THE PRIVATE RIGHT OF ACTION
ESTABLISHED UNDER THE
TRAFFICKING VICTIMS
PROTECTION REAUTHORIZATION
ACT OF 2003©
Richelle C. Mitchell
UNC Policy Clinic – Spring 2006
Professor Deborah Weissman
(919) 962-4107
Please do not quote or distribute without permission.
The Private Right of Action Established Under the Trafficking
Victims Protection Reauthorization Act of 2003
1
February 18, 2016
RichelleC.Mitchell
UNCPolicyClinic
QUESTIONS
1. Does the private right of action established under the Trafficking Victims Protection
Reauthorization Act of 2003 provide a useful means of redressing the harms done to
trafficking victims by their traffickers?
2. Can other civil actions be asserted by victims of human trafficking as remedies for the
injuries they have endured?
BRIEF ANSWERS
1. Yes. There are many benefits to civil suits for victims of trafficking, including greater
control over the legal process, the opportunity to receive money needed to make the
transition from trafficked person to free individual, and the chance to feel empowered by
holding their traffickers directly accountable for the psychological and physical harms
suffered during their captivity.
2. Yes. There are many civil remedies available to victims other than the private right of
action delineated in the Trafficking Victims Protection Reauthorization Act. Alternative
claims may arise under the Thirteenth Amendment to the U.S. Constitution, the Aliens
Tort Claims Act, the Federal Racketeer Influenced and Corrupt Organizations Act, the
Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Act, Title VII
of the Civil Rights Act, the Civil Rights Act of 1866, the Immigration Reform and
Control Act, intentional torts and negligence, and contract and quasi-contract claims.
INTRODUCTION
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Human trafficking is the third largest international criminal enterprise, exceeded only by the drug
trade and arms smuggling.1 Before passage of the Trafficking Victims Protection
Reauthorization Act of 2003 (hereinafter TVPRA), victims of human trafficking had to seek
remedies by using federal and state labor and employment laws and tort laws related to forced
labor.2 The mandatory restitution provided for in the original Trafficking Victims Protection Act
(TVPA) inadequately covers the physical, social, and emotional injuries endured by trafficked
individuals. Restitution cannot, even when accompanied by conviction of a trafficker,
necessarily make a victim “whole” again. Trafficked people have not only been victims of a
crime, they have also had their civil rights trampled and disregarded. Civil remedies may help
vindicate violations of a victim’s right to be paid for work done, right to be free from
discrimination, harassment, and abuse, and the right to a healthy and safe work environment.3
DISCUSSION
1. Does the TVPRA Private Right of Action Provide a Useful Remedy?
Advantages of the TVPRA Civil Remedy:
The TVPRA (2003) provides a new civil remedy not included in the original Trafficking Victims
Protection Act of 2000 (TVPA). This new provision permits an individual who is a victim of
forced labor (18 U.S. Code §1589), peonage, slavery, or involuntary servitude (18 U.S. Code
§1590), or sex trafficking (18 U.S. Code §1591) to file a civil action against their traffickers in
an appropriate district court and recover damages (actual and punitive) and reasonable attorney
fees.4 Trafficked individuals may file this civil action to supplement any criminal proceedings
involving their case or as an alternative to criminal prosecution if they chose to not participate in
prosecution.5 The TVPRA does not indicate a statute of limitations for filing human trafficking
Developments in the Law – Jobs and Borders: II. The Trafficking Victims Protection Act, 118 Harv. L. Rev. 2180
(May, 2005).
2
Kathleen Kim & Kusia Hreshchyshyn, Human Trafficking Private Right of Action: Civil Rights for Trafficked
Persons in the United States, 16 Hastings Women’s L.J. 1 (Winter 2004).
3
Vital Voices Global Partnership, Civil Rights for Human Trafficking Victims in the United States, Trafficking Alert
U.S. Edition (December 2004).
4
18 U.S.C. §1595 (2005) & Stephanie Richard, Note, State Legislation and Human Trafficking: Helpful or
Harmful?, 38 U. Mich. J.L. Reform 447 (Winter, 2005).
5
Kim & Hreshchyshyn, supra note 2.
1
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civil suits6 which gives highly traumatized victims time to regain a sense of strength and stability
