greenhouse production.

Logically, Wendy’s claim of ethical labor conditions in its future greenhouse partners’ operations is either true or false, but in neither case is it a reason to avoid participating in the Fair Food Program. 

If it is true that conditions in the greenhouses are up to Fair Food Program standards, then everybody wins if Wendy’s joins and brings its greenhouse suppliers into the FFP.  The greenhouse growers get to sell their produce under the Fair Food label, the most widely respected certification in the world of social responsibility today; consumers can rest assured that Wendy’s claims to ethical conditions in its supply chain have been verified; and Wendy’s can come out of the shadows and rightly claim the mantle of leadership for having brought the greenhouse industry into the Fair Food Program.  

If, however, Wendy’s claim to ethical labor standards in its greenhouse suppliers’ operations is false, then the benefits of joining the Fair Food Program are obvious, especially for the workers, who deserve to have the same protections as tomato harvesters in the rest of the fast-food industry leaders’ supply chains.  And, unfortunately, there is every reason to believe that Wendy’s claim is indeed false.

As the CIW’s Lupe Gonzalo said following last week’s announcement:

“The reality is that workers in greenhouses face the very same situations of abuse, and sometimes its even worse than in an open field.  Sometimes, people think of greenhouses in the way they think about organic food — the tomato sounds like it will be of a higher quality, and so the working conditions must also be better.  But it’s not just about having organic food on the table, or even just about saying that workers have shade and therefore all of their problems are solved — it’s about ensuring actual human rights.  But Wendy’s isn’t going to see or understand that, because they once again are sitting inside in their offices, dreaming up the quality of life that farmworkers supposedly have.”

And the available evidence, like the conditions described in a recent article on abuses at Canadian greenhouses (“New documentary reveals harsh world of migrant workers in Canadian greenhouses,” Calgary Herald, 4/29/16), supports Lupe’s claim:

An image from the documentary “Migrant Dreams”.

The film, which took three years to make, tracks the stories of a group of workers from Indonesia who allege they were charged more than $7,000 each for low-paying greenhouse jobs. They agree to pay it off with their Canadian wages. Once in Canada, they see as much as 30 per cent of their weekly salary skimmed by the recruiter, with another chunk towards their cost of living taken by the farm for living costs, says Lee. 

“This looks and acts and feels a lot like debt bondage.” 

The workers also face overcrowded and unsanitary housing — a particularly horrible shot shows an aging kitchen crawling with cockroaches, hours of unpaid overtime and fees for living costs from their employer, even after some of them move out. Eventually, the police get wind of the recruiter and ask workers to come forward. Some do, but others are too scared of losing their job and being deported because their visa is tied to their employer.

So, it appears that the reality of working in a greenhouse may not perfectly match Wendy’s wishful thinking.    

But what about Wendy’s other defense of its continued refusal to join the Fair Food Program, that its third-party audits are the equivalent of those done by the Fair Food Standards Council, in partnership with farmworkers equipped with the knowledge, tools, and protections to monitor conditions on a daily basis?

Can consumers rely on Wendy’s auditors to protect farmworkers’ rights in its supply chain?

In our initial response to Wendy’s announcement, we quoted Laura Gutierrez of the Worker Rights Consortium, who spoke at the shareholders meeting and confronted Wendy’s executives on precisely this point.  Here’s an excerpt of her statement, which focused on the dismal track record of one of the auditing schemes Wendy’s identified at the shareholders meeting, SA8000 by Social Accountability International:

Programs like the SA8000 and SMETA schemes used by Wendy’s produce an endless parade of factory audits, officially measuring compliance with companies’ standards. What these programs lack, however, is the essential element of independent enforcement. (emphasis added)

Recent garment industry tragedies demonstrate that standards without enforcement cannot safeguard workers. The collapse of Rana Plaza, which killed more than eleven hundred young Bangladeshis in 2013, is the most notorious disaster in the South Asian garment industry, but by no means the first. A series of fires and building collapses killed hundreds in the years prior to Rana.

In virtually every case, the factory had been inspected under these same, or very similar, voluntary audit programs, but they failed to address the hazards that were taking workers’ lives. In 2012, a Pakistani factory called Ali Enterprises was certified by SA8000 auditors. Mere weeks later, a fire killed nearly 300 workers. They could not escape because Ali Enterprises didn’t have fire doors.

These catastrophes teach a profound lesson: it is not enough to subject workplaces to an inspection program. The program must be enforceable and include genuine worker participation.  None of the voluntary schemes in the garment sector provided worker representatives with the enforcement power necessary to hold the factories and brands accountable. So they failed. Workers died.

