Counteracting the bias: The department of labor's unique opportunity to combat human trafficking

Harvard Law Review

Volumn 126, Issue 4, 2013, Pages 1012-1033

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EID: 84874350847     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (117)

1. Anne T. Gallagher, THE INTERNATIONAL LAW OF HUMAN TRAFFICKING 16 (2010).
2. Pub. L. No. 106-386, 114 Stat. 1466 (codified as amended in scattered sections of 8, 18, and 22 U.S.C.).
3. See 22 U.S.C. § 7101(a) (2006 & Supp. V 2011); U.S. DEP'T OF STATE, TRAFFICKING IN PERSONS REPORT 16 (2011) [hereinafter TIP REPORT 2011] ("The TVPA's minimum standards measure a country's efforts to combat trafficking under the '3P' paradigm: prosecution, protection, and prevention."). 4 22 U.S.C. § 7102(8).
4. See generally U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S ANNUAL REPORT TO CONGRESS AND ASSESSMENT OF U.S. GOVERNMENT ACTIVITIES TO COMBAT TRAFFICKING IN PERSONS: FISCAL YEAR 2010 (2011) [hereinafter ATTORNEY GENERAL'S REPORT 2010], available at http://www.justice.gov/ag/annualreports/tr2010/agreporthumantrafficking2010.pdfOther agencies with significant antitrafficking responsibilities are the Department of State (in the area of international human trafficking) and the Department of Health and Human Services (in the area of victim services). See generally id.
5. Anthony M. Destefano, THE WAR ON HUMAN TRAFFICKING 107-117 (2007);
6. Maggy Lee, TRAFFICKING AND GLOBAL CRIME CONTROL 109-120 (2011);
7. Denise Brennan, Competing Claims of Victim hood? Foreign and Domestic Victims of Trafficking in the United States, SEXUALITY RES. & SOC. POL'Y, Dec. 2008, at 45, 46-53
8. Janie A. Chuang, Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, 158 U. PA. L. REV. 1655 (2010)
9. James C. Hathaway, The Human Rights Quagmire of "Human Trafficking," 49 VA. J. INT'L L. 1, 25-41 (2008)
10. Dina Francesca Haynes, Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers, 23 NOTRE DAME J.L. ETHICS & PUB. POL'Y 1, 44-48 (2009) Thereinafter Haynes, Exploitation Nation]
11. Dina Francesca Haynes, (Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act, 21 GEO. IMMIGR. L.J. 337, 363-365 (2007) [hereinafter Haynes, (Not) Found Chained].
12. Dina Francesca Haynes, Good Intentions Are Not Enough: Four Recommendations for Implementing the Trafficking Victims Protection Act, 6 U. ST. THOMAS L.J. 77, 91-92 (2008).
13. Haynes, (Not) Found Chained, supra note 8 (criticizing federal agencies' implementation of the TVPA but omitting any discussion of DOL's efforts).
14. U.S. DEP'T OF STATE, TRAFFICKING IN PERSONS REPORT 359-60 (2012) [hereinafter TIP REPORT 2012].
15. KATHRYN CULLEN-DUPONT, HUMAN TRAFFICKING 44 (2009); see also Haynes, (Not) Found Chained, supra note 8, at 343.
16. ATTORNEY GENERAL'S REPORT 2010, supra note 7, at 29.
17. TIP REPORT 2012, supra note 11, at 13-14.
18. Leticia M. Saucedo, A New "U": Organizing Victims and Protecting Immigrant Workers, 42 U. RICH. L. REV. 891, 893 (2008).
19. Kati L. Griffith, U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law, 31 COMP. LAB. L. & POL'Y J. 125, 128 (2009).
20. TIP REPORT 2012, supra note 11, at 360.
21. Louise Shelley, HUMAN TRAFFICKING 75 (2010).
22. Sarah C. Pierce, Note, Turning a Blind Eye: U.S. Corporate Involvement in Modern Day Slavery, 14 J. GENDER RACE & JUST. 577, 578 (2011).
23. ATTORNEY GENERAL'S REPORT 2010, supra note 7, at 29, 62; TIP REPORT 2012, supra note 11, at 360-62; TIP REPORT 2011, supra note 3, at 372-73.
