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Reaction to Agriprocessors Raid Leads to A New Jewish Ethical Trading Initiative For Food: But Is There Really a Jewish Position On The Minimum Wage?

Jim Prevor’s Perishable Pundit, June 16, 2010

The whole sustainability movement as it applies to consumers is about the notion that in purchasing products, consumers need to consider more than the finished product. There are things that we should be concerned about, which no amount of inspection of the finished product can tell us. How did the production of this product affect the environment? How were the people treated who produced this product? In a sense, it calls for a higher level of attention to be paid to our food and where it comes from.

Of course, the modern sustainability movement was hardly the first to call for such consciousness. Those who “keep kosher” or follow the laws of kashrut are obliged to be conscious of each bite they place in their mouths — is it permitted?

When Agriprocessors, a kosher meat processor, was raided by the Immigration and Customs Enforcement (ICE) agency, there were many allegations of ill-treatment of the workers. This led some to object that when consumers buy kosher food, they expect more than simply food prepared in the ritualistic way required to meet standards of kashrut. They expect food that is raised in accordance with Jewish ethical principles.

So the activists pushed to have the authorities that certify food as kosher enforce a broader ethical mandate.

Whatever the merits of this, the Orthodox wing of American Jewry — which is the population most likely to strictly observe the rules of kashrut — quickly put a kibosh on that notion. In a panel discussion held at Yeshiva University on the topic of Morality and Kashrut, Rabbi Avi Shafran, Director of Public Affairs of Agudath Israel of America expressed the traditional position:

“While kosher food producers are certainly required without any doubt by Halakhah [Jewish law] to act ethically in every aspect of their business and personal lives, any lapses on that score have no effect, I repeat, no effect, on the kashrut of the food they produce.”

It is hard to argue against this standard. After all, if the kosher status of food was dependent on the personal morality of those who make it, millions of people, after the fact, would find out they had been eating traife, because the owner of the company was stealing or beating his employees or cheating on his wife or polluting.

Having failed to get kosher certification authorities to broaden the definition of kashrut to include ethical standards, the next move was to work with the Conservative Jewish Movement to create an ethical certification that would only be available to foods that had been certified kosher but was separate and additional to kosher certification.

This move to tie morality and ethics to food seemed intriguing, so we asked Pundit Investigator and Special Projects Editor, Mira Slott to find out more:

Rabbi Paul Drazen
Chief Program Development Officer
United Synagogue of Conservative Judaism
Board Member of the Hekhsher Tzedek Commission and The Rabbinical Assembly

Q: What is the difference between kosher (kashrut) certification and ethical certification or Hekhsher Tzedek with the Magen Tzedek Service Mark?

A: It’s very technical. Briefly, the laws of keeping kosher go back to days of the bible. There are appropriate foods to eat and not to eat and the biblical idea is grounded there. Building on that, how one eats is of religious significance; one requirement is not eating any blood from any animals, and there are ways set up for kosher slaughter involving draining of the blood.

Q: If requirements for food to be kosher involve specific Jewish dietary laws and rituals, are these distinct and independent from Jewish ethical and moral codes of justice?

A: A couple of years ago, the concept began to grow that we should be concerned about how we get food to the table as well as the food itself. We considered, certainly within our organization, that deliberately mistreating workers doesn’t seem to jive well with kashrut, which seeks to diminish animal suffering and offer a humane method of slaughter. Kosher certification is specifically food-focused. Now something can be perfectly kosher but ignore the treatment of workers.

Q: Wouldn’t other laws in Judaism, in addition to American statutes, encompass the ethical treatment of workers?

A: The tipping point for creating this ethical certification occurred after cases surfaced of workers being treated unfairly at Agriprocessors.

Q: Weren’t those alleged worker abuses gruesome undercover video was released. Yet the federal raid didn’t take place until 2008. Why did so much time elapse before actions were taken?

A: The raid was largely an issue of government enforcement of immigration laws, whereas our issue was ethical in nature. Immigration was not the driving force, but how people were being treated, which we witnessed first hand when visiting the Agriprocessors plant in the summer of 2006.

Q: Do you regularly check the practices of kosher plants? Was this visit to Agriprocessors scheduled or random; were you aware of problems that prompted inquiry into the facilities?