As it turns out, the WRC and Ms. Gutierrez are hardly alone in their assessment of the inadequacy of voluntary certification schemes versus the power of the Fair Food Program and the Worker-driven Social Responsibility model.  Fordham Law Professor (and MacArthur “Genius” Award winner) Jennifer Gordon has written an article entitled “The Problem with Corporate Social Responsibility,” and it is worth every second of the few minutes it takes to read in its entirety if you want to understand why the call for Wendy’s to join the Fair Food Program is every bit as urgent today as it was before Wendy’s announced that it would be returning from Mexico.  Here below are some highlights:

… How and why has Corporate Social Responsibility failed? It has been almost thirty years since the practice became widespread; by now, corporate codes and MSIs have been extensively studied, and there is some consensus as to their flaws.  I set these concerns out with particular attention to codes that target conditions of work at the subcontractors for major brands.

First, corporate participation is always voluntary. A corporation that writes its own codes can craft its substance and the process of its enforcement as it wishes, and faces no penalties if it does not follow the standards it has set for itself…

… Furthermore, the Corporate Social Responsibility standards to which corporations agree are not systematically enforced. Monitoring is intermittent and ineffectual, and standards are not legally binding. Compliance with codes of conduct is almost always determined by private auditors. This has given rise to a growing market for monitoring services. Some auditors work for individual brands, and others for prominent MSIs like the Fair Labor Association and Social Accountability International. It is most often the brands being audited for compliance that pay the monitors. If a brand or an MSI isn’t happy with a monitor, it will switch to another. This symbiotic relationship, and steep competition among monitors, makes auditors reluctant to come down hard on the very firms that are their lifeblood. It also creates incentives for auditors to replace effective but expensive inspection methods that are more likely to reveal violations (such as interviewing workers away from the factory) with ineffective but cheaper ones (such as desk audits carried out entirely on paper)…

… These problems alone should call into question the claims of Corporate Social Responsibility. But there is another issue, much less often articulated but equally devastating: frequently, the parties most affected by labor codes and MSIs—the workers whose lives are affected by the standards being negotiated—have no say in any part of their design or implementation…  When workers are not actively engaged in the design and enforcement of standards, critical problems go unidentified and unremedied…  In addition, what rights codes do establish tend to be generically stated. They apply to an entire firm or industry, all around the world. Ideally, this would allow for adaptability. Instead, it most often permits the fudge room that keeps a code from having a meaningful impact on conditions on the ground. To be effective in changing workplace conditions, codes must reflect the nuanced understanding that only workers have of “how work works” in a particular context.

Read Professor Gordon’s piece in its entirety here.  You’ll be glad you did.

In a separate article, Professor Gordon’s colleague at Fordham Law School, Professor James Brudney, brings Professor Gordon’s general argument against the traditional Corporate Social Responsibility approach in for a landing on the firm ground of comparison between Wendy’s code of conduct and the CIW’s Fair Food Program, and his conclusion will not please Wendy’s one bit.  He wrote his piece a year ago, in the context of the student movement to remove Wendy’s from the Ohio State University campus (where he had been a professor for twenty years):

… 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 Professor Brudney’s article in its entirety here.

No one gets a pass from the Fair Food Program…

It is perhaps helpful at this point to trace the history of Wendy’s conduct regarding the human rights of those without whom it would have no products to sell.  Prior to the Fair Food Program, the human rights of farmworkers were devalued throughout American agriculture.  After much public attention to their practices, all of Wendy’s major competitors — YUM Brands, McDonald’s, Burger King, Subway and Chipotle — joined the Fair Food Program. 

But when farmworkers and consumers started pressuring Wendy’s in 2013 to follow the rest of the fast-food industry’s lead, its argument was that of a classic free rider: We already buy from Fair Food Program farms, so we don’t need to join the FFP because our suppliers are already participating in the program.  No premium, no transparency, no commitment to stop purchases from farms suspended from the program… no problem. 

Then, in 2015, when that didn’t satisfy consumers, Wendy’s abandoned its longtime Florida suppliers altogether and took its purchases to Mexico, telling customers who called that Wendy’s no longer bought from Florida so the Fair Food Program no longer applied to them.  Pay no mind to the violence and corruption in Mexico, as long as we’re not buying from Florida, the Fair Food Program is not our concern. 

Today, in 2018, with pressure from farmworkers and consumers over the abysmal human rights conditions in Mexico reaching a crescendo, Wendy’s has brought its purchases back home to US farms, but still refuses to join the Fair Food Program.  Instead, it tells its customers to trust them, they’re monitoring labor conditions in their supply chain now, and everything is just fine.  

In other words, they are right back where they were in 2013, the only fast food company not buying from Fair Food Program farms.  And for this, apparently, they think they are entitled to praise from their customers.

It’s time Wendy’s got the message: Until they join the Fair Food Program — by either bringing their new greenhouse growers into the FFP, or returning to purchase from participating growers in Florida, or some combination of the two — consumer pressure on Wendy’s will only continue to grow.  

Wendy’s can run from the Fair Food Program but it cannot hide, not in Mexico, and certainly not in a greenhouse.