As a professor of labor law at the 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.
The FFP, whose active participants include most other major fast food brands in the U.S. — including Taco Bell, McDonalds, Burger King, Subway and Chipotle — involves individual enforceable agreements between the Coalition of Immokalee Workers, on behalf of thousands of tomato workers in southwest Florida, and each of these fast food companies. The contracts obligate the Brands to use as suppliers only those growers that abide by the FFP code of conduct, a code fully informed by the workers themselves. This code is vigorously monitored and enforced by the Fair Food Standards Council, a third-party monitor launched in 2011 that relies on worker participation to help assure compliance.
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 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.
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?
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.
James J. Brudney
Professor of Law
Fordham University Law School
