As demonstrated in chapter 6 on victimization, labor trafficking victims experienced both civil and criminal violations. Labor trafficking victims may seek various civil remedies (e.g., back wages,
discrimination claims, class action lawsuits, civil actions against traffickers). Interviews with survivors, service providers, and law enforcement officials indicated that in general across sites, survivors rarely received compensatory relief in the form of back wages or civil damages. Survivors provided rich detail regarding their experiences with the civil and criminal justice systems and their sense of whether they felt justice had been served. Criminal restitution was also rarely granted to survivors. Chapter 9
describes in depth the challenges that survivors face with the criminal justice process. In this chapter we focus on the challenges and potential benefits of the civil justice system.
If labor trafficking cases are not pursued criminally, civil damages may be a survivor’s only option to receive remuneration. However, civil litigation is rare primarily due to limited and restricted use of funding streams and a lack of attorneys and other resources needed to bring these cases forward. Attorneys cited funding for affirmative civil litigation as a need to better serve their clients. When asked how common it was to bring civil cases for labor trafficking, one attorney described the overall
landscape in the United States:
There have only been 73 cases brought federally in the last 10 years. So, they are not being brought. And I’ve been trying to talk to other advocates about why they think that is. I think there’s a range of reasons. One, it’s really hard under current legal services funding to do class actions or any impact litigation because there’s restrictions to what you can use the money for, the legal services. And also because if you’re doing this sort of immigration relief, you don’t have as an NGO the resources to do a big federal or like a big civil action. So, you see them being brought by law firms taking on pro bono cases. (site 1a, attorney 1)
As a result of these funding restrictions, no service providers nationwide are funded to solely bring civil cases on behalf of labor trafficking survivors for back wages or for harm caused by the labor trafficking.58 One attorney in our sample was able to bring a few cases and achieve significant
compensation, but she was one of a few individuals nationwide working on these cases.59 The attorney explained the impact these restrictions have on survivors:
They [survivors] are entitled to so much more than back wages. They can bring a claim for the trafficking. . . . And they are left in such a financially precarious position that it really does—so my whole spiel is even with an approved T, these are still low-wage workers. They are still
immigrants and people of color. So they are ripe for reexploitation, and even if they are not retrafficked, which sometimes happens, they are likely going to find themselves in another exploitative labor situation. So, the only way to do that is to get them on their feet and give them stability. Sure, immigration status is great, but we also need to give them what the products of their labor. We need to pay them their lost wages. Where would any of us be if we weren’t paid for a year or 5 or 10 or 20? (site 1a, attorney 1)
Some survivors were able to receive civil compensation. These cases were more common with the larger H-2B guest worker labor trafficking cases brought by organizations such as the Southern Poverty Law Center or government agencies such as the Equal Employment Opportunities Commission. Both organizations have advocated on behalf of workers in labor trafficking cases, many times in cases that have failed to move forward criminally. These organizations have used class action lawsuits and violations of the Civil Rights Act of 1965 to bring these cases forward, bringing both compensation and a sense of justice to survivors. Although civil penalties are an important form of justice, they are not a form of criminal justice. As one young man in our study indicated, even though he and other survivors had won a civil case, because the company that used their trafficked labor and the contractors directly trafficking the workers were never held criminally liable, they continued to operate and could exploit
countless other victims. In another H-2B labor trafficking case, a survivor described how although other victims received a little bit of compensation, he believed the traffickers were still at large and that a female victim was now in a relationship with one of the traffickers in an effort to help protect herself from the traffickers’ threats of being reported to immigration.
For many survivors, even when civil or criminal monetary damages are awarded, collecting the money can be very difficult. Survivors and service providers described how it is not uncommon for money awarded to survivors not to be dispersed, either due to the company or trafficker declaring bankruptcy or traffickers fleeing the country or being deported. Other interviewees described how companies may close and reopen under different names or countersue victims to avoid payment. The young Eastern European woman quoted below describes how she never received the payment she was owed for her work, even though she was extremely diligent about following up and cooperating with investigators in this case.
Yes. Yes. I mean, I didn’t know that it was going to be okay, but I told her [victim's mom] it was going to be okay because she was like crying at me and she is like, “Well, even though I don’t have money, I write check.” I was like, “No.” I mean she was like, “If you need, I can find for you.” But I was like, “No. Let me see what I can handle this and what can I do to change it and be able at least to get my money back.” As I told you they still owed me. They didn’t pay me anything, but government told me the financial situation was very bad in the United States right now as far as the money that they owe me. Maybe one day I’m gonna get that, but . . . (site 3, survivor 3, female, hospitality)
A service provider in one site explained how civil judgments can be more promising avenues for victims to receive compensation compared with criminal restitution because criminal cases rarely go forward and if they do, restitution may be small and only include back wages, but no calculation for interest or pain and suffering. However, as she describes below, civil judgments are also difficult to obtain for labor trafficking victims, particularly when cases may be charged under nontrafficking charges and victims may have been arrested for being unauthorized immigrants.
So a civil judgment can be much higher than restitution might be because restitution is just their back wages. But anyway, in this case, so it was not trafficking charges it was the immigration violations, and no restitution was ever sought cause they were, our clients were seen as quote, “complicit” and were not seen as, you know, being victimized. Granted, you know this was, the perpetrator was already deported so you know they’re not going to collect this amount, but, um, hopefully it sends a message. (site 3, attorney 1)