|
Workers' Rights and Human Trafficking Guidelines
Human trafficking is one of the most severe violations of workers rights, and trafficking is on a continuum:
Legal Treatment of Workers ------------------ Labor Exploitation --------------------- Human Trafficking
The following chart highlights some of the major issues facing workers rights, the law that applies, and shows how the issue plays out in a trafficking context. Resource information follows.
ISSUE
| THE LAW
| HUMAN TRAFFICKING
| IMPORTANT NOTES AND TIPS
|
Minimum Wage
|
FL: minimum wage = $6.67/hour
Federal (Fair Labor Standards Act - FLSA and State Laws
Exceptions
Covers undocumented workers
|
Worker will not be paid minimum wage; may not be paid at all
|
Workers should always first check with an attorney or advocacy organization before making a complaint or
report even though law protects undocumented workers, as it may be unsafe. (See Resources.)
|
Discrimination
| Cannot discriminate against persons based on age, race, sex, national origin, religion, color, gender, marital status or disability (includes HIV status)
Includes sexual harassment, pregnancy discrimination
Federal - Title VII Civil Rights Act and American with Disabilities Act
State -
Generally covers employers with more than 15 employees or 20 for age discrimination.
Covers undocumented workers
| Common for traffickers to discriminate in many ways, e.g., hire only foreign born or those who cannot speak English; may only hire women; may sexually abuse/harass women and children or demand sexual favors; may hire only the very young or the very old because they are the most vulnerable, etc.
| Remedies are supposed to "make victim whole" and can include getting the job back, back pay, wages, costs suffered, and attorneys' fees.
Workers should always first check with an attorney or advocacy organization before making a complaint or report even though law protects undocumented workers, as it may be unsafe. (See Resources.)
|
Unemployment Compensation
| Allows for 30 weeks of unemployment insurance if loses job through no fault of worker
Federal and State Laws
Does not cover undocumented workers
| Trafficked persons would not be able to assert protections here because they are undocumented. Remedies available under other laws.
|
|
Safe Workplaces
| Makes employers provide safety and health protections
for workers and workplaces free of known hazards
Federal law: Occupational Health and Safety Act (OSHA)
Federal Law applies only to private sector
Covers undocumented workers
| Trafficked persons often are forced into very unsafe working conditions and in places that are hidden such as factories, private homes, farms or kitchens out of public view.
They are often placed in dangerous situations, handling chemicals or other hazardous materials, working without safety equipment and being in very high risk situations.
| Commentators say law is under enforced in Florida
Workers should always first check with an attorney or advocacy organization before making a complaint or report even though law protects undocumented workers, as it may be unsafe. (See Resources.)
|
Equal Pay
| Women and men must be paid same for same/similar work
Federal (Equal Pay Act)
Covers undocumented workers
| Women and children are more often victims of trafficking and are never paid fairly.
|
|
Workers' Compensation
| Gives benefits for work related injuries (cash, medical coverage, retraining, etc.)
Worker gives up right to sue
Must report to employer immediately or may lose rights
Does not apply to undocumented workers
| Trafficked persons are often "off the books" and cannot receive benefits such as this.
|
|
Paychecks
| Shows wage, time worked
Has deductions
| Workers who are trafficked are often in debt bondage situations and told they must work off the
| For all wage and hour issues, workers should keep a written
|
| Gross and net pay shown
Other info
Covers undocumented workers
| money traffickers have spent on them (transportation, housing, food, etc.)
Traffickers may not give a paycheck, or may show worker a "book" that accounts for what they have worked and still "owe" the trafficker/employer.
If they issue a paycheck, the chances are very good that their records are false.
| record of time worked and wages paid.
Records should be kept in a safe place, away from view of employer or trafficker
|
Children
| Under 18 years old
Law generally prohibits children under 14 from work
Ages 14 - 18 many restrictions
Federal and State Laws
Covers undocumented workers
| Traffickers exploit adults and children alike.
Estimates are that 80% of those trafficked are women and children.
| Workers should always first check with an attorney or advocacy organization before making a complaint or report even though law protects undocumented workers, as it may be unsafe. (See Resources.)
|
At-will Employment
| Can be fired in FL for any reason except discrimination
Covers undocumented workers
| To traffickers, workers are expendable and "disposable."
Traffickers buy and resell people as well as regularly move them from job to job.
| Generally only protected if you have a union or contract or some government employment
|
Overtime
| Must pay 1 ½ time if employee worked over 40 hours
Federal - FLSA
Many exceptions (professionals, contractors)
Covers undocumented worker
| Traffickers never pay a legal wage, or overtime.
| Workers should always first check with an attorney or advocacy
organization before making a complaint or report even though law protects undocumented workers, as it may be unsafe. (See Resources.)
|
Labor Pools
Labor Pools (cont'd)
| Governs what pools have to provide workers
Cannot charge more than $1.50 for transportation
Can only charge actual cost for pool store purchases
Cannot force you to eat/pay for
| Labor contractors may hire workers from labor pools and these workers may be trafficked.
