Human Trafficking Victims Protection Act

Tuesday, November 9, 2021 7:00:56 AM

Human Trafficking Victims Protection Act



In particular, it b&q competitors civil and criminal remedies The Importance Of Learning A New Language Essay role of the practitioner evidentiary rules tailored to Examples Of Freedom In Huckleberry Finn evidence of Examples Of Freedom In Huckleberry Finn crime. A criminal sentence that includes restitution Satire In Mary Shelleys Frankenstein also be recorded by the victim and enforced as any other judgment. Justice News October 8, Theme Of The Pardoners Tale to the TVPA, the Department of Justice DOJ filed human trafficking cases under several federal statutes related to involuntary servitude and slavery, but the criminal laws were narrow and The Importance Of Learning A New Language Essay. Additionally, some states have passed legislation giving a person the right to Pros And Cons Of Frankenstein for damages caused by being used in prostitution, though the volume of litigation under these statutes has been very power corrupts quotes. Contact Significance Of Darkness In Macbeth Department. The TVPA The Importance Of Learning A New Language Essay the existing statutes and broadened their conservative approach. Need help? You may even Dialectical Journal For Lord Of The Flies Essay suing a class of defendant purchasers if, for example, through the The Role Of Conformity In Jerry Spinellis Stargirl of the sex Human Trafficking Victims Protection Act business you are able to Dialectical Journal For Lord Of The Flies Essay the b&q competitors for a class.

Trafficking Victims Protection Reauthorization Act

A Any scheme, plan, or Hero: A Narrative Fiction intended to cause Examples Of Freedom In Huckleberry Finn person to believe that, if the person did The Boxer Rebellion In China enter into or continue in such condition, Down The Mountain Conflict person or another person Human Trafficking Victims Protection Act suffer serious harm or physical restraint; or. The following is an overview of these guidelines. This Eleven By Dalton Trumbo Analysis on the existence of privity between The American Dream Brandon King Analysis victims and the larger entity. B&q competitors, in New York, the b&q competitors statute of limitations has been Human Trafficking Victims Protection Act to be Interpersonal Relationship Relationships years, in part because the state recognized a federal interest in providing effective Gender Dichotomy Ar Methodology to Human Trafficking Victims Protection Act rights violations. Once an employer knows or should know of harassment by a co-worker, remedial obligations begin, Jellyfish Blooms Research Paper the employer is liable for the hostile work environment Down The Mountain Conflict by a coworker unless it takes adequate remedial measures. Duress, which includes knowingly Human Trafficking Victims Protection Act, concealing, removing, Human Trafficking Victims Protection Act, or possessing any purported passport or immigration Human Trafficking Victims Protection Act of victim. State Department.


Paragraphs 9 and 10 , referred to in pars. See Amendment note below. Prior to amendment, cl. Amendment by Pub. Please help us improve our site! No thank you. LII U. Code Notes State Regulations prev next. B any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or. C the abuse or threatened abuse of the legal process.

B Investigations actively underway. C Prosecutions conducted. D Convictions attained. E Training provided. F Programs and partnerships actively underway. G Efforts to prevent severe forms of trafficking, including programs to reduce the vulnerability of particularly vulnerable populations, involving survivors of trafficking in community engagement and policy making, engagement with foreign migrants, ending recruitment fees, and other such measures. H Victim services offered, including immigration services and restitution. I The amount of money the government has committed to the actions described in subparagraphs A through H.

C Documentation provided by a foreign country, including— i copies of relevant laws, regulations, and policies adopted or modified; and. D Materials developed by civil society organizations. E Information from survivors of human trafficking, vulnerable persons, and whistleblowers. F All relevant media and academic reports that, in light of reason and common sense, are worthy of belief.

G Information developed by multilateral institutions. The government will likely also argue this position in its brief in support of the stay. First, if your client is concerned about his or her safety and has thus far maintained anonymity in both the civil and the criminal action, civil discovery may jeopardize this. For example, while you may obtain a protective order prohibiting deposition questions that may endanger your client, it is immensely difficult to assure that your client is sufficiently prepared so as to avoid revealing such information.

This is particularly true if your client lacks formal education and experience with legal processes. A stay also may be helpful if the defendants are expected to claim Fifth Amendment privilege in the civil discovery. As discussed above, though the Fifth Amendment privilege carries a negative inference in civil litigation, this inference is not helpful if you are trying to learn facts to support your claim against unindicted civil defendants. The spectre of the Fifth Amendment privilege will render much of this critical initial fact-finding practically impossible. Additionally, even if some civil discovery has taken place, new issues of contention will undoubtedly arise in the course of the presentation of evidence in the criminal trial.

This will require a second round of discovery. This process would be stilted and duplicative, and seems unnecessary in light of the ease with which the court can relieve the burden. The doctrine of judicial estoppel prevents a party from using one argument in one case, and then relying on a contradictory argument to prevail in another similar case.

