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  3. Written Testimony of Daniel Werner Deputy Director Immigrant Justice Project Southern Poverty Law Center

Written Testimony of Daniel Werner Deputy Director Immigrant Justice Project Southern Poverty Law Center

  1. Introduction
    1. As the EEOC continues to take an aggressive stance combating employment discrimination, some of the victims of discrimination will also be victims of human trafficking. The individuals' status as a victim of trafficking could have an impact on the pre-litigation investigation as well as any litigation filed by the EEOC. Any associated criminal investigations and proceedings, along with other relevant state or federal investigations into the trafficking, may also impact the Title VII investigation and litigation. Further, it is likely that charging parties, as intervenors in the EEOC's litigation, will include civil claims against the traffickers and others responsible for the trafficking.
    2. Employment discrimination claims are often a critical component of litigation on behalf of human trafficking survivors. Human trafficking thrives in part because traffickers present themselves as uniquely positioned cultural brokers between immigrant workers and unfamiliar and sometimes hostile communities in the United States; a position of extraordinary power over the worker. Similarly, the cultural, ethnic, and linguistic "differentness" of many trafficked workers can be converted into a weapon in traffickers' arsenals used to coerce involuntary servitude, and traffickers use the resulting isolation to dissuade many trafficked people from seeking help. The willingness of traffickers to exploit this "differentness" -- and even to target individuals of specific national origins based on stereotypes about who best performs certain jobs or is less likely or able to complain about exploitation -- also places many human trafficking cases squarely within the purview of the EEOC. The EEOC can play a unique and critically important role in these cases, lending both its expertise, its resources, and its influence as an agency of the federal government to assist extremely vulnerable workers.
    3. Some labor trafficking cases also involve sexual exploitation. Therefore, even where forced commercial sex is absent (a requirement for a sex trafficking claim), trafficked women are often sexually assaulted or subjected to other severe sexual harassment. Pursuant to Title VII, the EEOC is the federal agency charged with preventing, investigating and remedying sex discrimination, including sexual harassment. The EEOC has a wealth of experiencing investigation and litigating sexual harassment cases generally, including experience with sexual harassment cases brought on behalf of immigrant women workers. Thus, the EEOC's participation in these cases would be invaluable
    4. Human trafficking civil litigation can be complex. There may be parallel immigration and criminal proceedings. With these parallel proceedings, the movement of the case can become clunky and civil discovery can be cumbersome and challenging. The laws protecting human trafficking survivors either are young or trafficking victims' attorneys have only recently started using them in civil actions. The survivors themselves are usually victims of trauma, so it becomes incumbent on their representatives to do whatever possible to protect the victims' safety and to prevent intimidating litigation tactics used by many traffickers' attorneys. Still, none of this is new to the EEOC. The EEOC's cases –and particularly those involving severe sexual harassment – sometimes parallel criminal investigations and prosecutions. The EEOC also constantly adjusts to the changing legal landscape in employment discrimination cases. Charging parties in the EEOC's cases are often similarly victims of trauma; a fact exploited by defense counsel. Therefore, human trafficking survivors derive great benefit from the expertise the EEOC's brings to these cases.
    5. There are forms of labor exploitation that do not fall within the statutory definition of human trafficking, but which are every bit as severe and which often involve elements of employment discrimination. It is generally easier to find attorneys to represent victims of human trafficking than it is to find counsel for victims of other types of labor exploitation. In those "less than trafficking" cases, the EEOC's role becomes particularly important, as it may have the only attorneys available to advocate for the exploited workers.
    6. Where human trafficking survivors intervene as co-plaintiffs in litigation along with the EEOC, it is important that the Commission and its attorneys and staff be aware of the laws protecting the survivors, as well as procedural benefits and pitfalls that are unique to human trafficking litigation. The remainder of this outline provides some detail about several aspects of human trafficking litigation. It is based in part on Civil Litigation on Behalf of Victims of Human Trafficking, Third Edition, ("Civil Litigation Guide") published by the Southern Poverty Law Center in late 2008 (available at http://www.splcenter.org/sites/default/files/downloads/splc_human_trafficking.pdf). However, because aspects of the law have changed since then, much of the material in this outline is intended to supplement the Civil Litigation Guide and will be included in the forthcoming Fourth Edition. I have also included some "Practice Points" EEOC Trial Attorneys may wish to consider when litigating cases involving human trafficking elements. Finally, the outline concludes with some basic recommendations for the EEOC as it considers bringing litigation on behalf of human trafficking survivors.
