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Human trafficking claim of guest worker allegedly forced to work at hotels fails

By Ronald Miller, J.D.

Claims by an employee that he was fraudulently recruited to work as an H-2B guest worker and forced to work overtime through threats of lack of immigration status, loss of work, and false promises of sponsorship in violation of the Trafficking Victims Protection Act (TVPA) were dismissed by a federal district court in New York. As an initial matter, the court observed that under Supreme Court precedent the term “individual” as used in the TVPA encompasses only natural persons, so the Act did not impose liability against organizations. Further, because the employee was already present in the country and had visa status, and his complaint did not allege a threat to terminate sponsorship or deportation, his claim of forced labor under the TVPA against an individual defendant failed (Adia v. Grandeur Management, Inc., September 6, 2018, Sweet, R.).

Hotel employment. The employee, a Philippine citizen, entered the United States with an H-2B visa as a temporary guest worker. He was first employed at a hotel in South Carolina for a company providing housekeeping services. The employer instructed him to coordinate with a New York cleaning service company for employment, monitored his employment service record, and paid for his services at the hotel through their payroll company. The employer also advised the employee it filed an application for a change in his H-2B status to B1/B2 status. The employee was sent a copy of the notice from the immigration service acknowledging receipt of the application for the change in status. He was also allegedly promised by the employer that he would not become unlawfully present in the country, and that it would file another H-2B petition and then an H-1B petition on his behalf.

The employee was allegedly told to rely on the employer to ensure his immigration status. Further, he was allegedly advised not to look for other employment as the employer would ensure his immigration status to be in order at all times. Thereafter, the employee was transferred to work as a doorman at a New York hotel owned by the employer. The employer stated that his immigration status would depend on the employee’s continuing reliance on the employer and on his being in the employer’s good graces.

In February 2012, the employee inquired regarding the filing of his H-1B sponsorship, at which time the employer admitted that it had not filed any H-1B petition. The employee brought suit alleging that the employer fraudulently recruited him to work as an H-2B guest worker and forced him to work overtime through threats of lack of immigration status, loss of work, and false provisions of sponsorship in violation of TVPA and the Alien Tort Statute (ATS), as well as New York Labor Law. In response, the employer filed a motion to dismiss.

Corporate defendant. As an initial matter, the employer asserted that a corporate defendant was immune from liability under the TVPA as a matter of law, citing Mohamad v. Palestinian Authority, in which the Supreme Court held that the term “individual” as used in the TVPA encompasses only natural persons. Consequently, the Act did not impose liability against organizations.

Individual defendant. As to the individual who owned the hotels and affiliated companies, the court observed that TVPA enables individuals who are victims of forced labor or trafficking to file a civil action against the perpetrators.

In this instance, the employee was already present in the United States for an unspecified period of time, and had visa status before he ever spoke to the individual defendant. The employee’s claim of forced labor appeared to be based on his subjective feeling that he could not pester the individual defendant about his visa status, or he might risk having sponsorship withdrawn. Consequently, the complaint did not allege a threat to terminate sponsorship or deportation. Under these circumstances, the employee failed to state a claim for forced labor under the TVPA against either defendant.

Moreover, the court concluded that the employee’s claim of human trafficking under the TVPA was simply a restatement of his forced labor claim. According to the employee, the defendants “recruited, harbored, and transported” him for the purpose of subjecting him to forced labor. However, the employee was already lawfully present in this country. There were no allegations that the defendants transported him to New York or anywhere else. Rather, the employee admitted that he traveled there himself. Thus, the employee’s human trafficking claim failed.

Alien tort claim. As with the TVPA, there is no corporate liability under the ATS. Thus, the employee’s claim against the corporate defendants was dismissed. Moreover, on the merits, the allegations in the complaint fell short of what is required to state a claim under the ATS. ATS jurisdiction depends on a violation of a law of nations. “To demonstrate a violation of the law of nations, a plaintiff must prove a violation of international law norms that (1) are norms of ‘international character’ that nations abide by out of a sense of legal obligation; (2) are ‘defined with a specificity comparable to the 18th century paradigms . . .’; and (3) are ‘of mutual concern’ to nations.”

The international definition of forced labor does not cover “low wages or poor working conditions . . . .” It also does not include “situations of pure economic necessity” caused by a lack of employment alternatives. Forced labor must involve a “severe violation of human rights and restriction of human freedom.” Moreover, “the ATS has always been understood as covering torts committed abroad.” Accordingly, the court concluded that it did not have jurisdiction over a claim against either defendant under the ATS.