A desire to boost U.S. competitiveness could drive a second Trump administration to deploy a labor enforcement tool more expansively than its predecessor, according to a legal scholar and former trade official who says the use of the tool so far leaves much room for improvement.
The U.S.-Mexico-Canada Agreement’s rapid-response mechanism allows the U.S. to sanction individual facilities in Mexico alleged to be violating workers’ rights to organize and collectively bargain, which were secured under a major labor reform that Mexico committed to implement under USMCA. Invoked 31 times under the Biden administration, the RRM has spurred facilities to provide backpay, reinstate wrongly fired workers and ensure fair union elections, among other direct benefits for tens of thousands of workers, according to the Office of the U.S. Trade Representative, and it has been touted by labor advocates as a major step forward from enforcement tools in past trade agreements, which had proved largely toothless.
University of Georgia School of Law Assistant Professor Desirée LeClercq, though, says a recent study she conducted with El Colegio de Sonora professor Alex Covarrubias-V and Cirila Quintero Ramirez, a research professor at El Colegio de Frontera Norte, Unidad Matamoros, suggests that the mechanism has disproportionately served a relatively narrow group of workers with ties to major U.S. unions and non-governmental organizations, without raising labor standards overall.
LeClercq, who was USTR’s director of labor affairs during President Trump’s first term, said she believes a second Trump administration, less beholden to such groups, might be incentivized to use the tool more broadly to try to improve labor standards that give Mexico an unfair competitive edge.
“You’re not going to have that same motivation to restrict enforcement for political gain,” she said in an interview.
The study, which she described as “exploratory,” draws from interviews with 130 workers across Mexico’s auto sector -- a primary target of RRM cases. Overall, the study “failed to find evidence that working conditions had improved in the Mexican auto sector,” LeClercq wrote in a blog post about her findings and her hopes for the future of the RRM under the next administration.
According to the authors, the interviews suggest that “a little more than half of the workers are aware of the labor law reform, and opinions are divided on whether it is strengthening labor rights.”
Awareness of the reform, though, was higher among workers at RRM facilities (76 percent were aware of the reform) than among workers at other facilities (48 percent were aware of it). And within the set of successful RRM petitions filed in the auto sector through June 2024, most were filed “with assistance” from U.S. unions or non-governmental organizations, the study says.
While “that transnational solidarity is a welcomed development,” a disparity between outcomes for workers at RRM facilities and other workers “raises significant questions about the object and reach of Biden’s worker-centered trade policy,” LeClercq wrote in the blog post.
USTR does not make unsuccessful petitions public, making it difficult to assess why the U.S. decides to take up some petitions and not others, she said.
In a statement, a USTR spokesperson described the tool as “groundbreaking” and highlighted benefits seen by workers in Mexico across various industries as a result of RRM cases, including “backpay, reinstatement, and free and fair union elections.”
“The immediate effects for the 40,000 workers directly affected at those facilities is clear and important -- but we are also hopeful that over time, the RRM will disincentivize abuses of workers’ rights more broadly and reduce offshoring, benefitting American and Mexican workers alike,” the spokesperson added.
The spokesperson also noted that the multiple cases launched without “direct support” from U.S. unions or NGOs have led to courses of remediation.
According to information shared with Inside U.S. Trade and confirmed by the spokesperson, the U.S. has received 54 petitions since USMCA entered into force. The U.S. has launched 29 RRM cases based on petitions and self-initiated two cases.
USTR Katherine Tai, a key architect of the mechanism in her previous role as chief trade counsel for the House Ways & Means Committee, has described the Biden administration’s use of the tool as a “proof of concept” of an approach to trade policy that prioritizes workers over efficiency gains for companies.
While major U.S. labor groups and NGOs that have supported successful petitions have praised the administration’s use of the RRM, a labor dispute this summer at a Mexican subsidiary of Caterpillar revealed some potential limits of the tool -- and sparked criticism by the United Auto Workers after the U.S. declined to take up a complaint involving allegations that striking workers were being blacklisted as they tried to find other jobs.
Workers at the facility “face harassment and blacklisting for daring to stand up, with no help from the U.S.M.C.A.,” UAW President Shawn Fain said in a statement to the New York Times.
A USTR official at the time told the newspaper that the agency was looking into how to address systemic challenges, such as the blacklisting of a group of workers by multiple companies at the same time, which the official suggested might require a combination of tools including the RRM and other efforts to engage with Mexico.
Trump 2.0
In her blog post, LeClercq said she anticipated reader skepticism about her optimism for broader use of the RRM under a second Trump administration: “At this point, you might be asking why we’re talking about empowering workers in Mexico in the wake of a second Trump term.”
Labor leaders have been critical of Trump’s record on domestic policy, including a Labor Department rule that limited protections for overtime pay and decisions by his appointees to the National Labor Relations Board.
But the experience of the first Trump administration suggests that use of the RRM could be an area in which labor advocates and incoming officials could find common ground, LeClercq says, arguing that the Trump administration might be committed to “really trying to tackle” the problem of unfair labor conditions “for competitive reasons.”
