ATEST Suggests Ways to Strengthen U.S. Labor Department during “End Labor Trafficking National Online Dialogue”
ATEST submitted five key ways the U.S. Labor Department can work to combat human trafficking, during the department’s online call for suggestions this month. ATEST’s submissions follow recommendations made to the Biden-Haris transition team. Our suggestions focus on prohibiting the import of goods tainted by forced labor, increasing workplace inspections, better COVID workplace protection for workers, strengthening regulation of those who recruit foreign laborers for jobs in the U.S., and reforming the nonimmigrant work visa program.
Expand the role and remit of DOL/ILAB lists
The Administration should work with Congress to require DOL/ILAB to include not just commodities and goods but inputs produced with child or forced labor at any point in the production chain on their biennial lists. As mentioned, the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018 (P.L. 115-425) suggested that DOL/ILAB include inputs made with forced labor “to the extent practicable,” but additional authorizations and appropriations are needed to make this requirement feasible. ATEST recommends DOL/ILAB:
● Expand the List of Goods Produced by Child Labor or Forced Labor to include any good produced with child or forced labor at any point in the production chain;
● Specify where in the production chain the forced or child labor occurred; and
● Support this additional mandate by requesting relevant additional resources, so as not to impact the quality of the lists by imposing significant new unfunded requirements.
Increase the number of inspectors to better identify cases
DOL Wage and Hour Division (DOL/WHD) and DOL Office of the Inspector General (DOL/OIG) inspectors are in a unique position to identify cases of forced labor in workplaces. ATEST supports the U.S. Advisory Council on Human Trafficking’s recommendation that DOL increase the number of DOL/WHD and DOL/OIG inspectors across the country to better identify and refer possible trafficking cases. To meet this recommendation, DOL should:
● Request additional funding to increase the number of DOL/WHD and DOL/OIG inspectors nationwide;
● Reinstate DOL authority to investigate potential human trafficking and labor exploitation claims without the requirement to coordinate with another law enforcement agency; and
● Consult with the U.S. Advisory Council on Human Trafficking, unions and community-based providers to develop and institute mandatory uniform training policies on forced labor for labor inspectors and other frontline DOL staff who may come into contact with human trafficking survivors nationwide.
Extra worker protections in light of COVID
Victims of forced labor lack control over the safety of their working conditions, including potential exposure to COVID-19. These workers are less likely to be provided adequate sanitary measures, personal protective equipment (PPE), social distancing and other workplace safety measures or access to testing and medical care. At the same time, DOL/OSHA is extremely underfunded, is yet to issue enforceable workplace safety rules related to COVID-19 (and CDC guidelines remain advisory only) and has done almost nothing to apply existing workplace safety protections to the COVID-19 context. It is therefore critical that the next Administration issue and enforce an Emergency Temporary Standard on how to protect workers from COVID-19, ensure that all frontline workers—including industries where trafficking risks are highest, such as for migrant farmworkers and in meatpacking—have priority access to personal protective equipment (PPE) and COVID-19 testing and integrate protection of worker health and safety rights into all anti-trafficking initiatives. To give just one other salient example, workers who are at risk of trafficking are more likely to work outside and are dying in increasing numbers due to rising temperatures, yet there is no federal heat stress standard. Frontline workers also need to be given whistleblower protections for reporting cases to DOL/OSHA inspectors and others
Strengthen the regulation of foreign labor recruiters
Foreign labor contractors are increasingly relied upon to facilitate the movement of labor from one country to another and strong statutory fixes as discussed above are necessary. However, there is a lot that can be done through agency intervention in this critical issue as it is well documented that foreign labor contractors are often complicit with or directly involved in the trafficking of workers. Most problematic is that contractors often charge exorbitant fees for their services, forcing workers into debt bondage, falsifying documents and deceiving workers about their terms and conditions of work, ATEST recommends the Administration implement requirements for employers and contractors that protect the rights of workers, especially temporary or guestworkers, and eliminate financial hurdles to safe employment by:
● Requiring employers to pay all recruitment-related costs across all visa categories and implement policies where the burden is on the employer to proactively document to DOL that any foreign labor recruiter they utilize is not charging workers fees;
● Creating a system where workers can easily report if they are charged fees, and make information about bad acting employers/recruiters publicly available;
● Establishing mechanisms for administrative, civil and criminal remedies for foreign workers exploited by recruiters;
● Issuing guidance clarifying that the Fair Labor Standards Act (FLSA) requires all recruitment fees across all visa categories to be repaid in the first workweek to the extent necessary to bring wages up to the minimum. These repayments cannot take the form of loans to workers;
● Issuing a memo to all Wage and Hour field offices reminding them of the agency’s authority to enforce the FLSA with regard to any FLSA-covered worker, regardless of visa category, even when there is no specific regulatory authority with respect to specific visa program rules; and
● Implementing a policy across agencies that regardless of recruitment fees paid or reporting of illegal recruitment practices, workers will not be denied visas.
Revise nonimmigrant work visas
Limited protections provided by nonimmigrant work or guestworker visas increase the vulnerabilities of foreign workers to forced labor. The COVID-19 pandemic has only increased these vulnerabilities by making it more difficult for workers to leave abusive employers. All workers in the United States should be able to work for employers that implement worker-centered protections, including COVID-19 protections, be able to exercise their freedom of association rights without fear of retaliation, and to blow the whistle on abusive employers or and to leave dangerous working conditions without losing visa protections. ATEST recommends DOL implement the following policies to protect guestworkers:
● Increase protections for guestworkers so they are able to leave their employers if they do not implement and follow worker-centered COVID-19 guidelines or if employers engage in workplace violations such as wage theft or retaliation for speaking out against violations;
● Automatically extend worker visa authorizations should a guestworker be laid off due to COVID-19; and
● Work with Congress to reform the system of temporary visas to untie visas from employers, allowing workers to leave abusive and exploitative employers without fear of deportation. This situation has been exacerbated during the COVID-19 pandemic but has been an issue since well before the pandemic.