October 01, 2016 Dialogue

Grantee Spotlight - Pursuing Justice for Victims of Labor Trafficking

A Holistic Response to a Hidden Problem

By Stephanie Dorenbosch and Matthew Lamberti

Introduction

Since 2014, Friends of Farmworkers, which receives grant funds from the Pennsylvania IOLTA Board, has identified and served over 100 victims of human trafficking in Pennsylvania. Without a dramatic rise in gang activity, prostitution rings, or international smuggling cartels in the state, how did a civil legal aid provider with just ten staff members become a leading advocacy organization for trafficking victims in such a short time? It was only a matter of knowing where to look.

Friends of Farmworkers (FOF) has represented thousands of low-wage migrant and immigrant workers over the past 40 years in civil cases related to their employment, often involving wage theft, minimum wage and overtime violations, workplace discrimination, sexual harassment, hazardous working conditions, and retaliation. When we launched an immigration program in 2013, we had the combined expertise in employment and immigration law that was necessary to analyze cases of labor exploitation through a trafficking lens and serve our clients accordingly.

Hidden in Plain Sight

Many barriers stand in the way of advocates recognizing these situations as trafficking, not least of which is that clients never self-identify as trafficking victims. Instead, when they seek legal help, they initially present only bits and pieces of the real problem—maybe a complaint about sexual harassment or a question about immigration status—and advocates need to learn to spot the subtle warning signs and know when to dig deeper to identify trafficking situations. As we have learned at FOF, sometimes where there's smoke, there's fire.

Labor trafficking is a form of workplace exploitation in which fraud, force, or coercion is used to extract labor against the victims' will. Put another way, labor trafficking is involuntary servitude:  the trafficker is profiting by forcing victims to work under unlawful conditions.[1] Sex trafficking tends to steal the public spotlight, but labor trafficking is even more pervasive in the United States:  the Department of State (DOS) estimates that every year, between 17,500 and 60,000 individuals are brought into the U.S. in labor trafficking schemes, and hundreds of thousands more are trafficked within the country.

Trafficking can take many forms, but certain myths and misconceptions about what it really looks like can stand in the way of advocates, the public, and the victims themselves recognizing labor trafficking situations.

People can be trafficked without being physically restrained.

The legal standard for trafficking does not require that workers be physically unable to leave the premises. Traffickers rely on many other tactics to keep their victims working hard and afraid to leave, including violence or threats of violence, threats of arrest by police or immigration enforcement, inflated or invented debts that victims must pay off, blacklisting from other jobs, psychological abuse and humiliation, false promises of more pay or immigration status, or confiscated identity documents. With all of these other tools at their disposal, physical restraint is often not necessary.

People can be trafficked without being smuggled.

While many trafficking schemes do involve transporting individuals across a border or to a work site, that in itself is actually smuggling, not trafficking. This means that victims may accept a job offer and travel under their own free will and only be subject to trafficking afterwards, as has been the case for many of our clients. 

People of any immigration status can be trafficked.

Perhaps in part because of the conflation of smuggling and trafficking, a common misconception is that all victims of labor trafficking are undocumented immigrants. In fact, one of the largest labor trafficking rings ever uncovered in the U.S. involved hundreds of farmworkers brought into the country legally on seasonal work visas.[2] Even U.S. citizens can be trafficked for labor,[3] but it was FOF's focus on immigrant workers and potential immigration remedies available to them that led us to trafficking work.

Underutilized but Powerful Remedies

In 2000, the Trafficking Victims Protection Act (TVPA) defined labor trafficking as a federal crime, provided civil remedies, and made available 5,000 “T visas” for trafficking victims per year. T visas change lives, as recipients acquire a stable immigration status that allows them to work toward lawful permanent residence and citizenship and to petition for family members to join them in the U.S. Over the last few years, FOF has filed 44 successful T visa applications, secured legal status for almost 100 individuals, and helped reunite dozens of family members.