before having to proceed against their captors.
There are several advantages to having civil remedies for trafficking victims. The original 2000
TVPA provides for mandatory restitution and criminal asset forfeiture but because the
prosecution process is aimed at incarceration, restitution may be overlooked to the disadvantage
of the victim. A private right of action allows the victim to achieve greater compensation in the
form of compensatory, punitive, and/or pecuniary damages. These remedies can help
compensate victims for the physical and psychological abuse they suffered rather than simply
supplying restitution.7
Secondly, high punitive awards can place a substantial dent in the enormous financial
profitability of human trafficking, creating a deterrence effect.8 The purpose of awarding
damages in a civil action should be to deter the entire market (the profitability) of trafficking.
Financial disincentives are of major import in combating trafficking because, unlike drugs or
weapons which are one-time transactions, humans as products can be sold and resold repeatedly
by forcing victims to prostitute themselves to multiple customers, forcing them to work in
sweatshops for an inhumane number of hours at a time, or selling them to other employers or
traffickers. Millions of dollars in profits can be amassed by traffickers in only one trafficking
operation.9 Modern slavery exists because of the financial incentives, the high demand for cheap
labor. Employers of trafficking victims are able to extract countless hours of hard labor or
service from unpaid or poorly paid workers who, because of unfamiliarity with their
surroundings, fear of law enforcement authorities, and, in many cases, lack of legal status, are
under the complete control of their traffickers/employers and can be fearful of escaping or
seeking help.
6
Kathleen Kim & Daniel Werner, Civil Litigation on Behalf of Victims of Human Trafficking, Legal Aid Foundation
of Los Angeles, at 21 (March 2005) (a manual for lawyers).
7
Kim & Hreshchyshyn, supra note 2.
8
Id.
9
Jorene Soto, Show Me The Money: The Application of the Asset Forfeiture Provisions of the Trafficking Victims
Protection Act and Suggestions for the Future, 23 Penn St. Int’l L. Rev. 365 (Fall, 2004).
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Part of the reason human trafficking is so profitable is because it is anti-competitive behavior,
disrupting and undermining regular market forces.10 Employers who make use of trafficking
victims are able to get much more work out of many more workers with very little financial cost
to themselves (because the victims work such long hours with little or no pay, few if any breaks,
no sick leave or health care provision, vacation time, or other benefits). This puts legitimate
employers at a distinct disadvantage because many can only employ as many workers as they
can afford to pay at least minimum wage. Under the federal Fair Labor Standards Act (FLSA),
employers must pay their employees the minimum wage ($5.15/hr) and set the workweek for no
longer than 40 hours unless the employees are paid time and a half for overtime. Trafficking
victims work under unhealthy, inhumane conditions (sanitation and health codes are ignored) for
many more than 40 hours in a week and are either unpaid or paid much less than minimum
wage.11 Legal employers must also limit work hours and pay the expenses of maintaining a safe,
healthy workplace. The result is that employers of trafficking victims may achieve greater
profitability for less sacrifice, making honest, legal employment financially disadvantageous or
causing legal employers to lower the pay and scale back the benefit packages of their own
workers, leaving their employees with less financial stability. It is imperative to take all steps to
ensure that the costs, risks, and potential losses of trafficking in humans far outweigh the
potential benefits to traffickers and employers. Unlike criminal sanctions, large, highly punitive
civil awards have the capacity to undermine the real motivation for selling, buying, and trading
human labor – financial profit.
Also, in civil litigation third parties can be held liable and be sources of payment for the damages
awarded to the plaintiff. This may prove necessary when the traffickers’ assets are difficult to
locate. Larger entities like organizations or companies that could not be included in a criminal
case for lack of sufficient evidence to meet the high burden of proof placed on the government in
10
