Today’s blog post takes a closer look at the nuances of labor exploitation and human trafficking. It is written by our partners at Colorado Legal Services. Colorado Legal Services provides meaningful access to high quality, civil legal services in the pursuit of justice for low-income persons and vulnerable populations.
Some misconceptions about human trafficking are easy to correct: No, human trafficking doesn’t happen only in foreign countries. Yes, U.S citizens can also be victims of trafficking. But there are other misunderstandings that can only be clarified through nuanced discussion and an understanding of the gray areas that exist with such a broadly defined crime. So what are the differences between labor exploitation, labor violations, and human trafficking?
Labor Exploitation vs. Labor Violations
Labor exploitation, the broadest term, occurs when an employer is unfairly benefitting from their employee’s work. Since fairness is subjective, different people may have different definitions of what constitutes exploitation. Labor exploitation is not a legal term—in fact, not all forms of labor exploitation are illegal.
“Labor violations,” however, is a legal term, used when employers violate federal, state, or municipal laws related to worker treatment, workplace safety, or recordkeeping requirements. Labor violations could include paying wages below the required minimum wage, nonpayment of overtime wages, illegal deductions from workers’ pay, and the misclassification of workers for tax purposes. However, overlapping legislation excludes workers in certain industries, so not everyone is entitled to the same standards or protections.
All labor violations are labor exploitation, but not all labor exploitation is a labor violation. For example, in early 2019, CU graduate workers (master’s and PhD students employed by the university, usually to teach undergrad classes) organized to increase wages and reduce student fees. They protested that many graduate workers could not live healthy and fulfilling lives with their meager salaries; much of their after-tax wages were returning to the school through tuition and student fees. These working students felt they were being taken advantage of—that their labor was being exploited. They protested these conditions by writing op-eds, staging walk outs, and circulating petitions, not by going to law enforcement or the courts. That’s because CU seemingly obeyed all federal and state laws when hiring and managing their graduate workers: no labor violations in sight.
Force, Fraud, and Coercion: Key to Defining Human Trafficking
Simply defined, human trafficking is the exploitation of an individual for the purposes of compelling their labor by the use of force, fraud, and coercion. Human trafficking clearly falls under the exploitation umbrella, but what distinguishes it from other labor violations?
- Compelled labor: Labor laws assume that the worker has voluntarily consented to taking a job, and that the worker is free to leave at any time. However, in trafficking situations, this often isn’t the case.
- Force, fraud, and coercion: Employers/traffickers use these means to exert a high level of control over their victims, a key characteristic of any trafficking situation. Trafficking victims may experience changing work conditions, restrictions on their movement, improper debt, or the withholding of identity or travel documents, negating the consent they gave when taking the job and making it even more difficult for them to escape the situation.
- Totality of the circumstances: While labor violations may not always be cut and dry, it is often clear which facts need to be investigated. In contrast, an assessment of human trafficking requires a more macro-level approach, to see how all of the variables combine into forced or coerced labor.
A Hypothetical Example: Anna
These distinctions can be blurry when human trafficking and other labor violations overlap. Let’s take a hypothetical example: Anna is paid $500 a week to clean hotel rooms. According to her contract, she is assigned 12 rooms each night. On a good night, she can finish in six hours, but if she is assigned a particularly messy room or one of her coworkers needs help, it can take up to nine hours. She always clocks out at 5:30, but she must keep working until she has finished all 12 rooms. The owner praises her as a hard worker, often using it as an excuse to hug her or stroke her hair in a way that makes her uncomfortable. She puts up with it because it took her months to find a job near her home that would allow her to be home with her children during the day.
The situation doesn’t sound fair, so that checks the box for labor exploitation. As for labor violations, there are clearly some sexual harassment issues, and there are likely minimum wage and overtime violations, since Fatima is paid the same amount each week regardless of hours worked. But these facts don’t appear to raise red flags for human trafficking, because it seems she is voluntarily working, free to leave at any time without risk of harm to herself or others.
But perhaps circumstances change over the next six months. Say Anna breaks up with her long-term partner. The owner lets her move into one of the hotel’s rooms with her children, but as soon as they are settled, he tells her the arrangement is illegal, and says he will report her to the police if she tells anyone about it. He deducts rent payments from her check, often leaving her with a sum that barely covers the cost of living. She feels she is on the clock 24/7, with the managers often stopping by to give her extra work during her off. Even if she didn’t fear the legal consequences of reporting her boss, she can’t save up for a security deposit and doesn’t know where else she and her children could live. Because she is now feeling less able to leave the job, Anna’s situation is starting to look more like human trafficking.
The distinction between labor violations and human trafficking is important because different legal remedies and social services are available under different laws. However, since both human trafficking and labor violations fall under the broader umbrella of labor exploitation, tackling that larger problem can reduce all abuses. If you believe that you or someone you know is being exploited for sex or labor, contact Colorado’s Human Trafficking Hotline today.