Administrator for the Office of Public Engagement (OPE), Dr. Gabriela D. Lemus
Statement of Dr. Gabriela D. Lemus
Senior Advisor and Director of the Office of Public Engagement
U.S. Department of Labor
Commission on Security and Cooperation in Europe
(U.S. Helsinki Commission)
May 23, 2011
Chairman Smith, Co-Chairman Cardin, and distinguished members of the Commission, on behalf of the Department of Labor and Secretary Hilda L. Solis, thank you for the opportunity to discuss the Department's efforts to combat human trafficking, both domestically and abroad.
President Obama and Secretary Solis are deeply committed to addressing the problem of human trafficking and the Administration and the Department of Labor are working to enhance efforts to combat trafficking and assist victims. It has been more than a decade since enactment of the Trafficking Victims Protection Act (TVPA) and the fight against trafficking in persons continues.
The Department of Labor's commitment to fighting human trafficking is rooted in its long history of working to protect and assist our nation's most vulnerable workers, some of whom may wind up in forced labor. Labor trafficking subjects women, children, and men to the most extreme forms of workplace exploitation. Workers who are trafficked are denied not only their wages, but their human rights.
As one of Secretary Solis' priorities, the Department is engaged both domestically and internationally to better serve and protect vulnerable workers. Our efforts to ensure that workers are afforded all of their rights under the law include initiatives to combat human trafficking in all of its forms. The Secretary leads a coordinated effort across the Department to achieve our goal of making progress in this important fight against human trafficking. Under her leadership, the Wage and Hour Division (WHD), the Bureau of International Labor Affairs (ILAB), and the Employment and Training Administration (ETA) work collaboratively to ensure that the Department uses all available tools in the most efficient and effective manner to protect these vulnerable populations. I am pleased to report to the Commission on these efforts.
The Wage and Hour Division (WHD)
The Wage and Hour Division of the Department of Labor enforces some of the nation's most comprehensive federal labor laws, including the minimum wage, overtime pay, child labor, the employment of persons with disabilities, family and medical leave, the employment of temporary or seasonal migrant workers, and prevailing wages for government service and construction contracts. These enforcement responsibilities allow WHD to have a daily presence in American workplaces and, while the Agency does not have responsibility to investigate trafficking directly, many of WHD's investigations take place in industries marked by workers who are vulnerable to trafficking. This means the Wage and Hour Division is often the first federal agency to make contact with the workers who may have been trafficked or may be otherwise employed under abusive conditions in violation of the law.
In industries with vulnerable workers like restaurants, garment manufacturing, and agriculture, investigators interview workers and assess situations where workers may have been intimidated, threatened, or held against their will. Investigators also review payroll records and inspect migrant farm worker housing. Criminal activity found in the workplace by WHD investigators may be referred to an appropriate authority as part of standard WHD procedure. After a referral is made, WHD's assistance may be requested to compute back wages to ensure restitution on behalf of victims of trafficking, and to assess penalties against the employer.
WHD representatives currently participate in approximately 25 human trafficking task forces around the country, including in Los Angeles, Houston, Phoenix, and Long Island. WHD's primary responsibility on these task forces is to report trafficking crimes to the task force when detected during the course of an investigation, and provide assistance in calculating back wages/restitution owed to victims of trafficking.
Additionally, WHD is a member of the Federal Enforcement Working Group (FEWG), along with the Department of Justice, the Federal Bureau of Investigation, the Department of Homeland Security – U.S. Immigration and Customs Enforcement, and the DOL-OIG. As part of the FEWG, WHD is participating in the development and implementation of a Pilot Federal Anti-Trafficking Coordination Team (ACTeam) Program. The goal of the ACTeam Program is to proactively identify and assist human trafficking victims; develop victim-centered, multi-disciplinary human trafficking investigations; and produce high-impact human trafficking prosecutions resulting in the conviction of traffickers, the dismantling of trafficking organizations, and the forfeiture of proceeds and instrumentalities of trafficking offenses. WHD's role in the program focuses on helping to detect trafficking indicators during investigations, and computing back wages owed to trafficking victims. DOL's Office of the Inspector General strengthens this collaboration through its expertise in investigating labor racketeering and visa fraud violations that occur in connection with labor trafficking offenses.