  2. Causes of Action
    1. Victims of Trafficking and Violence Protection Act
      1. Private right of action, 18 U.S.C. § 1595.
        1. Encompasses all "Chapter 77" crimes, 18 U.S.C. §§ 1581 – 1594, including forced labor, sex trafficking, and document servitude.
        2. Forced labor includes more subtle forms of coercion.
          1. Actual physical restraint or direct threats of harm are not necessary.
          2. Includes scheme/plan trafficker intended to cause victim to believe she'd suffer serious harm or physical restraint.
          3. Serious harm defined in 2008 TVPA amendment: "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm." 18 U.S.C. § 1589(c)(2) (emphasis added).
            EEOC PRACTICE POINT: In sex discrimination/trafficking cases where sexual exploitation is a component of the trafficking, traffickers may threaten to report the sexual exploitation to the victim's family members in the victim's country of origin. This would constitute a threat of reputational harm under the "serious harm" definition.
          4. Forced labor also can be caused by abuse or threatened abuse of law or legal process, defined in the 2008 amendment as: "the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action." 18 U.S.C § 1589(c)(1).
            1. Courts have consistently held that threats of deportation are an abuse of legal process. See, e.g., United States v. Calimlim, 538 F.3d 706, 713 (7th Cir. 2008); Catalan v. Vermillion Ranch Ltd. Partnership, No. 06-cv-01043-WYD-MJW, 2007 U.S. Dist. LEXIS 567, at *24 (D. Colo. Jan. 4, 2007); United States v. Garcia, Case No. 02-CR-110S-01, 2003 U.S. Dist. LEXIS 22088, *23 (W.D.N.Y. 2003).
              EEOC PRACTICE POINT: Threats of deportation may dually be used as a mechanism to compel labor and to prevent trafficked workers from engaging in, for example, Title VII protected activities. The EEOC could raise the latter as a Title VII retaliation claim.
            2. Providing misinformation about the law or hiding information about the law also is abuse of legal process. See Calimlim, 538 F.3d at 713.
            3. Other examples may include the trafficker causing litigation to be filed or criminal charges brought against the victim, or enforcing a lien on property used as collateral on a debt in the country of origin.
        3. Private right of action for document servitude: "Whoever knowingly destroys, conceals, removes, confiscates, or possesses any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person" to violate enumerated Chapter 77 human trafficking offenses. 18 U.S.C. § 1592.
          EEOC PRACTICE POINT: Confiscating immigration documents solely from workers of a particular nationality could be raised as a national origin discrimination claim under Title VII.
        4. Allows suit not just against the trafficker, but against "whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of [Chapter 77]." 18 U.S.C. § 1595(a) (2008). Examples may include
          1. A grower who received the value of labor by engaging a farm labor contractor who trafficked workers.
          2. A night club that received increased alcohol revenue because forced sex workers provided by an outside pimp serviced the club's clientele.
            EEOC PRACTICE POINT: The EEOC may use the "economic realities" joint employment test under Title VII and other EEOC-enforced statutes – allowing a finding of liability for more than one employer where, as a matter of economic reality, the employee is economically dependent on the putative employers – to pursue the same defendants who have be sued under this provision of the TVPA.
        5. Trafficker need not have direct authority over victims as they perform labor; liability extends to whoever knowingly "recruits, harbors, transports, provides, or obtains by any means" a person for trafficking. See 18 U.S.C. § 1590. Private right of action also extends to whoever "attempts" or "conspires" to violate any of the enumerated Chapter 77 human trafficking prohibitions. See 18 U.S.C. § 1594(a) – (c).
