It’s Not ‘Just a Bad Job’: Identifying and Combating Labor Trafficking
4.8.2022
José[1] had been working construction for a number of years when COVID-19 restrictions shut down all nonessential sites. His employer wasn’t willing to follow the new rules. He papered the windows of the construction site in Queens, so no one could look in and, after dropping off the workers, he locked the fence around the site, so no one could get out. The workers were not given proper safety equipment, and Jose received chemical burns on his arms – burns so severe he eventually was hospitalized and treated with morphine for the pain. When he told his employer he had been hurt, the employer made fun of him and told him to tough it out.
Violetta, a home health aide, was hired to care for an elderly man who required assistance to stand and perform basic bodily functions. She was promised $20 an hour and a private room in his home in Brooklyn. After she moved in, her pay stopped. She continued to work, caring for the man 13 hours a day, seven days a week. Her employer kept promising to pay her in the future and would give her an occasional $100 to “tide her over.” Violetta felt trapped because she was employed in the same location that gave her housing. If she quit she would lose all the income she had as well as her housing, and she was fearful of looking for new housing during the pandemic.
George was hired by a restaurant on Long Island and worked his way up from dishwasher to cook. George knew he wasn’t being paid minimum wage, but he was afraid of his boss. The employer would talk about his mafia connections, and how he could make somebody disappear: “I could cut off your head and throw your body in the sound and no one would know.”
These employers are clearly in violation of labor protection laws, among other potential illegal acts. But what elevates these situations to the crime of labor trafficking is the ways in which their employers engineered circumstances so the workers felt they had no choice but to remain at their exploitative jobs. In José’s case, his employer had taken a copy of his passport upon hiring and threatened to call immigration and have him deported if he did not continue working, effectively coercing him into continued employment. In Violetta’s case, the fraudulent future promise of payment induced her to stay, and when she said she wanted to quit, her employer threatened her, saying she would discredit her to the placement agencies and she would not be able to obtain another job. George tried to quit multiple times, but the employer told him he had to stay: “You know what I can do to you. I know where you live.” In George’s case, the employer’s implied and direct threats of violence induced him to stay.
Despite these threats, it may seem incomprehensible why anyone would stay in a job under such horrific circumstances. Taking into account the individual vulnerabilities can help to understand the totality of circumstances. For José, this was his first job in the United States. His boss was his only source of information about José’s rights as a worker. When his boss told him he wasn’t entitled to overtime because he was undocumented, José believed him. For Violetta, while she had immigration status, she had been homeless before and was terrified of being unhoused while a pandemic was sweeping the city. For George, when his employer said that George could not report what was happening because he didn’t have “papers” and the cops would be on the employer’s side because he is a U.S. citizen, George believed him. George knew from the news that there had been raids of immigrant workers and believed that speaking to police would open him up for arrest and deportation.
These circumstances are coupled with the more subtle mechanisms of power and control.[2] Labor traffickers often use insults to belittle workers, undermining their confidence and further subjecting them to their control, telling them things like “No one will believe you” and “No one else would hire you.” Indicators of potential trafficking can include the employer instructing workers not to talk about what they are told, attempting to isolate them from information that may conflict with what the employer has claimed is true, such as: “You don’t have any rights in this country.” These employers often exert extreme levels of economic control as well, paying such low wages and in irregular intervals that workers cannot make regular rent payments, despite being fully employed. Trafficking victims have reported being offered substandard housing by the employer, including an individual who lived in the unfinished basement of a bodega, with only a commercial sink for bathing; another individual slept on the floor of an auto repair shop, breathing in toxins all night. The employers compounded this insult by calling it benevolence and expecting gratitude, “I helped you; you owe me.”
Both sex and labor trafficking are defined in federal and state law as involving the use of force, fraud or coercion to compel an individual to work against their will.[3] Media coverage generally focuses on cases of sex trafficking, which has historically been identified in higher numbers by law enforcement targeting commercial sex, hiding the extent to which many vulnerable workers experience forced labor. In New York, many of the larger district attorney offices have units that specialize in handling both labor and sex trafficking cases and often include a social worker. The challenge of proving a criminal case beyond a reasonable doubt should not stop those working with survivors from advocating on their behalf to get the relief to which they are entitled under the law.
