Wednesday, April 26, 2017

Working in Cuba

[Photo by Laura Yeomans]
I had the privilege of traveling to Cuba last month as part of the U.S. delegation to the IX Conference of Labor Lawyers and Trade Unionists. Our delegation of 17 lawyers, legal workers, and trade unionists visited a variety of workplaces in Cuba, met with jurists, trade union leaders, and environmentalists, and ate in a variety of fine and very reasonably priced restaurants.

What we learned is that Cuban workers are cash poor, health-care rich, well-educated, egalitarian, participatory, and eager to exchange ideas. Cuba remains a Third-World developing country with a thriving Latin American culture of music and dance.

Long exploited for sugar, coffee and tobacco production, Cuban workers rose from slavery to poverty in the 19th and 20th centuries. Our delegation saw the remains of a 19th century tobacco plantation that relied on slave labor. Urban labor often came from slaves who “bought” their freedom. In 1875, Spain outlawed slavery, but the process took until 1886 to free Cuba’s last slaves. A series of revolutionary movements challenged both the Spanish and, after its 1898 victory over Spain, American domination of Cuba. These culminated in the 1959 revolution, followed by a U.S. trade embargo that remains in force to this day.

About 27% of Cubans belong to unions affiliated with the CTC (Central de Trabajadores de Cuba). That compares with 4.5% of Americans who belong to unions. In Cuba, a job is guaranteed. Workers do not always like the work available to them, and they have the option to start their own business, or form a coop.

During our conference, we heard a presentation written by Muriel Castro, Fidel Castro’s daughter, about how transgender Cubans could use a new non-agricultural coop law to form businesses that would give them an alternative to the discrimination they face in more traditional workplaces.

Since employment is guaranteed, and salaries have very little variation, employment lawyers in Cuba are rarely asked to handle wrongful termination cases. Most labor law disputes involve discipline. Lawyers in private practice belong to collective firms, called “bufetes,” although clients would be represented by the individual lawyer and not by the firm. The fee for hiring a lawyer for a typical labor dispute would be in the range of $1 to $5. The bufete can approve a higher fee in difficult cases.

Cuba passed a labor law in 2014 that protects lesbians, gays, bisexuals and transgender workers from discrimination on the job. The law was considered at local and provincial levels, with feedback to the national legislature before its final adoption. In the U.S., Congress still has not passed a law explicitly protecting members of the LGBT community from employment discrimination, although some courts have determined that Title VII’s prohibition of sex discrimination applies. Cuba is now considering a new family law that would legalize same-sex marriages, but it is not yet adopted. We met a lesbian anthropologist who could not get on the waiting list for IVF services because her marriage to her wife is not yet recognized in Cuba. In this respect, the U.S. Supreme Court accomplished an advancement in legal equality that the national legislatures have not yet done in either the U.S. or in Cuba.

For those who do qualify for IFV or other health care procedures, it would be entirely free to Cubans. There is no need for health insurance, claim forms, co-pays or deductibles. Similarly, college education is also free for all Cubans accepted to be students at the universities.

During our conference, we heard that Cuba is debating a modification to the labor law that would allow managers to award bonuses of up to 2.5% of annual wages for superior performance. Progress in advancing the law is stalled by the details of assuring that performance would be determined objectively rather than subjectively. Meanwhile, in the U.S., the top 1% earns 23% of all earnings. That represents an income inequality in the U.S. of 2,300% compared to the 2.5% that Cuba is considering. Cuban labor lawyers expressed how some increase in wage flexibility might encourage additional foreign investment.

Speaking of investment, it is not coming from the U.S. due to the trade embargo. European, Canadian and Asian interests dominate the investments in hotels, industry and transportation.

Delegates from other Latin American countries had mostly depressing news about governmental plans to scale back on labor protections. One bright spot was Ontario, Canada, which has decided to improve its labor law to encourage unionization. Under the new law, workers can establish a union just by getting a majority of the workers to sign an authorization card. It also expands the opportunities for unionization for domestic workers and the employees of franchises.

I presented a paper called The Uneven Web of Whistleblower Protection. After explaining how being fired can be a serious blow for an American worker, and how the fear of getting fired can deter workers from challenging management, I described the array of whistleblower laws that protect some speech for some American workers. I called attention to the number of areas where Congress has and has not passed any whistleblower protection. We protect food safety whistleblowers, but not pharmaceutical safety whistleblowers. The Affordable Care Act protects health insurance coverage whistleblowers, but not patient protection whistleblowers. We have no federal whistleblower protections specifically for tax compliance whistleblowers or for employees misclassified as independent contractors. My main point was that we can learn about which sectors of our economy have influence over legislation by looking at the holes in our protections for worker free speech.

We saw many other Americans staying at the hotels with us. The U.S. embargo permits U.S. citizens to travel for professional or research purposes. Signing the required declaration about this purpose was easy for us given the conference and other educational activities we attended. Individuals can plan their own trip, get their own visa and schedule air travel to Cuba on American or Jet Blue airlines.

Both American and Cuban workers can learn from their dialogue with each other. Lifting the U.S. trade embargo will go a long way toward increasing that dialogue.

By Richard Renner.

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