Interview with former Fulbright Scholar Alisa Oblezova, Senior Lecturer, Labor Law and Social Security Department, Perm State University. “Prevention of Discrimination of Migrant Workers in the Labor Law: Comparative Analysis of the Legislative and Law-Enforcement Practice in Russia and the U.S.” September 2012-February 2013
Malinkin: What are some of the types of discrimination migrant workers face in Russia?
Oblezova: The range of problems that migrant workers face in Russia is great and includes forced labor and trafficking. Migrants are treated differently because of their temporary status and complete dependence on their employer. There are very few statistics on trafficking of migrant workers; it is largely hidden because those who are trafficked live in fear. They often don’t file official complaints because they fear being fired or deported. There is also an economic effect of discrimination—the earnings gap is about 30 percent. For example, the Federal Migration Service (FMS) studied the working conditions of street cleaners in Moscow and discovered they were only being paid half their official salary. Another example is literacy tests. A migrant worker in Russia from a visa-free country who works in retail, for example, has to pass a Russian language exam. However, migrants from countries requiring visas don’t have to take it. So there is different treatment because of their citizenship. There is no good explanation why migrants from Georgia don’t have to take a test, but migrants from Uzbekistan do. It doesn’t make sense. And there are a lot of similar situations.
During your grant you met with U.S. lawyers and government authorities who specialize in the protection of victims of discrimination. What were some of the insights that might influence your research?
The meetings were very useful for understanding the mechanisms of anti-discrimination prohibition. They gave me a better understanding of the problem of discrimination because according to the Labor Code of the Russian Federation, it is declared that everyone is equal, but the prohibition of discrimination is not enforced. In the United States, you can treat people differently, but you have to prove that this different treatment has fair grounds.
You have mentioned that employment law in Russia applies equally to documented and undocumented workers alike – can you give an example of how this works in practice?
Again, it is very difficult to find such cases in official sources, but according to the Labor Code, any individual who worked on a permanent basis can go to court and enforce a formal employment contract to be signed. Even if someone worked as a dvornik (street cleaner), he could go to court and demand backpay for all work performed, even without having registered. There are many examples when simply a propusk (pass for the work site) or a paystub were used to prove employment. This was an important right for undocumented workers as well, but right now the Russian Department of Labor is preparing amendments to the Labor Code that would only allow people with official permission to work.
What prompted that change?
I am sure it was the initiative of the FMS. They have declared their main goal to be fighting against illegal employment, but in fact they created so many obstacles for law-abiding employers to hire migrant workers that it pushes them to hire undocumented migrants.
Does that make it more similar to the U.S.? You were saying the discrimination law is not for migrants…
The provision on the Special Council for Immigration-Related Unfair Employment Practices (OSC) only covers documented workers, not undocumented. Undocumented migrants have no power and no resources to protect their rights. But regarding their collective bargaining, in the U.S., they have rights. There was a remarkable case, Hoffman Plastic Compounds v. National Labor Relations Board, which allowed undocumented migrants to be covered by this legislation.
One of the complications that anyone residing in Russia faces whether they are a citizen or migrant is the registration system. Is there any discussion – whether in political or legal circles, or among the broader public – of reforming the system?
We have long had a registration system and it has been enforced, but until recently there was nothing about criminal punishment for violators. But now a landlord who leases an apartment to people who are not registered will be accused of a criminal violation and could face severe punishment. It’s a major concern in our society now because only after this amendment came into effect did people begin to understand what it meant for them. There are a lot of people in Moscow working without registration. They don’t want to waste time and money on it – to lose a day at the police station just to get registered — it’s a very complicated procedure. Nowadays there are a lot of discussions about this, and the legal community is against registration because it is a return to the USSR, to the propiska. It works against the internal mobility of the work force and creates a lot of problems for all citizens. It is also interesting that in at least this one aspect, migrants are in a preferable position to citizens because they have the possibility to mail in their migration card and registration whereas Russian citizens cannot. Citizens have to go to the police station in person. The police are trying to ease the procedures for the FMS officers, above all.
What do you see as the next likely developments in Russian immigration policy?
