They report to the job site every day at 7:00 am even though they don’t know what time they’ll finish work that day. For years, they didn’t dare complain about the inhumane work conditions. Now they are preparing a lawsuit.
By Allan Bu
Illustration from Pixabay
Mario Aguilar and Gilberto Paredes have to be at work every day at 7:00 am, but they never know what time they will return home. They don’t know if they will get paid that day or if they’ll go home empty-handed. They work for a large food processing company, but are not on the company’s payroll. They are not eligible for any bonuses or paid time off, and have to work on national holidays if the company calls them in.
They have been told that since they are not company employees, they cannot present any formal complaints about their work conditions. They often have to work until 10:00 pm or later, sometimes even into the early morning hours. But they still have to report to work the next day at 7:00 am without fail.
It sounds like fiction, a tale of modern-day slavery, but it’s real. The company where Gilberto and Mario work is Industrias Molineras S.A. (IMSA). IMSA is located in Choloma, on the highway between San Pedro Sula and Puerto Cortes where many of the country’s largest and most profitable industrial enterprises operate. Gilberto and Mario were hired to work at IMSA by a third party contract staffing agency. This allows employers like IMSA to disregard labor rights and avoid paying worker benefits mandated by law.
This type of labor rights violation isn’t uncommon in a country with an unemployment rate that reached 10% during the pandemic, according to the National Institute of Statistics (Instituto Nacional de Estadísticas – INE). The figure doesn’t consider informal workers as unemployed. Government ineffectiveness and weak enforcement of the Labor Code also contribute to this situation.
In the early stages of the COVID-19 pandemic, the government declared a state of emergency that restricted in-person gatherings, meetings, and public mobility. At the same time, there was increased abuse of worker rights that was ignored by the government. The Ministry of Labor remained closed for almost six months (March to September 2020), and labor complaints were submitted by email and telephone. No government agency was effectively functioning to guarantee the right to work.
According to data from the Honduran Council of Private Enterprise (Consejo Hondureño de la Empresa Privada – COHEP), at least 500,000 Hondurans lost their jobs or were furloughed without pay during the 2020 shutdown of the economy, in violation of the country’s labor laws. The Hernandez administration also declared that businesses could count mandated lockdown days as vacation and holiday time.
The IMSA workers’ grievances began many years ago, although they were aggravated by the pandemic. Gilberto Paredes began working at the company in 2011 as a contractor. He lives in the San Miguel de Choloma neighborhood with his son. His wife left for the United States in search of a better life. He says that his wife’s uncertain income was one reason she migrated north. “It’s not right for them to demand so much from us and then pay us so poorly.”
In June, tired of the abuse and having their complaints ignored, 43 workers who load and unload cargo at IMSA decided to challenge the company. Their first complaint was about the work schedule and the lack of a set quitting time. The workers were successful in agreeing upon a set quitting time with IMSA.
“We wanted to negotiate directly with the company so that they could evaluate our requests and we could reach an agreement. But they told the staffing agency that this was not the company’s responsibility,” said Paredes.
The workers’ demands don’t go beyond the basic rights granted to all workers under the Labor Code and which also apply to all outsourcing arrangements: minimum wage, Christmas bonus, additional bonus of one month’s wages, paid vacation, affiliation to the Social Security Institute (IHSS), and a set work schedule.
Contracorriente interviewed Mario Martínez, the attorney representing the workers, who confirmed that his clients first took their complaints to the Ministry of Labor’s regional office in San Pedro Sula, but due to the large number of workers serviced by that office, they were unable to schedule an appointment for a hearing.
Martínez indicated that they hoped to get a hearing by the end of August 2021. The workers wanted to reach an agreement with the staffing agency and IMSA, but since that wasn’t possible, “We have no choice but to sue the staffing agency and IMSA, jointly and severally,” said Martinez.
Damicela Ayes, a labor lawyer, explained that the legal term “jointly and severally” refers to Article 7 of the Labor Code, which defines an intermediary as “a natural or legal person who hires the services of other people for the benefit of another employer, and in this sense they are jointly and severally liable.” Ayes said, “Any claim or lawsuit is made against both parties. Against the staffing agency in the first instance, and then against IMSA, which would also be jointly and severally liable.”
