Unmasking the Charade of the Global Supply Contract: A Novel Theory of Corporate Liability in Human Trafficking and Forced Labor Cases

By Bang, Naomi Jiyoung | Houston Journal of International Law, Spring 2013 | Go to article overview

Unmasking the Charade of the Global Supply Contract: A Novel Theory of Corporate Liability in Human Trafficking and Forced Labor Cases


Bang, Naomi Jiyoung, Houston Journal of International Law


  I. INTRODUCTION   II. GENERAL BACKGROUND      A. Forced Labor Statistics and Background         Information      B. History and Evolution of the Global Supply         Contracting System  III. ECONOMIC REALITIES TEST      A. Basic Theory of Joint Employment      B. Common Law Test      C. Introducing the Economic Realities Test   IV. PILGRIM ECONOMIC REALITIES APPROACH      A. The Global Supply Contract and Dependent         Contractors    V. THE TVPRA AND ECONOMIC REALITIES TEST      A. TVPRA--Relevant Causes of Action (Global         Contracting "Forced Labor" context)      B. TVPRA Legislative History--Clear Intent to         Abolish Slavery      C. Legislative History of the FLSA  VI. CONCLUSION 

I. INTRODUCTION

In February 2007, an investigative trip to China by members of Students and Scholars Against Corporation Misbehavior (SACOM) resulting in the plug being pulled on Mickey and his other Disney pals. (1) As a result of SACOM's 2006 report outlining the "working class hell" conditions suffered by the laborers who manufactured Disney's products, and subsequent media outcry, Disney discontinued its relation with the plant. (2) It is difficult to reconcile the image of Disney's delicate princess dolls, complete with dainty accessories, in the hands of exhausted, sick workers working and living in a dangerous substandard factory and dormitory. (3) Yet, the Disney factory is representative of the overseas factories that constitute pivotal links in the global supply chain of many U.S. and foreign corporations.

Although the global economy has enabled average people access to a diverse and ready supply of inexpensive clothing and electronics, the dark reality is that this access comes at great human expense. The by-products of these cheap products are human trafficking and forced labor. (4) It is not just global criminal gangs that use electronic communications and various modes of transport to exploit vulnerable and desperate people living in poor countries. Although less visible, corporations using global production chains, containing multiple levels of subcontracting and outsourcing, breed human trafficking and forced labor. (5) Corporations driving this dynamic easily avoid accountability given the extraterritorial location of the suppliers, and the appearance of "arm's length" contracts with their suppliers. (6) As Jorge Bustamante rightly points out, "[t]he practice of subcontracting ... labour can also be a gateway for the impunity for abuse of and violations against migrant workers." (7) The caginess of corporations in avoiding liability in the global contracting setting cannot be underestimated. Because corporations have circumvented the law, victims must find new theories of liability. This Article proposes a path of potential relief.

Courts should apply the economic realities test as a vehicle to determine the existence of joint employment between a corporation and their contractor. (8) Under the theory of joint employer liability, corporations would be equally responsible for their contractors' acts in trafficking/forced labor cases pursuant to the Trafficking Victims' Protection Reauthorization Act (TVPRA). (9) Despite attacks from defense counsel, the economic realities test is legally sustainable and legislatively sound. This test was born in response to the Fair Labor Standards Act (FLSA) (10) and other progressive federal labor statutes that embodied strong Congressional intent to improve working conditions, and decrease economic advantage to those violating fair labor standards. (11) Numerous United States Supreme Court and circuit rulings refined and expanded the definition of "joint employer" and shifted the focus of inquiry away from employer control to the dependency of the worker. (12) The TVPRA's vivid legislative history shows congressional concern to decrease human trafficking, punish those who force labor, and address the problem of the foreign contractor. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Unmasking the Charade of the Global Supply Contract: A Novel Theory of Corporate Liability in Human Trafficking and Forced Labor Cases
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.