Human Trafficking Compliance How Could This Possibly Apply to What Our Company Does? William N. Shepherd
Copyright © 2016 Holland & Knight LLP. All Rights Reserved
What is Human Trafficking? Trafficking is the: » Recruitment, » Harboring, » Transportation, » Provision, or » Obtaining (or attempting to do so) …of a person…
By means of… Force Fraud Coercion EXCEPT: Force, fraud and coercion are not required to show trafficking of a minor for commercial sex acts.
For the purpose of… Commercial Sex Acts Involuntary Servitude Peonage Debt bondage From: Trafficking Victims Protection Act of 2000 Slavery
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What Types of Victims are There?
HUMAN TRAFFICKING PROSECUTION SEMINAR
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What Is The Government Response
Federal Acquisition Regulation (FAR) 80 FR 4967
Prohibited Acts: » Employee Identity Documents » Fraudulent Recruitment » Problematic Recruiters » Charging Recruiting Fees to Employees » Substandard Housing » Failing to Have Written Contracts Language – Return Transport
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Where Estimated Value Performed Outside U.S.
Exceeds $500,000 Contractors must develop and maintain a compliance plan for portions of contract performed outside the United States. Compliance plan should be: » appropriate to the size and complexity of the contract; » appropriate to the nature and scope of activities to be performed, including consideration of: ˗ number of non-U.S. citizens expected to be employed; and ˗ risk that the contract or subcontract will involve services or supplies susceptible to trafficking. Contractors submit a certification to the Contracting Officer on an annual basis stating that a compliance plan has been implemented.
Federal Certification Requirement
»after having conducted due diligence, »to the best of the contractor’s knowledge and belief: neither it nor any of its agents, subcontractors, or their agents is engaged in any trafficking activities; »or if abuses related to any prohibited activities have been found, the contractor or subcontractor has taken the appropriate remedial and referral actions.
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California Transparency in Supply Chains Act
» Any “retail seller” or “manufacturer” doing business in California and having at least $100 million in annual worldwide gross receipts. » A company is “doing business in California” if: ˗ it is organized or commercially domiciled in California; (ii) its sales in California for the applicable tax year exceed the lesser of $500,000 or 25 percent of the company’s total sales; (iii) the real property and the tangible personal property of the company in California exceed the lesser of $50,000 or 25 percent of the company’s total real property and tangible property; or (iv) the amount paid in California by the company for compensation exceeds the lesser of $50,000 or 25 percent of the total compensation paid by the company.
California Supply Chains Act Enforcement » Exclusive enforcement of the Act is vested with the Attorney General. » Franchise Tax Board to list of retail sellers and manufacturers meting act requirements based on tax returns. » Remedy = injunctive relief. » Does not preclude civil actions brought under other state statutes. ˗ For example, Costco Wholesale Corp. and Nestle USA Inc. California suits. Plaintiff classes alleging unfair business practices and relying, in part, on act.
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Importance of Compliance with Human Trafficking Laws/Regulations Criminal penalties under: ˗ ˗ ˗ ˗ ˗ ˗
18 U.S.C. §1001 (False Statement) 18 U.S.C. §545 (Smuggling) 19 U.S.C. §1307 (Forced Labor Prohibitions) 31 U.S. C. §3729 (False Claims Act) 48 C.F.R. 9.406-2 (Debarment) Suspension
California Unfair Competition Civil Class Action Suits
Best Practices For Compliance with California Act
»Set out in California DOJ Resource Guide: ˗ Conspicuous format for Web Site link to Disclosures ˗ Detail methodology for verification, frequency of verification and whether verification addresses third party recruiters or labor brokers. ˗ Identify methodology of auditing for compliance and whether such is random or announced, including auditor selection, timeline and frequency. ˗ Confirm supplier certification requirements including description of requirements, effect for violations, compliance with foreign country laws, other measures taken. ˗ Internal accountability ˗ Training
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Special Concerns for Oil & Gas »Market Volatility and Pricing Pressure – Industry Wide Compliance Pressure »Extraction Industries Are Lumped Together »Extraction Regulations Vary Widely Globally »History of Government Investigations »Active NGO Community & Media Interest 13
High Risk Areas
» Off-Shore Extraction Risks ˗ Chase Vessel and ˗ Support Vessel Staff ˗ Port Facility Staff ˗ PEP Involvement in Staffing
» On-Shore ˗ Transport, Food Supplies, Security, General Field Work ˗ Rural Salaries in Rural Areas ˗ PEP Involvement in Staffing Companies 14
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Case Study » Global Shrimp / Fishing Industry » International / Multi-National Nature of the Work » Media Focus and Investment in Research » Nation State Involvement » International Business Pressures on Wholesale and Retail Operators » Media Pressure on Governments » Private Trial Bar Pressures and Suits » Civil Litigation » Business Impact » Media Impact » Third Party Investigation and Report 15
NGO and Charitable Trusts Partner With DOJ & State
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William N. Shepherd Mr. Shepherd is a Partner at Holland & Knight, LLP where he counsels companies and individuals in the midst of internal or governmental investigations. Prior to joining the firm, he served as a prosecutor for over a dozen years including serving, at the appointment of the Attorney General, as the Statewide Prosecutor of Florida. In addition to his practice, he has served as Chair of the American Bar Association’s 20,000 member Criminal Justice Section. He has been called upon to testify before Congress and the U.S. Sentencing Commission, and was recently the lead amicus prevailing before the U.S. Supreme Court in the landmark case on overcriminalization and Sarbanes-Oxley: United States v. John Yates.
» William Shepherd » Partner » Litigation & Investigations
Practice • International Investigations • Compliance & Regulatory • Trial Work
Education • Georgetown University and Georgetown University Law Center
Bar Admission • Florida • Washington, DC
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