Telephone Interview with Mary Lee Hall and Jennifer Stuart, Staff Attorneys, Legal Aid of North Carolina,
Raleigh Office, Raleigh, North Carolina (March 8, 2006).
11
Kim & Werner, supra note 6, at 29-30.
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prosecution should be named as joint employers and/or joint tortfeasors in any civil action
brought.12
Trafficking operations are divided into multiple, hierarchical layers. The smugglers are usually
at the bottom of this network. Some smugglers have the job of recruiting victims in their country
of origin. Another set of smugglers is usually involved in transporting victims across
international borders and state lines within in the U.S. Once the victims reach their destination,
they come under the power of labor contractors whose agents often intensify the abusive
treatment of victims in order to increase their submission to their captors and employers. The
employers may also be involved in physical, sexual, and emotional abuse of victims. Various
kinds of employers become involved in human trafficking, from individual homeowners who
keep victims as household servants, to local business owners who may run “spas”, escort
services, or exotic dancing bars that employ women trafficked into prostitution, to international
manufacturers, retailers, or corporations who operate sweatshops or use trafficked migrant farm
workers to man their agricultural operations.
Organizations or individuals (accomplices) who benefit from the illegal activities of traffickers
and the forced service of victims should be named in any civil suit. Trafficking is frequently tied
to otherwise legitimate businesses as a cover for illegal activities. Traffickers may operate
employment agencies, entertainment agencies, and escort services that benefit from the forced
labor of trafficking victims.13 In sex trafficking, purchasers of sex (“Johns”) should be named as
accomplices if they are identifiable.14 Also, sellers of goods produced by companies who use
trafficking victims in their manufacturing (like in sweatshops and garment factories) should be
considered accomplices and held liable (one possibility is alleging violation of the “hot goods”
provision of the Fair Labor Standards Act).15
12
Kim & Hreshchyshyn, supra note 2.
Graeme R. Newman, Problem-Specific Guides Series No. 38: The Exploitation of Trafficked Women, Community
Oriented Policing Services (COPS) of the U.S. Department of Justice, at 9 (February 2006).
14
Kim & Werner, supra note 6, at 16.
15
Telephone Interview with Mary Lee Hall and Jennifer Stuart, supra note 10. See infra pp.13-14.
13
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February 18, 2016
All known traffickers can be named as defendants in a human trafficking civil suit. Jurisdiction
over relevant parties may be obtained through a state’s “Long-Arm Statute.” In North Carolina,
non-resident accomplices and larger entities may come within the jurisdiction of North Carolina
courts if the party is present within the state, domiciled within the state, is a domestic
corporation, or conducts substantial activity within the state whether wholly interstate, intrastate,
or otherwise. Also, personal jurisdiction is conferred on a defendant if he/she causes injury to a
person or property within North Carolina through any act or omission and the defendant is
involved in manufacturing products or providing services within the state or such services are
being performed on behalf of the defendant within the state. Personal jurisdiction also extends to
actors whose products and services were used or consumed within the state.16 Long-arm statutes
may permit state authorities to gain jurisdiction over non-state actors who have operated
trafficking activities somewhere within the state.
However, certain traffickers such as smugglers are often nearly impossible to locate and serve.
Contractors and small employers are the parties that are easiest to indict criminally and the most
available for naming in a civil suit. Unfortunately, these individuals may be insolvent and
unable to fulfill a large judgment against them. This is why it becomes important to pull larger
entities like corporations into the civil suit. These entities may be able to pay a substantial
amount of any judgment in favor of the victims.17 Agency and vicarious liability may represent
a useful way to make larger operations parties to a civil suit. Under this doctrine, the larger
entity may be liable for the torts of smaller parties (like smugglers or contractors) if: (1) the
