Q: I was petitioned by my current employer to work in a residential care facility in the U.S. While I worked 6 days a week, and often on a 10-12 hour shift each day, my employer did not pay overtime. When I asked for additional payment, my boss said that I should be thankful that I am working in the U.S., and not in the Philippines. He warned that if I continue to ask for more money, he would fire me. This means that I would lose my immigration status and can be deported. What rights do I have?
A: It is unlawful for any person to obtain labor or services by means of force, threat, or by any scheme or plan that would cause belief of harm on the worker. The offense is Human Trafficking or Forced Labor which can hold an employer criminally or civilly liable under the Trafficking Victims Protection Reauthorization Act (“TVPRA”). This federal statute has its state counterpart under California’s Trafficking Victims Protection Act (“TVPA”).
The use of force or threat of it to obtain the worker’s labor can either be physical or psychological. The physical force can consist of physical restraint, beating, sexual assault or physical confinement. An employer, however, can use non-physical ways to exert pressure on the employee to perform the work against the latter’s will or acquiesce to exploitative conditions at work.
These subtle non-physical threats on the employees, for instance, may consist of warnings of job termination for which the specter of deportation can be used to enforce the employer’s demand. A typical example is the above immigration scenario where the employee’s U.S. visa is subject to the employer’s control.
Having served as counsel for human trafficking survivors and analyzed various COURT cases on this issue, this writer had been informed of several other situations that are prohibited as forced labor under the TVPRA. Other threats may include the following, employed particularly against those workers who have lost their status or are undocumented, as well as many uninformed legal immigrants,
- Threats to report to the police or to the FBI that can throw the worker to jail;
- Threats to report to the immigration authorities that can lead to deportation. In a case, the workers were threatened to be returned to the Middle Eastern country where they were trafficked from and where they can be subject to flogging;
- Deceitful promises of immigration petitions and threatened withdrawal of these promises that can also result in deportation.
- Threats of harm to relatives in the home country;
- If the employee has signed loans in the home country, the threatened job termination would result in inability to pay the loans and resulting seizure of collateral properties connected with the loans.
Labor Human Trafficking is wrong as it denies individuals of their rights to individual liberties. Under the law, those victimized by this misconduct are not only entitled to payment of back wages, legal interest, and penalties. Victims also have the right to compensation for the more serious emotional and mental pains they suffered as a result of their deprivation of fundamental human rights. They can recover punitive damages in certain situations. In California, these employees can recover treble the amounts of their compensatory damages.
Both the TVPRA and the TVPA allow recovery of attorneys’ fees so the filing of civil lawsuits to recover compensation for the workers can be done on a contingency (no recovery no fee) basis. This removes the usual impediment on workers to have access to employment counsel and to obtain relief in court. Employees who are caught in these situations, are thus well advised to immediately seek a confidential and no cost consultation with experienced employment counsel.
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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [C. Joe Sayas, Jr., Esq. is an experienced litigation attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 10 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
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