Former U.S. Trade Representative Robert Lighthizer and other top former USTR officials, she says, have not gotten enough credit for the part they, along with Democratic lawmakers, played in developing the tool, which the Biden administration has touted as central to its worker-centered trade agenda.
Lighthizer “has always kind of looked at trade policy as an instrument to ... protect American workers,” she said. “Having sat in meetings with when he was the ambassador, he was consistent with that messaging.”
Lighthizer’s former chief of staff, Jamieson Greer, who worked on negotiations with lawmakers to secure congressional approval of USMCA, expressed the same view, she said an email after Greer was tapped by Trump to helm USTR during the next administration.
In June 2020, Greer, who had recently stepped down from his role at USTR to enter private practice, said he expected the Trump administration would move quickly to bring labor cases under the new mechanism once USMCA went into force the following month. “Enforcement is important,” he said during a webinar. “We’ve heard it loud and clear from the Hill: They’ve given us all the resources we need financially to do this.... So I think the administration’s intention is to go forward and be ready. You could see labor cases very soon after July 1.”
He added, though, that there likely would be pressure to ensure the first case went well.
“Ambassador Lighthizer, as everybody knows, is very close to both sides of the aisle, the labor movement trusts him, and so my guess is they’ll want to make sure this is successful, and there’ll be a lot of communication to make sure that all the pieces are in place to have any initial dry run be successful,” he said.
The first RRM case was not launched until the following May, under the Biden administration, a fact that has been highlighted by some supporters of the administration’s enforcement efforts.
LeClercq noted that Mexico’s labor reform was still in an early stage when USMCA entered into force and contended there was a “necessary lag time” before workers could meaningfully participate in the RRM process.
“Workers still didn't understand that they had new labor rights, let alone how to enforce them,” she said.
Former USTR Senior Associate General Counsel Micah Myers, who worked on operationalizing the RRM, has said implementation was also slowed by the COVID-19 pandemic, which limited how officials could investigate labor matters on the ground in Mexico; security concerns in parts of Mexico created similar challenges, he said during a conference about the mechanism last year.
During a webinar in November, Stephen Vaughn, who served as USTR general counsel during the first Trump administration, said he would advise incoming officials to take stock of how the RRM has worked to date.
“They would be smart, in my opinion, to spend a fair amount of time on the Biden administration's experience with the rapid-response mechanism,” he said. “How effective was it? Did they bring as many cases as they could? Could they have brought more cases? Does it really work the way people thought it was going to work when the Congress agreed to it? And is it something that needs to be either enforced more aggressively, or upgraded, or do we think the status quo is working?”
While it’s “too early to say which way they'll go on that,” Vaughn said he hoped “that whoever's in USTR would spend some time really about that, because I can tell you, the Hill is going to care about that a lot.”
Calls for more transparency, more resources
LeClercq says greater transparency will be critical in ensuring the U.S. is “consistent” in its enforcement, which she suggests should be in the incoming administration’s interest.
“[W]hen it comes to production costs and disincentivizing rule-breaking, consistency is key,” she wrote in the blog post.
She and her colleagues also called for more outreach and training provided directly to workers to boost that awareness. Existing technical assistance programs, they wrote, have focused on training government officials, employers and union representatives, and these efforts appear not to be reaching “the rank-and-file workers, perhaps owing to a lack of capacity and timing.”
She acknowledged that securing more resources on the ground in Mexico could be a challenging sell to the incoming administration.
“That is my one hesitation in all of this,” she said, citing the incoming administration’s pledges to make drastic cuts to parts of the federal government.
During his first administration, Trump proposed major cuts to the budget for the Labor Department’s Bureau of International Labor Affairs. DOL, along with USTR, co-chairs an interagency process that oversees RRM enforcement. U.S. Labor officials based in Mexico support that work and the country's labor law reform efforts more broadly.
LeClercq also calls for providing workers in Mexico with a chance to redo “legitimization” votes on whether to keep or reject existing collective bargaining agreements, among other recommendations. A round of voting on all collective bargaining agreements was mandated under the labor law reform and concluded last year. Workers voted to legitimize 97-99 percent of those agreements, but a majority of those interviewed said they did not understand the process, as described in the study.
An independent expert board established under USMCA last year said the high rate of legitimization suggested “potential conflict of interest and risk of fraud.”
LeClercq and her colleagues also note that “workers reported mixed experiences with their new union representation, and some wished for different union representation despite having held RRM-supported union elections,” an outcome she flagged as striking.
Some of the interviewed workers “even said to us ... ‘We wish things hadn't changed; we wish the old union were there,’” she said.
While the report does not delve into possible reasons for such dissatisfaction, LeClercq noted that a newly formed independent union often is under-resourced and facing a major time crunch -- just six months, under Mexican law -- to negotiate a collective bargaining agreement before another union can challenge it.
“They're facing hostile employers, and these old protection unions are nipping at their heels, and they can't deliver on their promises,” she said, referring to company-aligned unions that labor reformers in Mexico have been pushing to unseat. “And so the workers are growing increasingly disgruntled, thinking that they've been promised things, and they didn't receive it.” -- Margaret Spiegelman (mspiegelman@iwpnews.com)