Forced labour and human trafficking for the purpose of labour exploitation exist in a wide range of industries in the United States (US), including hospitality, restaurants, domestic service, agriculture, manufacturing, cleaning, construction, shipyards, health and care, and beauty salons. Victims are often from vulnerable populations, such as migrant labourers, rural workers, homeless youth and adults, and domestic workers. Visa regimes and exploitative recruitment practices for migrant and seasonal workers generate particular vulnerability due to debt bondage, tied accommodation and employment restrictions.
The National Human Trafficking Resource Centre has recorded 3,829 cases of labour trafficking since 2007, involving 7465 potential victims. Victims originate from all over the world, including from the US. According to the US Department of State Trafficking in Persons Report, the top three countries of origin of identified victims in 2014 were the United States, Mexico, and the Philippines.
The Trafficking Victims Protection Act (TVPA) of 2000 – and its reauthorizations in 2003, 2005, 2008 and 2013 – provide a relatively comprehensive legal framework for addressing human trafficking, forced labour and slavery in the US. Together, the Acts have established and elaborated criminal offences, provided for a range of victim’s rights and protections, and set out US Government policy and activities to monitor and address human trafficking in the US and abroad.
Offences of human trafficking, forced labour, peonage, slavery and servitude have been created and developed through the TVPA and reauthorizations, and are contained within Chapter 77 of the US Code. Trafficking-related offences of fraudulent recruitment and confiscation of travel documents are also included in this Chapter.
The offence of human trafficking for labour exploitation (peonage, slavery, involuntary servitude and forced labour) is punished with a penalty of 20 years imprisonment, or life imprisonment where there are aggravating circumstances, and fines. In 2014 there were 208 prosecutions for human trafficking commenced, involving 335 defendants, and 184 convictions for human trafficking were secured. However, only 27 of those convictions involved labour trafficking, demonstrating an ongoing focus on sexual rather than labour exploitation on the part of law enforcement agencies.
Forced labour is criminalised under Section 1589 of the US Code, and attracts the same penalties as for human trafficking. Forced labour is defined as providing or obtaining labour by threats of or the use of actual serious harm or physical restraint, either to the victim or another person; by causing the victims to believe they would suffer serious harm or restraint; or through abuse or threatened abuse of the legal process. The term “abuse or threatened abuse of law or legal process” covers the use or threatened use of laws or legal processes, whether administrative, civil, or criminal, in order to exert pressure on another person. This is particularly relevant to cases involving undocumented workers who are controlled through threats to report them to immigration enforcement or police.
Section 1589 was further amended by the Trafficking Victims Protection Reauthorization Act 2008 (TVPRA 2008) to include an offence of knowingly benefiting from forced labour. Under this section, a person who benefits knowingly and financially from participating in a venture that has engaged in forced labour is also criminally liable and may also be punished with 20 years imprisonment. As a ‘person’ may include a legal person, this provision allows for companies to be prosecuted for knowingly benefiting from forced labour in their commercial activities.
The TVPRA 2008 also established extra-territorial jurisdiction over trafficking, forced labour and slavery offences, where either the alleged offender is a US national or permanent resident, or where the alleged offender is present in the United States. This quite broad extra-territoriality provision allows for the civil or criminal liability of any natural or legal person located in the United States, for trafficking, forced labour and slavery offences occurring anywhere in the world. This means that a US-based company that engages in severe labour exploitation in its operations in other countries could still be prosecuted or sued for damages in US courts for this conduct.
Importantly the TVPA also introduced mandatory restitution for victims of human trafficking, forced labour and slavery. Section 1593 also makes clear that the restitution to be paid by the offender is to be for the “full amount of the victim’s losses”, which is specified in subsection 3 to include the value of the victims’ labour, ensuring that victims of labour exploitation are paid the wages that they are owed. However the Human Trafficking Pro Bono Legal Center has reported research findings indicating that, despite being mandatory, restitution is in fact awarded in less than half of cases, with orders being made in only 36% of the cases surveyed.
The Racketeering Influenced Corrupt Organizations (RICO) Act further creates both civil and criminal liability for dealing with the proceeds of crimes, including human trafficking. Under the RICO provisions, using or investing the income derived, directly or indirectly from human trafficking or slavery, is an offence that is punished by up to 20 years imprisonment and/or a fine, and results in the forfeiture of the proceeds of the crime.
The Trafficking Victims Protection Re-authorization Act of 2003 created a civil remedy for victims of trafficking offences that allows victims to claim both actual and punitive damages and legal fees. Claims under this provision may be made against both primary offenders and those who knowingly benefit from forced labour, allowing victims the possibility to recover from exploiters higher up the supply chain.
Exploited workers can also bring claims under the Fair Labor Standards Act (FLSA) for labour breaches such as the failure to pay minimum wage or excessive overtime. Importantly, provisions within the FLSA prevent employers from firing or in any other way discriminating against an employee who files a complaint or participates in any proceeding under the FSLA. In order to ensure enforcement of workers’ claims, the FLSA also includes a “hot goods” provision that prohibits the transportation, shipment, delivery or sale of goods made in violation of the wage and working hour provisions of the FSLA, using the halting of business to force employers to pay wages due.
