Counteracting the Bias: The Department of Labor's Unique Opportunity to Combat Human Trafficking

Harvard Law Review, February 2013 | Go to article overview

Counteracting the Bias: The Department of Labor's Unique Opportunity to Combat Human Trafficking


In the 1990s, human trafficking received increased attention both internationally and in the United States. (1) With the passage of the Trafficking Victims Protection Act of 2000 (2) (TVPA), Congress committed the United States to attacking human trafficking on three fronts: prosecuting violators, protecting victims, and preventing trafficking. (3) The TVPA prohibits "severe forms of trafficking in persons," (4) of which it designates two types: "sex trafficking in which a commercial sex act is induced by force, fraud, or coercion" (5) and labor trafficking, which involves "the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." (6) Under the TVPA, three federal agencies have domestic antitrafficking responsibilities in all three primary areas (prosecution, protection, and prevention): the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of Labor (DOL). (7)

Both scholars and practitioners have criticized U.S. antitrafficking efforts as heavily influenced by antiprostitution and border control forces. (8) As Professor Dina Francesca Haynes notes, antitrafficking efforts within the United States have been inadequate largely because "the same persons charged with protecting [victims] are also charged with deporting undocumented persons, arresting prostitutes, and detaining and charging those working without authorization." (9) Unlike DOJ and DHS, DOL has no authority to address domestic sex trafficking, and it enforces labor standards without regard to workers' immigration statuses. In the early years of the TVPA, DOL's lack of authority in those areas corresponded with its anemic antitrafficking efforts. (10) Although DOL still does not occupy a traditional law enforcement position within the federal antitrafficking apparatus, under President Obama it has shown a greater willingness to take advantage of the enforcement and regulatory tools it does have to combat key components of labor trafficking.

Part I briefly describes the scope and consequences of labor trafficking in the United States. Part II explains how antiprostitution and immigration concerns have contributed to the shortcomings of antitrafficking efforts in the United States. Part III explores how DOL, without the distractions of fighting prostitution and enforcing borders, has begun to take a stronger role in combating labor trafficking through its enforcement of employment laws, its certification of victims' eligibility for U visas, and its regulation of nonimmigrant visa programs.

I LABOR TRAFFICKING IN THE UNITED STATES

The scope of labor trafficking in the United States is difficult to estimate. According to the State Department, trafficking in the United States "can occur in many licit and illicit industries or markets, including in brothels, massage parlors, street prostitution, hotel services, hospitality, agriculture, manufacturing, janitorial services, construction, health and elder care, and domestic service." (11) Confirmed numbers of individuals trafficked in the United States are impossible to obtain, but in the last decade, the federal government has settled on an estimated average of 14,500 to 18,000 per year. (12) In addition, DOJ tracks the victims certified each fiscal year under the TVPA to receive federal benefits and services. In 2010, 55% of such certified victims were male, reflecting a sharp increase in the certification of male victims since 2006, when only 6% were male. (13) The vast majority of victims certified in 2010--78%--were victims of labor trafficking; another 10% were victims of both labor trafficking and sex trafficking. (14)

The core of human trafficking is exploitation; trafficking does not necessarily involve movement of individuals across borders. (15) Nevertheless, noncitizens working in the United States are especially vulnerable: Undocumented workers may labor under conditions in which "employers take advantage of their status and fail to pay adequate (or any) wages, discriminate openly in the workplace, and violate labor and safety laws with impunity because of weak laws and weak employer enforcement efforts. …

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