smaller entity is in the employ of the larger corporation, (2) the smaller operators employ victims
of human trafficking, and (3) the employment of trafficking victims is within the scope of the
smaller entity’s employment to the larger entities. In suing traffickers, victims and their legal
advocates should establish that the larger entity is the principal who gave express or implied
authority to its agents (smugglers, contractors, smaller employers) to hire subagents (trafficking
victims). This establishes privity between the principal (larger entities) and the victims.
16
17
N.C. Gen. Stat. §1-75.4 (2005).
Kim & Hreshchyshyn, supra note 2.
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Individuals employed by the agent to perform the work of the principal are employees of the
principal and not the employees of the agent.18
The empowering symbolic value of civil litigation can be beneficial to victims because in a
private action their traffickers are held accountable to their victims. In a criminal trial, the
prosecutor represents the interests of the State. Also, the civil process allows the victims to have
greater control over their own cases. Civil actions allow a victim to make the decisions that form
the case, giving the final approval of any settlement proposals. Also, a victim in a civil case
cannot be excluded from testifying by a prosecutor. She can tell her whole story in her own
words.19
There are also procedural strengths in civil litigation for trafficking victims. The burden of proof
in the civil trial will be the lower standard of preponderance of the evidence rather than the much
higher beyond a reasonable doubt standard required for criminal cases. In cases of domestic
servitude, especially where a victim is held prisoner inside a private home with few if any
witnesses, “hard” corroborating evidence may be difficult to attain, hurting a victim’s chance of
winning conviction of her employers.20 For some victims, severe trauma can cause a loss of
memory and difficulty in engaging in analytical thinking. This will definitely work against the
victim during the rigors of trial, especially cross-examination. Simply retelling their story can be
traumatic for victims though this will have to be done in criminal and civil proceedings.21 In
civil cases, however, a sincere and clearly injured victim can provoke a good deal of sympathy
and relaxed evidentiary rules allow a victim to bring in evidence of the psychosocial aftermath of
being held in modern slavery. Testimony that would be inadmissible in criminal proceedings
18
Kim & Werner, supra note 6, at 17.
Kim & Hreshchyshyn, supra note 2.
20
Id.
21
Hussein Sadruddin, Natalia Walter & Jose Hidalgo, Symposium, Globalization, Security & Human Rights:
Immigration in the Twenty-First Century: Human Trafficking in the United States: Expanding Victim Protection
Beyond Prosecution Witnesses, 16 Stan. L. & Pol’y Rev. 379 (2005).
19
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such as evidence of post-traumatic stress disorder, rape trauma, battered women’s syndrome,22
dependency, and learned helplessness23 can be brought forth in civil cases.
Of vital importance to victims of trafficking is the fact that they may file civil actions against
their traffickers regardless of their uncertain immigration status. In civil cases, a victim’s current
immigration status is usually inadmissible and authorities can generally tell when traffickers and
employers are using a victim’s undocumented status to retaliate against the victim. The civil
remedy is available to victims who are unable or unwilling, due to trauma or fear, to participate
in investigation efforts that are mandated for T Visa eligibility. Also, victims who did cooperate
with law enforcement and are in the process of applying for a T Visa need not wait for a final
determination before filing suit.24 The money that can be awarded in civil trials may be of great
importance to victims who may otherwise face further poverty. These funds can be used as
“start-up” money for victims to rebuild their lives.
Possible Limitations of the TVPRA Civil Remedy:
As in criminal cases, civil litigation can be stressful and time-consuming.25 One factor that can
prolong the process of bringing a TVPRA civil action is the requirement that if a victim files suit
but is also involved in the criminal prosecution of her traffickers, the civil suit will be stayed
while the criminal trial is pending.26 Prosecutors prefer for civil cases to be stayed during the
