James T. Dixon | Brouse McDowell
When examining the boilerplate terms of a construction contract before signing, pay particular attention to whether it includes a clause like this:
Contractor warrants and represents that it is and will remain compliant with all applicable laws and regulations pertaining to human slavery and trafficking.
These terms are becoming more common on private projects, though contractors working on federal projects have likely become accustomed to them.
The International Labour Organization, an agency of the United Nations, works to prevent forced labor, modern slavery and human trafficking. The global numbers are staggering, with 16 million estimated to be in forced labor, most of which are women and many of which are children.1 The U.S. Institute Against Human Trafficking, recognizing that the hidden nature of the crime makes it difficult to count victims, estimates that for sex trafficking the number of children involved exceeds 100,000.2
While hard data defining the extent of the problem in the U.S. is hard to find, what is known for certain is that there is a problem in the construction industry. One non-profit studied data from the National Human Trafficking Hotline to identify 25 types of exploitation, with exploitation in construction identified among them.3 Trafficking in construction usually occurs in small companies, often with employers misclassifying workers as independent contractors. The majority are men from Mexico, El Salvador, Honduras and Guatemala, in the U.S. on H-2B visas or without documentation.4
Cases in Minnesota and California illustrate the nature of the problem. In Minnesota, a subcontractor hired undocumented immigrants to work on projects throughout the Twin Cities, exploiting their fear of deportation in order to force them to work excessive hours, to accept low pay, to avoid seeking medical attention, and to work in unsafe conditions.5 A man who ran several construction companies in Hayward, California, used similar techniques while serving as a labor broker. In addition to his conviction, the government compelled the project developer to pay back wages. The developer denied wrongdoing but it, and its contractor, changed their subcontractor selection process.6
Sex trafficking occurs when a commercial sex act is induced by fraud, force or coercion or involves a minor. Labor trafficking involves the use of force, fraud or coercion to subject someone to involuntary servitude or slavery.7 In 2015, an amendment to the Federal Acquisition Regulations increased compliance demands for contractors on federal projects. Primary among them was the requirement that contractors annually certify compliance plans that include investigation and remedial actions. Specifically prohibited acts include the destruction of identification documentation, the use of misleading recruiting, the charging of recruitment fees, the failure to provide return transportation and the use of substandard housing.8 Contract termination and contractor debarment and suspension are identified penalties.9 And of course there are criminal statutes in place that penalize individuals who are involved in trafficking.
The representation and warranty term cited above is a catch-all where a project owner has quite simply placed a compliance burden upon the contractor—though the law itself already imposes that burden. While the Trafficking Victims Protection Act is the primary law at issue, another act that impacts those within the construction supply chain prevents the importation of goods made using human trafficking or forced labor.10
In general terms, all construction project participants should be well informed of the nature of their supply chains—for labor, materials and equipment. Construction companies on private projects, where the compliance terms are not spelled specifically in the contract, can be proactive and implement screening practices for subcontractors and suppliers. Labor brokers must be scrutinized carefully. Immigration documentation can be requested and checked. Many companies make their Anti-Human Trafficking Statements available on the internet. Construction executives can review those to familiarize themselves with the terms and start the process for creating and implementing their own policies.
1. Global Estimates of Modern Slavery, International Labour Organization and Walk Free Foundation, p. 28 (2017).
2. https://usiaht.org/the-problem/
3. The Typology of Modern Slavery: Defining Sex and Labor Trafficking in the United States, Polaris (2017).
4. Id.
5. “Man Charged with Labor Trafficking for Exploiting Undocumented Workers Sentenced,” KSTP (2020).
6. “Contractor Faces 20 Years in Prison for Forced Labor,” K. Slowey, CONSTRUCTIONDIVE (2019); “San Jose Contractor Pays $250k to Settle Labor Trafficking Suit,” K. Slowey, CONSTRUCTIONDIVE (2018).
7. Trafficking Victims Protection Act, 22 USC § 7102 (11).
8. FAR 52.222-50(b)(5).
9. 22 USC 7104(k)(1)(H).
10. The Customs and Facilitations and Trade Enforcement Reauthorization Act of 2009.