          EEOC PRACTICE POINT: An "employment agency" as defined by Title VII may be involved in the recruitment, harboring, transportation, or providing of forced laborers.
        6. Damages: compensatory damages and attorneys' fees/costs.
    2. Racketeer Influenced and Corrupt Organizations Act (RICO)
      1. Most common types of RICO claims: civil liability for any person (real person or corporation) who
        1. is employed by or associated with an enterprise and conducts or participates in that enterprise's affairs through a pattern of racketeering activity.
        2. Conspiracy to violate the RICO.
      2. Breaking it down.
        1. Enterprise is either a legal entity, such as a corporation, or an "association of fact" enterprise, which simply put and as the name suggests, is an association of people without a legal form.
          1. The enterprise cannot exist solely for racketeering activity (eg. the burglary teams in the films Oceans 11-13 are not enterprises).
          2. The "person" and the enterprise cannot be the same. Essentially, the enterprise must be bigger than the person (eg. the corporation cannot be the "person" and the people making up the corporation the "enterprise.").
        2. Pattern: two racketeering acts in the previous ten years that are related or demonstrate a threat of continuous illegal conduct.
        3. Racketeering activity, enumerated in 18 U.S.C. § 1961. In the human trafficking context, acts may include.
          1. Most Chapter 77 human trafficking offenses
          2. Extortion
          3. Immigration fraud
          4. Money laundering
          5. Mail and wire fraud
          1. Fraudulent content need not be transmitted through the mail/wires; only need to have been used in furtherance of the fraud.
          2. Plaintiffs need not show they relied on fraud, but only that they suffered pecuniary losses proximately caused by the fraud. Therefore, an example may be a recruiter's fraud on the government related to immigration applications that proximately caused the plaintiffs to pay exorbitant recruitment fees.
            EEOC PRACTICE POINT: A violation of an EEOC consent decree that involves a pattern of misrepresentations to the EEOC could present a plaintiff with a RICO wire or mail fraud claim if that plaintiff suffered economic injuries as a result.
      3. Damages: treble damages for injury to business or property, attorneys' fees/costs.
      4. Nationwide service/personal jurisdiction/venue: Allows civil action in any district where person resides, is found, has an agent, transacts his affairs, or where "the ends of justice require that other parties residing in any other district be brought before the court." 18 U.S.C. § 1965(a) and (b).
  3. Parallel Criminal and Civil Actions
    1. Automatic stay
      1. Entire civil action will be stayed from investigation through final adjudication.
      2. Presumably, the government still has to move to intervene to seek the stay.
      3. Plaintiffs should encourage court and government to include in the stay order a provision that documents be preserved while the stay is in effect. See, e.g., Newby v. Enron, 338 F.3d 467, 469 (5th Cir. 2003).
        EEOC PRACTICE POINT: The stay is automatic only if the civil action includes TVPA claims. Therefore, the automatic stay provision would not apply a case brought solely by the EEOC for EEOC-enforced statutes. Still, the government may seek to intervene and ask the court to stay a parallel civil action even if it does not have TVPA claims.
    2. Mandatory Restitution
      1. Required component of criminal sentencing.
      2. Includes, medical expenses, attorneys' fees, any other losses suffered by the victim as a proximate result of the offense, and "greater of the gross income or value to the defendant of the victim's services or labor or the value of the victim's labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act." 18 U.S.C. §§ 1593(b) and 2259(b)(3). This may include FLSA liquidated damages. See United States v Sabhnani, 599 F3d 215, 259-260 (2d Cir. 2010). Recruitment fees may be compensated under the "other losses" category or the FLSA minimum wage provision.
      3. Does not include compensatory damages for pain and suffering, punitive damages, RICO treble damages, statutory damages, etc.
      4. Some restitution awards have been well in excess of $1 million.
      5. Restitution order does not preclude or have estoppel effect on parallel civil action.
        EEOC PRACTICE POINT: Prospective private plaintiffs often forego a civil lawsuit if the restitution order arising out of the criminal case provides adequate relief. In a discrimination/trafficking case, the EEOC should work with the victims and the prosecutors to ensure the broadest possible restitution order. While the victim's may choose not to intervene in an EEOC case, the EEOC may still seek to bring a civil case against the employer to recover additional damages and for injunctive relief to protect future employees from similar discrimination.