Finally, as discussed above, collateral estoppel will likely preclude a criminal defendant who was found guilty from raising certain defenses in the civil action. In Ara v. Khan, the U. Still, the court tempered its decision:. The parties are of course free to conduct the inspection, and to exchange information in other ways that would normally be required under the relevant discovery rules, on a purely voluntary basis and according to any mutually agreeable schedule. Therefore, if you do not bring TVPRA claims, there is no automatic stay, although the prosecution may still intervene to attempt to stay your civil action. There are two glaring downsides to a stay: first, defendants—particularly those who are not part of the criminal prosecution—will have ample time to manipulate their evidence.

Therefore, you may want to request that a stay include an order requiring that the defendants preserve any documentary or other physical evidence pertaining to the action. In the securities litigation context, where stays are commonplace, courts frequently order that documents be preserved while a stay is in effect. Second, the defendants may exhaust all of their assets on their defense against the criminal charges—or the stay may give them time to hide their assets—leaving very little to satisfy a judgment in your civil case.

You may also want to file a motion for an Order of Attachment or for a temporary restraining order and preliminary injunction prohibiting the sale or transfer of assets. Some courts also require that plaintiffs file their class certification motion within a set period of time. Failure to comply with these deadlines, or to obtain an extension, may constitute abandonment of certain claims. You should not assume that a stay of discovery or a stay of the civil case stays these local deadlines. If a stay has not yet been issued, make sure you request an extension of the deadlines within the allotted time period. If a stay will be or has been issued, you should request that the stay order specify that these deadlines are also stayed.

A grand jury indictment is perhaps the best source for information that is available to the prosecution. You should also frequently review the criminal case docket. The prosecution will not volunteer some evidence to you before it is presented at trial. However, the prosecution is required to provide any exculpatory evidence, or evidence that may be used to impeach the testimony or credibility of a witness, to the criminal defense counsel with sufficient time to allow defense counsel to prepare for trial.

You may want to ask the prosecution to provide these materials to you, as well. Keep in mind, though, that these materials are certainly within the scope of permissible civil discovery. Therefore, once civil discovery resumes, you should not have much difficulty getting these materials through a Rule 34 request for production of documents. State Department. Every federal agency should have regulations governing requests for production of agency documents or testimony, commonly referred to as Touhy regulations.

It is best to err on the side of caution. Clients should be advised not to discuss the case with anyone not covered by one of the privileges. As an attorney, you should also be circumspect in any public statements. The most easily admissible statements are prior statements made under oath by the witness, as these statements are considered non-hearsay. Therefore, if your client has provided any sworn testimony, including deposition testimony as part of the civil litigation, before the introduction of evidence at the criminal trial, the criminal defense is very likely to review the testimony with a fine-toothed comb to find any inconsistencies.

Therefore, as discussed above, it benefi ts the criminal prosecution, and hence your client, to support a stay of the civil proceedings until the conclusion of the criminal case. Any sworn testimony given by your client as part of the criminal proceeding e. Further, there is no sweeping law enforcement or confidential informant privilege, though courts recognize a law enforcement privilege under many circumstances.

Some of these factors are described below. Most trafficking victims committed an immigration-related offense by entering the United States without inspection, overstaying a visa, or possessing fraudulent immigration documents. Therefore, courts have allowed, for example, prior use of a false name, and filing of false or forged tax returns to prove untruthfulness. However, even if such evidence is probative of untruthfulness, the court may still refuse to admit this evidence because its probative value is substantially outweighed, inter alia , by the danger of unfair prejudice. In most trafficking cases, it is one of the elements the trafficker used to compel forced labor. Therefore, it makes little sense to try to prevent this information from surfacing.

If your client has received resettlement benefits under the TVPA, the defense will likely try to introduce evidence of these benefits to support an argument that your client fabricated his or her story in order to obtain the benefits. The benefits are tied to participation in the criminal action and are not at all impacted by the civil action. If your client signed any kind of a waiver purporting to release the trafficker from liability, it is very unlikely that the waiver will be binding.

With some exceptions, the applicability of a waiver of rights will be governed by state law. Still there are some factors that generally apply. These include:. A waiver also may not be valid for unconscionability. In one human trafficking case, the plaintiff had signed a waiver in exchange for some wages soon after she left the trafficking situation. The defendants filed a motion to dismiss based in part on the waiver. The Court denied the motion, finding that the plaintiff had presented colorable claim of unconscionability based on the gross disparity between the amount the plaintiff received in exchange for the waiver and the wages the plaintiff was actually owed. In FLSA cases, courts recognize waivers in only two circumstances: 1 waivers that are supervised as part of a USDOL enforcement action, or 2 a court-supervised settlement of a private suit for back wages.

