Slave Next Door (15 page)

network that smuggled illegal immigrants—men and teenage boys—

across the Mexican border into Arizona, trucking them to the farms of

three New York counties and enslaving them there. They were forced to

work in the row crops of onions, cabbage, and tomatoes. The situation

was typical of those found in such cases: instead of receiving the prom-

ised favorable working conditions and decent wages, they were met with

threats and acts of violence, squalid living conditions, and confiscation

of their pay by the traffickers—in this case, various members of the

Garcia family. Six of the workers finally escaped and blew the whistle;

eventually the trafficking ring was busted, and five of the Garcias were

arrested, prosecuted, and convicted. Werner then filed suit against not

only the Garcias but twenty growers as well, on the premise that they

were aware of the workers’ servitude and had done nothing to stop it.

The suit is ongoing.61

There doesn’t have to be a criminal conviction before a lawsuit can

start. This is good because criminal charges often languish. Time and

again, in interview after interview for this book, legal aid attorneys and

caseworkers commented on the government’s unwillingness to take on

trafficking cases—or at least the less “glitzy” ones. Many feel that lim-

ited resources of finances and personnel, and a lack of understanding of

the subtle nature of most slavery cases, have led the DOJ to “cherry-

pick” the cases they think they will win, as well as those with high visi-

bility. This often means cases that involve sex and overt violence.

Inevitably, according to the NGOs, the majority of trafficking cases go

unprosecuted.

This view, say representatives of the DOJ, is unduly harsh and not

very realistic. One U.S. attorney presents a practical explanation: “I

think it has less to do with ‘one version of trafficking is worse than

another,’ than with what could just be a lack of resources. We have to

make tough calls about the types of cases we’re going to follow through

on. Because of the difficulty in proving many of these cases, my guess is,

law enforcement may be going after the worst ones.”62 However, as

experience has shown, in cases that the federal government chooses not

to pursue, a civil suit can actually succeed. In a civil case, where the

burden of proof is less rigid, the plaintiff can sue all the way up the

ladder, to the CEO of the corporation that hires the contractor, as well

as the contractor himself. A case currently in the Connecticut courts

comes out of what had all the earmarks of a trafficking situation. A

dozen Guatemalans were given legal work visas to plant trees in North

Carolina; the contractors, however, allegedly packed them into a van,

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drove them to a nursery in Granby, Connecticut, confiscated their

papers, and threatened them with arrest and deportation. According to

the civil charges, they were forced to work eighty-hour weeks for prac-

tically no pay, denied emergency medical care, and clearly kept against

their will.63

U.S. attorney Kevin O’Connor maintains that this situation does not

represent a trafficking case, and the government has decided not to

pursue it.64 However, Yale University’s clinical professor of law Michael

Wishnie and four of his students brought civil suit on behalf of the

workers, against not only the labor contractor (Pro Tree Forestry

Services of North Carolina) but the grower (Imperial Nurseries) and the

corporation that owns them (Griffin Land and Nurseries), personally

naming the parent company’s CEO, among others. Griffin trades on

NASDAQ, and Imperial Nurseries is one of the twenty largest in the

country. Wishnie contended that “Imperial was responsible for what

happened on their fields, and they profited from the fact that these work-

ers weren’t paid.”65 Regarding Wishnie’s civil suit, U.S. attorney

O’Connor says, “We’re perfectly fine with Mike going ahead with his

suit; it’s not an issue.”66

In June 2007, Griffin Land and Nurseries and its subsidiary, Imperial

Nurseries, settled the suit by agreeing “to provide the workers with finan-

cial compensation out of concern for the hardship they allege they expe-

rienced.” According to a Griffin spokesperson, the corporation fired Pro

Tree as their labor contractor immediately on learning of the worker

abuses they allegedly inflicted.67 Although the suit against Griffin and

Imperial was resolved, the action, citing human trafficking and forced

labor, would take another year and would result in a judgment in excess

of $7 million against three defendants, including Pro Tree.68

Federal law didn’t permit bringing a civil suit on the grounds of traf-

ficking until 2005; before that time lawyers used federal and state wage

and hour laws, the racketeering law (RICO), the Alien Tort Claim Act,

the Migrant and Seasonal Agricultural Worker Protection Act (AWPA),

and the Thirteenth Amendment. They sued on the basis of assault, false

imprisonment, involuntary servitude, outrageous conduct, and emo-

tional distress.

Many see civil action as a viable means of attacking the trafficking

problem. In 2005, attorneys Kathleen Kim and Dan Werner wrote a

manual for lawyers,
Civil Litigation on Behalf of Victims of Human

Trafficking.
69 They see lawsuits as a way to “make the victim ‘whole’

again.” In these civil suits, the perpetrator is made directly accountable

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to the victim rather than to the criminal charges of the prosecution. In

addition, third parties who allegedly profit from human trafficking, such

as Imperial and Griffin, can be made liable, and damages are allowed to

exceed restitution.