    3. Other benefits
      1. Receipt of Giglio, Brady, and other materials
        1. surveillance
        2. products of search warrants
        3. witness statements
      2. Collateral estoppel effect of criminal conviction/plea.
        EEOC PRACTICE POINT: A plea agreement or jury verdict form that includes elements of discrimination could allow the EEOC to file its civil case and immediately move for summary judgment.
    4. Other pitfalls
      1. Dissipation of assets through criminal defense/time and opportunity to hide assents, often abroad.
        EEOC PRACTICE POINT: Trafficking cases may involve some claims that are non-dischargeable in bankruptcy.
      2. Impact of forfeiture?
      3. Fading memories
      4. Reliving trauma
  4. Parallel immigration and civil actions
    1. Civil Litigation as a favorable equity for T non-immigrant status ("T visas").
      1. Victims of trafficking are eligible to apply for T-non immigrant visas which are important not just for victims because it allows them to live and work in the U.S., but it is also important for the civil and criminal prosecutions of trafficking cases. A victim of discrimination/trafficking will be better positioned to aid the EEOC with its investigation and litigation if they obtain legal status in the U.S. so that they can participate as a co-plaintiff or a witness in the civil litigation.
      2. Civil litigation is a factor showing "extreme hardship involving unusual and severe harm upon removal." 8 U.S.C. § 1101(a)(15)(T)(i)(IV)
      3. Citizenship and Immigration Services (CIS) of the Department of Homeland Security may consider "The impact of the loss of access to the United States courts … for purposes relating to the incident of severe forms of trafficking in persons or other crimes perpetrated against the applicant, including … civil redress for acts of trafficking in persons … ." 8 C.F.R. § 214.11(i)(1)(iv).
      4. Physical presence on account of trafficking (8 U.S.C. § 1101(a)(15)(T)(i)(II):
        1. Includes presence in U.S. "for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking." Id.
        2. Where trafficking occurred at some point in the past, possibly shows continued presence is "directly related to the original trafficking in persons." 8 C.F.R. § 214.11(g).
        3. Possibly impacts "clear chance to leave" factor. Id. § 214.11(g)(2) (not part of non-exclusive list).
    2. Discoverability in civil action of T/U visa application materials: three cases with different results:
      1. Catalan v. Vermillion Ranch L.P., No. 06-cv-01043, 2007 U.S.
        Dist. LEXIS 22638 (D. Colo. Mar. 28, 2007) (FLSA/TVPRA/RICO)
        1. Plaintiff H-2A workers sought a protective order prohibiting inquiries into immigration status/history.
        2. Court held:
          1. Revealing this info would not have "chilling" or in terrorem effect because the defendants were required to report absconding H-2As within 24 hours.
          2. Privacy can be protected by limiting the use of discovery.
          3. Probative value of status outweighs prejudice.
          4. Probative of "true reasons" for absconding.
          5. Material to emotional distress, mitigation, credibility, etc.
      2. Ramos v. Hoyle, 08-21809-CIV-MARTINEZ-BROWN (S.D. Fla.
        Feb. 4, 2009)(unreported) (FLSA/TVPRA/RICO)
        1. Plaintiff domestic servants sought a protective order prohibiting inquiries into current employment/immigration status.
        2. Court held:
          1. Employment relevant to damages because plaintiffs alleged:
            1. They "suffered and continued to suffer … damages"
            2. Re fraud: representations "continue to be fraudulent and oppressive" with "deleterious consequences."
            3. Plaintiffs turned down lucrative opportunities for employment in home country.
            4. "harm to present and future immigration and employment status."
          2. BUT Plaintiffs withdrew this claim, so immigration/visa status NOT discoverable.
      3. David v. Signal Int'l, LLC, 257 F.R.D. 114 (E.D. La. 2009)(Class
        certification discovery: FLSA/TVPRA/RICO/1981)
        1. Plaintiffs H-2B workers sought protective order prohibiting inquiries into post-termination immigration status and employers; current address. Court granted protective order.
