Do threats constitute human trafficking or forced labor?
Q: I WAS petitioned by my current employer to work in a residential care facility in the US. I work 6 days a week, and often on a 10-12 hour shift each day, but my employer does not pay overtime. When I asked for additional payment, my boss said that I should be thankful that I am working in the US, 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 as an employee?
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 force, 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 employees, for instance, may consist of warnings of job termination. The specter of deportation can then be used to enforce the employer’s demand. A typical example is the above immigration scenario where the employee’s U.S. visa petition is subject to the employer’s control.
This writer has served as counsel for human trafficking survivors and analyzed various court cases on this issue. Several other types of threats may be prohibited as means to obtain forced labor under the TVPRA. These may include abuse of legal process like an employer’s fraudulent visa applications or insinuations of deportation proceedings. Indeed, “any scheme” or “plan” by the employer that causes belief that the employee will suffer serious harm to obtain labor is a violation.
Utilized particularly against workers who have lost their status or are undocumented, as well as against many uninformed legal immigrants, this wide array of employer’s threats may include the following:
- 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 one 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 employees signed loans in the home country, the threatened job termination would render them unable to pay the loans and can result in seizure of collateral properties connected with the loans;
- If the employee has signed contracts with US labor recruiters which require them to work for a minimum period for a particular employer, the job termination can expose them to lawsuits in the US demanding payment of excessive fines or penalties.
Labor Human Trafficking is wrong, as it denies individuals of their rights to their individual liberties. Under the law, the victims 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 for being denied their 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’ access to employment counsel so that they can obtain relief in court.
Employees who are caught in these situations are thus well advised to immediately seek consultation with experienced employment counsel. These consultations are confidential, and are generally at no expense to the employees. In most cases, coordination is made with immigration attorneys to protect the workers’ immigration status.
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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 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
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