Legal and Regulatory

Compliance With Anti-Trafficking Terminology in Construction Contracts

Contracts may include language to ensure compliance with laws and regulations for human slavery and trafficking. Contractors should know the nature of their supply chains for labor, materials and equipment.
By James T. Dixon
May 11, 2021
Topics
Legal and Regulatory

When examining the boilerplate terms of a construction contract before signing, pay particular attention to whether it includes a clause like this:

Contractor warrants and represents that it is and will remain compliant with all applicable laws and regulations pertaining to human slavery and trafficking.

These terms are becoming more common on private projects, though contractors working on federal projects have likely become accustomed to them.

The International Labour Organization, an agency of the United Nations, works to prevent forced labor, modern slavery and human trafficking. The global numbers are staggering, with 16 million estimated to be in forced labor, most of which are women and many of which are children.1 The U.S. Institute Against Human Trafficking, recognizing that the hidden nature of the crime makes it difficult to count victims, estimates that for sex trafficking the number of children involved exceeds 100,000.2

While hard data defining the extent of the problem in the U.S. is hard to find, what is known for certain is that there is a problem in the construction industry. One non-profit studied data from the National Human Trafficking Hotline to identify 25 types of exploitation, with exploitation in construction identified among them.3 Trafficking in construction usually occurs in small companies, often with employers misclassifying workers as independent contractors. The majority are men from Mexico, El Salvador, Honduras and Guatemala, in the U.S. on H-2B visas or without documentation.4

Cases in Minnesota and California illustrate the nature of the problem. In Minnesota, a subcontractor hired undocumented immigrants to work on projects throughout the Twin Cities, exploiting their fear of deportation in order to force them to work excessive hours, to accept low pay, to avoid seeking medical attention, and to work in unsafe conditions.5 A man who ran several construction companies in Hayward, California, used similar techniques while serving as a labor broker. In addition to his conviction, the government compelled the project developer to pay back wages. The developer denied wrongdoing but it, and its contractor, changed their subcontractor selection process.6

Sex trafficking occurs when a commercial sex act is induced by fraud, force or coercion or involves a minor. Labor trafficking involves the use of force, fraud or coercion to subject someone to involuntary servitude or slavery.7 In 2015, an amendment to the Federal Acquisition Regulations increased compliance demands for contractors on federal projects. Primary among them was the requirement that contractors annually certify compliance plans that include investigation and remedial actions. Specifically prohibited acts include the destruction of identification documentation, the use of misleading recruiting, the charging of recruitment fees, the failure to provide return transportation and the use of substandard housing.8 Contract termination and contractor debarment and suspension are identified penalties.9 And of course there are criminal statutes in place that penalize individuals who are involved in trafficking.

The representation and warranty term cited above is a catch-all where a project owner has quite simply placed a compliance burden upon the contractor—though the law itself already imposes that burden. While the Trafficking Victims Protection Act is the primary law at issue, another act that impacts those within the construction supply chain prevents the importation of goods made using human trafficking or forced labor.10

In general terms, all construction project participants should be well informed of the nature of their supply chains—for labor, materials and equipment. Construction companies on private projects, where the compliance terms are not spelled specifically in the contract, can be proactive and implement screening practices for subcontractors and suppliers. Labor brokers must be scrutinized carefully. Immigration documentation can be requested and checked. Many companies make their Anti-Human Trafficking Statements available on the internet. Construction executives can review those to familiarize themselves with the terms and start the process for creating and implementing their own policies.

by James T. Dixon
Jim Dixon helps members of the construction industry manage risk, avoid loss, and resolve disputes on projects throughout the country. Jim drafts and negotiates construction contracts, advises clients during construction, and resolves disputes through mediation, arbitration and litigation. He has handled claims related to defective construction, schedule delays, disruption and acceleration, differing site conditions, unapproved change orders, payment and performance bonds, and mechanic’s liens. Jim is adept at advancing bid protests on public projects, in resolving disputes on tunneling projects, and in addressing disputes on projects utilizing the integrated project delivery system.

Related stories

Legal and Regulatory
Final Build America, Buy America Act Guidance Released
By P. Lee Smith and Greggory C. Maddaleni
This new guidance tightens U.S. content requirements for federally funded infrastructure projects, expands the definition of infrastructure and provides calculation methodologies for manufactured products.
Legal and Regulatory
A Look at Trending Legislative Changes Impacting Workers' Comp
By Rosanna Shamash
Could three recently enacted changes in New York State affect workers' compensation cases across the country for the construction industry?
Legal and Regulatory
How to Get the Most Bang for Your Buck Out of the Infrastructure Bill
By Rich Meene
The Infrastructure Investment and Jobs Act authorizes $550 billion in new funding for infrastructure projects. Here's how to position your company for success when pursuing these opportunities.

Follow us




Subscribe to Our Newsletter

Stay in the know with the latest industry news, technology and our weekly features. Get early access to any CE events and webinars.