How Congress's Anti-Trafficking Legislative Agenda May Affect Your Company's Recruitment Practices

Tuesday, June 17, 2014 - 14:16

In a single week in late May, the House passed several bills designed to stem the flow of human trafficking.  The bills were accompanied by a press release which specifically linked the measures to the sexual slavery of children and warned that the legislation was part of a larger effort to fight the trafficking of humans.  But human trafficking concerns not only the violent world of sexual slavery but other less brutal, but still troubling forms of exploitation, including employment-related mistreatment.  Therefore, the House’s legislative agenda casts a wide regulatory net that would obligate U.S. employers to take measures to combat trafficking in the recruitment of foreign workers by third parties. This article will focus on one such bill, the Fraudulent Overseas Recruitment and Trafficking Elimination Act (FORTE), which exists as a standalone bill and was also a part of the comprehensive immigration bill that passed the Senate last year.  With respect to employers, the FORTE Act would establish registration requirements for third-party recruiters and employers that rely on outside recruiters to recruit and hire foreign workers. The bill would require third-party recruiters to register biannually with the Department of Labor. Employers, in turn, would be required to provide annual notification to the Department of Labor regarding the identity of third-party recruiters upon whom they rely for foreign labor contracting activity. The employers must further affirmatively notify the department if they are aware of any outside recruiter who is not complying with the registration requirements, whether or not that recruiter has been contracted to work on the employer’s behalf. 

The FORTE Act also introduces precise disclosure and notification requirements.  Though an earlier version of the bill would have required many organizations, including employers recruiting on their own behalf, to register, the current version limits disclosure requirements to third-party labor recruiters and mandates that recruiters provide detailed, written notifications to foreign-based applicants. The notifications cover a range of issues, including whether the foreign worker may be charged for recruitment or visa fees. The disclosures must be provided in written form in both English and the worker’s primary language.

An employer’s first challenge would be to ascertain if the Act applies to its overseas recruitment.  The first version of the Act defined “foreign labor contracting activity” quite broadly; the second version, in turn, limits its definition to the recruitment of foreign workers that will be employed pursuant to a U.S. work visa and be paid below the rate of a highly compensated employee as required under the Fair Labor Standards Act (FLSA).  Moreover, while the second version restricts notification and registration requirements to third-party recruiters, the definition of third-party recruiter is drawn so broadly that it would include certain in-house recruiters. For instance, if an employer uses its own recruiter to recruit a foreign worker, employs that worker pursuant to a U.S. work visa (e.g. H-1B), and then places the worker at a worksite owned by another employer, the hiring/H-1B employer’s in-house recruiter could be considered a “third-party” recruiter and could be required to comply with the Act’s stringent registration and notification requirements.

The Act’s enforcement mechanism encompasses civil and administrative remedies.   Workers who believe they have suffered a specific harm related to the Act – such as a failure to be provided sufficient written notifications in the worker’s foreign language – may file a complaint with the Department of Labor.  Once a complaint is received, the secretary of labor is charged with conducting an investigation. Upon completion of the investigation, the secretary has broad authority to order the employer and/or recruiter to provide compensatory damages, cover administrative and legal costs, and/or take affirmative action to abate the violation. If the employer and/or recruiter do not comply with the order, the secretary may file a civil action in federal district court to compel compliance.

In sum, the FORTE Act, as presently worded, could significantly impact U.S. employers’ foreign recruitment efforts.  Moreover, although the Act would introduce a new set of precise regulations, its worker protection provisions are largely addressed by existing regulations.  For instance, guest workers are generally covered under the National Labor Relations Act (NLRA) and FLSA and many work visa categories already have minimum wage requirements.  As such, the FORTE Act, while introduced with the laudable aim of reducing human trafficking, would also introduce new compliance obligations to industries that are already heavily regulated.  

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Kevin O’Sullivan, an Associate at the firm, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.