A: There are meat plants visited by our Movement, but I won’t say the discovery was an accident. Questions about this plant emerged. The plant was not far from where people lived, and they were expressing concerns about the conditions and treatment of the workers.

Q: Could what occurred at Agriprocessors be an anomaly, or is the problem more widespread?

A: My sense is that many plants are remarkably well handled, and employees are treated remarkably well. I’d like to say it is an anomaly but I’m not sure it is. We have worked with Dr. Temple Grandin, who designs humane slaughter houses, not just Jewish plants… There are packing companies well known for being appropriate in that sense. [Editor’s note: You can read Dr. Grandin’s critical assessment in 2008 of Agriprocessors here.]

The Conservative Movement is raising the issue that how employees are treated and ethical codes of behavior should matter in the certification of kosher food. The Hekhsher Tzedek Commission has outlined objectives and very specific guidelines and rules to develop the Magen Tzedek ethical certification seal. [Editor’s note: you can read revised standards for the Magen Tzedek Service Mark released by the Heckhsher Tzedek Commission for public comment here.]

It has been at the forefront of advancing practical ethical kashrut, and the first group that really came forward to say we need to develop practical ways to implement fair labor practices. [Editor’s note: You can read what some Orthodox groups are doing in this area here, and here.]

Q: Wouldn’t the laws of Judaism and Jewish values encompass ethical behavior?

A: All good religions are alike in that respect. This is just one more step to try and be sure.

Q: Why restrict the ethical certification process to only kosher food? Don’t you want to set a precedent that all businesses, food and otherwise, act ethically?

A: The core philosophy emanates within Jewish tradition and we don’t want people to start getting confused with ethical certification. That moves beyond the scope of what we’re doing right now. We’re relatively focused. I don’t think we’ll go in that direction of ethical certification for non-kosher foods. Because of our tie in with kosher, our ethical certification is connected with kosher foods. Of course, we’re in favor of all sorts of organizations pursuing ethical treatment of workers.

Q: How does the process work? How does one get a Magen Tzedek service mark, and how do you monitor and enforce this?

A: The Magen Tzedek certification process involves a complex set of criteria, and is just in start-up mode now. We’re working with people from the foodservice community and those who know processes and processors. Part of the plan is to help establish value for companies that would want to become certified, that makes it worthwhile for them to do so, and creates a statement to the consumer. The Magen Tzedek is based on the concept of the Good Housekeeping Seal. Our plan is unfolding as we speak; the materials have been out, the rules were published to provide an opportunity for public response. We’re still early on that, and want to make sure rules are fair and workable, as well as moving the process ahead.

Q: Do you view the ethical certification seal as a marketing tool then, a way to provide a company with a competitive edge?

A: As consumers are becoming more sophisticated, they are becoming more careful with the products they purchase and more interested in the origins and whether the company is socially responsible. Companies have done well in defining what their products are about, and how they were made. Corporations have specific standards they operate under, and to a certain degree if a symbol is there on the package it can validate those standards to the consumer.

Q: Will consumers grasp the meaning behind the Magen Tzedek seal? Isn’t there valid debate and subjective interpretation on what constitutes social justice and ethical codes of behavior? With all the complexities and variables involved, does an ethical certification really make sense?

A: There are different kosher certifications even among the Orthodox community. In Kashrus Magazine, you’ll see 100 different supervisors, and sometimes different standards. The truth is that the set of standards for processing of product can be rigorous, but not so strict for labor. Even within that, there are different standards in methodology and rituals for how the animal is killed, for example. It’s quite complicated. When you start dealing with kosher produce and eradication of insects and infestation, all kinds of issues arise, especially with modern day uses of technology.

I think the impact of the Magen Tzedek seal could be significant. I recently picked up a publication at La Guardia airport and was surprised to see a prominent advertisement promoting kosher-certified peaches. For a select group of consumers, that is something they’re looking for. Corporate ethics and how employers treat their workers has become paramount to more and more consumers, just as sustainability has stirred public sentiment.

At some point we may examine sustainability issues but for now, we’re keeping a tight focus on ethical certification. I’m hoping the Magen Tzedek mark will turn into a meaningful symbol that people search out in our efforts to raise humanitarian standards in the workplace and make the world a better place.