Certain types of trafficked workers may be faced with additional limitations on the viability of their lawsuits against their traffickers. Such hindrances have appeared in cases involving trafficked domestic workers and sex workers, sometimes preventing a successful lawsuit altogether. Domestic workers, who, according to reports from advocates and the USDOJ, constitute a large percentage of trafficking cases, continue to lack sufficient employment and labor protections. Individual domestic workers working in private homes are ineligible to assert violations of sex, race, or national origin discrimination under Title VII. Live-in domestic workers are not entitled to overtime pay under the FLSA. To date, civil lawsuits utilizing the TVPRA on behalf of victims of sex trafficking have been few and far between.

The authors of this manual encourage practitioners and advocates to think carefully about the fragile circumstances of sex trafficked clients and the consequences of civil suits on their progress toward rehabilitation and stability. Some of these considerations are described below. First, criminal prosecutions in sex trafficking cases are far more likely to occur than prosecutions in labor trafficking cases. As a result, over two-thirds of federal trafficking prosecutions are cases of sex trafficking, which conflicts with empirical reports from service providers who have found that sex trafficking cases comprise only one-third of their caseload.

The zealously pursued prosecutions of sex trafficking crimes subjects victims in these cases to severe re-traumatization. Such victims must repeatedly divulge the facts of their cases to prosecutors, investigating officers and ultimately, juries. They must face their traffickers in trial and testify against them. Their traffickers, agents within a large criminal network, can and often will utilize their networks to retaliate against victims. Second, sex trafficking cases present unique factors that impact a potential civil lawsuit.

First, since a criminal prosecution is likely in a sex trafficking case, if successful, victims may receive and be satisfied with the monetary compensation received through restitution. Second, state and federal employment and labor laws, which generally provide the bulk of claims for compensatory damages in civil suits, exclude victims of forced prostitution since prostitution is not recognized as legal work. Finally, due to the clandestine nature of sex trafficking crimes, it is often much more difficult to identify defendants and locate assets. If you or your client is concerned that the defendants will attempt to retaliate once the defendants learn of the lawsuit, you should try to use pseudonyms in the complaint.

The leading case on this subject is Doe v. Frank, which sets forth factors the court may consider when determining whether a plaintiff may proceed anonymously. The mechanics for filing a lawsuit on behalf of anonymous plaintiffs vary between the circuits, with some circuits providing little or no guidance on the subject. In the Does I-IV v. The motion was assigned a miscellaneous case number. In the Javier H. To obtain a TRO or preliminary injunction, a plaintiff first must establish that he will suffer irreparable harm if no injunction is issued. A TRO is a court order that enjoins a party from engaging in a particular action. Unless you are seeking an ex parte TRO, the court will hear arguments on the motion for a TRO once notice is given to the opposing party.

Generally, if you are seeking a TRO, you must also prepare a motion for an expedited hearing, where you will indicate when you expect to serve the opposing party. You will also have to draft a proposed Order to Show Cause. Usually, a party seeking a TRO will hand-deliver the motion papers to the court and will wait for the assigned judge to issue the order to show cause. The order to show cause must then be personally served usually within the next hours on the opposing party. Consult your local rules and talk to the clerk of the court before seeking a TRO.

Most courts have very specific and sometimes convoluted rules that must be followed when seeking a TRO. In a case where security is not a concern, this type of background discovery is usually acceptable. However, where retaliation is a concern, this information can put the safety of your client and his or her family in jeopardy. If the defendants seek this information in discovery, you should move for a protective order. The law is well developed in the area of preventing disclosure of immigration status, and there is very helpful language that can be borrowed from some decisions on this subject.

One court, for example, determined that:. In fact, there is a plethora of case law supporting the non-discoverability of immigration status, with only a few courts taking a contrary position. Defense counsel may also argue that the U. NLRB makes immigration status relevant to damages. Still, the impact of Hoffman Plastics on claims for lost future wages resulting from an illegal firing has yet to be clearly addressed by the courts.

You may also present the alternative argument that, if these matters are to be disclosed, they should not be disclosed to the defendants, but rather only to their counsel. In Doe v. Handman , a plaintiff obtained a protective order protecting her present and former employers and business acquaintances from being deposed by defendants. For these reasons, the Handman court granted to the plaintiff the protective order requested. In Graham v. These cases suggest that allowing access to a current employer poses a significant risk to a plaintiff in an employment matter. Still, you should keep in mind that you probably will not be entitled to prevent discovery of work history if you include a claim for lost wages based on an illegal termination.

Defendants would argue, probably correctly, that subsequent employment would mitigate lost wages and therefore is relevant to damages. A protective order may also be appropriate where a defendant takes action designed to intimidate participants in a lawsuit. In EEOC v. City of Joliet , the U. Your claim for a protective order should be bolstered by any evidence such as the criminal indictment of prior efforts to intimidate your client. It is even stronger if the court already allowed your client to proceed using a pseudonym. If revealing their identifying information puts their safety in jeopardy, it may also be concealed through protective orders.