24. Brennan, supra note 8, at 51-53.
25. Jennifer M. Chacón, Tensions and Trade-Offs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. PA. L. REV. 1609, 1623-1624, 1628-1629 (2010).
26. Brennan, supra note 8, at 45-47, 53-57; Haynes, Exploitation Nation, supra note 8, at 44-48.
27. Jennifer S. Nam, Note, The Case of the Missing Case: Examining the Civil Right of Action for Human Trafficking Victims, 107 COLUM. L. REV. 1655, 1678 (2007).
28. Nam, supra note 28, at 1678.
29. Leticia M. Saucedo, The Employer Preference for the Subservient Worker and the Making of the Brown Collar Workplace, 67 OHIO ST. L.J. 961, 966-971 (2006).
30. Brennan, supra note 8, at 53; Haynes, Exploitation Nation, supra note 8, at 44-45.
31. TIP REPORT 2012, supra note 11, at 363 ("NGOs noted that some... law enforcement officials were reluctant to identify individuals as trafficking victims when the[y] have participated in criminal activity, facilitated their own smuggling, and/or were subjected to debt bondage or peonage by a smuggler.");
32. Haynes, (Not) Found Chained, supra note 8, at 349 ("[V]iewing the trafficking act through the law enforcement filter may itself exacerbate the tendency of U.S. government personnel to treat trafficked persons as criminals, particularly when the victim does not fit into the expected mold of being rescued after being found chained to a bed in a brothel.").
33. Haynes, supra note 9, at 83 (speculating that traditional law enforcement agencies' "perceptions of the 'criminal actions' of the victim (being in the country illegally, using false documents, being illegally employed, being a sex worker - all crimes these same law enforcement officers are much more accustomed to prosecuting than to seeing as evidence of being a victim of human trafficking) are obscuring their willingness to apply the law").
34. GALLAGHER, supra note 1, at 13-15.
35. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Annex 2, Nov. 15, 2000, 2237 U.N.T.S. 319 [hereinafter Trafficking Protocol].
36. See GALLAGHER, supra note 1, at 26.
37. Trafficking Protocol, supra note 35, art. 3(a); see GALLAGHER, supra note 1, at 28.
38. Chuang, supra note 8, at 1664-69.
39. DESTEFANO, supra note 8, at 35.
40. George W. Bush, Address at the United Nations General Assembly (Sept. 23, 2003) (transcript available at http://georgewbush-hitehouse.archives.gov/news/releases/2003/09/20030923-4.html).
41. U.S. DEP'T OF STATE, THE LINK BETWEEN PROSTITUTION AND SEX TRAFFICKING 1 (2004), available at http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1037&context=humtraffdata.
42. U.S. GOV'T ACCOUNTABILITY OFFICE, HUMAN TRAFFICKING 25 (2006), available at http://www.gao.gov/assets/260/250812.pdf.
43. DESTEFANO, supra note 8, at 112; see also, e.g., CHRISTAL MOREHOUSE, COMBATING HUMAN TRAFFICKING 88 (2009) ("Countries[] in which prostitution is legal, such as Germany, have found no correlation between increased human trafficking and legalized prostitution.").
44. Brennan, supra note 8, at 51-53.
45. DESTEFANO, supra note 8, at 107. To receive ant trafficking funds from the U.S. government, an organization must formally state "that it does not promote, support, or advocate the legalization or practice of prostitution." 22 U.S.C. § 7110(g)(2) (2006 & Supp. V 2011).
46. 42 U.S.C. § 14044 (2006 & Supp. V 2011); see also Brennan, supra note 8, at 50-51. Obama's State Department has, however, clearly made efforts in itsannual Trafficking in Persons reports to increase recognition of labortrafficking.59 And in September 2012, the President devoted his re-U.S.C. § 7102(8).
47. See 42 U.S.C. § 14044c(a).
48. See DESTEFANO, supra note 8, at 83.
49. Julia C. Mead, A Slow War on Human Trafficking, N.Y. TIMES, May 28, 2006.
50. M1 (describing a DOJ-funded anti trafficking task force on Long Island that, despite a locally publicized forced-labor case and a growing Hispanic immigrant population, concentrated on raiding massage-parlor brothels with Asian employers and employees).
