Businesses May Respond to Rapid Response Complaints, Government Decided

After the U.S. government decides a petition is worth bringing forward, investigators may consult with the employer. The interim guidelines for the rapid response mechanism said the U.S. government would consult "with government officials, labor organizations, non-government representatives, the Advisory committee, and the petitioner."

Stephanie Ferguson, director of the Chamber's global employment policy, noted that the Chamber has submitted a comment that asked that the owner of a facility subject to a petition be able to respond. "Amending the guidelines to include employers and employer organizations should help ensure that due process is respected throughout the RRM process," she wrote.

The government published the revised guidelines in late June, and explained why it agreed with some comments and rejected other proposals to refine the guidelines. It noted that one comment asked that Mexican workers be required to exhaust domestic remedies, and responded that there's nothing in the USMCA implementation that suggests they'd have to do that.

"Some commenters requested language in the Guidelines precluding the Committee from reviewing petitions on matters that already have been resolved by mediation, arbitration or settlement, or through a domestic legal process, in order to avoid relitigating the same dispute and extraterritorial 'forum shopping,'" the government said.

But it said that the rapid response mechanism standard will differ from the standard in other legal processes, but that if it knows that the allegations were partially or fully resolved in another proceeding "the Committee may take that into account in its own review of the evidence supporting the alleged denial of rights."

However, the recommendation that petitioners tell the U.S. if they sought a remedy under domestic laws was removed. "Removing this recommendation seemingly grants the U.S. government greater unilateral remedy powers over covered labor disputes in Mexico," Ferguson wrote.

A few weeks after the guidelines were revised, Mexico said the rapid response mechanism "should be a last resort and should not be intended to replace, but rather to reinforce national institutions." The same readout, translated into English, said: "Mexico expressed concern to the United States that all the cases they present are duly substantiated."

Several commenters asked the committee to define “sufficient, credible evidence" needed to go forward with a complaint, but the government said it would not be appropriate to do so, since it is fact- and context-specific.

Another change to the guidelines is that anonymous petitions will be allowed. The Chamber did not oppose that change, saying it's a practical way to give workers access, but added: "However, the Committee must continue to ensure the petitions are true and correct and that the petitioner has a bona fide interest in the petition and its outcome. Without this assurance, businesses risk being faced with frivolous petitions that can disrupt daily operations and productivity."

The Chamber noted that there have been four rapid response complaints in May and June, and it expects no reduction in the frequency of complaints.

"U.S. officials are keen to include some aspects of the USMCA labor chapter in the Indo-Pacific Economic Framework for Prosperity," perhaps including the RRM, Ferguson suggested, but she predicted that they would not be successful "given the lack of U.S. negotiating leverage in the context of this low-ambition negotiation."