A 2010 lawsuit has finished its trial stage, resulting in a $4.5million verdict in favor of 350 Philippine teachers who had been recruited towork on H-1B visas in Louisiana. Thejury found that the twin recruiting firms – Universal Placement International,based in Los Angeles, and its sister organization, Manila-based PARSInternational Placement Agency – violated a number of laws. The teachers’ case was supported by theSouthern Poverty Law Center, the American Federation of Teachers, and the mega-lawfirm Covington & Burling. The caseis captioned, Mairi Nunag Tanedo et al v. East Baton Rouge Parish School Board etal. The case is a strong blow againstunscrupulous recruiters.
But what did the Court really find with this decision? And how can H-1B recruiters and employers whowant to stay within the law learn from this decision.
The applicants were interviewed and were asked to pay $5,000upon submission of their documents. Petitionsfor working visas (H1B) for the teachers were processed through the recruitmentagency. When these were approved and the applicants concluded their interviewwith the US Embassy, the teachers were asked to pay an additional $10,000.Failure to pay the additional sum, they were told, would result in forfeitureof the first $5,000 and the teachers would not be permitted to travel to theUS.
The facts were concisely summed up in a May 2011 preliminaryOrder issued by US Judge Andrew J. Guilford in this case,
Enticed by promises of lucrative and exciting employmentthrough a work program, a foreign worker speaks with recruiters about workingin the United States. The recruiters explain the terms and costs of the workprogram, and the worker gets a large loan and voluntarily uses it to join theprogram.
After the worker joins the program and begins employment,the worker becomes unhappy. But if the worker quits, awaiting is a trip homewith a massive amount of debt that will be impossible to repay. Working in theprogram is the only way to repay the loan. Is this forced labor? Fraud? No. Itis a bargained-for exchange. Despite the worker’s unhappiness, the terms andcosts of the program were known, and the worker voluntarily obtained the loanto join the program. The worker’s eventual discontent does not transform thevalid contract with the recruiters into something illegal.
But what if after the worker made the payment, therecruiters alter the program terms and costs? The recruiters demand anadditional payment of double what the worker has already paid. They threaten tokick the worker out of the program if additional payments aren’t made, and theykeep the initial payment even if the worker decides to leave to program. Theworker is therefore faced with a choice of forfeiting the first payment,knowing that repayment of the debt may be impossible, or paying the additionalmoney the recruiters now demand. Knowing that working in this program is theonly way to repay the initial debt, the worker pays the additional sum andcontinues working in the program.
Once the worker begins employment, complaints about thepayments and working conditions are met with continued threats of terminationand deportation. Knowing that this job is the only way to repay the debt, the workerremains silent and continues working. Is this forced labor? Fraud?
These are the questions now before this Court.
The SLPC’sDecember 18, 2012 press release implies that the court’s decision was basedon the fact that the teachers were “lured to teach in Louisiana public schoolsand forced into exploitive contracts.” Thispress release seems to back away from the SLPC’sinitial claims of “human trafficking, racketeering and fraud.”
And so the conclusion appears to be that the Court found theinitial contracts acceptable, but did not like the bait-and-switch component ofthe future forced employment contracts. Itis unclear to me at this time, whether the claims of racketeering and human traffickingwere part of the court’s decision or not.
But that analysis may have to wait. This Blog will be silent until year’s end aswe enjoy the Holidays with our friends and families. Musillo Unkenholt wishes all of our readers awonderful Holiday season!