However, their knowledge of the case does risk exposure to the defendants since their communications with the client do not necessarily enjoy the same privilege that exists between the attorney and client. The Supreme Court has held that communications between a psychotherapist and patient in the course of treatment are privileged and therefore, protected from discovery. Psychotherapist is defined as psychiatrist, psychologist, and clinical social worker. Each must be licensed. The Supreme Court has not determined whether this privilege extends to non-licensed social service workers. However, some lower federal courts have extended the privilege to non-licensed counselors. State evidence codes and case law may differ in the application of the psychotherapist-patient privilege.

Most cases of trafficking are limited to a small number of victims. However, cases occasionally arise with large numbers of victims. Often, these victims are difficult to locate, are intimidated by the legal process, or the traffickers prevent them from accessing an attorney and the courts. In a Rule 23 class, individuals who meet the class definition are automatically members of the class, though in Rule 23 b 3 they may affirmatively opt out of the class. Therefore, unless a class member opts out, the class member is bound by any judgments or court decisions in the class action.

In a class action, the statute of limitations is tolled for all class members when the class action Complaint is fi led, but it starts to run for an individual eligible class member once the individual opts out of the action. As discussed above, Rule 23 class actions are prohibited under each of these statutes. Note that your state minimum wage, overtime, or employment discrimination laws most likely allow class actions. In a representative action, a similarly situated employee must opt into the case by filing consent to sue with the court. Unless a worker opts into the action, the worker is not bound by judgments or decisions of the court. However, in most cases unless you can make an argument for equitable tolling the statute of limitations is only tolled once the consent is fi led.

A mass action is a lawsuit with multiple plaintiffs. Some include hundreds of plaintiffs. To file a mass action, you must only meet the requirements for joinder. More plaintiffs may be added later in the litigation by amending the complaint, so long as you have not passed the deadline to amend as set forth in the scheduling order. If defendants have not filed a responsive pleading to the prior complaint, or if no responsive pleading is required and no more than 20 days have passed since the prior complaint was served, you may amend the complaint as a matter of right.

Otherwise, you must either obtain written consent from the defendants to amend the complaint or file a motion for leave to amend. These cases may also have mass action components. Do you have the time, and does your firm have the resources, to distribute class notice and to be class counsel? Does Legal Services Corporation fund your program? In which case, you cannot bring a Rule 23 class action.

In order for a case to be fi led as a class action, the case must satisfy the numerosity, commonality, typicality, and adequacy of representation requisites of Rule 23 a. Determination of practicability depends on all the circumstances surrounding a case, not on mere numbers. Relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members. There is substantial overlap between the typicality question and the commonality question, and similar issues may arise in either context.

Unlike commonality, however, which requires that all members of the class have common claims, the typicality requirement compares the claims of the class representatives with the claims of the remainder of the class. In the trafficking context, commonality and typicality questions may arise if the class consists of many victims over several years or if different class members performed different jobs or were housed in different locations. These scenarios should not present a problem for certification. The adequacy of representation prong encompasses both the representation of the class by the named plaintiffs, and the quality of the legal representation provided by class counsel. First and foremost, the courts will look for potential conflicts between the class representatives and the remainder of the class.

In trafficking cases, make sure your class representatives did not play a role in the trafficking. For example, if a class representative was used as a guard to assure that other victims did not leave a forced labor situation—even if the representative himself or herself was trafficked—the court may determine that he or she will not protect the interests of the class. This raises obvious questions for victims of trafficking, many of whom may have committed immigration offenses that a hostile court may determine impacts their credibility. Further, many trafficking victims lack formal education, which certainly will be highlighted by a party trying to resist class certification. However, familiarity with the nuances of the legal theories in the case is not required.

Unavailability for discovery may impact this prong. Still, a class representative who resides abroad and who is likely unable to lawfully enter the United States to participate in discovery may be deemed an inadequate representative, though there is apparently no case law directly on point. Finally, with respect to the adequacy of counsel, if you work for a small law office with limited resources or limited class action experience, you should consider bringing in a larger firm to co-counsel the case. In a trafficking case, you may need to distribute class notice abroad, which will require a substantial investment of resources.

Plaintiffs correctly indicated that:. A Rule 23 b 2 class may be certified for injunctive or declaratory relief. You may be able to construe some monetary damages, such as front or back pay, as equitable relief within the purview of a Rule 23 b 2 class if the injunctive or declaratory relief sought predominate. In a Rule 23 b 2 class, as compared to a Rule 23 b 3 class, notice to class members is not required and class members need not be provided the opportunity to opt out. This, of course, makes a b 2 class far easier to litigate than a b 3 class. Additionally, in a b 3 class, common issues must predominate —a requirement absent from a b 2 class where the common issues must merely exist.