“Any claim or lawsuit is made against both parties. Against the staffing agency in the first instance, and then against IMSA, which would also be jointly and severally liable,” said labor lawyer Damicel Ayes.
Contracorriente contacted IMSA for a statement and received an email response from Gisela Osorio, the company’s head of human resources. “The people you are asking about are employees of a contractor that provides an outsourced loading and unloading service. Therefore, they are not directly employed by IMSA,” said Osorio in her email.
IMSA is attributing all responsibility to the contractor, Patricio Murillo, although as Ayes noted, the Labor Code states that the contractor and the employer share responsibility. “Unfortunately, these workers apparently do not feel that their concerns have been addressed by the staffing agency. As a company, IMSA takes care of its employees, making sure that all their rights are fulfilled, and even gives them additional benefits whenever possible,” said Osorio in her email.
Mario and Gilberto defend Murillo, saying that IMSA makes it impossible for him to fulfill their labor rights. “They [IMSA] don’t pay him enough to cover everything. They pay him US$0.10 per 100 kilograms (220 pounds) and the workers are paid US$0.08.”
Damicela Ayes observes that the companies being sued will always try to avoid responsibility, but a judge will ultimately impart justice in this case. “If it’s determined that a certain responsibility has not been fulfilled, then they [company and contractor] are jointly responsible. It’s important for the legal process to go forward and for these work conditions to be exposed,” she says.
Ayes claims that any business using subcontracted workers must ensure that their labor rights are met and adequate work conditions are provided. “The company has to ensure that the contractor complies with all labor laws, including working hours, mandated bonuses, and affiliation with the IHSS.”
Not even a Christmas gift basket
Gilberto Paredes is paid US$0.08 for every 100 kilos of cargo loaded or unloaded from IMSA’s trucks. Other than this pay, he has none of the benefits mandated by law. “For this wage, they want you to work until whenever, sometimes until 11:00 pm or midnight. They want you to be there, waiting to work.” But workers often wait around at the job site all day and don’t earn anything. “On July 2 and 3, we didn’t make a penny, but they made us stay here all day. There’s no work, but we still have to be here,” said Paredes.
Their monthly take-home pay is up and down. Paredes says that he has earned up to US$460 some months, but this is rare. His monthly income ranges between US$250 and US$335, but sometimes drops as low as $166. “The pay is variable, but we have to be there until they say we can go home. If we don’t, there’s a problem,” he said.
Mario Aguilar lives in the López Arellano neighborhood of San Pedro Sula and also works as a cargo loader at IMSA. He says that the need for employment forced them to accept inhumane work conditions. “We had to do whatever they wanted, whenever they wanted. We did it out of necessity. We’ve worked 36 hours straight sometimes just to earn a little money,” he says.
Unemployment in Honduras increased with the pandemic. The lockdown forced almost 40% of micro, small and medium-sized enterprises to close, and this sector of the economy generates 70% of all the jobs in the country. Slightly over 700,000 workers are affiliated with the social security system and according to the most recent INE survey conducted in 2020, 73% of the population is of working age (over 15 years old). This explains why there is always someone willing to take a job, no matter how untenable it may be.
“Workers like me don’t have contracts with IMSA, but we work twice as hard as their regular employees,” said Mario Aguilar, who works loading trucks.
Aguilar says that even during the Christmas season, which should be all about love and generosity, they were scorned by IMSA. “They give away Christmas gift baskets here to the employees. I once asked one of the bosses why they didn’t include us loaders in this. He said that those things weren’t up to him, that those orders came from management. For them, we don’t exist.”
Aguilar says that they have never received any expression of gratitude from the company where they work, “At least something like ‘Here’s a little bonus’ at the end of the year.” Mario claims that they have to obey orders with no complaints, and can’t ask for anything. “That’s how it is here. They don’t listen to us; we’re ignored. Sometimes they flatly tell us we shouldn’t complain since we don’t even work for the company.”
During the pandemic, Paredes says that many workers were almost arrested for violating the curfew because the company didn’t obtain permission for them to travel to work.
Aguilar recalls several times when they had to plead with the National Police [to overlook the curfew] when they had to work late into the night. “We worked non-stop and we took risks. The police would stop us and we would beg them not to arrest us, because [the company] was demanding that we be there.”