For civil cases, the Human Trafficking Pro Bono Legal Center has an excellent hotline for attorneys and a database of past cases.[4] Additionally, immigrant victims of forced labor may be eligible for a U or T visa if they cooperate with law enforcement in the detection, investigation or prosecution of the crime. CAST-LA[5] has excellent training materials for attorneys on U and T nonimmigrant status.
There are a number of tools for identifying potential victims of forced labor.[6] Immigration attorneys should screen clients for past negative employment experiences, particularly when they were recent arrivals, as studies suggest a high percentage of undocumented immigrants experience one or more mechanisms of trafficking.[7]
Interviewing trafficking victims can be highly emotionally charged. It is recommended that interviewers show empathy and compassion for victims, use culturally appropriate practices and techniques that do not re-traumatize the individual. The U.S. Department of Justice Office for Victims of Crime has some excellent resources on trauma-informed practices.[8]
It is also strongly recommended to connect trafficking victims with a social services provider. Victims of forced labor, as with domestic abuse, often feel high levels of guilt and self-blame for the acts that were committed against them. A therapeutic mental health provider can help reframe the feelings of guilt victims may have about why they believed their traffickers, the feelings of self-blame that they should have known better and other trauma resulting from the manipulations of their employers.
If you suspect there is labor trafficking going on in a location, or that an individual has been labor trafficked, you can refer them to the New York State Department of Labor Division of Immigrant Policies and Affairs for an assessment.[9] If you have sufficient identifying information, and believe they meet the definition of trafficking, you can submit a victim confirmation form to the New York State Response to Human Trafficking Program.[10]
An employer’s threat to call immigration to coerce an employee into continued work is not “just a bad job.” It’s against the law. Threatening an employee, falsely promising a future benefit or using actual force or threats of force to coerce them into employment is a crime, and lawyers have an obligation to understand these laws and advocate on behalf of those who are exploited.
This article is part of NYSBA’s ongoing efforts to educate lawyers and the public on identifying victims of human trafficking and the laws that exist to help them. This article is a follow up to the CLE presented in January 2022, “The Impact of COVID-19 on Human Trafficking in the Labor Market.” The article and CLE are part of NYSBA’s work in conjunction with the New York State Interagency Task Force on Human Trafficking. To access the CLE, please visit https://staging.nysba.cliquedomains.com/products/the-impact-of-covid-19-on-human-trafficking-in-the-labor-market.
Nora Cronin is an adjunct professor at John Jay College of Criminal Justice and the development director for the nonprofit organization Friends of + POOL, which is dedicated to the creation of a self-filtering floating pool in the East River of New York City. She was formerly the assistant director of the Bureau of Refugee Services at the New York State Office of Temporary and Disability Assistance, where she oversaw the Response to Human Trafficking and Unaccompanied Minors programs.
Estelle Davis serves as counsel to the Division of Immigrant Policies and Affairs at the New York State Department of Labor, managing the anti-trafficking program. In this role, she has implemented trauma-informed policies and practices for outreach, investigations, screening, and victim services.
[1] Names and details have been changed.
[2] See Human Trafficking Hotline Power and Control Wheel at https://humantraffickinghotline.org/resources/human-trafficking-power-and-control-wheel.
[3] 22 U.S.C. § 7102(9)) and NYPL 230.34 and 135.35.
[5] http://castla.org/training-resources.
[6] See Vera Institute of Justice for a long and short form questionnaire at http://vera.org/newsroom/new-tool-makes-it-easier-to-identify-and-assist-victims-of-human-trafficking.
[7] See Urban Institute Study at https://urban.org/research/publication/understanding-organization-operation-and-victimization-process-labor-trafficking-united-states.
[8] https://ovcttac.gov/taskforceguide/eguide/5-building-strong-cases/53-victim-interview-preparation/trauma-informed-victim-interviewing.
[9] https://dol.ny.gov/human-trafficking.
[10] https://otda.ny.gov/programs/bria/trafficking.asp.
