Human trafficking is a problem in other countries and not in the United States. Right? Wrong. In fact, you could not be more wrong. Human trafficking occurs right here in the US, in your state, in your city and perhaps even in your neighborhood. It is a problem of unbelievable proportion, occurring in industries ranging from farmworkers to escort services.
A new report published by Polaris, analyzed 32,000 cases of human trafficking between 2007 and 2016. This is the largest data set on human trafficking ever compiled and analyzed in the US. The team classified the cases into 25 different categories, finding that each had its own business model, profile, recruitment strategy and methods of control and each works in subversive ways to conceal the crime.
Trafficking in the food industry
Three of the 25 categories identified lie in the food industry. This puts restaurants, bars, and agriculture in three of the areas of concern. Maria Godoy interviewed Janet Drake, a senior assistant attorney general in Colorado, for her article in The Salt. Drake notes that while only 16% of the identified cases involved labor trafficking, it is probably at least as prevalent as sex trafficking, if not more so.
The workers come from Vietnam, China, Mexico and Central America. They come with promises of good jobs and legal immigration, but once here they quickly find themselves in situations with pay on a piece rate basis. Employers charge fees for the privilege of being here. They live in cramped, overcrowded, dirty conditions. Without access to health care and safety supplies necessary to do their jobs, they work in dangerous situations. Threatened with deportation and not given appropriate sponsorship to become legal citizens, they live in fear each day.
Defining piece rate
Piece rate is a process of payment by results or work paid for according to the number of units turned out. An employee is paid for each unit of production at a fixed rate. In the food industry, it is easy to see examples of this. In agriculture, the farm workers who work in the fields are paid by the piece. In restaurants, the bussers, wait staff, and cooks are paid for production and not by an hourly rate. In a study conducted by the Food Chain Workers Alliance and Solidarity Research Cooperative, it was found that despite phenomenal growth in the industry, median wages remain the lowest of any industry. The study stresses that there are steps that both policy makers and consumers can take to improve job conditions.
As a consumer, you can help by supporting the efforts to improve working conditions by attending rallies, speaking to employers and supporting legislation. You can buy products that are certified by fair-trade or union organization as being made by companies with fair-labor standards. You can educate others and you can make calls to your legislators.
Legislation that helps
California is already taking steps to make positive changes that will impact food workers and other piece rate workers impacted by human trafficking. On January 1, 2016, AB 1513 added section 226.2 to the California Labor Code which applies “for employees who are compensated on a piece-rate basis for any work performed during a pay period.” This labor code has two primary functions:
- It establishes compensation and wage statement requirements for rest and recovery periods, as well as other non-productive time for piece-rate employees.
- It establishes an “affirmative defense” for certain employers against claims by employees regarding failure to pay compensation due.
The statute clearly defines the compensation requirements and how to determine the rate which is based on the higher of the average hourly rate calculated by the total compensation for the workweek, divided by the total hours worked, minus the rest and recovery periods; or the applicable minimum wage. Rest periods are defined as a 10-minute period for every four hours worked and if the employer fails to provide this rest period, the employee is paid for one full hour of work at the calculated rate. Other “non-productive” time that is separate from piece-work and not paid at an hourly rate, also has pay requirements assigned.
As an employer, the affirmative defense portion addressed the requirement for employers to compensate employees for unpaid rest and recovery periods for a time period of July 1, 2012 to December 31, 2015. The deadline for submitting notice to the Department of Industrial Relations ended on July 28, 2016. Payments to current and former employees as a result of this legislation were not tracked or monitored and any disputes filed by employees will be heard by a judge or arbitrator. Employees who believe they should have been compensated but did not receive payment can submit a claim through the Unpaid Wage Fund.
As with any employment law, figuring the details can be complicated. At Aiman-Smith & Marcy, we specialize in employment law in California and helping to eradicate unethical practices. If you feel you or someone you know has been affected by human trafficking or unfairly paid based on the requirements of AB 1513, contact us for a consultation.