Labor pools, as they include people who are vulnerable or desperate to work, may include trafficked people, or those who are at risk to be trafficked.
| Workers should keep records of time worked and wages paid, license plates used to transport them and employer name and contact info.
Workers should always first check with an attorney or advocacy organization before making a
|
| lunch, but can deduct it
Cannot charge worker for safety equipment
State law
Covers undocumented workers
|
| complaint or report even though law protects
undocumented workers, as it may be unsafe. (See Resources.)
|
Vehicle Transport Safety
| Farm labor vehicle on State roads must be safe
Most must have seat belt for each passenger
Must show stickers directing seat belt use
Fines for non-compliance
Protects undocumented workers
| Traffickers often transport workers within states and countries, as well as across state and national borders. Rarely are vehicles safe and equipped as this law intends.
| Workers should always first check with an attorney or advocacy organization before making a complaint or report even though law protects undocumented workers, as it may be unsafe. (See Resources.)
|
Family and Medical Leave
| Grants unpaid leave to care for sick family member, disability of worker, birth or adoption of a child
Federal only
| Trafficked persons are eligible, but unlikely to be able to file a complaint here.
|
|
Remember:
- The laws covering workers rights are very complex; workers should get an attorney and/or an advocate who is experienced to make sure they do not lose any rights.
- Traffickers do not follow the law. This chart shows what workers are entitled to under law so that they can see for themselves if they are being treated legally or are being exploited. The column "Human Trafficking" gives examples of what trafficking could look like.
- It is very unlikely that trafficked persons can enforce their rights, or file reports, while they are being enslaved. This is true even though human traffickers violate these labor laws. These remedies, then, will help a person after s/he is free.
- Trafficking victims cannot enforce their rights until they are free and out of a human trafficking situation. It is then that a worker could file a complaint with the Florida Commission on Human Relations or Equal Employment Opportunity Commission (EEOC) and could well have grounds to file complaints and receive back pay, wages, damages and other relief to 'make them whole.'
Trafficking vs. Labor Exploitation
Unfortunately, there are many workers who are being illegally exploited and treated in ways that violate the law - they may be paid less than minimum wage, not given time off when they are sick, or are fired because of their age or race. In order to be trafficked, there must be force, fraud or coercion. This means that the traffickers or the "employer" must have forced a person to work, for example, by keeping him locked inside a labor camp, behind razor wire. Or, they must have tricked or defrauded the person by promising a good job such as being a nanny, then making her become a prostitute. Or perhaps the trafficker coerced her to work, threatening to harm her, hurt her family, or call immigration if she did not continue to clean hotel rooms to pay off her "debt" to the trafficker.
If there is force, fraud or coercion, there is probably trafficking. However, if a person is being paid below minimum wage, is working in an unsafe workplace and is staying at an employer's apartment with many other workers in substandard conditions, that person is clearly being exploited, and can report the employer and use the laws to help. But, if they are free to walk away, if they have not been threatened or forced to work for that employer, they are not trafficked.
If a person is both exploited and trafficked, many or all of the laws described here can be used to help. Other laws specific to human trafficking can also help that person to receive benefits like back pay and medical care.
Resources:
Toll-free phone numbers and websites for help in Florida:
ESOL - friendly websites:
- Florida State University, Center for the Advancement of Human Rights: 850-644-4550; www.cahr.fsu.edu has a downloadable toolkit for ESOL instructors, "Human Trafficking in Florida: A Guide for English for Speakers of Other Languages (ESOL) Teachers. This Guide includes: a Curriculum Framework & Student Performance Standards, handouts for ESOL teachers, sample lesson plans and activities, basic rights and remedies and workers rights and trafficking guidelines, a PowerPoint presentation and extensive resource information for students and teachers.
- The Massachusetts Worker Education Roundtable provides training to educators on different aspects of the work place. It currently conducts a project titled "Workplace Health and Safety ESOL Curriculum". http://www.umass.edu/roundtable/projects/Health-Safety-ESOL.pdf This project can assist education with the development of workers rights and introduction of human trafficking materials.
- The website http://www.umass.edu/roundtable/ was developed by the University of Massachusetts in conjunction with the System for Adult Basic Support (SABES) and contains a "Workers Rights Curriculum" which could be adapted for use in Florida. See also http://www.cpcs.umb.edu/lep/revisions.html .
To report human trafficking and resources in Florida
Federal Government:
|