It is simultaneously very simple and very difficult because we are deeply involved in this process now. We have to rethink all of our immigration procedures. But in the process we are creating a lot of provisions and legislative amendments which make the life of employers as well as migrant workers worse and worse. For example, the new literacy test for Russian - I understand why migrants don’t want to take it because it wastes about a month. Migrants often have a work permit for only one year, so no one wants to lose a month of wages.
How does it take a month?
There is now an educational center in every subject of the Russian Federation. Such tests are usually given once every two weeks. You arrive and wait two weeks to take the test. Then the certificate is issued within 10 days, but you have to wait in person to receive it (or another person can pick it up if they have power of attorney) — they will not mail it.
So you have to travel to the city where the test is given, and stay somewhere…
Yes, and you have no possibility to earn money during this month. If someone wants to work as a street cleaner, they need to take this exam.
And people are taking the test already?
Yes, but it’s not a very common practice because there are a lot of ways around it. First, they can pay for a falsified certificate that costs about 7,000 rubles. Or, they sign a work contract but for a different profession or occupation that is not covered by the legislation. They can sign a contract for any occupation that doesn’t require the test - whatever they can think of. Or, they just don’t sign a work contract and work illegally because if you have a work permit to work for a year, there is no point to lose a whole month, plus pay 3,000 rubles. Moreover, if you pass the exam, you would think it is proof that you know Russian, but, no, the certificate is only valid for three years. In three years you have to do everything all over again. It’s nonsense.
In some ways there’s a disconnect between Russia’s need for migrants for economic reasons and the policies and laws you’ve mentioned. They are not creating a welcome situation, and it’s making it very difficult. On the other hand, a lot of migrants are still coming to Russia. It’s slowed down a little bit after the worldwide economic crisis but there are still fairly big flows – is that right?
Yes, the flows are still very big. I have done a lot of work in Uzbekistan on the Afghanistan border as a legal counselor for a mining project. I saw with my own eyes how people live there and, honestly, it is a terrible situation. They live without any electricity or water supply, little access to medical care, or most necessities. I can’t imagine what their salaries are, but of course they’re much lower than in Russia. In Russia the minimum wage is now 5,200 rubles per month, and in Uzbekistan it was about 300,000 summs (about 1,000 rubles). It was very low compared to Russia, and I understand why they want to work in Russia – it is just a way to improve their situation.
What do you think Russia can learn from the U.S. migration system, if anything?
First, Russia should learn that migrant workers should have protection against retaliation. Migrants cannot afford to lose their jobs, but they need to protect their rights. Another positive aspect of the U.S. migration system is the encouragement to obtain citizenship. The majority of migrant workers in Russia do not consider Russia as their permanent residence and no one’s really hurrying to get citizenship – it’s mostly repatriates. Russia is like the stepmother, not the mother. She forces people to run around to different bureaus, take tests, etc.
We need to create the conditions so that people will want to move to Russia instead of making extra problems for them. I think that we can create an attractive environment for migrants, we just have to understand the problem of integration. There are similar problems for high-skilled migrants, businesses, and researchers. These elite could make a real contribution to Russian society and develop the economy, but instead we’ve created a stupid situation. For example, approximately 100 high-skilled migrants were hired last year in Moscow, but none in Perm. Perm really wants to hire specialists —with knowledge of foreign languages and technology, especially management technology—but the Perm FMS has no authority to accept applications to hire high-skilled immigrants. Everything has to go through the Moscow FMS.
Many of the migration issues we have discussed are rooted in the overall rule of law in Russia. How would you characterize the general rule of law in Russia at this time? Are there any developments?
As a lawyer I see changes and developments. When you do business in a fair market, competitiveness forces competitors to obey the rules. As I see in the commercial court, all of the disputes are transferred to the court. The next step is to develop the relationships among legal entities so that businesses and individuals go to the court to resolve their disputes instead of turning to organized crime or the police. People are going to court more often to resolve their disputes, and this is a good development.
Mary Elizabeth Malinkin
Matthew Rojansky, Director, Kennan Institute