Besides immigration remedies, the TVPA also provides a private right of action to sue for damages, including attorneys' fees, and a statute of limitations of 10 years. Similar state laws have been passed in recent years, including in Pennsylvania. The federal government also funds social services for victims to help them separate from their traffickers and get back on their feet.

In many cases, obtaining these remedies is easier said than done. In 2015, the Department of Homeland Security issued just 516 T visas. According to the most recent Trafficking in Persons report by the DOS, there were just 257 federal prosecutions of traffickers in FY 2015, of which only nine involved predominantly labor trafficking. Additionally, we are aware of only a handful of civil lawsuits filed nationwide. These numbers are shockingly low compared to the hundreds of thousands of trafficking victims that the DOS estimates are in the U.S. today.

The Friends of Farmworkers Model

As the numbers above indicate, immigrant victims of labor trafficking are extremely reluctant to come forward, for reasons that are perfectly rational in their situation. For our clients, trafficking exists because of the vulnerabilities they face at the intersection of the two legal worlds of employment and immigration law. As the only legal services provider in Pennsylvania with expertise in both areas, at FOF we have been able to apply our substantive knowledge and our years of familiarity with working with immigrant clients to begin to build a robust anti-trafficking program.

Client-centered representation

Our clients’ reluctance to report even the most egregious abuses is generally based on fear of their traffickers. Many of them have been subjected to constant threats and abuse for many years and may fear for their own and their families' safety. Labor trafficking schemes often involve a network of employers, labor contractors, and recruiters that can reach back to the worker’s home country and affect entire families or communities. Additionally, our clients are often unfamiliar with the U.S. legal system and afraid of deportation or other law enforcement.

FOF's immigration practice is therefore the cornerstone of our representation of trafficking victims, although the organization as a whole is primarily focused on employment law remedies. Until they attain stable immigration status, our trafficking clients are generally much too fearful of their traffickers to bring a civil lawsuit, even if they might lose claims because of the delay. The first step in representing them, therefore, is applying for T visas.

Overcoming barriers

These visa applications are time intensive for both the attorney and client and often require extended communications on very sensitive topics. Many of these cases also require the attorney to have a nuanced understanding of the particular power dynamic between the victim and the trafficker. Because of these particular needs of our clients, we are committed to ensuring that all of our services are trauma-informed, culturally specific, and language-accessible. All of our staff who interact with clients speak Spanish, the primary language of most of our clients. When clients live and work in sparsely populated rural areas, our staff travel to meet with them in their communities.

A comprehensive approach

Responding to client needs also involves connecting individuals, when they are ready, to other crucial services, including mental health counseling, housing assistance, and access to public benefits. This service model involves close cooperation between our staff and social service providers throughout the state.

Advocacy and information sharing

As part of that cooperation, we participate regularly in statewide and national anti-human trafficking coalitions. Our legal staff uses the resources gained through these collaborations to provide education on labor trafficking to workers and to other service providers who may encounter victims of trafficking but do not yet know how to identify them.

Conclusion

FOF’s unique representation model came together in just a few years, but is actually the result of years of experience, collaboration, and education. We are attempting to fill a particular gap in services in Pennsylvania for labor trafficking victims, and we welcome the opportunity to share our experiences and knowledge with—and learn from—other legal aid providers across the country.


[1] See Trafficking Victims Protection Act, 22 U.S.C. 7101 et seq.

[2] See EEOC v. Global Horizons, Case No. 11-CV-257 (D. Haw. Dec. 19, 2014). See also Close to Slavery: Guestworker Programs in the United States, Southern Poverty Law Center 2013.

[3] See, e.g., Smith v. Bulls-hit Ranch & Farm, Case No. 3:12-cv-449-J-34TEM (M.D. Fla. Oct. 18, 2012).

Stephanie Dorenbosch

Staff Attorney, Friends of Farmworkers

Stephanie Dorenbosch has been a Staff Attorney at Friends of Farmworkers since 2011 and helped develop the organization’s anti-labor trafficking program.

Matthew Lamberti

Staff Attorney, Friends of Farmworkers

Matthew Lamberti, a Staff Attorney at Friends of Farmworkers, also contributed to this article.