Some ‘Human Trafficking’ Claims Undermine Real Atrocities – Bloomberg Law

“Human trafficking” brings to mind images of “coyotes,” ferrying migrants across the border, women held in sex trade bondage, and impoverished foreign workers trapped in brutal working conditions. These abuses happen in America, and they require a strong response.

To combat these evils, Congress enacted the Trafficking Victims Protection Act of 2000 “to combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude.” The legislation created criminal offenses for forced labor and sex trafficking and has since been amended to permit trafficking victims to bring civil lawsuits.

Now known as the Trafficking Victims Protection Reauthorization Act, the law contains severe penalties, with no damages limit. But no law, however well-intentioned, is safe from the ingenuity of trial lawyers.

Emboldened by the potential of unlimited damages and guaranteed attorneys' fees, plaintiffs' lawyers have taken advantage of the TVPRA's sometimes imprecise language to turn ordinary employment disputes into hyperbolic lawsuits alleging “human trafficking” and “involuntary servitude.” These lawsuits burden the legal system and impose real costs on the public.

Costs of Human Trafficking Claims

Take health care, for example. America has faced an ongoing shortage of nurses and other health care professionals for decades. Congress responded by creating special work visa programs allowing such workers to come to the US and become permanent residents. The programs particularly benefit Filipinos, who are often trained in the US,, speak at least some English, and are familiar with American culture.

The relationship is mutually beneficial, with Americans receiving improved health care, and Filipinos obtaining the opportunity to advance their careers and earn higher wages in the US. Today, approximately one out of every 20 registered nurses in the US is from the Philippines.

Getting those professionals to the US doesn't happen by itself. American staffing companies fill the much-needed role of matching international health-care workers with the facilities most in need. That effort requires significant organization and investment, including language and acculturation training to ensure the employees successfully integrate into their jobs.

The Role of Staffing Companies

The staffing company manages visa and legal requirements, as well as transportation and housing arrangements. The role staffing companies play in this process is critical, as hospitals lack the resources to recruit international workers or sponsor visas.

One such company is Health Carousel LLC. Bearing considerable costs, Health Carousel provides these services to the international professionals it hires, and once they arrive in the US, provides them with a cash bonus, and medical and life insurance. The contracts are typically for three to four years, with standard non-compete and non-solicitation provisions, and require that employees who quit early reimburse the company for its investment in them.

Unsatisfied with the usual legal remedies available to employees, American trial lawyers have discovered that discontented foreign-educated employees can use the TVPRA to claim they are victims of slavery. Lawyers for three former employees have leveled such an accusation against Health Carousel, seeking in federal court to create a class action on behalf of all foreign nationals Health Carousel has employed in the US.

By using the TVPRA's unlimited damages and attorneys' fees provisions in tandem with the ability to multiply damages through a class action, these lawyers seek a jackpot that would be unavailable to American employees who sued upon the exact same allegations.

Not What Congress Envisioned

This case is not what Congress envisioned when it legislated against involuntary servitude. As the Third Circuit observed in Zavala v. Wal-Mart Stores Inc., the phrase “involuntary servitude” was “intended to cover those forms of compulsory labor akin to African slavery.”

The Sixth Circuit listed other examples in US v. King of modern involuntary servitude, including “labor camps, isolated religious sects, or forced confinement.”

The plaintiffs have alleged nothing of the sort against Health Carousel. Their allegations are the kind of disputes employees ordinarily have with their employers, and not the stuff of slavery. According to the plaintiffs themselves, they were paid between $51,000 and $68,000 per year, well in line with Ohio's average annual salary of about $58,000.

“Involuntary servitude” under the TVPRA means exactly what an ordinary person thinks it means: that a worker was unable to leave the job voluntarily. Someone who is free and able to quit the job without facing actual harm beyond the ordinary financial pressures of the free market, is not the victim of involuntary servitude.

Health Carousel is hardly the only target. According to the Human Trafficking Legal Center, 458 civil lawsuits were brought under the TVPRA between 2003 and 2020. Only 14% (47 cases) resulted in a judgment or default judgment in the plaintiffs' favor. Case filing rates began exploding in 2018.

Given the real crimes targeted by Congress, this abuse of the TVPRA is disturbing, especially considering the high percentage of cases that are dismissed, found in defendants' favor, or settled without any blameworthy evidence.

In the 1980s, federal courts began to get wise to trial lawyers' abuse of RICO laws to turn garden-variety contract disputes into faux organized crime claims and began giving them the skeptical scrutiny they deserved. Another page needs to be taken from that book, and a hard judicial look given to ordinary employment disputes being turned not just into a federal case, but a federal slavery case.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Trey Mayfield is an attorney with Juris Day. A former assistant US attorney, his practice includes constitutional and complex litigation, white collar crime, and whistleblower cases, and ranges from state trial courts to the US Supreme Court.