Companies contracting with the federal government now share a greater role in the fight against human trafficking. Effective March 2, 2015, President Obama’s Executive Order 13627 and Title XVII of the National Defense Authorization Act for Fiscal Year 2013 strengthened the human trafficking related prohibitions and requirements of the Federal Acquisition Regulation (FAR).
The United States has long had a policy prohibiting government employees and contractor personnel from trafficking in persons. Prior to the 2015 amendments, FAR required federal service contracts to include a clause prohibiting severe forms of trafficking in persons, the procurement of commercial sex acts and the use of forced labor. In addition, FAR required federal contractors to establish policies and procedures to ensure employee compliance with the anti-human trafficking policy, notify employees of the policy and establish an employee awareness program. The earlier rule also required contractors to notify the government of an alleged violation of the anti-human trafficking rule, set forth penalties for violations and mandated a flow-down in all subcontracts.
2015 Expanded Prohibitions and Requirements
The 2015 FAR amendments expand the anti-human trafficking prohibitions and requirements to include that federal contractors, contractor employees and their agents are now prohibited from:
- Destroying, concealing, confiscating or otherwise denying access by an employee to his or her identity or immigration documents;
- Using misleading or fraudulent recruitment practices and using recruiters that do not comply with local labor laws;
- Charging employees recruitment fees;
- In some circumstances, failing to provide or pay for return transportation at the conclusion of an employment period;
- Providing or arranging housing that fails to meet the host country housing and safety standards; and
- If required by law or contract, failing to provide an employment contract, recruitment agreement or other work document in writing, in a language the employee understands, prior to the employee relocating.
The amendments also modify the reporting requirements of contractors when there are allegations of human-trafficking violations.
Additional Requirements Applicable to Contractors with Federal Contracts in Excess of $500,000
In addition to the above prohibitions and requirements, contractors with government contracts for supplies (other than for commercially available off-the-shelf items (COTS)) acquired outside of the U.S., or services to be performed outside the U.S., with an estimated value exceeding $500,000, must: (1) maintain a compliance plan/program tailored to educate employees about the federal governments’ anti- human trafficking policy and provide a violation reporting process and to prevent and detect prohibited activities; and (2) provide annual certification to the federal government that the contractors have implemented the required compliance program, that due diligence was conducted to identify and prevent violations, and that neither the contractor, subcontractors nor their agents are engaged in any prohibited activities, or if abuses were found, the contractor took the appropriate remedial and referral actions.
Employers subject to these prohibitions and requirements must immediately evaluate existing policies, procedures and documents to determine what steps they must take to meet the requirements and comply with the federal government’s enhanced anti-human trafficking policy. Examples of specific steps contractors may take, especially if they are subject to the compliance plan and certification requirements of the FAR, are to:
- Conduct an audit or assessment to identify any potential violations or prohibited activities of its employees, subcontractors and agents;
- Ensure they have a written anti-human trafficking policy (which includes reporting procedures and potential adverse employment actions in the event of violations), and that such policy is communicated to its employees, subcontractors and agents;
- Conduct regular employee training and awareness programs;
- Establish programs to evaluate and monitor subcontractor/agent compliance with the anti-human trafficking rule; implement policies establishing recruitment procedures and prohibiting recruitment fees and implement a housing plan to ensure appropriate housing and safety standards.