Now it’s a closer question. In fact, there is a very good chance you would have a claim against her for forced labor.
The forced labor section of the Trafficking Victims Protection Act, codified at 18 U.S.C. § 1589, makes it unlawful when someone “knowingly . . . obtains the labor or services of a person . . . by means of serious harm or threats of serious harm to that person or another person.” It defines “serious harm” to include “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.” And victims have a private right of action under 18 U.S.C. § 1595.
Under these statutes, civil and criminal actions have been brought over forced labor performed by:
- live-in housekeepers (Aneiros v. Viormar Trading Corp., No. 1:24-CV-20772, 2024 WL 4103921 (S.D. Fla. Sept. 6, 2024))
- veterinarians (Martinez-Rodriguez v. Giles, 31 F.4th 1139 (9th Cir. 2022))
- farm workers (Garcia v. Stemilt Ag Servs., LLC, No. 2:20-CV-0254-TOR, 2022 WL 2760796 (E.D. Wash. July 14, 2022))
- detainees in private detention facilities (Menocal v. GEO Grp., Inc., 882 F.3d 905 (10th Cir. 2018))
- construction workers (Lopez v. Janus Int’l Grp., Inc., No. 1:23-CV-01671 (WBP), 2024 WL 4294638 (E.D. Va. Sept. 24, 2024))
- survivors of cult-like organizations (United States v. Dickey, 52 F.4th 680 (7th Cir. 2022))
- attendees of residential treatment centers (Sherman v. Trinity Teen Sols., Inc., 84 F.4th 1182 (10th Cir. 2023))
Some civil plaintiffs have even successfully certified their lawsuits as class actions. See, e.g., Menocal v. GEO Grp., Inc., 882 F.3d 905 (10th Cir. 2018); Owino v. CoreCivic, Inc., 60 F.4th 437 (9th Cir. 2022); Magtoles v. United Staffing Registry, Inc., No. 21CV1850KAMPK, 2022 WL 1667005 (E.D.N.Y. May 25, 2022). And, while no lawyers or other white-collar workers appear to have brought such an action, nothing in the statute suggests they could not.
The key is coercion, and especially the use of sticks as opposed to carrots. Large law firms work their associates hard, but the main incentive is a particularly delicious carrot, in the form of very high pay.
Where employers get in trouble is when they use sticks, including, as in the opening hypothetical, threatening to require repayment of alleged debt and threatening to report someone to authorities. E.g., United States v. Dann, 652 F.3d 1160, 1162 (9th Cir. 2011); Paguirigan v. Prompt Nursing Emp. Agency LLC, 286 F. Supp. 3d 430, 438 (E.D.N.Y. 2017); Francis v. APEX USA, Inc., 406 F. Supp. 3d 1206, 1211-12 (W.D. Okla. 2019), e.g., Foukas v. Foukas, No. 20-CV-05516-NCM-SJB, 2024 WL 3813253 (E.D.N.Y. July 26, 2024) (employer threatened to report employees to immigration authorities and IRS); Ali v. Khan, 336 F. Supp. 3d 901 (N.D. Ill. 2018) (allegations threats to call immigration authorities against domestic worker). But the statute is sufficiently broad that other threats, such as threats of ostracism from a community, threats of character assassination, threats to future career prospects, and the like, have been held to be sufficiently coercive. E.g., S. v. Ali, No. 3:23-CV-05074-JSC, 2024 WL 150728, at *5 (N.D. Cal. Jan. 11, 2024) (alleged threats included “spreading rumors of her infidelity, which would cause her to be ostracized and subject to physical harm”); Schneider v. OSG, LLC, No. 22CV7686AMDVMS, 2024 WL 1308690, at *6 (E.D.N.Y. Mar. 27, 2024) (alleged threats by defendant to “shame disobedient students and ostracize those who left the organization”); United States v. Dann, 652 F.3d 1160 (9th Cir. 2011) (threat of false accusations of theft); Treminio v. Crowley Mar. Corp., 707 F. Supp. 3d 1234 (M.D. Fla. 2023) (threats to future career prospects).
Notably, the legislative history of the TVPRA makes clear that an expansive conception of coercion was a deliberate choice by Congress. Previously, the law was generally that, even if an employee’s “will to quit has been subdued by a threat which seriously affects his future welfare,” the employer could not be punished, so long as the employee “still has a choice, however painful.” United States v. Kozminski, 487 U.S. 931, 950 (1988) (quoting United States v. Shackney, 333 F.2d 475, 487 (2d Cir. 1964)). In enacting the TVPRA, Congress recognized that where the “threat to future welfare” is sufficiently serious, the fact that an employee has the theoretical ability to quit is not particularly meaningful.
To be sure, that doesn’t mean that employers can never threaten bad outcomes, such as firing an at-will employee, as such threats would not meet the statute’s definition of “serious harm.” See, e.g., Treminio, 707 F. Supp. 3d at 1253 (“mere warnings of unfavorable but legitimate consequences do not rise to the TVPRA’s requirements”). That said, the question isn’t where to draw the line—Congress has drawn it at “serious harm”—but whether a given set of facts crosses it. And the best practice for employers is to make sure they never come close to it.