Mira then spoke with Kimberly Rubenfeld, Program Manager at the Hecksher Tzedek Commission to get more answers…

Kimberly Rubenfeld
Program Manager
Hekhsher Tzedek Commission

Q: What does ethical certification encompass? How broad are parameters and requirements for getting a Magen Tzedek seal? Which companies and products can apply for the mark and what does the process entail?

A: The program itself is evolving from a set of principles and we’re in the process of signing a contract with a major social auditing firm, which produces these certifications. It’s a third party doing this type of work over 12 years, working with us to create an actual program from our principles. The program isn’t determined. This is a massive undertaking, an umbrella certification program covering all these areas: labor concerns in wages and benefits, animal welfare, the earth piece involving environmental standards, and the category of corporate transparency and responsibility; where issues such as food safety would apply.

Q: Who in the supply chain gets ethically certified? What if a manufacturing company wants to use the ethical certification seal — say Kraft wants to create kosher Oscar Meyer Luncheables and get ethical certification as well. Kraft would be buying different ingredients, and they want to put the seal on their package… what is involved? Do all the ingredients need to be ethically certified from all their suppliers?

A: When you ask how far back in the supply chain, this is a sensitive question that we’re still working with the certifier to answer. If a hot dog manufacturer is importing more than 5 percent of its product, for example, the company has to be responsible on where it’s coming from; it may be from a company in South America that doesn’t meet slaughtering standards, but that doesn’t necessarily mean the supplier needs to be certified with the Magen Tzedek seal.

Q: Isn’t that a critical point? How can the ethical certification have validity if all the ingredients within the final product don’t meet the same standards?

A: How deep in the supply chain is a very important question, and part of the process we’re looking into with a third party. It’s a secular, non-profit company, which does social responsibility and social accountability audits. The Hekhsher Tzedek Board itself determines what the value sets and principles are. But the firm will create the implementable program.

With all the resources the Board has, it is not comfortable with the appropriate process for how information is gathered, the appropriate auditing process, how particular issues are resolved. This is not a one-day spot check; there are ongoing requirements. What if there is a violation down the road? What is the process for this? The Board will be making decisions, but the third-party company will be clarifying. There are a lot of outstanding questions.

Q: Why would a singular third-party company be granted so much influence in standardizing rules and requirements on such a sweeping range of complex issues, all of which seem to be subjective determinations?

A: Thinking in Jewish law, the Board is not composed of professional auditors; that said… we need assistance from a third party. For example, logistically making standards apply to all companies — Kraft is a huge corporation with multiple brands, while a smaller company might have one local brand — so how can we apply standards to both? There are a lot of concerns from a business perspective. Perhaps the third party allows subsidies or a way to tap into resources for smaller firms, and will list several options. It is important for this other third-party company we’re working with to create a program to encompass all the complexities. The Board, however, will make the decision on the direction.

Q: Won’t the Board’s specific rules on all these categories, from wages and benefits to environmental issues, corporate responsibility and food safety, in the end be arbitrary, hinging on numerous variables, sometimes overlapping, other times conflicting with each other? Doesn’t the whole concept of social justice leave room for interpretation?

A: How can we not reinvent the wheel, how can it fit into an existing program, can this be an outgrowth of Fair Trade, Jewish fair trade, for example? Throughout Jewish law, there is something valuable to say in producing any good or service. Now we’re just looking from farm to field all the way to the fork, such as how workers are treated in the process. This is an umbrella certification based in religious thinking becoming its own program. There was no option to leverage an existing program because the scope of issues exceeds the focused concerns of individual programs.

When companies are subject to other regulations, whether by government or other evaluations, how do we leverage these so we’re not duplicating or creating extra layers of administration for them? What are the benefits for your employees? Here are five different ways you can show you’re applying the certification requirements… This is why we need consulting auditors.

Q: How are wages and benefits requirements decided? There’s a reference to 115 percent over the minimum wage, but why not 120 percent or 110 percent? It seems so arbitrary, and wouldn’t it depend on other factors such as the company’s health care plan, or migrant worker housing provisions? And states have different minimum wage requirements… wouldn’t that create inconsistency and confusion?

In an ethical sense, what if requiring the company to pay workers more leads it to automate operations or downsize and fire employees… or the company becomes less competitive because it needs to raise its prices and can’t remain profitable so it files for bankruptcy, etc. Is that necessarily more humane if workers lose their jobs and have no means to support their families?