Migrant workers may bring claims before the Equal Employment Opportunity Commission for discrimination on the basis of race or national origin under the Civil Rights Act 1964. This tool was recently used to bring a case on behalf of over 500 Thai farm workers against a labour contractor and pineapple producer, that resulted in a judgment of $8.7 million dollars in damages. Migrant workers in the agriculture sector can also bring actions under the Migrant and Seasonal Agriculture Worker Protection Act (MSPA) 1983.
There have been numerous other high-profile cases employing some or all of the above remedies to seek damages on the part of victims of labour exploitation, resulting in substantial payouts. This includes the case of David v. Signal International, LLC involving hundreds of guest workers from India who were fraudulently recruited and exploited by a New Orleans construction company in the aftermath of Hurricane Katrina. A jury found that the company, its lawyer and Indian-based recruiter had engaged in labour trafficking, fraud, racketeering and discrimination, and awarded five of the workers USD$14 million in compensatory and punitive damages. Other workers subsequently settled their claims against the company for a further USD$20 million.
Importantly, US law does not prevent undocumented workers from bringing labour claims, including for unpaid wages or overtime under the FLSA. Furthermore, in some states legislation expressly prevents the worker’s immigration status from being revealed or raised in proceedings, and prohibits retaliation by threatening to report undocumented workers. This helps to ensure that workers are not prevented from seeking remedies as a result of their immigration status.
A new state law in California, SB477 Foreign Labor Recruitment Law, requires contractors who hire foreign labor for any sector to register with the Californian Labor Commissioner, and prohibits Californian businesses from using unregistered contractors. The Act includes protections against intimidation, discrimination, and other exploitation of foreign workers, and requires contractors to disclose all terms and conditions of employment in writing. In recognition of the incidence of debt bondage resulting from high recruitment fees and overpriced accommodation, the law also prevents contractors from charging workers any recruitment fees, and limits charges for accommodation to market rates. Contractors may not require foreign workers to pay any of these costs or expenses prior to actually starting work.
Legislation on foreign labour recruitment has also been proposed at the federal level, but has failed to progress to law. Senate Bill 744 proposed creating a public registry of labour recruiters and explicitly prohibited foreign labour contractors from charging workers recruitment fees. While this legislation has not passed, foreign labour contractors who act fraudulently in recruiting or hiring individuals to work in the US may still be prosecuted under Section 1351 of the US Code. Labour contractors in the agricultural sector are also required to register with the Department of Labor and comply with certain requirements under the Migrant and Seasonal Agricultural Worker Protection Act.
The US Federal Government has modified its procurement processes in recent years to impose obligations on contractors in relation to human trafficking and slavery. Executive Order 13267 on Strengthening Protections Against Trafficking in Persons in Federal Contracts prohibits federal contractors from engaging in practices that relate to or may lead to human trafficking. The order also imposes certain requirements for the prevention of human trafficking on contracts and subcontracts for materials or services outside the United States. These include the requirement that contractors produce a ‘compliance plan’ and certify that they have not engaged in human trafficking activities. Failure to comply with the requirements may result in suspension, termination of the federal contract, imprisonment for false certification, False Claims Act liability and civil litigation.
In 2013 the National Defense Authorization Act included similar provisions, allowing government agencies to terminate any contract or grant with any organization individual that engages in human trafficking, forced labour, or in “acts that directly support or advance trafficking in persons”, such as confiscating identity documents or charging unreasonable recruitment fees. As with the Executive Order, the Act also establishes a requirement for a prevention plan and certification requirement, as well as methods of reporting and investigating allegations of human trafficking associated with government contracts and grants.
Transparency in supply chains
The California Transparency in Supply Chains Act was enacted in 2010 to promote transparency and accountability in corporate supply chains, and is the first piece of legislation of its kind in the field of human trafficking and slavery. The aim of the Act is to provide consumers with information about their efforts to eradicate slavery and human trafficking, to enable consumers to distinguish between companies based on their efforts. The Act applies to retailers and manufacturers doing business in California and having annual worldwide gross receipts in excess of $100 million, and requires such businesses to disclose on their websites what, if anything, they are doing to address human trafficking and slavery. In particular, the Act requires companies to report on their efforts to verify product supply chains; to audit suppliers; to require certifications from direct suppliers; to maintain internal accountability standards and procedures; and to provide training to employees and management.
Since the Act was implemented, hundreds of companies have provided reports on their activities to address human trafficking and slavery in their supply chains. However, analysis conducted by Know the Chain found that only 19% of companies complied by producing reports, and of these only 31% produced reports that met all the requirements of the Act. The only enforcement mechanism provided in the law is an action brought by the Attorney General for injunctive relief to require a report to be made. However recent class actions have used the Act to argue that companies have committed consumer fraud by failing to disclose slavery in their supply chains, or for making allegedly false statements about their efforts to address such exploitation.
A similar piece of federal legislation, the Business Supply Chain Transparency on Trafficking and Slavery Bill was put forward in 2014 and again in 2015, has not been enacted. At the state level, legislative initiatives such as the Article 12-A special regulatory measures for the apparel industry in the New York Labour Law also seek to increase transparency and accountability in product supply chains. Under this Article, manufacturers and contractors who contract with other manufacturers or contractors for the production of apparel, and know or should have known that the goods were produced in breach of minimum wage requirements, can be held liable. Those persons and entities investigated by the Department of Labour and found not to be in compliance with the law may also have their details published by the Labour Commissioner.
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