Aguilar told us about a friend with a car who would pick them up, and they would pay him a little for the gasoline. Others who live near the company would walk to work. The loaders assigned to the trucks and 18-wheelers carrying cargo outside of San Pedro Sula had the worst time of all, as they weren’t able to go home for a long time and practically lived in the company’s facilities.
But in June they got tired of all the abuse, and 43 of the company’s 67 loaders organized a protest. The workers declared that they would not work past 5:00 pm, but then came the reprisals. IMSA began to hire new workers, “and those aren’t going to protest anything,” says Paredes.
“These workers are completely unprotected. Some of them have been working for three years straight with that company, and they’re still classified as casual workers, which is absolutely illegal,” says Mario Martínez, the attorney who will represent the workers in court.
Aguilar says that he knew they were being taken advantage of, but many of his co-workers didn’t dare complain about it. Then one day they demanded a pay increase, and were all immediately fired since they didn’t have contracts. They returned to work two days later at the company’s request. “But we’re no longer working late nights; only nine hours a day. We consulted a lawyer and he told us that we couldn’t just walk off the job.”
The workers report that the company retaliated quickly after they began to demand better work conditions. Paredes said that IMSA began cutting their hours, and now their income is even more uncertain. “We earn less now, so we’re getting desperate. They want us to leave,” he said.
On July 12, Aguilar and Paredes were barred from entering IMSA’s premises, as they had become the faces of the worker protest. They filed a complaint with the Ministry of Labor, which sent a labor inspector to certify that they were effectively dismissed on that date.
Migrating north might be next
Mario Aguilar is 36 years old and the father of two girls and a boy. His wife doesn’t have paid work, and they rent their home. His daughters are both in high school and his son is still in primary school. To support his family, he has to do other jobs like helping truckers take inventory and sort cargo. He cleans these trucks when they return from making deliveries. He also mends shoes.
“I make a little money cleaning some friends’ big 18-wheel trucks at night. But this takes a toll on me because I hardly spend any time with my family.” These circumstances made him think of migrating to the United States. “I was going to go to the USA without papers, but then we all agreed to fight [IMSA]. Sometimes you have to leave your country because though you can get work, they don’t treat you well,” says Mario.
Gilberto Paredes also wants to migrate north. He doesn’t feel safe now because of the protest they started. He told us that the company’s private security guards have taken photos of them, although he hasn’t been threatened yet.
“I’m ready to leave for the United States because I’m afraid of retaliation. I’m raising my child alone,” says Gilberto. If he does leave the country, he plans to leave a power of attorney so that the lawyer can continue to fight on his behalf.
Migration is the path many choose in a country where hopes are crushed by endemic violence and corruption. There were an estimated 633,000 Hondurans in the United States in 2010, but those numbers have increased in the last decade. Migration from Honduras to the United States spiked even higher in 2018 when thousands joined massive caravans to travel north. The most recent caravan of 7,200 Hondurans was brutally confronted by the Guatemalan army when it crossed the border, and most had to return home.
Damicela Ayes contends that the work conditions of the loaders are definitely not permitted by Honduran law and she hopes that the violations will be corrected. Ayes believes that these increasingly frequent labor rights violations are often due to the uncaring attitudes of investors who “want to maximize profits by paying low wages and by securing the most favorable terms for their businesses. We know that [these violations] increased during the pandemic.”
Ayes also thinks that capital investment through the special Employment and Development Zone (Zonas de Empleo y Desarrollo – ZEDE) mechanism will result in greater disregard for labor rights. “If business owners are ignoring labor laws now, with the ZEDEs they’ll respect the rights of the working population even less.”
The ZEDEs are a controversial initiative of the Hernandez administration that designates special zones within the country for a special governance and taxation regime in which the ZEDE operating entity is responsible for security, conflict resolution and fiscal policy. The only laws applicable to a ZEDE are the Honduran constitution and penal code.
It’s hard to believe, but Ayes notes that while Honduras has more legal instruments to protect labor rights than many other countries, the problem is a lack of political will to oblige businesses to comply with these laws.
In this environment of government dysfunction and corporate greed, there are many cases like the 43 IMSA workers who dared to protest after suffering so much abuse and disregard. Mario Aguilar once asked one of his supervisors if he viewed him as a human being. “He didn’t say anything. They hate us and I don’t know why.”