A: Variables on minimum wage would need to be considered. It could be that different states have variable levels of pay; costs of living in a suburb of New York City are different than a Midwest suburb. Where the goods are produced becomes relevant when addressing concerns of worker protection and a living wage. It’s a very tricky thing; how the actual calculation will work will depend on a process that is transparent and equally applicable and fair, based on Jewish principles. Whether 115 percent over minimum wage is implemented and how that is determined is still unresolved. That 115 percent was derived working with subject matter experts, of what is fair and appropriate in principle. There’s transparency so the firm will know how it was derived, there will be a uniform and set evaluation standard in coming up with a number.

There are a lot of very controversial components in this certification, and there may be components not logistically possible or reasonable. Based on the process, we have a way of capturing or don’t have a way of reasonably capturing. This program is asking to do a lot.

Q: How much more stringent would the ethical certification guidelines be compared to what is already federally mandated? Also, aren’t there industry-honed and issue-specific scientific standards already developed by experts in their fields?

A: For the wages-based component, references in Jewish law justify asking above and beyond federal requirements. In animal welfare, there’s a standard authored by Dr. Joe Regenstein, Professor of Food Science in the Department of Food Science and Institute of Food Science at Cornell University. Firms can’t exist in the U.S. without complying with the standard. It is scientifically appropriate but not governed in law. This can come from the animal welfare standard. [Editor’s note: You can read the revised standards for the Magen Tzedek Service Mark released by the Heckhsher Tzedek Commission for public comment here. Dr. Regenstein is chief author].

Q: Is this ethical certification process redefining what is required for a food to be kosher, in essence changing its historical relevance, or questioning its validity?

A: To gain a hechsher is to be ritually kosher. Part of the ritual kashrut is not concerned with animal welfare, environmental or labor issues. This is to be a complement to kashrut; it does not overlap and is not a substitution for kosher.

Q: If this is the case, can a non-kosher food get an ethical certification seal? After all, this process is being initiated by the Conservative Movement, and many conservative Jews do not practice the laws of kashrut. More important, isn’t ethical treatment of workers imperative in all businesses? Opponents say it would be hypocritical not to require ethical certification of all foods, or for that matter all businesses, consumer products, clothing, etc. If the concept is insuring ethical and honest treatment of workers, doesn’t that concept transcend kosher food products?

A: The process and concerns apply to all goods and services, but we’re developing the program initially for kosher food based on Jewish law and Jewish values. This will also allow a more focused message to the consumer.

Kashrut involves extraordinarily detailed standards on what food needs to be; it doesn’t mean workers, animals or the environment is taken into consideration during this process. Consumers often don’t understand this, assuming that a kosher product incorporates these other attributes. My naïve assumption for years was that product with a kosher symbol on it was produced using my own ethical guidelines, being kosher myself. The assumption from the consumer is, kosher is better for me, an idealized sense of what kosher means. Unfortunately, that is not what kosher means, not what consumers widely believe it to mean.

Q: Would the ethical certification seal change consumer perceptions? What is your goal in establishing this seal?

A: We’re trying to establish ourselves as a recognized brand consumers buy; this is a market-driven approach to push out exploiters. If a firm is mistreating its labor force, or barely meeting federal standards, it wouldn’t qualify for this seal.

Q: Could this strategy raise new questions on the legitimacy of any or all kosher products void of the ethical certification seal. In other words, couldn’t this unfairly tarnish the reputation of most companies producing kosher products that operate ethically and treat their workers well?

A: On first blush, only by purchasing product with the Magen Tzedek symbol could a consumer feel better. Very personally, I keep kosher, and it reminds me of the values I adhere to as a Jew. There are a lot of assumptions that play into what that means; not just that the product is deemed appropriate because of strict regulations of kashrut.

We don’t see this as a conflict, but a broadening awareness of what kashrut is; from ethical concerns to organics of where food comes from, this provides the opportunity to highlight Jewish thinking and benefits of kashrut.

Because this is based in Jewish law, we’re not discarding the concept of kashrut. In Jewish law, there are still foods appropriate and not appropriate to consume; only now the ritual and ethical concerns get equal weight.

There is already Fair Trade and the animal welfare marker. The Magen Tzedek is based in Jewish law and respect for kashrut, but its principles are applicable elsewhere. An ethical certification seal could go on institutions or other products, but it also needs to start somewhere. It launched on a national basis with kosher foods and needs to get grounded, and it will be up to the Board on whether it is appropriate or possible to expand beyond kosher food products.

