Civil Remedies for Victims of Human Trafficking

© Kathleen Kim

Associate Professor of Law

Loyola Law School

Trafficked Persons Have Civil Rights

• Trafficked Persons (TP) endure a multitude of abuses as a result of the trafficking. Thus, they have the right to file a civil lawsuit to receive monetary damages for their injuries. These monetary damages are called civil remedies.

Why civil remedies?

Trafficked persons sustain both economic and non-economic losses including unpaid wages and overtime and tremendous pain and suffering. The goal of pursuing civil remedies is to make the victim “whole” again.

What’s the difference between the criminal justice system and

the civil justice system?*Adapted from “Civil Justice for Crime Victims,” The National Crime Victim Bar Association

• In the criminal justice system, the defendant is accused of committing a crime against the State. The prosecutor represents the interests of the State. The victim of the crime serves as a witness for the prosecution.

• In the civil justice system, the victim sues the perpetrator for damages. A court’s finding of liability holds the defendant accountable to the victim. The victim’s attorney represents the victim’s interests. The victim controls the direction of the case.

Criminal Case vs. Civil Lawsuit

• Defendant is accountable to the State

• The State prosecutes and controls the case

• The prosecutor represents the State’s interests

• The victim is a witness, NOT a party

• Defendant is accountable to the victim

• The victim sues and controls the case

• The victim’s attorney represents the victim’s interests

• The victim is THE plaintiff party deciding the direction of the case

Criminal Case vs. Civil Lawsuit

• Burden of proof: beyond a reasonable doubt, very high standard

• Criminal liability: imprisonment, probation, fines, and restitution

• Burden of proof: a preponderance of the evidence, lower standard

• Civil liability: damages and penalties

Why pursue civil relief?

• Empowers survivors to vindicate their individual rights

• TP is the plaintiff• TP exercises agency and control over legal

decisions• Holds traffickers accountable for profiting off

trafficked labor• Recovery of both economic and non-economic

losses

Reasons to pursue civil relief:

• Liability of third parties

• Deterrent

• Damages exceed restitution

• Dissatisfaction with criminal prosecution or no prosecution

• Vehicle for trafficked client to promote social justice

Attorney and non-attorney service providers’ role:

Inform the client of the option to pursue civil remedies and assist the

client in finding a competent attorney.

Disclaimer: Legal theories discussed here will not

address legal distinctions among jurisdictions that should be left to evaluation by local attorneys. This presentation is meant to only familiarize providers with their clients’ options for civil relief. The attorney selected to represent the client will render sound legal advice to potential clients.

The Civil Lawsuit• Filing of the complaint: The complaint is the document

that presents the facts of the case along with all the plaintiff’s legal claims or causes of action.

• Answer: After the defendant receives the complaint, he or she files an answer. This document sets forth the defendant’s version of the facts and defenses.

• Discovery: This is the information gathering portion of the legal process. The parties can request from each other information and documents relating to the case, they can interview witnesses and perform fact investigation.

The Civil Lawsuit cont.

• Trial: If the case does not settle, it will go to trial before a judge and/or jury.

• Damages: If the plaintiff wins the case, the judge and jury determine the amount of damages to which the plaintiff is entitled.– Compensatory damages: awarded as compensation for

the plaintiff’s losses including pain and suffering and mental distress.

– Punitive damages: awarded to punish and deter egregious conduct.

Advantages and Disadvantages of Civil Litigation

• Collection of judgment or defendant is judgment-proof

• Victim may have to testify or may want his/her day in court

• Takes a long time or may settle quickly• May lose or win

Attorneys must inform the clients of all potential risks involved so they can make an educated

decision.

Civil Litigation for TP

• Protective Mechanisms• Strategic Considerations

– Plaintiffs/Defendants– Collecting judgments– Statute of limitations– Criminal prosecution/no prosecution– Causes of action

• Collaboration with other attorneys and social service providers

Protective Mechanisms

• Use pseudonyms in the complaint to protect the identity of the trafficked client.

• Seek a temporary restraining order and/or preliminary injunction to prevent the defendant from contacting your client.

• Motion for protective orders to prevent the defendant’s discovery of your client’s identification information.

Plaintiffs

• Individual

• Class action, Fed. R. Civ. P. 23

• Representative action, FLSA

• Mass actions

Defendants

• First party

• Third party– Can be liable, but not for punitives– Negligent third parties– Corporations– Joint employer liability

Collecting judgments

• Insurance policies– Homeowners/renters– General liability (carried by businesses)

• Perpetrator’s income, property and holdings– Wages, unearned income– Personal and real property, and future interests– Bank accounts, debts owed, holdings

Statute of Limitations

• All legal claims have time limits. In order to preserve a client’s cause of action, lawsuits must be filed timely. When the statute of limitations expires for a particular legal claim, the client may no longer pursue relief under that claim. Some statute of limitations expire in less than a year from the time of the violation.

Criminal Prosecution

• A civil suit may be filed during an ongoing criminal investigation and prosecution. Federal prosecutors may intervene to stay the civil proceedings until the end of their investigation and prosecution. Waiting to file a civil suit until the close of a criminal investigation and prosecution risks the expiration of the statute of limitations.

No Criminal Prosecution

• A civil suit may be filed whether or not there is a criminal investigation and prosecution. In lieu of a criminal prosecution, the trafficked client is still entitled to relief for his/her injuries and unpaid wages.

