Exaggerated Claims About Human Trafficking Undermine True Victims
Trial lawyers have been accused of exaggerating their client’s injuries in search of a higher payout or professional notoriety. Such exaggerations can make it difficult for more deserving victims – including those who have suffered serious harms – to be taken seriously when they seek justice. This has become a disturbing problem in the fight against human trafficking.
While the Trafficking Victims Protection Reauthorization Act of 2003 was intended to combat the scourge of modern-day slavery by authorizing civil actions against accused traffickers, it is increasingly being used to reframe standard contract and employment law claims. A lawsuit accusing Health Carousel, an Ohio-based healthcare staffing company, of human trafficking and “indentured servitude,” is emblematic of the problem.
When the original Trafficking Victims Protection Act (TVPA) was enacted in 2000, Congress described its purpose: “to combat trafficking in persons, a contemporary manifestation of slavery. Victims are often forced through physical violence to engage in sex acts or perform slavery-like labor. Such force includes rape and other forms of sexual abuse, torture, starvation, imprisonment, threats, psychological abuse, and coercion.”
Congress never dreamed the statute would be used by lawyers to sensationalize ordinary employment contract disputes, such as those between Health Carousel and three foreign-educated nurses who chose to leave their jobs there before the conclusion of their respective contracts.
Health Carousel is a leading and well-respected recruiter of foreign-trained healthcare workers, many from the Philippines, for placement at healthcare facilities throughout the United States. As the plaintiffs’ lawyers acknowledge in their complaint, at a time when hospitals and nursing homes “lack sufficient staff to serve the healthcare needs of their communities, ... they turn to Health Carousel.”
The plaintiffs note that they, “like many healthcare workers in the Philippines, wanted to come to the United States for a better life.” And that is what companies like Health Carousel provide. Healthcare professionals abroad look to the company to sponsor them for work visas that can lead to permanent resident status and to manage and pay for the accompanying administrative and legal processes. Health Carousel also covers the immigrants’ airfare and other travel expenses and provides temporary housing and a cash bonus upon arrival to help them transition into life in the U.S.
Once in the U.S., Health Carousel pays these healthcare workers at least the local prevailing wage while also providing additional professional and language training to help ensure their success, as well as benefits, such as paid vacation and employer-subsidized health and life insurance. In return, the workers sign a contract agreeing to stay with the company for a specified commitment period and agree that, if they break their commitment, they will reimburse Health Carousel for its investment in them by paying “liquidated damages” – typically $10,000 to $30,000 – and will not work for a local competitor for the next year.
Such provisions are common in Health Carousel’s industry. They are approved by the state of Ohio and are routinely enforced in its courts. Companies like Health Carousel could not continue to operate if their workers were able to break their commitment without penalty after receiving visas, free travel, training, temporary housing, and the like. These standard contract provisions are not the coercion or threats of harm contemplated by Congress when it passed the TVPA.
The lawyers suing Health Carousel allege that its attempts to enforce the contracts are an abuse of the legal process because the plaintiffs “had no idea and no reason to believe, before coming to the United States, that Defendant [Health Carousel] would strictly enforce” the contract’s breach provisions – the ones the plaintiffs voluntarily agreed to. According to this logic, Health Carousel is guilty of fraud because the plaintiffs, who were intelligent enough to obtain professional degrees, were somehow incapable of understanding the contracts they signed.
Equating liquidated damages to human trafficking and slavery defies common sense, the purpose of the Trafficking Act, and rulings of the federal courts. As the U.S. Court of Appeals for the Third Circuit noted, “Modern day examples of involuntary servitude have been limited to labor camps, isolated religious sects, or forced confinement.” Nonetheless, trial lawyers have chosen this route, likely because the Act’s unlimited damages and generous attorneys’ fees offer them the potential for a financial windfall – or a pressured settlement – to go along with sensational press coverage.
To the extent that the plaintiffs are unhappy with the amount of liquidated damages or other contract provisions they agreed to, their attorneys could seek alternative remedies that do not abuse the TVPA. Basic common law defenses to breach of contract claims are readily available. They could ask the court to reduce the liquidated damages or shorten the non-compete period, by arguing that such provisions are contrary to public policy regarding workers’ freedom to change jobs. Similarly, Ohio courts have shown that they are receptive to unconscionability arguments for provisions of employment contracts that may create an unfair disadvantage for workers.
Instead, the sensationalist legal theory these lawyers have chosen actually reduces the likelihood of their clients succeeding on their claims. Moreover, it trivializes the dehumanizing experiences of actual human trafficking victims – foreigners held captive or subject to physical abuse, brutal working conditions, threats of violence, forced prostitution, and the like – which makes this case and those like it particularly offensive.
By painting ethical labor recruiters like Health Carousel as human traffickers, lawsuits like this threaten to drive such companies out of business and make foreign workers afraid to seek a better life in the U.S. The result, fewer potential workers and fewer recruiters to find placements for them, ensures that the harm posed by these lawsuits extends to the entire healthcare system, which is already struggling with acute labor shortages.
It is difficult to see how using the TVPA to address traditional employment and contract claims will help anyone but a handful of trial lawyers. Yet the potential for far-reaching harm is clear. Rather than seeking big pay-outs or fame, the attorneys suing recruiters should seek legitimate remedies for their clients’ concerns.
Curt Levey, president of the Committee for Justice, is a constitutional law attorney.