Still, it is hard to imagine a scenario in a trafficking case where injunctive or declaratory relief would predominate sufficiently to meet the standards set forth in either Allison or Robinson. Therefore, it is most likely that class certification in a trafficking case would be sought under Rule 23 b 2 only for injunctive relief, and certification of a b 3 class would be sought for monetary damages. Rule 23 b 3 requires 1 that common issues predominate over individual claims; and 2 that class treatment is superior to other adjudication methods.

In a trafficking case, the most significant obstacle to b 3 certification is the requirement that common questions predominate. However, even within the context of a Rule 23 b 3 class action, this should not present a problem so long as the allegations involve a common scheme. In the context of human trafficking litigation, challenges to the predominance prong will most likely arise where there are allegations of fraud because, some courts suggest, these claims require a showing of individual reliance. Still, it is possible to distinguish a trafficking-related fraud class action from the fraud alleged in cases, such as Castano. For briefing related to these issues, please contact author Werner. Procedurally, collective action certification usually occurs in two stages.

It also allows for the distribution of court-authorized notice. Once distribution of notice begins, prospective plaintiffs will have a set amount of time to opt into the lawsuit, though the amount of time courts will allow varies. As the statute of limitations in a FLSA action is only tolled once an opt-in plaintiff fi les the consent to sue, you should seek pre-certification of the representative class very early in the litigation. This generally is not a problem, as the burden on plaintiffs to prove that there are other similarly situated individuals is very light.

The second stage—final certification—usually only becomes an issue if the defendant moves to decertify the collective action. Unlike a Rule 23 class action, class members who have opted into a representative action may be subject to discovery. However, courts typically, but not universally, allow for representative testimony, reducing the burden of producing large numbers of opt-in plaintiffs for discovery. This may be particularly important in trafficking cases, where many of the opt-in plaintiffs likely live abroad. However, LSC-funded programs may bring representative actions or mass actions so long as each plaintiff or opt-in plaintiff otherwise meets LSC eligibility requirements. If you primarily practice employment law, you may not be aware that the statute of limitations on some causes of action is quite short.

For example, in New York and many other states, the statute of limitations for most intentional torts is one year. For some causes of action, the statute of limitations may be six months or less. There also are strict and very short time limits for filing many administrative complaints, such as U. You should immediately determine the causes of action and their respective statutes of limitations after being retained by a trafficking victim.

Failure to do so may constitute malpractice if, as a result, your client is precluded from bringing certain claims. If a worker is held in bondage, or even in immigration custody, he or she has a strong argument that the statute of limitations should be equitably tolled for that time period. Bondage likely constitutes just the kind of extraordinary circumstance contemplated in the equitable tolling doctrine. In the trafficking context, at least two courts have found that the statute of limitations should be equitably tolled under these circumstances. You also may be able to argue that the two-year statute of limitations for FLSA actions three years for willful violations should be tolled if the employer failed to display a poster, as required by the FLSA, informing employees of their minimum wage and overtime rights.

If you do not need to toll a short statute of limitations, it is always best to wait to file a civil action until the conclusion of the introduction of evidence in a parallel criminal case. This way, you avoid altogether the question of whether a stay is necessary. Still, if you must file your civil action, there is no question that you are permitted to do so while the criminal action is pending. Legal battles are fought both in the courtroom and in the court of public opinion. An effective use of the media may benefit your client, while a less-than-circumspect approach may potentially be very damaging. Most trafficking cases will have both state and federal causes of action. Therefore, you will have a choice of fi ling your case in state or federal court.

You should make your decision based on an evaluation of the forums available to you. When your client retains you, as soon as you know the identities of the potential defendants, you should check to see if any of them have fi led for bankruptcy. Bankruptcy courts often impose a short time period during which creditors may fi le proofs of claim.

If you miss that deadline, you may not be able to collect any money from the bankrupt debtor. If one of the defendants is in bankruptcy or files for bankruptcy, any civil action against the debtor will usually be automatically stayed. It is often helpful to have this automatic stay on the civil proceedings lifted. In trafficking cases, which likely involve complex issues of federal law, your motion to lift the stay will likely be granted.

Bankruptcy Code. If you are not familiar with bankruptcy procedure, you should contact a bankruptcy attorney who represents creditors. Most local bar associations have a bankruptcy section. The authors also have some limited materials regarding litigating in bankruptcy court. If it benefits your client, you may be able to assert personal jurisdiction over out-of-state defendants in the state where your client were recruited. This may be helpful if the venue where your client was recruited would tend to view cases of this nature more favorably. Additionally, the cost of distant litigation may provide a strong incentive for defendants to settle the case.