        2. Defendants arguments included:
          1. Hoffman Plastics makes immigration status relevant.
          2. Because civil litigation is equity supporting T visas, this may show bias/conflict.
          3. Resettlement benefits under TVPA is relevant to credibility because it could prove plaintiffs fabricated story to obtain benefits.
          4. No in terrorem effect because ICE already been apprised of status.
          5. In pari delicto on RICO claims.
          6. Even if plaintiffs were eligible for a protective order under the FLSA, there was no such entitlement for the other claims.
        3. Court held:
          1. Even if current immigration status were relevant to plaintiffs' … claims, discovery of such information would have an intimidating effect on an employee's willingness to assert his workplace rights.
          2. Collateral issue: "[i]t is entirely likely that any undocumented [litigant] forced to produce documents related to his or her immigration status will withdraw from the suit rather than produce such documents and face … potential deportation."
          3. Re Hoffman Plastics: "only concerned remedies available to undocumented workers under the NLRA, and not their standing to file a claim before the NLRB."
          4. Re credibility: "defendants' opportunity to test the [plaintiffs'] credibility … does not outweigh the public interest in allowing employees to enforce their rights (also irrelevant to class certification).
          5. Re in pari delicto: allowing immigration inquiry "tantamount to categorical ruling precluding foreign nationals from any protection against the type of abuses alleged."
          6. Plaintiffs not required to submit declarations indicating how disclosure would have an in terrorem effect.
            1. Would result in requirement that Plaintiffs disclose for motion exactly what they are trying to protect.
            2. Court in essence recognizes inherent in terrorem effect in these types of cases.
            3. Based on declarations re facts of case: "it is difficult to imagine a predicament more dire than described in each of the … declarations."
        4. The Court subsequently twice applied this reasoning specifically to the plaintiffs' T visa applications (plaintiffs agreed to produce only the factual narrative portions of their T visa affidavits, and the court prohibited disclosure of these narratives outside of the litigation). 2010 U.S. Dist. LEXIS 88047 (Aug. 26, 2010); 2010 U.S. Dist. LEXIS 124303 (Nov. 5, 2010).
    3. EEOC PRACTICE POINT: Certification of U visa. Unlike private plaintiffs, the EEOC has authority to certify a victim of human trafficking, sexual assault, and other enumerated crimes for U non-immigrant status. This can prove critical to combat retaliation against discrimination/trafficking victims who otherwise would be undocumented.
  5. Recommendations
    1. Train EEOC on the rights and remedies for victims of human trafficking.
    2. Train EEOC staff to identify trafficking victims, to ensure that the needs of trafficking victims – including access to legal counsel – are adequately met by the NGO community, and to make appropriate referrals for criminal prosecution.
    3. Ensure that the EEOC's advocacy in human trafficking cases is victim centered. The EEOC should specifically develop internal protocols to protect victims' safety and to avoid retraumatization.
    4. Develop joint protocols with the USDOJ Civil Rights Division to ensure that trafficking survivors are provided the full extent of restitution available and to encourage prosecutors to include any existing elements of discrimination in plea agreements.
    5. Prioritize litigation on behalf of trafficking survivors and victims of other forms of severe labor exploitation.
    6. Continue to confront retaliation aggressively, including bringing retaliation claims against defendants who take adverse action against plaintiffs once litigation has begun.
    7. Use joint employment principles to bring employment discrimination litigation against individuals and entities knowingly benefitting from trafficking in addition to the traffickers themselves.
    8. Where possible, include those who recruit, harbor, transport, and provide workers for forced labor as "employment agencies" in employment discrimination cases.
    9. Harness the power of the federal government to help collect judgments against traffickers, including using international channels to attach assets abroad.
    10. Certify victims of trafficking and other U visa-qualifying crimes for U visas in any case where there is overlap between the qualifying crime and the discrimination claim. Consider certifying U visas when the EEOC learns a charging party is a victim of a qualifying crime, even if that crime does not tie in directly with the discrimination claim.