51. DESTEFANO, supra note 8, at 83.
52. SHELLEY, supra note 19, at 259.
53. See, e.g., TIP REPORT 2012, supra note 11, at 364 (describing a prevention effort as focused on "factors contributing to human trafficking, such as the demand for commercial sex").
54. U.S. DEP'T OF LABOR, PARTNERSHIP TO REDUCE CHILD LABOR AND FORCED LABOR IN IMPORTED AGRICULTURAL PRODUCTS 16 (2012), available at http://www.dol.gov/ilab/grants/sga12-04-usda-solicitation-for-grants-final-web.pdf (in a grant opportunity announcement, prohibiting both U.S.-based and foreign grantees and their contractors and subcontractors from "lobby[ing] for, promot[ing] or advocat[ing] the legalization or regulation of prostitution as a legitimate form of work" and including the following assertion: "The U.S. Government is opposed to prostitution and related activities, which are inherently harmful and dehumanizing and contribute to the phenomenon of trafficking in persons.").
55. Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 223-24 (2d Cir. 2011) (upholding preliminary injunctions against several U.S. health agencies to prevent them from enforcing an identical antiprostitution pledge in another statute), petition for cert. filed, 81 U.S.L.W. 3039 (U.S. July 2, 2012) (No. 12-10).
56. TIP REPORT 2011, supra note 3, at 18 (criticizing countries that "ignore certain types of human trafficking, such as the forced labor of men and boys"); Melissa Ditmore, The Sweep of Modern-Day Slavery, GUARDIAN (June 25, 2009), http://www.guardian.co.uk/commentisfree/cifamerica/2009/jun/24/human-trafficking-report-obama.
57. "Instead of adopting the Bush administration's myopic focus on sex trafficking, the Obama administration has expanded the definition of trafficking to include a wider variety of examples of labour abuses than ever before.").
58. Barack Obama, Remarks to the Clinton Global Initiative Annual Meeting (Sept. 25, 2012) (transcript available at http://www.whitehouse.gov/the-press-office/2012/09/25/remarks-president-clinton-global-initiative)
59. Exec. Order No. 13,627, 77 Fed. Reg. 60,029, 60,029-30 (Oct. 2, 2012). Human trafficking allegations against private contractors in Iraq and Afghanistan no doubt prompted the announcement of the order. See TIP REPORT 2012, supra note 11, at 364.
60. DESTEFANO, supra note 8, at 107 (discussing DOJ's opposition to a provision in the TVPRA of 2003 that would have allowed trafficking victims to train border personnel in victim identification, which it feared "would potentially undermine the ability of Federal law enforcement to conduct border interdiction").
61. Amber McKinney, House Committee Approves Legislation to Reauthorize Anti-Trafficking Statute, [2011] Daily Lab. Rep. (BNA) No. 194, at A-16, 2011 WL 4613808 (Oct. 6, 2011)
62. Discussing Representative Elton Gallegly's concern about a provision of H.R. 2830 that would require that trafficking victims be granted continued presence status within fifteen days and quoting him as saying, "I don't want to see all illegal immigrants in the United States begin to claim that they were trafficking victims just to stay in this country"); see also DESTEFANO, supra note 8, at 38-42 (describing similar fears expressed during debate of the TVPA).
63. LEE, supra note 8, at 72 ("In general, states are reluctant to give unconditional assistance and protection to trafficked victims on the assumption this will act as a 'pull factor' for irregular migrants and false claimants."); Chacón, supra note 27, at 1627-28.
64. Hathaway, supra note 8, at 26.
65. Trafficking Protocol, supra note 35, art. 11(1).
66. Hathaway, supra note 8, at 32-34.
67. Anne T. Gallagher, Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway, 49 VA. J. INT'L L. 789, 833 (2009).
68. Obama, supra note 60.
69. See generally Chacón, supra note 27.
70. See SHELLEY, supra note 19, at 260; Chacón, supra note 27, at 1623-24, 1628-29; Haynes, supra note 9, at 91.
71. Rebecca Smith et al., ICED OUT: HOW IMMIGRATION ENFORCEMENT HAS INTERFERED WITH WORKERS' RIGHTS 30-31 (2009), available at http://www.americanrightsatwork.org/dmdocuments/ARAWReports/icedout_rpdf;
72. Chacón, supra note 27, at 1625-26; Haynes, supra note 9, at 91.
73. See 22 U.S.C. § 7105(b)(1)(B) (2006 & Supp. V 2011).
74. Summary of the Major Laws of the Department of Labor, U.S. DEP'T OF LAB.,http://www.dol.gov/opa/aboutdol/lawsprog.htm (last visited Dec. 1, 2012).