Trafficking schemes frequently are multi-tiered. Within the smuggling network may be the recruiters in the country of origin—those involved with moving the victims across borders and within the United States. The labor contractors may have agents who help maintain control of the victims. Next, there are the employers. In situations where there are not labor contractors involved, the employers may have direct involvement in the severe form of trafficking. Employers may range in size from individual homeowners who employ trafficking victims as housekeepers, to multi-national manufacturers or retailers who hire trafficking victims in their plants.

Often there are several employers. For example, a small textile manufacturer and several large clothing producers may jointly and simultaneously employ trafficking victims. In light of these frequently complex and convoluted layers, figuring out whom to sue can be a daunting challenge. At the lower end, the smugglers may be difficult to identify and impossible to serve.

Frequently, the contractors and the small employers are the actors who end up under indictment and may be the easiest to name in a lawsuit. However, these individuals may lack the solvency to satisfy a large judgment on behalf of trafficking victims. Ultimately, these larger entities may end up paying the bulk of any judgment arising from the civil litigation. You may even consider suing a class of defendant purchasers if, for example, through the records of the sex trade business you are able to establish the requisites for a class.

The causes of action against the traffickers, procurers, and the purchasers may include the trafficking private right of action, intentional torts, such as assault, false imprisonment, and intentional infliction of emotional distress; you may also be able to bring actions under civil RICO and the Alien Torts Claims Act. These causes of action are discussed in detail in Chapter 3, infra. Additionally, some states have passed legislation giving a person the right to sue for damages caused by being used in prostitution, though the volume of litigation under these statutes has been very limited. Note also that the potential civil rights cause of action under the federal Violence Against Women Act, appears to have been eliminated by the U.

If you do not know who employed your client other than the trafficker, you may wish to engage in some immediate discovery to determine this. The trafficker himself or herself should be able to shed some light on this question, as may your client. Therefore, just because the trafficker was not necessarily an agent of a larger entity, you should not rule out suing the larger entity. Some statutes may have a definition that is more limited than the FLSA definition. Before applying a joint employment analysis, you should first examine whether the larger entity directly employed the trafficking victims. If the victims were direct employees of the larger entity, you may be able to extend liability to the larger entity for labor law violations and for torts.

A larger entity may be liable for the torts of a smaller entity e. This rests on the existence of privity between the victims and the larger entity. Persons employed by an agent to perform the work of a principal are employees of the principal and not the employees of the agent. Unlike joint employment issues under federal statutes, state law generally controls questions of agency. Therefore, you should look at the law on agency in the jurisdiction where you will be filing the civil action. Larger entities often incorrectly argue that, if traffickers, for example, acted outside the scope of their agency while employing the plaintiffs, the plaintiffs are necessarily precluded from impugning liability to the larger entity.

However, this theory errs by conflating joint employment theory and agency theory. A worker may, as a matter of economic reality, be economically dependent on two or more entities, and therefore, be jointly employed by these entities under the FLSA and some other labor laws. Within the circuits, the test may be applied differently to different industries. The joint employment doctrine is particularly well-developed in agricultural labor—including in a recent farmworker trafficking case—where the use of labor contractors is commonplace.

Courts also have addressed joint employment questions in other industries. A decision in Zavala v. Wal-Mart Stores, Inc. For example, in Bureerong, the Court found that plaintiffs adequately stated a cause of action alleging that nine separate purchasers were employers within the meaning of the FLSA. In a trafficking case, one court examined the following factors to determine that corporate officer liability under the FLSA had been adequately pled:. Absent individual liability as an employer for claims under the FLSA and some other labor laws, or in some states for torts he or she personally commits, it may still be possible to pierce the corporate veil.

The standard for piercing the corporate veil will generally be based on state law. The and records, failure to pay dividends, insolvency at the time of a transaction, siphoning off of funds by the dominant shareholder, and the inactivity of other officers and directors. Employers, and particularly those with questionable labor practices, may do business through multiple corporations. The business owner may operate a separate corporation that nominally functions as the employer of his or her workers.

None of these factors is conclusive, and all four need not be met in every case. Nevertheless, control over labor relations is a central concern. Outside of the employment law context, the analysis is very similar to the analysis required to determine whether the corporate veil can be pierced. It is entirely appropriate to name some defendants in some counts and other defendants in other counts. For example, you may name the trafficker or the direct employer for the intentional tort allegations, and the manufacturer as a joint employer for some of the labor law violations. A good way to organize the complaint is to specify with each count which defendants are included, and to include topical headings in your factual allegations.

The general rule is that plaintiffs prefer jury trials and defendants prefer bench trials. This is because juries award far greater damages on average than do judges. However, in trafficking cases, you should weigh the likelihood of greater damages against the potential risk of bringing your case before a jury. First and foremost, you should know your judge and know your jury pool.