criminal trial so that criminal defendants cannot avail themselves of the less stringent civil
discovery process in order to get around the restrictions on discovery in criminal proceedings.
Simultaneous civil and criminal proceedings may complicate the discovery process, causing
interruptions and repetitions because as evidence is presented in the criminal trial this would
certainly cause new issues to arise in any civil case that may require a new round of discovery.27
Some victims may prefer this to involvement in both criminal and civil proceedings
22
Kim & Hreshchyshyn, supra note 2.
Douglas A. Bernstein et al., Psychology 5th ed. Houghton Mifflin Company, New York (2000).
24
Kim & Hreshchyshyn, supra note 2.
25
Id.
26
18 U.S.C. 1595 (2005).
27
Kim & Werner, supra note 6, at 3.
23
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simultaneously, especially since a guilty verdict against a trafficker in criminal proceedings can
be used in the civil action that follows to prove the facts upon which the verdict was based.28
Trafficking victim-plaintiffs may also benefit from the required stay if they fear for their safety
which may be placed in jeopardy by the civil discovery process, even if the plaintiff has, until
now, been able to maintain his/her anonymity. Even though a protective order can be obtained to
prohibit the defense from asking deposition questions that may put the victim at risk, it is very
difficult to train a client, inexperienced in the legal process, to avoid revealing sensitive
information while being deposed.29 However, for victims who feel a further loss of control as
the State brings forth their cases, the inability to take part in the potentially empowering civil
process immediately may contribute to their frustration. Furthermore, if the criminal trial ends in
acquittal, the victim, not understanding that civil proceedings have lower burdens of proof, may
be discouraged from bringing forth a civil suit, fearing that her traffickers’ acquittal can be used
to weaken her case.30
There are several other limitations to civil litigation. The purpose of awarding civil damages is
not only to make the victims “whole” again (including regaining lost wages) but also to retrieve
all profits made by the trafficker. However, traffickers’ assets may be very well hidden so even
a victory for the trafficked plaintiff may bring forth little reward financially. Other impediments
to victims asserting their rights in a civil suit include the general lack of resources and
information, preventing victims from seeking legal advice to learn of their options. Victims may
also fear retaliation from their traffickers.31 Lastly, even though a plaintiff’s current immigration
status (at the time of the suit) is generally not admissible in a civil case,32 and manuals for
Immigration and Customs Enforcement (ICE) instruct officials to recognize traffickers’ and
employers’ attempts to retaliate by using a victim’s former illegal presence in the U.S. against
her/him, simply knowing that an employer can expose one’s former undocumented status can
cause the employee to fear prosecution or deportation and have a chilling effect on trafficking
28
Kim & Werner, supra note 6, at 2.
Id. at 3.
30
Kim & Hreshchyshyn, supra note 2.
31
Id.
32
Kim & Werner, supra note 6, at 2.
29
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victims who are considering filing a civil suit.33 Legal advocates should also be wary of
traffickers who file countersuits alleging that the victim was actually a co-conspirator in
trafficking rather than a victim.
Cases involving forced labor tend to be easier to litigate because it is less difficult in such
scenarios to recognize ongoing trafficking enterprises. Sex trafficking presents unique problems
in civil litigation because part of the process is getting compensation for hours worked by
employees. In sex trafficking cases, it can be difficult to determine how much compensable
work was done because prostitution is not legally compensable. In these cases, other civil claims
such as false imprisonment, intentional infliction of emotional distress, and assault and battery
may offer relief.34
WHAT CRITICAL FACTS SHOULD A VICTIM OF HUMAN TRAFFICKING
ESTABLISH IN ASSERTING A CLAIM UNDER THE CIVIL REMEDY OF THE
TVPRA? The following are lists of what a plaintiff should include in her complaint when
asserting a claim under the private right of action of the TVPRA (18 U.S.C. §1595):
MODEL FACTUAL ALLEGATIONS