75. See, e.g., 22 U.S.C. § 7103 (establishing the Interagency Task Force to Monitor and Combat Trafficking). DOL is a member of other ant trafficking task forces as well, including the Federal Enforcement Working Group, which in 2012 launched six pilot Anti-Trafficking Coordination Teams around the country. Obama Administration Accomplishments on Combating Trafficking in Persons as of February 2012, U.S. DEP'T OF STATE (Mar. 15, 2012), http://www.state.gov/j/tip/rls/reports/2012/184881.htm [hereinafter Obama Administration Accomplishments].22 U.S.C. § 7105(b)(1)(B). All agencies must expand services to victims to match those provided to refugees. Id. § 7105(b)(1)(A).
76. TIP REPORT 2012, supra note 11, at 364 Hilda Solis, Sec'y, Dep't of Labor, Remarks at the 2010 DOJ National Conference on Human Trafficking: The TVPA Decade: Progress and Promise (May 3, 2010) (remarks as prepared for delivery available at http://www.dol.gov/_sec/media/speeches/20100503_Trafficking.htm).
77. Solis, supra note 79.
78. See 22 U.S.C. § 7105(c)(4) (requiring that "[a]ppropriate personnel of the Department of State, the Department of Homeland Security, the Department of Health and Human Services, and the Department of Justice" receive trafficking victim identification training). The TVPRA of 2011 could add DOL to the list of agencies in this provision. See S. 1301, 112th Cong. § 224 (2011).
79. DOL's 1913 organic statute declares that the agency's purpose is "to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment." 29 U.S.C. § 551 (2006). The TVPA gives DOL's Bureau of International Labor Affairs authority to monitor forced labor and child labor internationally. 22 U.S.C. § 7112(b).
80. See, e.g., 8 U.S.C. §§ 1321-1330 (2006).
81. See Haynes, supra note 9, at 91-92.
82. See, e.g., Letter Brief of U.S. Department of Labor at 1, Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292 (11th Cir. 2011) (No. 09-12266), available at http://www.dol.gov/sol/media/briefs/josendis%28A%29-8-26-2010.pdf ("The longstanding position of the Department of Labor... is that undocumented workers are entitled to minimum wages and overtime pay for hours worked under the [Fair Labor Standards Act (FLSA)].");
83. SMITH ET AL., supra note 73, at 13. As one court has observed, "the FLSA's coverage of undocumented aliens goes hand in hand with the policies behind" U.S. immigration law, for "[i]f the FLSA did not cover undocumented aliens, employers would have an incentive to hire them." Patel v. Quality Inn S., 846 F.2d 700, 704 (11th Cir. 1988).
84. Revised Memorandum of Understanding Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites 2 (Dec. 7, 2011), available at http://www.dol.gov/asp/media/reports/DHS-DOL-MOU.pdf [hereinafter DHS-DOL MOU]. The MOU replaced one that had been signed in 1998 but was not consistently followed. See SMITH ET AL., supra note 73, at 13, 30-31.
85. DHS-DOL MOU, supra note 86, at 2.
86. 535 U.S. 137 (2002).
87. U.S. DEP'T OF LABOR, WAGE & HOUR DIV., FACT SHEET #48: APPLICATION OF U.S. LABOR LAWS TO IMMIGRANT WORKERS: EFFECT OF HOFFMAN PLASTICS DECISION ON LAWS ENFORCED BY THE WAGE AND HOUR DIVISION 1 (2008), available at http://www.dol.gov/whd/regs/compliance/whdfs48.pdf.
88. Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (2006 & Supp. V 2011).
89. See, e.g., Obama Administration Accomplishments, supra note 76 (discussing WHD's involvement in, inter alia, United States v. Sabhani, 599 F.3d 215 (2d Cir. 2010), cert. denied, 131 S. Ct. 1000 (2011)).
