Japan and South Korea raised the stakes on Tuesday in a dispute that threatens to disrupt global supplies of smartphones and chips, with South Korea denouncing Japanese reports it had transferred a sensitive chemical to North Korea.

Japan and South Korea raised the stakes on Tuesday in a diplomatic dispute that threatens to disrupt global supplies of smartphones and chips, with South Korea denouncing Japanese reports that it had transferred a key chemical to North Korea.

By Nicole D. Prysby, J.D.

Immigration detainees met Rule 23’s requirements for certification of two classes for claims against a private detention facility, held the Tenth Circuit, affirming a district court on interlocutory appeal. Requirements for the class based on forced work under the Trafficking Victims Protection Act were met because all class members based their claims and theory of recovery on the facility’s sanitation policy, which required detainees to perform cleaning tasks or be subject to sanctions including segregation and criminal proceedings. Requirements for an “unjust enrichment class” were met because their claims were all based on the theory that the facility unjustly retained a benefit from their labor under the voluntary work program. Causation for both classes was subject to generalized proof, and though damages might require individualized calculations, that could not defeat class certification (Menocal v. The Geo Group, Inc., February 9, 2018, Matheson, S., Jr.).

Background. Immigration detainees at a private detention facility in Colorado sought to bring a class action against the facility under the Trafficking Victims Protection Act (TVPA) and Colorado unjust enrichment law. Under the facility’s sanitation policy, detainees were required to perform cleaning tasks or be subject to sanctions, such as solitary confinement or criminal proceedings. The detainees also performed jobs through a voluntary work program that paid $1 per day for tasks such as laundry and food services. The district court certified two classes: the TVPA class for the mandatory work and the unjust enrichment class for the voluntary work. The facility argued on interlocutory appeal that class treatment was inappropriate.

TVPA class. The Tenth Circuit affirmed certification of the TVPA class. It discussed the elements of a cause of action under the TVPA, noting that it requires serious harm, which means any physical or nonphysical harm, including psychological, financial, or reputational harm. Because all class members based their claims on the sanitation policy, they met the commonality requirement. Typicality was also met since the theory of liability was the same for class members and representatives—that the facility knowingly obtained their labor by means of the sanitation policy, which threatened serious harm or physical restraint if they did not perform the uncompensated work. Superiority was met because the detainees would have to overcome significant hurdles to adjudicate their claims individually; in many cases, the putative class members reside outside the U.S., lack English proficiency, and have little knowledge of legal procedures.

As to predominance, the facility argued that causation and damages were not susceptible to generalized proof. But the court disagreed, finding that causation was susceptible to generalized proof because it could be established through circumstantial evidence and the class claims were based on allegations of a single, common scheme (the sanitation policy). To the extent there were individualized issues, such as the detainees’ motivations for performing cleaning duties, those did not predominate. They would not have performed the assigned cleaning duties without being subject to the sanitation policy. The court also noted that the presence of individualized damages does not defeat certification.

Unjust enrichment class. The Tenth Circuit also affirmed certification of the unjust enrichment class. This class met the commonality requirement because there was a single common question: whether the facility received a benefit from the detainees’ labor. All class members shared the same theory of liability; that the facility unjustly retained a benefit from their labor under the voluntary work program. Therefore, typicality was met. The superiority requirement was met using the same logic as for the TVPA class; putative class members are immigrant detainees, who live around the world, and lack English proficiency and financial resources.

Regarding predominance, the facility argued that the unjustness element and damages were not susceptible to generalized proof. The court disagreed, finding that the unjustness element was based on shared circumstances. The facility argued that under Colorado law, the detainees would need to show a reasonable expectation of payment beyond $1 per day to demonstrate unjustness, and that the common evidence did not support such a showing. But the court found that a reasonable expectation of payment is not a required element of unjust enrichment under Colorado law according to the Colorado Supreme Court. Here, the detainees could establish unjustness based not on individualized transaction, but on uniform policies and overall context shared by all class members. As to damages, the court again noted that the presence of individualized damages does not defeat class certification.

LabourStart headline – Source: Human Rights Watch

By Lorene D. Park, J.D.

Affirming summary judgment against a “forced labor” claim by a Kenyan national who was working as a house maid for a Saudi Arabian family while they pursued educational opportunities in the United States, the Fourth Circuit pointed out that the plaintiff admittedly came to the U.S. willingly and that the Saudi family never physically abused or threatened her or her loved ones with physical harm, nor did they threaten her with arrest or adverse immigration consequences. Rather, her claim was based largely on her complaints about having to work long hours and follow Saudi cultural “house rules,” though she had previously done so for 17 months and willingly returned to the job. While she may have had evidence of a bad employment relationship, it was not enough to support a “forced labor” claim under the Trafficking Victims Protection Act (Muchira v. Al-Rawaf, March 2, 2017, Traxler, W., Jr.).

