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Labor Trafficking in Troubled Economic Times: Protecting American Jobs and Migrant Human Rights


Testimony
Luis CdeBaca
Ambassador-at-Large, Office To Monitor and Combat Trafficking in Persons
Statement Before the Commission on Security and Cooperation in Europe (U.S. Helsinki Commission)
Washington, DC
May 23, 2011

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As prepared for delivery

Good morning and thank you for the opportunity to testify before the Commission today. I’d like to thank Chairman Smith for his leadership on the issue of trafficking, and I applaud his decision to use the stature of the Helsinki Commission to shed a light on the problem of trafficking for labor exploitation in the United States.

Estimates on the total number of trafficking victims in the world start at 12.5 million on the low end and reach to 27 million on the high end. The victims are fishermen trapped on boats, their passports confiscated, forced to work twenty-hour days. They are women drawn away from their homes with the promise of good work, only to find themselves trapped as domestic servants with no pay and no way to escape. They are men brought overseas by unscrupulous recruiters who put them to work in fields and factories and force them to pay back the recruiters’ fees.

This problem is not isolated in faraway places in the world or limited to countries stricken by poverty or lack of opportunity. It’s happening right here in the United States. As a federal prosecutor, I saw it firsthand. The reality of this crime becomes very clear through the stories of survivors, many of whom found themselves deceived and trapped while in the hopeful pursuit of a life of greater opportunity and freedom.

It’s difficult to know exactly how many victims of labor trafficking there are in the United States. Trafficking in persons is a hidden crime, and gathering accurate statistics on the number of victims is an ongoing challenge. Victims of trafficking are often afraid or unable to come forward, and definitional difficulties, circular reporting, and the frequent intermingling of human trafficking and smuggling make accurate reporting nearly impossible. So rather than attempting to precisely outline the scope of the problem, I hope this testimony will help to highlight particular challenges in combating labor trafficking, including those singled out by the Commission; summarize the positive steps we have taken; share the promising practices we have seen from government, law enforcement, and civil society; and lay out where we need to go from here to expand and improve our efforts to combat labor trafficking in the United States.

The strategy that we use across the US government to address modern trafficking is based on the 3P Paradigm—prosecution, protection, and prevention—set forth in the UN Palermo Protocol, the decade-old document that established the framework for the modern anti-trafficking movement. In all three areas, we are seeing progress, and interagency coordination continues to improve so that across government we are united in this struggle.

In particular, I’d like to praise my colleagues at the Department of Labor (DOL) for implementing a rule that strengthens protections for Temporary Agricultural Employment H-2A Aliens in the United States. Guest workers are a group particularly at risk for trafficking, and this DOL regulation reduces the risk of worker exploitation by reinstating a requirement that employers provide documentation, as part of the application for guest worker visas, that they have complied with the prerequisites for bringing H-2A workers into the country and by returning to a methodology for calculating adverse effect wage rates, which results in higher wages for workers. Additionally, DOL has prohibited requiring H-2A workers to pay certain fees, including recruitment fees, and improved its own ability to ban employers who have committed violations of the agricultural program from filing future H-2A labor certification applications.

Building on that initiative, DOL last year entered into a revised agreement with the Mexican Embassy and the Mexican Ministry of Foreign Affairs to ensure that Mexican workers in the United States are informed of their labor rights through their consular offices. This information can assist vulnerable workers, including persons who may have been trafficked.

And of course, DOL’s lists published by their Office of Child Labor, Forced Labor, and Human Trafficking, such as the List of Goods Produced by Child Labor or Forced Labor, prove invaluable in demonstrating just how closely connected we are to this abuse around the world.

Despite these and other successes, we need to continue building our capacity and ensuring that the needed resources are in place to make anti-trafficking efforts across government more coordinated and effective. Today, with respect to labor trafficking in the United States, I’d like to look at the way new ideas about prevention are going to shape the future of this fight.

Prevention has long been the afterthought of the 3Ps in comparison to its seemingly more tangible counterparts of prosecution and protection. Prevention has either been relegated to the realm of poster campaigns in airports and train stations, or regarded as an abstract goal tied to massive structural problems such as gender inequality and poverty. But as our understanding of human trafficking grows, so too grows the possibility of making real inroads when it comes to prevention.

A good place to start is by considering the way those of us in the United States interact with labor trafficking on a day-to-day basis, which we all do. Forced labor is prevalent in the production of a wide range of raw materials, from cotton and chocolate and coffee to steel and rubber and tin. All of us come in contact with products tainted by labor trafficking, and even reputable and responsible corporate citizens can profit from abuse. It is this knowledge that has enabled us in recent years to focus on the importance of supply chain monitoring and to call for increased leadership from the private sector.

Consumer spending and corporate investment in business are significant motivators that can turn around a system that has allowed traffickers and economies to operate with impunity. There is an increasing push for consumer transparency, certification, and more rigorous regulation. Research suggests companies investing in fair labor practices and labeling their products accordingly improve conditions on the ground and drive up the demand for their products.

A new push for corporate accountability is emerging, which demands companies focus their attentions beyond the places where their products are manufactured or processed, and look additionally at the sources of their human capital and the methods of recruitment tied to their supply chains, as well as the places where the raw materials are collected, harvested, or mined. Effective supply chain monitoring must go all the way down to raw materials. Such research will lead to an understanding of supply and demand factors that affect the workers whose labor contributes to downstream profits.

