Human Trafficking and Labor Laws
Jeannine LeCompte, Compliance Research Specialist
An incident of human trafficking involving a nursing facility occurred in October 2019, when a Long Island nursing home was found to have violated anti-human trafficking laws by using financial threats to coerce more than 200 overworked and underpaid Filipino nurses to stay on the job. The nurses said they all were recruited to the United States to take jobs with or through a nursing home company. However, they were not paid what they were promised, and they were threatened with substantial financial penalties if they quit.
Although they had not been trafficked in the full legal meaning, the judge in their case ruled that the conditions under which they were employed amounted to a “threat of serious financial harm” designed to keep anyone from quitting and, therefore, that the anti-trafficking laws were violated. Significantly, the court ordered that the nursing facility owners be held personally liable for violations of anti-trafficking laws.
This case shows that facilities must ensure that employees are never hired in a way which can endanger the facility’s existence. They should also be aware that the personnel need not have been “trafficked” in the traditional sense of the word. All that is necessary to be convicted of that crime, the Long Island case has shown, is to employ (usually foreign) workers in a such a way that they can claim to be intimidated into being forced to work under adverse circumstances.
It is important to ensure that any new hires, especially foreign nationals, meet all the legal requirements. Compliance requires that an I-9 Employment Eligibility Verification form be completed for each and every new hire.
Next, the actual conditions of employment must meet all applicable US laws, such as the Fair Labor Standards Act (which created the right to a minimum wage, and time-and-a-half overtime pay when people work over forty hours a week), the Family and Medical Leave Act (which requires covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons), the Pregnancy Discrimination Act (which requires employers to provide leave in the event of pregnancy, childbirth, or related medical conditions, and to provide sick leave for women who are recovering from an abortion), the Americans with Disabilities Act (which prohibits discrimination based on disability), the Age Discrimination in Employment Act (which forbids employment discrimination against anyone at least 40 years of age), the Equal Pay Act (which forbids wage disparity based on sex), and the Genetic Information Nondiscrimination Act (which bars the use of genetic information in health insurance and employment).
Finally, any employment conditions which, like the Long Island case, are clearly coercive in nature, will fall foul of the human trafficking legislation. Extreme cases of human trafficking often involve the withholding of passports, physical threats, or physical confinement, but, as shown, these conditions do not have to be present to bring about a successful prosecution against an employer, be it a nursing facility or otherwise.