Q: Could you share more specifics on how the Board is progressing with the certification process and tackling all the issues that we’ve discussed?

A: We fully appreciate how complex this is, with so many variables to consider on how we address the supply chain. We wanted to leverage work already done by experts and volunteers. At the same time, we discussed whether we should put this in the hands of a third party, and we decided we needed a third-party partner. In evaluating whether this is an appropriate path, by no means did we underestimate the challenge we put before us.

Q: Is the Magen Tzedek a reaction to the scandalous activities surrounding Agriprocessors?

A: We recognize a kashrut company failed. Rabbi Morris Allen, who was instrumental in founding Magen Tzedek, went with a team to look at Agriprocessors and witnessed mistreatment of workers. However, the concept of Megen Tzedek pre-dated Agriprocessors. It is Jewish thinking surrounding food. We want to go through the exercise of thinking more comprehensively about kashrut, integrating ethics and ritual. We want to increase education and awareness around these issues.

We’ve been debating internally how we can logically manage all these variables. This is a behemoth undertaking. That’s why we are hiring professionals to do this. We understand this is extremely complex and don’t have all the answers yet to pull into a coherent program. We’re close to signing a contract with a major third party social auditing partner to move the process forward.

Not long ago, the world discovered that a blueberry farm in Michigan had used some child labor — the children of farm workers. Each retailer fell over the next as they moved to disassociate themselves from the farm. We wrote about the matter and called the piece When Child Labor Laws Don’t Necessarily Help Children.

In the end, we questioned whether enforcing a ban on child labor wasn’t a kind of cheap morality in which we could all disassociate ourselves from something unseemly without actually doing anything to help those children.

This effort strikes us in a similar way. The Agriprocessors plant employed mostly Guatemalans, many illegally here. But the advocates for ethical treatment are not upset about the fact that immigration laws were being violated; they are upset that people are not being treated well.

But what if new standards were put in — wages raised, overtime properly paid, benefits provided, people treated with respect? What if this much improved environment attracted a group of American citizens to work at the plant, thus rendering the Guatemalan workforce a surplus and they were sent home — did we just do something ethical for those workers?

There are all kinds of Jewish obligations to be ethical and conduct business in certain ways. They typically only apply to Jews or only apply to Israel or to specific situations or are antiquated and so frustrate those looking to find a path through Jewish law to enforce general ethical obligations. There is the requirement to leave enough unharvested crops for gleaning in the field:

And when ye reap the harvest of your land, thou shalt not make clean riddance of the corners of thy field when thou reapest, neither shalt thou gather any gleaning of thy harvest: thou shalt leave them unto the poor, and to the stranger: I am the LORD your God.

— Leviticus 23:22

And in your vineyard:

And thou shalt not glean thy vineyard, neither shalt thou gather every grape of thy vineyard; thou shalt leave them for the poor and stranger: I am the LORD your God.

— Leviticus 19:10

One should pay wages each day:

At his day thou shalt give him his hire, neither shall the sun go down upon it; for he is poor, and setteth his heart upon it: lest he cry against thee unto the LORD, and it be sin unto thee.

— Deuteronomy 24:15

But there is no easy way to establish that one employer who, say, does not give health insurance but employs 100 people, is more or less ethical than another employer that does give health insurance but can afford to employ only 50 workers.

So, though the proposal for the Magen Tzedek can be attacked on the basis of particularities — - how deep it will get into the supply base, etc. — the real critique is that there is no Jewish ethical standard by which to prefer one of these outcomes over another.

The only thing we can say is that in our society it is the political process that sets minimum wages, immigration law, etc., that tells us how we have come to compromise on these issues. So, as a polity, we have come to say that one has to pay minimum wage. But to arbitrarily say that a company that pays 115% of the minimum wage but often lays off surplus workers when things are slow is more ethical than one that doesn’t but has a ”no-layoff policy” is not rooted in Judaism; it is just a particular ethos trying to steal the cover of Jewish values to hide its arbitrary nature.

Many thanks to Rabbi Paul Drazen of the United Synagogue of Conservative Judaism and Kimberly Rubenfeld of the Hakhsher Tzedek Commission for helping to inform us about this intriguing project.

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