A Case of Semantics: Incarcerated Worker Protections under the ILO
Everybody in the United States, in one way or another, relied on prison labor during the chaos of 2020.[1] Some instances made national headlines, such as when incarcerated individuals were placed on the frontlines against the California wildfires, or when prisoners were tasked with producing face masks and bottling hand sanitizers amidst COVID-19.[2] Others weren’t unique to last year, such as the continued reliance of prison labor by companies like JCPenney, Starbucks, and McDonald’s.[3] Despite the United States’ ongoing dependence on prison labor during both unforeseeable disasters and predictable corporate greed, incarcerated workers are often not explicitly safeguarded by neither national nor international workers’ rights protections.[4]
The International Labour Organization (ILO) sets labor standards that participating countries are encouraged to adhere to.[5] These standards, set in the form of Conventions, remain largely ambiguous as to the rights of incarcerated workers when it comes to collective bargaining and freedom of organization.[6] However, applying statutory interpretation tools to the three Conventions governing these rights and to the ILO 2012 General Survey showcases that the Committee likely intended for incarcerated workers to be protected.[7]
ILO Convention 87: Freedom of Association and Protection of the Right to Organize Convention (1949), Convention 98: Right to Organize and Collective Bargaining Convention (1949), and Convention 154: Collective Bargaining Convention (1981) aim to protect workers’ rights to organize.[8] All three fail to mention incarcerated workers altogether, but expressly state several other groups of workers that are exempt from the full protections of the Conventions.[9] Expressio unius, a semantic canon for statutory interpretation, roughly translates to “the expression of one thing excludes others.”[10] Applied here, it may suggest that by failing to explicitly exclude one group while excluding another, the text did not aim to exclude the former.[11] Meaning, in this case, that the Committee did not intend to shut out incarcerated workers from the Conventions’ protections. Furthermore, the Committee of Experts’ elaboration of the Conventions’ exceptions in the 2012 General Survey bolsters this assumption.[12]
Convention 87 concerns workers’ rights to join trade unions.[13] Article 2 and Article 9 of the Convention, although failing to mention incarcerated workers, allude to the notion that they should be protected when expressio unius is applied.[14] Article 2 states: “Workers and employers, without distinction whatsoever, shall have the right to establish and . . . to join organisations of their own choosing . . .”[15] By emphasizing that no distinction exists, the Convention can reasonably be read as applying to all workers, regardless of their contractual (or non-contractual) relationship with an employer, the industry or sector that they work in, etc. Article 9 states: “[t]he extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.”[16] The ILO’s explicit mention of sectors that are meant to be excluded, while also emphasizing the all-encompassing nature of the Convention in Article 2, suggests that the Committee was not excluding incarcerated workers by not mentioning them explicitly. By including the armed forces and police as exceptions, the assumption is that every other worker, “without distinction,” is protected.[17]
Convention 98 protects workers from anti-union discrimination.[18] Like Convention 87, Convention 98 also singles out armed forces and the police in Article 5.[19] Furthermore, Article 6 asserts that the Convention does not apply to public servants, and General Survey 2012 elaborates that “public servant” refers only to “public servants engaged in the administration of the State.”[20] The Committee’s definition of a public servant includes only those who are “engaged in the administration of the state.”[21] Incarcerated workers cannot reasonably be considered to be part of this exception. Thus, including a public servant, armed forces, and police exception buttresses the expressio unius argument that if the Committee intended to exclude a group, they would say so.
Lastly, Convention 154 addresses collective bargaining rights, including the ability for an employee, worker, or worker organization to negotiate working terms and conditions with their employer.[22] Article 1 of Convention 154, like Conventions 87 and 98, allows national laws or regulations to determine the extent to which the text applies to armed forces, the police, and public servants.[23] Yet again – “the expression of one thing excludes others.”[24]
Jenny Yakir is a staff member of Fordham International Law Journal Volume XLIV.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] The ideas in this post were adapted from a paper I submitted for another class titled “Prisoner Organizing in the United States, Canada, Argentina, and Germany.”
[2] Christie Thompson, The Former Prisoners Fighting California’s Wildfires, The Marshall Project (Sept. 2, 2020, 6:00 AM), https://www.themarshallproject.org/2020/09/02/the-former-prisoners-fighting-california-s-wildfires; Harriet Grant, Vulnerable Prisoners ‘Exploited’ to Make Coronavirus Masks and Hand Gel, The Guardian (Mar. 12, 2020, 2:26 AM), https://www.theguardian.com/global-development/2020/mar/12/vulnerable-prisoners-exploited-to-make-coronavirus-masks-and-hand-gel.
[3] Rahiem Shabazz, 12 Major Corporations Benefiting from the Prison Industrial Complex, Elementary Genocide (Oct. 11, 2014), https://elementarygenocide.com/12-major-corporations-benefiting-from-the-prison-industrial-complex/.
[4] See National Labor Relations Act, 29 U.S.C. §§ 151-169 (1935); Fair Labor standards Act, 29 U.S.C. § 203 (1938); see also Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977) (holding that prisoners do not have the right to join labor unions under the First Amendment); Harker v. State Use Indus., 990 F.2d 131 (4th Cir. 1993) (holding that prisoners are not protected by the Fair Labor Standards Act).
[5] How the ILO Works, International Labour Organisation (ILO), https://www.ilo.org/global/about-the-ilo/how-the-ilo-works/lang--en/index.htm (last visited Mar. 25, 2021).
[6] See International Labour Organization (ILO), Freedom of Association and Protection of the Right to Organise Convention, C087, 1948, available at: https://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID:312232 [hereinafter Convention 87]; International Labour Organization (ILO), Right to Organise and Collective Bargaining Convention, C098, 1949, available at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C098 [hereinafter Convention 98]; International Labour Organization (ILO), Collective Bargaining Convention, C154, 1981, available at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:::NO:12100:P12100_ILO_CODE:C154:NO [hereinafter Convention 154].
[7] See International Labour Conference, 101st Session, General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice for a Fair Globalization [hereinafter General Survey], at 85, ILC.101/III/1B https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_174846.pdf.
[8] See Convention 87, supra note 6; Convention 98, supra note 6; Convention 154, supra note 6.
[9] See Convention 87, supra note 6, arts. 2, 9; Convention 98, supra note 6, arts. 5, 6; Convention 154, supra note 6, art. 1.
[10] See Expressio Unius, Exclusio Alterius, Incorporated Council of Law Reporting for England and Wales (ICLR), https://www.iclr.co.uk/knowledge/glossary/expressio-unius-exclusio-alterius/.
[11] See Veolia ES Nottinghamshire Ltd. v. Nottinghamshire Cnty. Council [2010] EWCA (Civ) 1214 [15] (Eng.).
[12] See General Survey, supra note 7.
[13] See Convention 87, supra note 6.
[14] See Convention 87, supra note 6, arts. 2, 9.
[15] Convention 87, supra note 6, art. 2.
[16] Id. at art. 9.
[17] See id. at art. 2.
[18] See Convention 98, supra note 6.
[19] See id. at art. 5.
[20] See id. at art. 6.; General Survey, supra note 7, at 69.
[21] See General Survey, supra note 7, at 68.
[22] See Convention 154, supra note 6.
[23] See id. at art. 1.
[24] See Expressio Unius, Exclusio Alterius, supra note 10.