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A Collision of Economic Realities and the Fight against an Underground Force

Published on Jun 24, 2019 at 3:55 pm in Employment Law.

Over the past several months, national attention has turned towards Robert Kraft, owner of the New England Patriots, who was recently charged with two misdemeanor counts of soliciting prostitution after paying for and receiving sexual services from the Orchids of Asia Day Spa in Jupiter, Fla. Each count carries a maximum jail term of one year, along with 100-hours of community service and a $5,000 fine.  At the time Robert Kraft was arrested, the Orchids of Asia Day Spa was under police surveillance in connection with a human trafficking and prostitution investigation that ultimately led to the uncovering of a prostitution operation within 10 Central and Southern Florida day spas in direct connection to China.

Kraft was due to appear in court on March 28 to accept or decline a proposed prosecution deal extended to him by the Palm Beach County Attorney’s Office. Acceptance of the deal could have led to the prosecution dropping criminal charges against Kraft, but required Kraft to admit that prosecutors have enough evidence against him to convict him if he went to trial. In this scenario, Kraft must have also agreed to a sexually transmitted diseases screening, completed an education course on prostitution, and completed 100-hours of community service. Kraft turned down the plea deal. Since then, video evidence including the on-site surveillance tapes and video evidence used to identify Kraft during the traffic stop has been thrown out of the case.

While the fallout continues for the NFL and the Kraft camp, the bigger picture cannot be ignored. This unfortunate incident exposed the reality of several other complex and disturbing issues plaguing our society. In this series we will explore those issues such as the harassment and abuse of migrant workers and undocumented victims, forced labor, and human trafficking. We’ll also discuss the use of hierarchical power as the differential between the abuser and victim, signs of forced labor, and the role of the Equal Employment Opportunity Commission in reporting and its jurisdiction over employers’ exploitation of workers.

The harassment and abuse of migrant workers and undocumented individuals is not new. Instead, the issue resurfaces and is magnified as high profile events, such as the Kraft case, arise.

The groups most vulnerable to harassment and abuse are also the least protected. The individuals within guest-worker programs, agricultural, domestic, and construction undocumented immigrant worker groups tend to be the most vulnerable to harassment and abuse. These groups are also the least protected and the most impoverished. Abuse of these groups occurs on some level every day and the ramifications extend far beyond the workplace, such as denial of adequate housing and basic healthcare and sexual assault.

The language barrier and the lack of an understanding of their rights are common issues faced by these groups of individuals, thereby making them greatly disadvantaged and vulnerable to exploitation. According to the Florida authorities, the migrant workers arrested in the Kraft case are currently serving time for prostitution – illegal acts which they were allegedly forced by their employer to perform. Like in most forced labor and trafficking situations, the victims are brought into the U.S. with the promise of stable, legitimate jobs that pay fair wages and yield opportunities for their families.

A recent class action lawsuit filed in U.S. District Court against Sarbanand Farms, one of the largest blueberry farms in the U.S., and its parent company, Munger Brothers of California, alleges that the companies brought in 600 Hispanic workers on the H-2A visa non-immigrant program for seasonal work to the Whatcom County farm, where they were subject to threats of deportation and intimidation. The workers were exposed to harsh work and living conditions such as smoky air quality from surrounding forest fires, limited access to water, extortion for meals of poor quality and minimal portions, and denied access to physicians when requested, which directly resulted in a migrant worker’s death. The companies fired the workers after they went on strike, and according to the lawsuit, gave workers one hour to vacate the premises under the threat of calling the immigration authorities.

The H-2A and H-2B (non-agricultural visa) programs can be controversial given that foreign workers are leveraged to the employer and all benefits such as transportation, living accommodations, and renewal of visas are controlled by the employer, making it difficult for the worker to vacate the situation even when the employer violates government requirements and/or the worker’s human rights.

According to the U.S. Immigration Primer for State Policy Makers presented at the National Conference of State Legislatures in June 2018, nearly 140,000 temporary H-2A visas were issued in 2015. H-2B visas are capped and set by Congress at 66,000 per fiscal year. An estimated 11 million unauthorized immigrants currently live in the U.S. and are at risk of experiencing workplace abuse or a forced labor situation.

The leveraged relationship between employers who experience drastic labor shortages and the employees desperately looking for a way to provide new opportunities for their families is an unfortunate scenario of competing realities. Our global economy is vastly fueled by the criminal use of documented and undocumented workers.  Occurrences between the harassment or abuse of these individuals and the use of forced labor and human trafficking are non-mutually exclusive violations that are potentially fatal to victims and detrimental to the stability of our economy. Governments around the world are working to better address the human rights of the most vulnerable living among us. In part 2, we’ll discuss the use of the hierarchical position of an employer or high profile violator and the signs of forced labor.

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