By Dora Fichter; Program Committee Member, Gateway Alliance against Human Trafficking
There is a widespread misconception that labor trafficking is less prevalent than sex trafficking. Common mistaken beliefs that human trafficking requires movement across borders, physical force or restraint, and that it mostly affects young women contribute to the low number of identified cases of labor trafficking. In reality, labor trafficking rarely involves physical violence, and while some victims’ movements can be restricted, others might come into daily contact with members of the public, usually in the hospitality industry. Victims of labor trafficking can be U.S. citizens or foreign nationals. Some foreign victims are undocumented, but studies show that many foreign victims hold legitimate visas. Victims do not report the crime because they are unaware of their rights, they do not know whom to contact, or they fear law enforcement.
The Trafficking Victims Protection Act defines labor trafficking as the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery. All U.S. states, including Missouri, have similar anti-trafficking statutes criminalizing labor trafficking. But not all forms of labor exploitation rise to the level of human trafficking. Labor exploitation that does not involve the use of force, fraud, or coercion may not rise to the level of human trafficking; nevertheless, it can violate labor law provisions governing minimum wage, overtime, workplace safety, or workplace discrimination.
Applicable federal labor laws include the Fair Labor Standards Act (FLSA), regulating minimum wage, overtime, and child labor; Occupational Safety and Health Act (OSHA), regulating the workplace safety; and legislation prohibiting discrimination and harassment in the workplace. The civil enforcement of federal labor law is vested with the Department of Labor (DOL). The DOL investigates complaints of labor law violations, conducts targeted civil labor investigations in industries known to harbor labor trafficking, and monitors the foreign labor certification programs for fraud against work-based visas. Some labor provisions authorize criminal liability. For example, an employer can be criminally prosecuted for willful violations of OSHA’s safety requirements, the FLSA’s minimum wage or overtime regulations, or the prohibitions of child labor. The department’s inspector general also investigates crimes arising out of the implementation of foreign labor certification programs, including the temporary work visa program.
In enforcing the labor law, the DOL is often the first agency to uncover human trafficking and is in the best position to address labor violations before they reach the level of trafficking. The indicators of labor trafficking include the lack of control over earned wages, fraudulent recruitment practices, wages withheld as a means to pay off debts, unusual living conditions, movements restrictions, and withholding identity documents. According to the most recent report by the US State Department, in 2022, the DOL opened 24 criminal investigations of suspected labor trafficking.
Victims of labor exploitation may file claims under the labor law for minimum wage or overtime violations, safety violations, or discrimination regardless of whether the perpetrators are prosecuted for human trafficking. These protections are available to all victims, including undocumented workers. In addition, identified victims of human trafficking can receive restitution if the prosecution results in a conviction. The amount of restitution includes the greater amount of the gross income or value for the victim’s services or the value of the victim’s labor as established by the FLSA. The DOL assists prosecutors and judges in calculating the amount of restitution under the FLSA.
To reduce workers’ vulnerability to exploitation, in 2022, the Department of Justice launched a forced labor initiative in partnership with Department of Homeland Security, the State Department, and the Department of Labor. The initiative recognizes the need for a multi-disciplinary approach to combat labor trafficking and provides assistance to federal and local law enforcement that might not be trained in labor law. Because human trafficking violates not only the criminal statutes but also the victim’s rights under the labor law, it is important for law enforcement and the community to understand the complex nature of the crime and to build partnerships to counter it.
Resources:
-The Trafficking Victims Protection Act of 2000, https://www.justice.gov/humantrafficking/key-legislation;
-Fair Labor Standards Act, https://www.dol.gov/agencies/whd/flsa;
-Occupational Safety and Health Act, https://www.osha.gov/laws-regs/oshact/completeoshact;
-Combating Labor Exploitation and Human Trafficking, https://www.dol.gov/agencies/oasp/resources/trafficking;
-2023 Trafficking in Persons Report: United States https://www.state.gov/reports/2023-trafficking-in-persons-report/united-states;
-Federal Law Enforcement Efforts to Counter Human Smuggling and Human Trafficking. Congressional Research Service report, November 21, 2023, https://crsreports.congress.gov.