The Trafficking Victims Protection Act (TVPA), which strengthened criminal laws against human traffickers, is the main law used by plaintiffs against human traffickers, but there are a host of other laws that might be invoked as well.
TVPA cases often are thrown out because it is “very difficult for the government or individuals to prove involuntary servitude,” according to Mary Pivec, an attorney with Williams Mullen in Washington, D.C. However, the TVPA superseded the narrow definition of “involuntary servitude” set out by the Supreme Court in United States v. Kominski, 487 U.S. 931 (1988) to include involuntary servitude “perpetrated through psychological abuse and nonviolent coercion,” stated Dan Werner, deputy director of the Southern Poverty Law Center’s Immigrant Justice Project, and Kathleen Kim, associate professor of law at the Loyola Law School Los Angeles, in the Southern Poverty Law Center’s Civil Litigation on Behalf of Victims of Human Trafficking.
In addition, it has been difficult to prevail under the civil Racketeer Influenced and Corrupt Organizations Act (RICO) based on the peonage laws with respect to foreign workers admitted to the United States under the H-1B and H-2B programs, Pivec said.
"By contrast," Pivec said, "convictions have been obtained against sex traffickers where the victims are vulnerable women and children who are truly held against their will.”
Another cause of action for forced labor offenses, false imprisonment, infliction of severe emotional distress and fraud claims by foreign workers in the United States may be brought under the Alien Tort Act, she added.
And the U.S. Department of Justice can pursue convictions under 18 U.S.C. 1351, which prohibits misrepresentations designed to induce foreign nationals to enter the United States. “The law is intended to prohibit exploitation by employers and recruiters who lure heavily indebted workers to the United States but who did not obtain their labor or services through coercion sufficient to reach the level of slavery and trafficking offenses,” Pivec remarked.
The U.S. Constitution and other laws might come into play, according to Werner and Kim. These causes of action might include:
The 13th Amendment.
Title VII of the Civil Rights Act of 1964.
Fair Labor Standards Act.
Migrant and Seasonal Agricultural Worker Protection Act.
State torts such as assault, false imprisonment and infliction of emotional distress.
State contract claims such as breach of contract and unjust enrichment.
State labor codes and other statutes.
One widely held misconception about human trafficking, according to Bridgette Carr, a professor at the University of Michigan Law School, is that it happens only to foreign nationals or abroad. In reality, human trafficking is found in all communities, she said.
“We still don’t have an understanding of the scope of human trafficking,” Carr said, noting that it has turned up in businesses as varied as hair salons, nail salons, restaurants, hotels, the agricultural industry and other industries that use seasonal workers.
Allen Smith, J.D., is manager, workplace law content, for SHRM.
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