The employee came from a small village in Kenya and grew up in poverty. In 2010 her pastor offered her the chance to work as a live-in housemaid for a family in Saudi Arabia at a salary that amounted to approximately $350 U.S. dollars per month. She was 32 years old at the time. After speaking to the adult son of the family, she agreed, and traveled to Saudi Arabia to begin her new job. She soon became unhappy with her long work hours and conditions. For one thing, they were expected to comply with traditional Saudi “house rules,” including that they did not sit down or take breaks during working hours, didn’t leave the family home unless accompanied by a family member, and were not allowed to interact with neighbors. The family also kept her passport unless needed for travel or legal matters.

Returns willingly despite house rules. After 17 months, the employee had enough and, when she went to Kenya to visit her mother, decided not to return. She changed her mind, though, when she was given the chance to travel to the United States with the Saudi family’s mother, and stay there while the family’s children attended school. She signed a written employment contract providing for a salary of $1600 per month, plus overtime, but she testified that the Saudi family verbally informed her, before she applied for her visa and traveled to the U.S., that she would only be paid $400 per month in cash—more than her prior salary in Saudi Arabia but substantially less than represented in the contract—because they would also be paying for her room, board, and clothing. She agreed.

In the United States. During her travel with the family to the United States in 2012, the employee was interviewed privately by a U.S. Embassy official and she confirmed that she was employed by the family under a written contract. She was granted a 6-month visa, as were the family members. The embassy official also gave her a pamphlet that had the National Human Trafficking Resource Center (NHTRC) hotline number and she was told to call the hotline if she was mistreated in any way.

Eventually the family settled in a four-bedroom house located across the street from several public places, including a convenience store. It was also near several Christian churches that the employee claimed she was promised she could attend, though the family allegedly found excuses each Sunday to not drive her to church. The employee had few complaints about her living conditions, and she was not restricted from leaving the house. Though she claimed she was paid only the $400 per month, she sent money home in an amount that indicated she received more. She claimed the family gave her extra money on occasion when she worked extra hours. She was also given a cell phone and Internet access, and the family helped her set up a Facebook account, on which she posted many pictures of her adventures. She also sent approximately 15,000 public and private messages to friends and family. Though she indicated she was happy in the U.S., she subsequently claimed that she was lying to impress her friends.

Employee reports abuse. The employee befriended another Kenyan native who lived nearby, and complained to her about her long hours and difficult chores. She had adopted the same cultural rules followed in Saudi Arabia and didn’t leave the house much. The family kept her passport and she didn’t know the security code for the house (though she admittedly never asked for it). At her friend’s urging, she called the number on the human trafficking pamphlet. While the family was away, she reported that she could not get out of the house. The police assisted her in leaving, which set off the alarm. The family was concerned and called hospitals and reported her missing to police. They were eventually informed that she had left their employ.

Lawsuit. The employee also filed suit, alleging that she was a victim of: involuntary servitude, in violation of the Thirteenth Amendment; trafficking with respect to peonage or forced labor in violation of 18 U.S.C. §1590; and forced labor, in violation of 18 U.S.C. §1589, among other claims relating to trafficking in persons. She also brought an FLSA claim alleging the family didn’t pay her the minimum wage for domestic service employees, as well as state law claims. Several of the claims failed on summary judgment, including the claims for false imprisonment and emotional distress. The employee settled her FLSA and unjust enrichment claims with the family. On appeal, the employee challenged only the grant of summary judgment on her claim of “forced labor” under Section 1589.

No forced labor. Affirming, the Fourth Circuit found that the forced labor provisions of the Trafficking Victims Protection Act didn’t apply here. There were no allegations of force, threats of force, physical restraint, serious harm, threats of harm, or abuse/threatened abuse of law or legal process. Also, “forced labor” situations typically involved intolerable living conditions, extreme isolation, and exploitation of a victim’s lack of education or familiarity with the English language. None of that was present here.

The employee admitted that she came to the United States willingly, that the Saudi family never physically abused or threatened her or her loved ones with physical harm, and never threatened her with arrest, deportation, or adverse immigration consequences. Indeed, it appeared that her “forced labor” claim was based solely on her assertion that the Saudi cultural “house rules,” coupled with long hours and verbal reprimands, caused her psychological harm in the form of depression and stress. While that might have been evidence of a bad employment relationship, it was not enough to support a “forced labor” claim.

The court also noted that, at the employee’s age, she was not an especially vulnerable victim, particularly since she had experience working at a hotel in Kenya and with other families. Also, with respect to the objectionable “house rules,” she had worked under those rules for 17 months in Saudi Arabia and then voluntarily returned to work for the family. Nor was there evidence that the Saudi family knowingly coerced the employee into providing her labor and services “by means of abuse or threatened abuse of law or legal process.”

“The forced labor provisions of the TVPA are not intended to redress every bad employment relationship involving immigrants, or to punish immigrants for adhering to cultural rules and restrictions that many in this country would refuse to abide by,” the appeals court said. “They are intended to effectuate the constitutional prohibitions against slavery and involuntary servitude, by criminalizing the act of coercing persons into providing labor and services against their will and by providing a civil remedy to the victims of such actions.” Finding the TVPA was not implicated here, the appeals court affirmed summary judgment against her forced labor claim.

LabourStart headline – Source: Human Rights Watch

LabourStart headline – Source: HRWatch

LabourStart headline – Source: ICHRI