Currently agriculture-based civil suits are in progress in various

states, including Colorado, Georgia, North Carolina, New York, and

Connecticut. (One recent New Hampshire case, involving trafficked

Jamaican workers, actually resulted in the successful
criminal
prosecu-

tion of the traffickers.)70 But the road to civil litigation is by no means a

sure one. It presupposes certain conditions and inherently incurs certain

difficulties. Federal law states that the prosecutor in a
criminal
case can

seek damages for the victim through a requisition order. If the court

awards the plaintiff damages in amounts exceeding the defendant’s abil-

ity to pay, it is pointless for a civil attorney to seek further payment: his

clients will never see a nickel, especially once a defendant is in jail. Also,

to bring suit against the bigger fish, the attorney has to be able to

demonstrate the buyer’s direct involvement in the labor process. Another

drawback is time: like all civil actions, these suits can take years to

resolve, and the workers, in all likelihood, will have long since moved

on. In cases where the victims’ testimony is crucial, this is an obvious

drawback. Realistically, the chances of winning against a large corpora-

tion are daunting, considering that they will invest heavily in skilled

lawyers. And should they lose, they can afford to go through an endless

series of appeals and chalk it up to the cost of doing business. At the

other end of the spectrum, some companies, like labor recruiters, are

small and virtually without assets, making civil litigation difficult. Some

of these companies are criminally “connected,” and by naming them in

a civil suit the victim puts himself—and his family—at risk. Further, in

cases where workers have been through the emotional wringer of a crim-

inal trial, they may not want to see the inside of a courtroom again. And

because the trafficker remains at large, the victims may never feel safe.

Still, given how few trafficking cases face criminal prosecution, a civil

lawsuit may be the only legal satisfaction open to the victims.

“ G U E S T S ” I N T H E F I E L D S

It’s bad enough when slavery exists and the government is either unaware

or unwilling to address it. But how about an ongoing federal program

that makes it much too easy to bring people into the United States to be

enslaved? Welcome to the “Guest Worker Program,” also known as the

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H-2 program, after the type of visas assigned. Temporary agricultural

workers from Latin America, Asia, eastern Europe, and the Caribbean

are lured here by the
official guarantee
of good working conditions: so

many hours a week at a fixed and acceptable wage, government-

inspected living conditions, and medical benefits, including “payment

for lost time from work and for any permanent injury.” Guest workers

are also entitled to “federally funded legal services for matters relating

to their employment.” According to the rules, any employer who

receives DOL approval to import guest workers must compensate them

for their travel expenses—the plane or bus fare and food costs incurred

on the way to the promised job. Finally, the worker is guaranteed three-

fourths of the total hours promised in his contract for the period of

employment specified.71 The conditions of the program also stipulate

that the worker is obligated to stay with the employer who sponsored

him; he cannot leave to seek a job elsewhere. Some employers adhere to

the conditions of the law. But in a large number of cases, not a single

one of these promises is honored because of employer abuses and

government neglect.

The Guest Worker Program is not a new concept: the United States

has been taking in foreign workers almost since its inception. Our atti-

tude toward them—at least over the last hundred years—has been

ambivalent. America welcomed them when we needed them—during

the two World Wars, for example, when most of the permanent work-

force was in the service—and limited or simply ousted them when we

didn’t. In 1943, to provide workers for the southern sugar cane fields,

the government established the H-2 program. From its beginning it was

characterized by inequity and brutality. As recently as 1986, cane cut-

ters who attempted a work stoppage over poor conditions were beset by

armed police with dogs, acting at the employers’ behest. The incident

became known as the “Dog Wars.” In that same year, the H-2 program

was expanded to include nonagricultural workers, but the number of

mainly Asian and Latin American guest workers arriving for farm work

under the program is still significant. The number of foreign workers

certified by DOL as agricultural—or H-2A—laborers went from forty-

eight thousand in 2005 to nearly seventy-seven thousand in 2007.72

The viability of a guest worker program has been endlessly debated,

but one thing is clear: its lack of oversight provides a splendid opportu-

nity for mistreatment and enslavement. In the words of Mary Bauer of

the Southern Poverty Law Center, “The very structure of the program . . .

lends itself to abuse.”73 Increasingly, employers use labor contractors to

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recruit guest workers for them. In this way they avoid technical respon-

sibility for the workers, legally distancing themselves from any abuses

that follow. The brokers recruit the workers in their home countries.

Unrestricted by law or ethics, they make promises of work and wages

that far exceed the provisions of the program—so much so that the

workers go into massive debt, often in excess of $10,000, to pay the

recruiter’s inflated fee.

Employers often bring in more workers than they need. They exag-

gerate the number required, as well as the period of employment, since

they know the government isn’t paying attention. Employers know they

can get away with not paying the three-fourths of the wages or meeting

the other conditions the contract stipulates. The worker, heavily in debt

and doomed to few work hours and pay fraud, is indentured even before

he leaves home. When he arrives in America, he finds himself at the

mercy of his employer. The promised forty-hour week turns out to be

only twenty-five hours, and his looming debt becomes instantly insur-

mountable. Sometimes the workweek is eighty hours long, but the

promised pay is withheld or radically reduced. The “free housing in

good condition” can turn out to be a lightless, heatless shack with no

bed or blankets, and sometimes no windows to keep out the cold,

shared with twenty or thirty other workers. In some cases, he is locked

in or kept under armed guard.74 If transportation to the job is required,

a travel fee is deducted from his pay. Fees are illegally charged for food

and sometimes rent, both of which are guaranteed him by law. The pro-

gram also promises him worker’s compensation for hospital or doctor’s