90. TIP REPORT 2012, supra note 11, at 364.
91. Press Release, U.S. Dep't of Labor, Wage & Hour Div., U.S. Dept. of Labor Wins $51,923 in Back Wages for Employees of Rainbow Buffet, Tacoma, Wash. (Feb. 16, 2006), available at http://www.dol.gov/whd/media/press/whdpressVB2.asp?pressdoc=Western/archived/20060252.xml.
92. Press Release, U.S. Attorney's Office for the W. Dist. of Wash., Tacoma Resident Sentenced to Prison for Harboring and Inducing Illegal Aliens (Feb. 2, 2006), available at http://www.justice.gov/usao/waw/press/2006/feb/shu.html.
93. Of course, the two agencies' different areas of enforcement necessarily lead to different perspectives. DOL may order the trafficker to pay fines and back wages, but DOJ prosecutes the charges of human trafficking. See, e.g., DESTEFANO, supra note 8, at 69-71 (describing one of the first large human trafficking cases prosecuted by the federal government, involving a garment manufacturer in American Samoa).
94. Chacón, supra note 27, at 1635.
95. Press Release, U.S. Dep't of Labor, Wage & Hour Div., US Department of Labor Recovers $240,000 in Back Wages, Damages and Penalties from 3 Oregon Berry Farmers (Aug. 31, 2012), available at http://www.dol.gov/whd/media/press/whdpressVB3.asp?pressdoc=Western/20120831.xml#.UJVI_YbZ2_8.
96. See Solis v. B&G Ditchen, LLC, No. 6:12-CV-01566-TC (D. Or. Aug. 30, 2012) (consent judgment and order); Solis v. E&S Farms, Inc., No. 6:12-CV-01564-HO (D. Or. Aug. 30, 2012) (same); Solis v. Pan-Am. Berry Growers, LLC, No. 6:12-CV-01474-HO (D. Or. Aug. 18, 2012) (same).
97. Gabriela D. Lemus, Senior Advisor & Dir. of the Office of Pub. Engagement, U.S. Dep't of Labor, Statement Before the Commission on Security and Cooperation in Europe (May 23, 2011) (transcript available at http://www.dol.gov/_sec/media/congress/20110523_Lemus.htm)
98. See SMITH ET AL., supra note 73, at 5.
99. Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self-Regulation, 105 COLUM. L. REV. 319, 330 (2005)
100. Janice Fine & Jennifer Gordon, Strengthening Labor Standards Enforcement Through Partnerships with Workers' Organizations, 38 POL. & SOC'Y 552, 554 (2010);
101. ANNETTE BERNHARDT & SIOBHÁN MCGRATH, BRENNAN CTR. FOR JUSTICE, TRENDS IN WAGE AND HOUR ENFORCEMENT BY THE U.S. DEPARTMENT OF LABOR,1975-2004 (2005), available at http://www.brennancenter.org/page/-d/download_file_35553.pdf.
102. Fine & Gordon, supra note 109, at 554.
103. Estlund, supra note 109, at 330.
104. DHS-DOL MOU, supra note 86, at 4.
105. Solis, supra note 79.
106. 29 U.S.C. §§ 215, 217 (2006).
107. Paul Shukovsky, DOL Knocked for Using Hot Goods" Provision in Wage Charges Against Blueberry Farmers, [2012] Daily Lab. Rep. (BNA) No. 173, at A-4, 2012 WL 3862103 (Sept. 6, 2012).
108. Critics of DOL's use of this enforcement tool complain that it violates employers' due process rights, but supporters underscore the requirement that DOL secure an injunction before issuing a hot goods order. Id.; see 29 U.S.C. § 217.
109. Solis, supra note 79. The campaign utilizes investigators who speak multiple languages.
110. BAUER, supra note 147.
111. Dube, supra note 148, at A-6.
112. See, e.g., BAUER, supra note 147, at 9-39;
113. David Bacon, Borrowed Hands, CAL. LAW. (Sept. 2011), http://www.callawyer.com/Clstory.cfm?eid=917686.
114. Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6884, 6934 (Feb. 12, 2010).
115. 20 C.F.R. § 655.180-.182.
116. TIP REPORT 2011, supra note 3, at 373; see also TIP REPORT 2012, supra note 11, at 360.
117. Obama Administration Accomplishments, supra note 76.