Causes of Action

• TVPRA private right of action• Thirteenth Amendment and involuntary servitude

(implied civil right of action)• Alien Tort Claims Act• Racketeer Influenced and Corrupt Organizations Act• Fair Labor Standards Act• Title VII• Intentional torts and negligence• Contract claims• State labor codes and other statutes

Victim of Trafficking Civil Remedy (18 U.S.C. § 1595)

• A new trafficking private right of action recently amended in December 2003

• Victims of forced labor, trafficking into servitude or sex trafficking may bring a civil action against the perpetrator

• Compensatory and punitive damages

• Attorneys’ fees

Thirteenth Amendment and Involuntary

Servitude (18 U.S.C. § 1584) • Involuntary servitude, “a condition of servitude in

which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” Kozminski

• Compensatory and punitive damages• Statute of limitations: same as general tort claims

Alien Tort Claims Act (28 U.S.C. § 1350)

• Grants federal jurisdiction for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

• Slavery is a violation of international law

• Compensatory and punitive damages

• 10 year statute of limitations

Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1962)

• Prohibits predicate acts such as peonage, involuntary servitude, document fraud, coercion and transportation for immoral purposes

• Treble damages and attorneys’ fees and costs

• Four year statute of limitations

Fair Labor Standards Act (29 U.S.C. § 201)

• Wage and hour

• Compensatory and liquidated damages and civil penalties

• Statute of limitations: 2 years for non-willful, 3 years for willful

Fair Labor Standards Act

All workers, regardless of immigration status are entitled to the federal minimum wage of $5.15 per hour, and in most cases, time and a half for work periods beyond forty hours in one week. Still, the FLSA has specific rules and some exemptions that may apply to the industries where many trafficked workers are found.

Specific rules apply to:

• Relatives• Domestic workers• Sex workers• Children• Agricultural workers are protected by the Migrant

and Seasonal Workers Protection Act

An attorney well apprised in employment law can assess the appropriate amount of wage and hour recovery for trafficked clients.

Title VII (42 U.S.C. § 2000e-2)

• Forbids employers from firing, failing to hire, or in any way discriminating against an employee with respect to her “compensation, terms, conditions, or privileges of employment” because of the employee’s race, color, sex, national origin, religion, or pregnancy.

• Sexual and racial harassment: quid pro quo (sexual harassment) and hostile work environment (sexual and racial harassment).

• Applies only to employers who have 15 or more employees for each working day in each of twenty calendar weeks in the current or preceding year.

• The employee must file her charge with the EEOC within 300 days of

the discriminatory act. EEOC issues “right to sue” letter. Must sue within 90 days of issuance.

• Compensatory and punitive damages and attorneys’ fees.

Retaliation

• It is illegal for an employer to retaliate under both the FLSA and Title VII.

• Retaliation is defined as employer intimidation, threats, or discrimination against an employee as a result of the employee’s complaint.

• Reporting immigration status to the authorities following a worker complaint is illegal retaliation.

Retaliation and Hoffman Plastics

All workers are protected under the FLSA and Title VII regardless of immigration status. Widespread misunderstanding regarding back pay recovery for undocumented workers has occurred due to Hoffman Plastic Compounds v. NLRB.In this case, undocumented workers attempting to assert their rights under the National Labor Relations Act were wrongfully terminated after their employer retaliated. The court determined that the plaintiffs were not entitled to recover for wages they would have earned had they not been fired. Hoffman DOES NOT limit recovery of any unpaid wages and overtime for work already performed. It has also been held that Hoffman does not bar undocumented workers from receiving compensatory and punitive damages for retaliation under the FLSA. Still, there remains some uncertainty as to whether courts will extend Hoffman’s limitations on back pay to other types of remedies in suits brought by undocumented workers.

Torts

• Torts are personal injury claims. There are two categories of torts: intentional and negligent.

• Please refer to your state’s tort law for the applicable statute of limitations. Many states have tort statute of limitations of one year.

Intentional torts that may arise in a trafficking context include:

• Intentional Infliction of Emotional Distress• False Imprisonment• Assault• Battery• Fraud• Conversion• Invasion of privacy

Contract Claims

• A breach of oral and/or written contract

• Contract damages

• No punitives

• Please refer to your state’s tort law for the applicable statute of limitations.

State Labor Codes

• Broader wage and hour protections

• Longer statute of limitations

• Civil penalties for pay stub violations, illegal deductions, meal/rest break violations

Collaboration With Others

A civil action on behalf of trafficked persons involves tremendous legal case management and intense collaboration with the other agencies and advocates involved. It is important to coordinate information and services to minimize hardship on the client and to pursue legal relief in the most effective and efficient manner.

Collaboration With Others

Coordination with the following agencies is necessary when proceeding with a civil action:

• Criminal law enforcement agents and attorneys

• Immigration attorneys

• Social service providers

Criminal Law Enforcement Agents and Attorneys

• The client’s civil attorney should inform the AUSA of plans to file a civil action.

• The government may request a stay of the civil action until the close of the criminal case.

• After the close of the criminal case, documents can be obtained through the Freedom of Information Act (FOIA).

Finding a Civil Rights Attorney

A civil rights organization with experience in immigrant workers’ rights, preferably with a human trafficking program, will be able to assess the civil claims of the trafficked client and may be able to secure pro bono civil legal services.