Plaintiff-Victim was brought to the U.S. under false promises of fair pay and humane
treatment.

Defendant-Trafficker/Employer knowingly and willingly deceived and lured Plaintiff.

Plaintiff reasonably believed that assertions of Defendant were truthful.

Defendant knew that his/her representations to Plaintiff of fair pay and humane treatment
were false.

P suffered an experience that falls into at least one of the three categories of human
trafficking delineated in the TVPRA civil remedy encoded at 18 U.S.C. §1595:
o (1) Forced Labor, defined at 18 U.S.C. §1589.
o (2) Involuntary Servitude, Peonage, & Slavery, described at 18 U.S.C. §1590.
33
34
Kim & Hreshchyshyn, supra note 2.
Vital Voices Global Partnership, supra note 3.
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o (3) Sex Trafficking, outlined at 18 U.S.C. §1591.35

For forced labor (18 U.S.C. §1589), Plaintiff may plead that Defendant knowingly
provided or obtained Plaintiff’s labor or services:
o by threats of serious harm to or physical restraint against Plaintiff or another
person,
o by means of any scheme, plan, or pattern intended to cause Plaintiff to believe
that if she did not perform such services, she would suffer serious harm or
restraint, or
o by means of abuse or threatened abuse of law or the legal process.36

For involuntary servitude (18 U.S.C. §1590), Plaintiff may plead that Defendant
knowingly recruited, harbored, transported, provided, or obtained by any means, Plaintiff
for labor or services in violation of U.S. Code regulations (Title 18, Part I, Chapter 77)
addressing peonage, slavery, and trafficking in persons.37

For sex trafficking, Plaintiff may plead that Defendant knowingly recruited, enticed,
harbored, provided, or obtained by any means Plaintiff or benefited financially/received
anything of value from participation in such harboring knowing that force, fraud, or
coercion was used to cause Plaintiff to engage in a commercial sex act.38

If applicable in her case, Plaintiff may assert that upon arrival in the U.S. or during her
employment, victim’s passport, social security card, driver’s license, or other identifying
documentation were confiscated by Defendant for the purpose of depriving the victim of
proof of legal status.39 The taking of such documents by employers and traffickers
prevents victims from being able to escape their captors, seek emergency public benefits,
and find other legal employment.40 Federal law already outlaws the confiscation of
government-issued identification documents in the context of human trafficking.41
35
18 U.S.C. §1595 (2005).
18 U.S.C. §1589 (2005).
37
18 U.S.C. §1590 (2005).
38
18 U.S.C. §1591 (2005).
39
Kathleen Kim & Daniel Werner, supra note 6, at Appendix C-2-C-10.
40
Legal Aid of North Carolina, Farmworker Unit, Concerns and Recommendations for Improved Anti-Trafficking
Enforcement, (a handout distributed at RIPPLE task force meeting) (March 29, 2006).
41
18 U.S.C. §1592 (2005).
36
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Plaintiff may also present any counterfeit papers that were provided by the traffickers or
employers. However, document tampering does not occur in every trafficking case and
is not a necessary component of a trafficking civil claim so a victim should not feel that
she must allege document confiscation or fabrication to have a valid case.
POINTERS FOR LITIGATION

Plaintiff should describe in sufficient detail the treatment/work conditions she endured.
o For example, the Plaintiff may describe back-breaking labor or forced
prostitution, low or no pay, 14-15 hour shifts for 7 days/week, being allowed little
time to sleep, no freedom of movement, poor nutrition, a lack of medical attention
when needed, and being severely punished for communicating with anyone
outside the trafficking/employment environment.

Plaintiff should describe any psychological abuse inflicted on her by Defendant or agents
of the defendant.
o Plaintiff might describe how she was kept in silence, fear, and obedience through
constant threats of physical discipline, deportation, or incarceration if she revealed
to authorities her mistreatment at the hands of traffickers/employers.42
DOCUMENTATION USEFUL IN ESTABLISHING A CIVIL CLAIM UNDER 18 U.S.C.
§1595:

LEA Endorsement – If a victim is in the process of applying for a T-Visa and has
received a federal Law Enforcement Agency (LEA) endorsement verifying that she is a
victim of a severe form of trafficking and has complied with all reasonable requests for
assistance in local, state, or federal investigations and prosecutions, this form should be
included as documentation proving the individual’s status as a trafficking victim.