In last year’s Trafficking in Person’s Report (TIP Report), the State Department published recommendations for verifiable corporate policies that prohibit the use of forced labor through the supply chain. Four major principles can help guide corporate action:

  • Statements of corporate policy must incorporate truly independent verification;
  • While remediation is important, when labor abuses rise to the level of a human trafficking offense, authorities should be notified;
  • Governments must redefine norms and set standards to create a space for companies to take the lead on combating modern slavery;
  • Lending institutions should consider establishing whether a company has a forced labor supply chain policy as a factor for determining that company’s credit rating.

The aim of supply chain monitoring is to find trafficking wherever it occurs, whether in manufacturing, harvesting of raw materials, or the commercial sexual activity aimed at business travelers. This knowledge will allow companies to staff and source their supply chains in a manner that diminishes the demand traffickers satisfy through violence and exploitation. We have developed a model set of policies that we believe will put companies on that path:

  • Taking accountability for all the labor in the supply chain all the way down to raw materials, with a pledge to monitor cmpliance, remediate noncompliance, and verify those actions by an independent third party;
  • Honoring the role and voice of the worker as the best check on abuse;
  • Publicly disclosing mechanisms for providing independent, unannounced, and thorough audits;
  • Providing effective whistleblower and complaint procedures;
  • Providing clear guidelines for security procedures throughout the supply chains to ensure that security forces are not used to intimidate, hold, or abuse workers;
  • Regularly updating shareholders and stakeholders on creation, maintenance, and implementation of their related policies;
  • Guaranteeing all workers mobility by strictly forbidding any confiscation of official documents;
  • Committing to providing restitution for victims and other forms of remediation;
  • Complying with trafficking-related local laws and international standards for confronting human trafficking and protecting victims;
  • Monitoring labor recruitment practices to ensure those working on guest worker or sponsorship systems are not exploited by recruiters; and
  • Holding employees accountable for any violation or exploitative conduct contributing to trafficking in persons.

While these recommendations from the TIP Report are a good starting point, we have already seen private-sector actors take the next steps by embracing the notion of supply-chain monitoring. A conference last winter produced the Luxor Implementation Guidelines to the Athens Ethical Principles. The Athens Ethical Principles are the product of a 2006 meeting of NGOs, governments, businesses, international organizations, and individuals, and they express a set of values opposed to trafficking in persons. But it was the Luxor conference that put in place standards for implementing those principles. According to the guidelines, they seek “to help move beyond aspirational statements to the development of standard operating procedures – a way to move beyond principles to practice and implementation.” To date nearly 600 companies have adopted the guidelines.

The Luxor Guidelines represent the future of the way we look at demand for forced labor. If there were no demand for the cheap goods tied to forced labor, then suddenly the profit motive for traffickers would no longer be worth the risk of engaging in a criminal enterprise.

And though the success of this approach requires motivated and willing private-sector actors, government’s role will remain central. California recently enacted a law that serves as a good example of legislation encouraging the private sector to look at their supply chains and consider their impacts on labor trafficking. California now requires its largest retailers and manufacturers to make public whatever efforts, or lack thereof, they have made to eliminate human trafficking from their supply chains. This is not a burdensome piece of legislation; it does not require corporations to adopt sweeping new policies for monitoring their supply chains. It just requires transparency. Of course, like the enactment of many trafficking laws, it was a partnership between government and the activist community that helped usher this process along, and it would not have been possible without the commitment and leadership of Julia Ormond, who will testify before this Commission later today and can likely provide greater insight on this outstanding legislation.

Beyond legislating, governments can use their leverage as consumers to curb the demand for forced labor. We have already taken steps in the US government’s procurement and contracting policies to protect against both sex and labor trafficking. The Department of Homeland Security and the Equal Employment Opportunity Commission co-chaired a temporary working group on implementation of the Federal Acquisition Regulation to combat modern slavery and its contributing factors like the demand for commercial sex. The group is developing a training program for the federal acquisition workforce to be considered for adoption by all agencies and deployment at the Federal Acquisition Institute.

Additionally, if government at all levels made commitments to reduce their slavery footprint—to support private-sector partners that had adopted anti-trafficking practices—the ripple effect could be tremendous. Forging partnerships to raise awareness about slavery footprint issues holds great potential. The State Department Trafficking in Persons Office is currently working with civil society and private sector partners to develop a tool that will allow individuals to determine not only their slavery footprint in their purchasing habits, but the steps they can take to reduce it.

Lastly, there can be no substitute for continued strong government action on all fronts of the anti-trafficking movement. The United States must continue to prosecute and punish traffickers. We need to enhance our efforts to identify victims, offer them protection, and provide survivors with the support and resources they need. We need to work with civil society and the international community as a global leader in the fight against modern slavery.

A decade into the modern anti-slavery movement, we find ourselves at a moment to ask the question “What are the next steps?” In the United States, and in many places around the world, the legal structures are in place, the political will has grown, and we are beginning to see progress. The fact that we’re having a hearing on labor trafficking and supply chain monitoring shows how far this movement has come. The fact that this commission recognizes the importance of partnering with the private sector and civil society speaks to the tremendous potential of what lies ahead. I believe that with the engagement of dedicated lawmakers and the commitment of the US government, the next ten years of this struggle will be a decade of delivering on what we’ve promised. I look forward to working with you as we continue this important struggle, and I again thank you for the opportunity to testify today.



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