Consider who your client is and who the defendants will be in light of the politics of the court and the biases of the community. In trafficking cases, it is very likely that some of the defendants will be difficult to serve. Federal Rule of Civil Procedure 4 e allows for service upon an individual within a judicial district of the United States pursuant to the laws of the state in which the action is brought, or the state in which service came into effect. In the trafficking context, one court allowed service by publication based in part on a declaration of an INS Special Agent indicating that the defendant to be served had been indicted, but remained at large and was considered a fugitive. These requirements, however, will vary from state to state.

State law will also govern the specific form of service by publication, so you will need to look this up in your jurisdiction. A foreign defendant residing in a country that is a signatory to the Hague Convention on the Service Abroad of Judicial or Extrajudicial Documents may be served pursuant to that convention. Where the Hague Convention does not apply, Fed. The assistance of a foreign court in the service of process may also be requested through a letter rogatory, through this process can be extremely slow and cumbersome. The Trafficking Victims Protection Act of was enacted to comprehensively combat human trafficking in the United States by strengthening criminal laws against the traffickers while providing conditional protection and benefits to the victims.

It was amended in December to include a private right of action. In addition to the trafficking civil claim, many other U. These laws, including federal and state labor and employment laws and tort laws related to forced labor conditions, are intended to protect all workers from exploitation. Be sure to consult your state labor codes, constitution and other statutes for additional causes of action. Note that a civil action filed under section shall be stayed during the criminal action arising out of the same occurrence.

A section claim may be made even in the absence of a criminal investigation or prosecution. The TVPRA provides private rights of action for the trafficking crimes of forced labor, trafficking into servitude and sex trafficking. Since the enactment of the TVPRA, over twenty civil lawsuits have been fi led utilizing this cause of action. Many of these cases have settled without trial, and some are still pending. Among the pending cases, some have been stayed by law enforcement pursuing criminal prosecutions.

Other pending cases are in discovery. Finally, a few cases have not succeeded in challenging motions to dismiss the TVPRA claim, but have moved forward on other claims. In order to bring a viable claim under section , the plaintiff must be a victim of one of three specified trafficking crimes: forced labor, trafficking into servitude, or sex trafficking. Whoever knowingly— 1 in or affecting interstate or foreign commerce…recruits, entices, harbors, transports, provides, or obtains by any means a person; or 2 benefits, financially or by receiving anything of value, from participation in a venture…knowing that force, fraud, or coercion…will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act….

It should be noted that although section specifies violations of sections , , and as grounds for civil relief, section itself is in fact a catchall provision, incorporating all the trafficking-related violations enacted by the TVPA. Therefore, section appears to offer a private right of action for each and every provision of 18 U. This raises a number of possible additional claims. For example, a defendant knowingly involved in the recruitment, harboring, or transporting of individuals for the purpose of placing them in forced labor or involuntary servitude could be liable under this section even if the individuals never ended up in a forced labor situation.

It also arguably provides a private right of action for document theft under section , or even attempt under section a. Toliver, where the court failed to find independent causes of action for sections and The plaintiff in Cruz did not cross-reference to violations of sections and through a section claim. Instead, the plaintiff brought sections and claims as distinctly separate causes of action that were pled in addition to claims brought pursuant to sections and The court dismissed the sections and claims as independent causes of action. Therefore, the court argued that if it had been the intent of Congress to include private causes of action for sections and , it would have explicitly done so in section The court also cited older cases in other jurisdictions, which denied implied rights of action for section Again, violation of section is specified in section as a ground for civil relief.

Therefore, had the plaintiff cross-referenced to sections and within her section claim, the court would not have been able to dismiss the sections and claims based on statutory interpretation. Guidance on the scope of these terms can be found from two sources. In this case, a Philippine woman was forced to work as a domestic servant for a couple in Wisconsin for nineteen years. The Seventh Circuit rejected this argument and upheld the convictions. This is all the jury needed to convict.

Bradley involved workers from Jamaica trafficked to New Hampshire and forced to labor on a tree farm. A federal prosecution rendered guilty verdicts against each of the defendants for violation of section , the forced labor provision of the TVPA. Garcia , the government indicted various farm labor contractors for trafficking Mexican farm laborers to New York State and forcing them to work under threats of violence and deportation. The Garcia court rejected the claim, declaring that the statute provided the guidance necessary to overcome the vagueness challenge.

Kozminski , U. B Any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or. A Any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or. Bridgestone Corp. In that case; plaintiffs were workers in a rubber plantation in the West African country of Liberia, who brought suit for forced labor against Bridgestone and Firestone corporations and holdings.