Medical/Psychological Records – these, if available, may be helpful in corroborating a
victim’s claim of physical, sexual, or emotional abuse. WARNING: These records may
not be admissible in court but they are still useful to victims applying for a T-Visa.
42
Kim & Werner, supra note 6, at Appendix C-2-C-10.
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
Calculations of Money Owed for Time Worked – it may be useful in determining
damages for the victim to have some sort of record of the duration of her employment,
the number of hours she worked on average each day and/or week, and how much she
was paid or should have been paid based on traffickers’/employers’ initial promises.
Following the instructions outlined in the Fair Labor Standards Act regulations may be
useful in computing these figures. The Department of Labor Wage and Hour Division
can help verify victim claims for legal compensation from their traffickers for lost wages
and benefits.43

Any other Employment Records/Contracts. The labor codes of some states award
employees damages when employers fail to keep current, accurate records of employee
payrolls and hours worked. In other words, a lack of these records may be just as useful
to a plaintiff’s case as having them.

Witness Affidavits – from neighbors, friends, family members and others who had
personal knowledge of the victim’s state of involuntary servitude.

Affidavits from Service Providers/Professionals – social workers, counselors/therapists,
ministers.
NOTE: For a model complaint asserting a civil claim under the TVPRA, see the Appendix
to the manual Civil Litigation on Behalf of Victims of Human Trafficking (2005), available at
www.lafla.org/clientservices/specialprojects/VictimsTrfficking0405.pdf.44
2. Are There Other Civil Remedies Available?

The Thirteenth Amendment –
o prohibits slavery in the United States.

43
44
The Alien Torts Claims Act (ATCA) –
Graeme R. Newman, supra note 13, at 43.
Kim & Werner, supra note 6, at Appendix C-2-C-10.
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o Frequently invoked in cases of human rights abuses that violate international law
such as torture, slavery, prolonged arbitrary detention, violence against women,
and cruel, inhuman, or degrading treatment.45

Fair Labor Standards Act (FLSA) –
o The FLSA established minimum wage laws and limits the number of hours per
workweek in order to improve work conditions and protect the health and wellbeing of workers. A worker’s immigration status is irrelevant. Sex work may not
be covered because it is not considered legal employment.46
o The “hot goods” provision of the FLSA prohibits the interstate movement of
goods produced in violation of child labor, minimum wage, or overtime laws.
Under the Fair Labor Standards Act’s "hot goods" clause, the Department of
Labor may fine and seize the goods of those contractors who knowingly sell
merchandise manufactured by companies whose employment policies and
practices violate the FLSA.47

Federal Racketeer Influenced and Corrupt Organizations Act (RICO) civil claim o The TVPRA has added human trafficking to the list of RICO charges and
“trafficking in persons” is included in the definition of a racketeering
activity.
o Other racketeering offenses involved in trafficking: (1) Mail and Wire
Fraud, (2) Fraud in connection with identification documents, (3) Forgery
or false use of Passport, (4) Fraud and Misuse of Visas, Permits, & other
Documents, (5) Peonage and Slavery, (6) Activities prohibited under the
Mann Act, (7) Importation of an Alien for Immoral Use, & (8) Extortion.48

Migrant and Seasonal Agricultural Worker Protection Act (AWPA) –
45
Id. at 24-26.
Id. at 29, 36.
47
Fair Labor Standards Act §15(a)(1), 29 U.S.C §215 (2006).
48
Kim & Werner, supra note 6, at 44.
46
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o The AWPA imposes requirements on employers for the protection of migrant and
seasonal farm workers.49

Title VII of Civil Rights Act of 1964 –
o Protects employees from discrimination based on race, color, gender,
national origin, or religion.
o Protects against sexual harassment and harassment based on race.
o Protects employees from retaliation by employers for reporting
harassment.50

Civil Rights Act of 1866 (“Section 1981”) –
o Prohibits discrimination based on race or national origin in contractual
relationships.51