Department of Homeland Security (DHS) regulations (8 C.F.R.§ 214.14(a)(2)) expressly list certain federal law enforcement agencies that may certify U nonimmigrant status (U visa) applications, including the Department of Labor. Under that regulation the Department of Labor is identified as an agency with jurisdiction to conduct investigations of violations of laws. In its role of investigating workplace laws, the Department of Labor may detect evidence that a worker is a victim of certain criminal activity, including trafficking, that may qualify the worker for U nonimmigrant status. On April 28, 2011, the Department of Labor announced protocols to complete, as appropriate, a certification that the individual petitioning for U nonimmigrant status is a victim of a qualifying crime and is, has been, or is likely to be helpful in the investigation or prosecution of that crime. This certification must be included by an individual in his or her U nonimmigrant status petition to DHS U.S. Citizenship and Immigration Services. The U nonimmigrant status certification process has been delegated to the Wage and Hour Division's regional administrators located in five cities around the country.
In May 2010, to support and enhance WHD's enforcement efforts, the Department entered into a revised Joint Declaration and revised Letters of Agreement with the Mexican Embassy and Mexican Ministry of Foreign Affairs, updating 2004 agreements between the two countries. In March 2011, the Department signed a similar agreement with the El Salvadorian Ministry of Foreign Affairs. These agreements aim to ensure that workers from these countries who are employed in the United States are informed about their labor rights through information sharing, outreach, education, training, and exchange of best practices. Such information can assist vulnerable workers, including those who may have been trafficked. DOL is also expanding the program to include partnerships with embassies from Central America and the Caribbean. In December 2010, ambassadors from nine Central American and Caribbean countries met with Secretary Solis to learn about the program and potential areas for partnership. In addition to these formal declarations, WHD also participates in several other outreach and partnership activities to share information and leverage community-based resources to more effectively inform workers about their rights and how to file wage and hour complaints.
Bureau of International Labor Affairs
The Department's Bureau of International Labor Affairs builds relationships and funds programs in developing countries to improve working conditions and labor standards across the global economy.
ILAB plays a critical role in bringing to light the dark stories of human trafficking. By bringing these stories to the public's attention, the Department is hopeful that countries and companies will change their behavior and reform their worst practices. On December 15, 2010, the Department released three new reports on child labor and forced labor. All three reports include information on persons in severe labor exploitation, such as forced labor, servitude, or debt bondage. Together these reports demonstrate that from factories to the farms, abuses of fundamental human rights, including human trafficking, still persist in the 21st century. These reports are:
- The List of Goods Produced by Child or Forced Labor, pursuant to the 2005 Trafficking Victims Protection Reauthorization Act, identifies 128 goods from 70 countries that DOL has reason to believe are produced by forced labor, child labor or both, in violation of international standards;
- The List of Products Produced by Forced or Indentured Child Labor, pursuant to Executive Order 13126 of 1999, includes 29 products from 21 countries; and
- The 9th annual Findings on the Worst Forms of Child Labor. DOL has published this report since 2002, but last year the report was reformatted, and for the first time identifies gaps in government efforts and includes country-specific suggestions for government action. By providing more analysis and specific suggestions for action, the redesigned report provides Congress and Executive Branch agencies with useful information to consider when making labor and trade policy.
Since 1995, the U.S. Congress has appropriated over $839 million to ILAB for programs to combat international child labor. This funding has supported technical assistance projects in more than 80 countries, and reached approximately 1.5 million children at risk of or engaged in exploitive child labor. ILO Convention 182 identifies child trafficking as one of the worst forms of child labor, and it is through this framework that DOL addresses trafficking in its technical assistance projects. While the Department's technical assistance projects include stand-alone trafficking in persons projects, many also include multi-faceted projects to address other worst forms of child labor in addition to trafficking. For example, the Department undertakes such projects to:
- Provide victims with rehabilitation services and educational opportunities.
- Facilitate increased access to economic and vocational opportunities for trafficked victims and their families.
- Support awareness raising campaigns about the risks of trafficking.
