Human trafficking is a serious issue in the United States and along the border of my home state of Texas. The U.S. Department of State estimates that between 14,500 and 17,500 victims are trafficked within the United States each year, many of whom are undocumented and enter into the country through our porous southern border. We must do all we can to combat this evil.
In response to this human rights crisis, Congress passed a landmark piece of legislation in 2000 “to combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude.” Known as the Trafficking Victims Protection Act (TVPA), it serves as a powerful tool to help curtail such activities by imposing severe criminal penalties for forced labor and sex trafficking. It has also since been amended, crucially, to include the ability to bring civil lawsuits and sue for limitless damages.
While this is an important deterrent against human trafficking and remedy for those who have been wronged, some in the legal profession have unfortunately seized upon this legislation as a vehicle for a lucrative payday since there is no limit to the damages that can be sought. The last few years have seen multiple foreign-educated healthcare professionals turn ordinary employment disputes into sensationalized human trafficking lawsuits, demonstrating how some in the trial bar have made a mockery of the laws meant to prevent this egregious crime.
An ongoing case involving Ariane Rose Villarin, a registered nurse from the Philippines recruited to work in the United States by Worldwide HealthStaff, is illustrative of the issue at hand. Villarin is suing Worldwide HealthStaff as well as CommuniCare, her employer, to remedy alleged violations of TVPA. Villarin claims CommuniCare failed to pay overtime and forced nurses like her to repay immigration costs associated with acquiring a visa if they quit before the end of their contractual commitment. She alleges that the repayment obligation amounts to “indentured servitude.”
But workers willingly entered into these contracts and benefited from them in the form of fully paid for immigration to the United States along with other free expenses and benefits, such as training, travel, and temporary housing. Staffing companies include repayment clauses due to the expensive and time-consuming nature of securing visas for qualified healthcare professionals. It simply would be impossible for a company to invest the time and funds required to bring workers to the U.S. legally if they could quit upon arriving with a free visa in hand.
While this lawsuit has little legal merit, it does underscore how different staffing agency models can lead to varied experiences for foreign-educated healthcare workers and invite legal action. Some staffing agencies operate under a model in which they both recruit and employ the professional, and then contract them out to healthcare facilities. Others, such as Worldwide HealthStaff – which recruited the Villarin – rely on a competing model known as direct recruitment. Under this model companies merely recruit healthcare workers and then pass them off to their clients who employ the nurses directly, providing the agency less control to ensure fair working conditions for their nurses.
But while poor working conditions should be addressed, they do not equate to human trafficking, and other labor laws already exist to address such issues. By and large, the courts have also found these arguments not to be compelling. Data from the Human Trafficking Legal Center has found that of the 458 lawsuits brought under TVPA during from 2003-2020 only 14% of cases “resulted in judgements for the plaintiff(s).”
This may not stop such lawsuits from dealing a massive blow to the American healthcare system though, by decimating foreign nurse recruitment. Foreign-educated nurses have become increasingly necessary amid a persistent nursing shortage. But the very firms that the United States has relied upon to help fill this healthcare gaps could be driven out of business by legal costs or decide that the potential litigation risk does not justify the business model. Such a decision would come at a very perilous time for healthcare staffing in the United States.
A recent survey found nearly a third of U.S. nurses say they will likely choose another career, signaling that the nursing shortage is poised to become even worse. That is worrisome given about 94 percent of surveyed nurses said there was already a severe or moderate nursing shortage in their area, with about half characterizing the shortage as severe. In this time of a nursing crisis, it would be devastating for a vital nursing pipeline to be undermined by outlandish legal theories.
The courts are often a place for individuals who have been wronged to seek restitution and throughout my legal career I have helped many people receive the justice they deserve. But sometimes the legal system is subverted in pursuit of nothing more than jackpot justice. Given how such frivolous cases in this instance detract from real victims and undermines nothing less than the public health of the United States, it is time that Congress and the judiciary give the abuse of human trafficking laws a closer look and find a way to move beyond this troublesome legal theory.
Chris Carmona is the managing attorney of The Carmona Group, a Houston-based law firm.