Immigration Reform & Control Act of 1986 (IRCA) –
o Imposes penalties on employers for recruiting, hiring, and retaining as employees
individuals the employer knows are unauthorized (and also for failing to verify a
worker’s employment eligibility). Civil administrative proceedings may fine a
violator anywhere from $250.00 per unauthorized worker to $10,000 per
worker.52

Intentional Torts
o Assault
o Battery
o False Imprisonment
o Fraudulent Misrepresentation
o Intentional Infliction of Emotional Distress
o Negligence
o Negligent Infliction of Emotional Distress
49
Id. at 41.
Id. at 41-45.
51
Id. at 46-47.
52
Becki Young, Note: Trafficking of Humans Across United States Borders: How United States Laws Can Be Used
to Punish Traffickers and Protect Victims, 13 Geo. Immigr. L.J. 73 (1998).
50
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o Conversion/Trespass to Chattel53

Contract Claims
o Breach of Written or Oral Contract
o Breach of Covenant of Good Faith & Fair Dealing

Quasi-Contract Claims
o Unjust Enrichment
o Quantum Meruit54
North Carolina Statutes

Anti-Racketeering Statutes –
o Similar to the federal law.
o This provision prohibits the soliciting, coercing, or intimidating of another person
with the purpose of causing that person to engage in activities that would be
criminal if accompanied by criminal intent. Prosecution extends to all parties
who benefit from racketeering activities.55

Anti-Blacklisting Statute56
o This statute protects terminated employees from a former employer’s actions
aimed at preventing the employee from obtaining employment elsewhere.
Traffickers may use blacklisting to prevent victims from obtaining lawful
employment, thus forcing the victims back into trafficking.
o Violators pay a fine (not exceeding $500.00) and damages.57
REMEMBER: It is important to search state codes for other statutes that may be of assistance to
trafficking victims.
53
Kim & Werner, supra note 6, at 47-50.
Kim & Werner, supra note 6, at 50-52.
55
N.C. Gen. Stat. §75D-3, §75D-4 (2006).
56
Telephone Interview with Mary Lee Hall and Jennifer Stuart, supra note 13.
57
N.C. Gen. Stat. §14-355 (2006).
54
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February 18, 2016
NOTE: For legal advocates who also wish to bring criminal charges against traffickers, a variety
of state criminal statutes are available for use58 as well as prosecution under the federal
Trafficking Victims Protection Act.
CONCLUSION
The private right of action established by the Trafficking Victims Protection Reauthorization Act
of 2003 provides several potential benefits to victims of human trafficking. Victims may feel
empowered by the increased control they can exercise over a civil case, comforted by the lower
evidentiary rules, and will have the opportunity to fully explain the impact that being trafficked
has had on their lives. Although other civil remedies exist and can be useful tools to redress the
harms suffered by victims, the private action of the TVPRA, especially designed to help make
“whole” individuals whose lives have been upended by the traumatic experience of being
trafficked, is a claim that should always be asserted when human trafficking is involved.
ADDITIONAL QUESTIONS/REMARKS
Case law interpreting the new civil right of action established by the TVPRA has been difficult
to find. Case law is important in understanding the ways in which the private right action has
been applied to the situations of real people. Which claims were successful? Why were they
successful? Case law helps to answer these questions and should be analyzed as it becomes
available.
________________________________________________________________________
58
North Carolina RIPPLE Trafficking Task Force, North Carolina Laws that Could be Used to Prosecute
Trafficking Crimes, (an attachment) (March 29, 2006). North Carolina criminal laws that can be used to prosecute
traffickers include False Imprisonment, Involuntary Servitude, Slavery & Involuntary Servitude, Kidnapping,
Enticing Minors out of the State for the Purpose of Employment, Abduction of Children, Felonious Restraint, Sexual
Exploitation of a Minor (First, Second, & Third Degree), Promoting Prostitution of a Minor, Participating in
Prostitution of a Minor, Taking Indecent Liberties with Children, Solicitation of Child by Computer to Commit an
Unlawful Sex Act, and Prostitution and Various Acts Abetting Prostitution.
18