Labor & Employment Law Daily Detainees may challenge work program at for-profit immigration detention facility under TVPA
Wednesday, March 4, 2020

Detainees may challenge work program at for-profit immigration detention facility under TVPA

By Ronald Miller, J.D.

Under the plain language of the statute, the TVPA covers the conduct of private contractors operating federal immigration detention facilities.

The Trafficking Victims Protection Act (TVPA) applies to for-profit immigration detention centers, meaning immigration detainees held there can sue if they’re forced into labor, ruled the Eleventh Circuit. The appeals court concluded that while the TVPA does not bar private contractors from operating voluntary work programs, which are generally authorized under federal law for aliens held in immigration detention facilities, contractors that operate such work programs are not categorically excluded from the TVPA and may be liable if they knowingly obtain or procure the labor or services of a program participant through the illegal coercive means explicitly listed in the TVPA (Barrientos v. CoreCivic, Inc., February 28, 2020, Hull, F.).

Work programs. U.S. Immigration and Customs Enforcement (ICE) detains certain aliens during the pendency of removal proceedings or for other reasons related to enforcement of federal immigration law. Some of those detainees are housed in facilities operated by private contractors. Private contractors operating an ICE detention facility are required to follow the Performance-Based National Detention Standards (PBNDS), which are designed to ensure a safe and secure detention environment that meets detainees’ basic needs. The PBNDS provides that detainees may be required to “maintain their immediate living areas in a neat and orderly manner.” Beyond those basic tasks, detainees “shall not be required to work,” and all other “[w]ork assignments are voluntary.”

Further, the PBNDS provides that “[d]etainees shall be provided the opportunity to participate in a voluntary work program” through which they may earn monetary compensation. Facility administrators are to operate the voluntary work program in compliance with the PBNDS with respect to the selection of detainees, hours of work, minimum compensation for completed work, the number of work assignments a detainee can perform, and the conditions under which that work occurs. Detainees may be removed from the voluntary work program for causes such as “unsatisfactory performance” or “disruptive behavior,” or as a sanction for an infraction of a facility rule, regulation, or policy.

Forced work allegations. Immigration detainees brought a class action against a private contractor that operates a federal immigration detention facility. The detainees alleged that, far from operating a “voluntary” work program, the contractor coerced them to perform labor through the use or threatened use of serious harm, criminal prosecution, solitary confinement, and withholding of basic necessities.

According to the detainees, they were housed in overcrowded and unsanitary “open dormitories” with showers without temperature controls and that the contractor did not provide them with basic hygiene products, including toilet paper, soap, and toothpaste. In contrast, participants in the work program were provided two-person cells, a shared common area, a bathroom shared with only one other cellmate, and a shower with temperature controls. Also, because they were paid between $1.00 and $4.00 per day, the work program participants were able to purchase necessities from the commissary. Once detainees are in the work program, the contractor threatens to harm or actually harms those who refuse to work, they asserted. Consequently, the work program was not voluntary in any meaningful sense. They alleged that this scheme violated the forced-labor prohibitions of the TVPA and Georgia law.

The TVPA applies. The TVPA, 18 U.S.C. §1589(a), prohibits knowingly obtaining the labor or services of a person through coercive means, such as force or threats of force, abuse or threatened abuse of law or legal process, or a scheme or plan intended to cause a person to believe that if they don’t perform such labor or services, that person or another person will suffer serious harm or physical restraint. Section 1589(a) applies to “whoever” knowingly provides or obtains such forced labor or services from a “person.” In turn, §1595(a) provides for a private cause of action for any victim of a violation of §1589.

The contractor contended that the TVPA does not apply to a private government contractor and does not cover labor performed in work programs by alien detainees in lawful custody of the U.S. government. The district court denied the contractor’s motion to dismiss, but certified an immediate appeal on the question “whether the TVPA applies to work programs in federal immigration detention facilities operated by private for-profit contractors.” The Eleventh Circuit limited its review to the discrete and abstract legal issue of the TVPA’s applicability to a certain class of cases. It did not address whether the complaint in this case sufficiently alleged a violation of the TVPA at this stage of the litigation.

The appeals court had to first determine whether the language at issue had a plain and unambiguous meaning. The TVPA creates a cause of action against whoever knowingly provides or obtains the labor or services of a person by various illegal coercive means. Like the district court, the Eleventh Circuit found this language to be “plain and unambiguous.” The statute limited liability only by reference to the actions taken by a would-be violator: It applies to anyone who knowingly “obtains the labor or services of a person” through one of four illegal coercive means explicitly listed in the statute. There was no other limiting principle evident from the plain text.

Mandated work programs. The contractor asked the appeals court to hold that the TVPA can never apply in the specific context of a “federally mandated voluntary work program in a detention setting,” even when work is obtained through force, physical restraint, or threats of serious harm. In other words, it argued that the words “obtains the labor or services of a person” do not naturally encompass federally mandated voluntary work programs for alien detainees because the contractor is required to provide a voluntary work program for detainees, and thus it cannot illegally “obtain[] the labor” of detainees through such a program. The contractor insisted that its construction of the statute was consistent with the text, structure, and purpose of the TVPA. However, the appeals court rejected the contractor’s request that it read into the statute a limiting principle: that Congress could not have intended alien detainees participating in voluntary work programs to sue and make use of the statute.

The fact that the PBNDS requires the contractor to operate a work program for detainees did not mean that such a program can never be operated in a manner that violates the TVPA. If a contractor actually forces detainees to provide labor through any of the illegal coercive means explicitly proscribed by the TVPA, it has “obtain[ed] the labor or services of a person” in violation of the TVPA. The mere fact that a contractor is operating a work program at the behest of the federal government does not, in and of itself, shield the contractor from liability under the TVPA if it in fact obtains the forced labor of program participants through illegal coercive means explicitly proscribed by the TVPA.

Accordingly, the appeals court held that the TVPA applies to private for-profit contractors operating federal immigration detention facilities, and affirmed the district court’s denial of the contractor’s motion to dismiss the detainees’ complaint.

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