- Build capacity to strengthen enforcement efforts and promote legislative and policy reform to incorporate anti-trafficking initiatives.
- Collect reliable data about trafficking to better understand the problem.
Employment and Training Administration
Because many of the most vulnerable workers in the United States are temporary foreign agricultural workers, the Department's H-2A program is another significant locus of the Department's efforts to combat trafficking. The Immigration and Nationality Act assigns specific responsibilities for the H-2A program to the Secretary of Labor. Among the responsibilities delegated to the Department's Office of Foreign Labor Certification are ensuring that U.S. workers are provided first access to temporary agricultural jobs and that the employment of the foreign workers does not adversely affect similarly employed U.S. workers. Accordingly, it is of great importance to the Department that both workers in the U.S. and temporary foreign workers are provided with appropriate worker protections. The Department ensures that these statutory responsibilities are met through regulatory standards for the acceptance and processing of employer-filed H-2A applications.
On March 15, 2010, a final rule addressing the temporary agricultural employment of H-2A aliens in the United States became effective. The H-2A final rule includes enhanced mechanisms for protecting workers, including H-2A temporary foreign workers who are increasingly susceptible to the abuses of dishonest employers and their agents such as foreign labor recruiters. The Secretary has tasked the Employment and Training Administration with taking an active role in ensuring compliance with H-2A protections because temporary foreign workers remain unlikely to file complaints about violations of their rights under the program.
The Department believes that requiring employers to bear the full cost of their decision to employ nonimmigrant workers is a necessary step toward preventing the exploitation of such workers. Therefore, the 2010 Final Rule prohibits employers or their agents from seeking or receiving payment of any kind from an H-2A worker for any activity related to obtaining the necessary labor certification, including the employer's attorneys fees, application fees, or recruitment costs, unless the employers are being reimbursed for costs that are the responsibility of the worker, such as government-required passport fees. The regulation also prohibits "kick backs" from the H-2A worker to the employer or any other deductions that reduce the actual wage paid to the worker below the required H-2A wage; and requires employers to pay transportation costs between the place of employment and the place from which the H-2A worker has come, as well as subsistence costs, and visa fees.
Moreover, amidst reports of H-2A temporary foreign workers being required to give recruiters thousands of dollars to secure a job, the Department recognized that such practices adversely affect the wages and working conditions of U.S. workers by creating conditions akin to indentured servitude, driving down wages and working conditions for foreign and domestic workers. Therefore, the 2010 Final Rule requires employers to contractually forbid foreign labor contractors or recruiters engaged in international recruitment of H-2A workers from seeking or receiving payments from such prospective employees.
Lastly, in an effort to ensure worker protections and program integrity, the 2010 Final Rule requires employers to provide the H-2A worker a written copy of the work contract no later than at the time the foreign worker applies for a visa, and to post and maintain in a conspicuous location at the place of employment a poster provided free of charge by the Secretary of Labor which sets out the rights and protections for foreign workers.
The 2010 H-2A Final Rule's enhanced enforcement provisions allow the Department to investigate and sanction employers and their agents or attorneys where there is a violation of regulation provisions. The possible sanctions include debarment from the program for up to three years, revocation of an already approved labor certification, and/or special procedures for future applications where a less than substantial violation has occurred. If an employer is found to have failed to meet its legal obligations under the 2010 Final Rule, for example by violating the prohibition on making workers pay for recruiter fees, the Department may seek recovery of those recruitment fees and obtain temporary or permanent injunctive relief, as well as assess civil money penalties against the employer. These monetary penalties demonstrate the Department's commitment to strengthening the necessary enforcement of a law that protects workers who are unlikely to complain to government agencies about violations of their rights under the program.
In today's global economy, workers in any country are vulnerable to trafficking and labor rights abuses. The Department's innovative and integrated programs help workers earn decent incomes and prevent them from being abused and exploited. This approach is a vital part of the Administration's goal of ensuring that globalization provides benefits and opportunities for workers everywhere, rather than triggering a "race to the bottom."
Again, thank you for the opportunity to testify today. I am happy to answer any questions the Commission may have on the Department of Labor's work to combat human trafficking.