By Wayne D. Garris Jr., J.D.
The H-2B worker plausibly claimed violations of the Trafficking Victims Protection Act after his employer threatened to withdraw its visa sponsorship if he sought other employment or complained about working conditions.
The Second Circuit reversed a federal district court’s dismissal of a hotel worker’s Trafficking Victims Protection Act (TVPA) claims finding that the employer’s alleged threats to withdraw his visa sponsorship were sufficient to establish plausible claims of forced labor and human trafficking (Adia v. Grandeur Management, Inc., July 25, 2019, Newman, J.).
Guest worker. The worker is a Filipino citizen who lawfully entered the United States as a temporary guest worker with an H-2B visa. His employer services hotels and resorts, and its manager offered the plaintiff H-2B sponsorship in September 2010 as a housekeeping attendant at a Grandeur location in South Carolina, while he was then living in South Dakota. The plaintiff accepted the offer, but when he arrived, the employer informed him that there was no work for him but assured him that work would be available. Grandeur and the manager presented as proof a United States Citizenship and Immigration Services notice that they had filed for an extension of the worker’s H-2B status.
No overtime. In March 2011, the manager sent the plaintiff to work as a housekeeping attendant and doorman in New York City. He was paid through affiliated entities and Grandeur supervised his employment. The plaintiff regularly worked over 40 hours per week, but Grandeur did not pay him overtime.
Withdrawal of sponsorship threatened. Later that year, the manager told the worker that he applied to change his H-2B status to B1/B2 and assured him that he could lawfully remain in the country, asking him not to look for other employment. According to the plaintiff, the manager told him that Grandeur would cancel or withdraw his immigration sponsorship if he took another job or “was difficult with them” regarding his work.
The plaintiff further alleged that in February 2012, his manager told him that he had not filed any H-1B petition for him and that he had been unlawfully working and staying in the country because he did not have valid immigration status.
Dismissed by district court. He filed suit alleging that defendants violated the forced labor and human trafficking provisions of the TVPA, Alien Tort Statute, and New York Labor Law. The district court dismissed the complaint. As to the TVPA claims against Grandeur, the court concluded that the TVPA does not impose liability on corporate defendants, and it dismissed the TVPA claims against the individual manager, finding that the forced labor claims was based the plaintiff’s “subjective feeling” rather than threats. His human trafficking claim failed because he was already in the country when he was recruited. The plaintiff then appealed the dismissal of the TVPA claims.
Forced labor. The plaintiff asserted that when Grandeur threatened to cancel or withdraw their visa sponsorship, they violated the TVPA by “abusing or threatening to abuse the law or legal process.” Citing the Supreme Court in United States v. Kozminski, the court concluded that the alleged threat to cancel the worker’s sponsorship was abuse of the legal process under the TVPA. Specifically, there is a plausible inference that the manager threatened to expose the plaintiff to deportation by revoking his sponsorship. The court also found that the plaintiff had another plausible claim because the defendants forced him to accept less than the prevailing wage rate under threat of deportation.
Human trafficking. The TVPA prohibits a person from knowingly recruiting, harboring, transporting, providing, or obtaining any person for labor or services in violation of the statutes prohibiting, among other things, forced labor. As such, if the defendants violated the forced labor statute, they also violated the human trafficking statute if they had recruited the plaintiff to perform forced labor.
As to the district court’s reasoning, the court held that there is no requirement in the relevant TVPA sections that victims be brought into or recruited from outside the United States. The court also pointed out that the district court’s ruling that a corporate defendant could not be liable under the TVPA is erroneous.
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