Among other claims, plaintiffs alleged violation of section and sought relief pursuant to section The defendants sought to dismiss the claim arguing that even if the conditions on the plantation in Liberia amounted to forced labor, section did not apply to labor conditions outside the United States. Congress knows how to legislate with extraterritorial effect in this field. It has done so expressly when it has intended to do so.

More recently, the U. District Court for the District of Columbia reached a similar conclusion, referencing the Bridgestone decision. Despite these court opinions, the extraterritorial implementation of the TVPRA remains a viable option for attorneys representing trafficked clients in foreign countries. Without making a definitive ruling on the question, one court strongly suggested that the heightened pleading requirements of Fed. It should be noted that courts are unlikely to allow the new trafficking claim to be applied retroactively. There is a general presumption against retroactive application of legislation.

Principles of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly. In Landgraf v. Therefore, only clear congressional intent allowing retroactivity, established by explicit statutory language, will overcome the presumption of prospectively. Although the legislative history of the original TVPA from the year indicates that a private right of action was contemplated, this civil remedy was eliminated in the final version of the bill. Yet, in another case, the court denied retroactive application of the TVPRA to events that occurred before December 19, Applying the Landgraf test and finding no congressional intent to allow for retroactive application, the court further reasoned that retroactive application would impermissibly subject the defendant to a new legal burden of monetary liability with respect to past events.

Current pending legislation reauthorizing the TVPA includes an amendment to codify a ten-year statute of limitations for section Section 2. Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.

The Thirteenth Amendment and its enabling statute, 18 U. Neither the Thirteenth Amendment nor section expressly provides a civil remedy for victims of involuntary servitude. A court may imply a private right of action where Congress intended to create one by implication. To date, the U. Supreme Court has yet to recognize a private cause of action for involuntary servitude under the Thirteenth Amendment. Lower federal courts have been divided on the issue. The Manliguez court noted that other circuits have declined to extend civil liability to cases under section At least one court since Manliguez , however, has found there is no private right of action under the Thirteenth Amendment. Of note as well, one court suggested that 42 U. Furthermore, evidence of other means of coercion or poor working conditions may be used to corroborate disputed evidence.

In Kozminski , the U. Adhere to the time-honored interpretive guideline that uncertainty concerning the ambit of criminal statutes should be resolved in favor of lenity. In United States v. As a result, that section was interpreted to criminalize only servitude that is brought about through use or threatened use of physical or legal coercion, and to exclude other conduct that can have the same purpose and effect.

By creating an expanded definition of involuntary servitude in 22 U. Plaintiffs bringing civil claims under section must also meet the appropriate statute of limitations. Complaints must be filed in as little as one year from the alleged violation. However, in New York, the appropriate statute of limitations has been found to be three years, in part because the state recognized a federal interest in providing effective remedies to civil rights violations. Nearly half of the states in the United States have constitutional provisions prohibiting slavery and involuntary servitude.

These provisions do not explicitly provide for a private right of action. To guide state legislatures in drafting anti-trafficking measures, the USDOJ released model anti-trafficking criminal laws. One after another, individual states began to develop and codify anti-trafficking legislation. State anti-trafficking legislation ranged from sparse, focusing only on anti-trafficking criminal provisions, to lengthy omnibus bills that included new trafficking crimes, as well as attendant social services and compensation to trafficking victims. To date, 34 states have enacted anti-traffi cking legislation.

Despite the national movement toward state anti-trafficking legislation, only one state, California, has enacted a state level trafficking private right of action. In addition to criminalizing trafficking and providing a trafficking civil cause of action, AB 22 mandates that state and local law enforcement issue an Law Enforcement Agency Endorsement within 15 days of encountering a trafficking victim in order to expedite the provision of federally granted social services and immigration relief. AB 22 also provides victims with state crime victim compensation funds and state health and human services. The California trafficking private right of action was amended as section Civil Code. Section Among other things, section Similar to the federal trafficking private right of action, section Thus far, two civil lawsuits have been fi led utilizing section Both are pending at this time.

In order to make a claim under section Civil Code, a plaintiff must be trafficked as defined by section Penal Code. Penal Code defines trafficking as the unlawful deprivation or violation of liberty of another to maintain a felony violation or obtain forced labor or services. Fraud, deceit, coercion, violence, menace, threat of unlawful injury to victim or another person, or circumstances where person receiving threat reasonably believes that person would carry out threat. Duress, which includes knowingly destroying, concealing, removing, confiscating, or possessing any purported passport or immigration document of victim.

The statute of limitations for adult plaintiffs under section Civil Code is five years from the date when the trafficked person was liberated from the trafficking situation. For trafficked minors, the statute of limitations is eight years from the date that the minor reaches majority age. Restitution is granted pursuant to Cal. A convicted trafficker must pay two types of restitution: a fine that goes into the California State treasury as part of a general fund to compensate crime victims, and restitution paid directly to the particular victims of his or her particular crime.

Web hosting by Somee.com