Child Trafficking Survivors: Civil Rights and Legislation

1. Child Trafficking Survivors:Civil Rights and Legislation Kathleen Kim, Project Attorney Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

2. Legal Services • Criminal case advocacy • Immigration assistance • Civil remedies • Family law

3. Criminal Case Advocacy • Victims’ attorneys fully inform their clients in the appropriate language, of the opportunity to cooperate with law enforcement in a criminal case against their traffickers. • Victims need to be safe and stabilized before they can act as effective witnesses

4. Criminal Case Advocacy cont. Victim’s attorneys assist their clients to cooperate with law enforcement agents by: • informing them of their rights and role as a witness • preparing them to testify • explaining timelines and criminal process • assisting with temporary restraining orders against traffickers • following-up after trial with victim impact issues, restitution, return of property, documents, etc. • providing legal case management

5. Immigration Assistance • Immigration attorneys help trafficked clients assess immigration status and: • pursue relief such as T or U visas, asylum, Special Immigrant Juvenile visa, etc. • coordinate with derivative applicants in country of origin • assist with repatriation if safe and appropriate

6. Civil Remedies • Civil attorneys help their clients recover compensation and other damages from the traffickers by: • pursuing the private right of action provided by the TVPRA • filing wage and hour complaints with the DOL • filing discrimination complaints with the EEOC • filing private suits for violations of the FLSA, CA labor code, intentional torts and other civil rights laws

7. Family Law • Family law attorneys assist their clients with issues pertaining to child custody, divorce, domestic violence, temporary restraining orders, etc.

8. Role of NGO Legal Services • Trafficking victims need their own attorney to help them: • understand the U.S. legal system and their rights in a culturally and linguistically appropriate setting • understand the criminal legal process and their role as a victim-witness in a case • access immigration relief • access civil remedies • address other legal issues as they arise

9. Civil Remedies • Civil attorneys help their clients recover compensation and other damages from the traffickers by: • pursuing the private right of action provided by the TVPRA • filing wage and hour complaints with the DOL • filing discrimination complaints with the EEOC • filing private suits for violations of the FLSA, CA labor code, intentional torts and other civil rights laws

10. Civil Cases Involving Children • If minor is considered incompetent to sue, statute of limitations may be tolled to preserve the causes of action • Guardian ad litem (for the lawsuit) can be appointed to act as representative • If cause of action is a violation of labor laws, civil remedies can be pursued administratively

11. Fair Labor Standards Act (29 U.S.C. § 201) • Wage and hour • Compensatory and liquidated damages and civil penalties • Statute of limitations: 2 years for non-willful, 3 years for willful

12. Fair Labor Standards Act All workers, regardless of immigration status are entitled to the federal minimum wage of $5.15 per hour, and in most cases, time and a half for work periods beyond forty hours in one week. Still, the FLSA has specific rules and some exemptions that may apply to the industries where many trafficked workers are found.

13. Specific rules apply to: • Relatives • Domestic workers • Sex workers • Children • Agricultural workers are protected by the Migrant and Seasonal Workers Protection Act An attorney well apprised in employment law can assess the appropriate amount of wage and hour recovery for trafficked clients.

14. Children • The FLSA provides both added protections and exemptions for children

15. Oppressive Child Labor • Hour regulation • Age limitations • Regulation of hazardous occupations

16. Major Exemption • No minimum age and hazardous job restrictions when child employed by his or her parent or person standing in parent’s place.

17. Civil Penalties for Child Labor Violations • For each “oppressive child labor” violation, child worker is entitled to $11,000 • No private right of action for child labor violations so report to Department of Labor

18. kathleen kim: kathlekim: Trafficking Victims Protection Reauthorization Act, 2005 H.R. 972 • Creates a guardian ad litem program for child victims of trafficking

19. Guardian Ad Litem • Appointed by ORR with consultation from an NGO • Guardian must be “qualified.”

20. Qualifications • Child welfare professional or • Trained on the “nature of problems encountered by victims of trafficking”

21. Duties • Report to ORR on whether child is a victim of trafficking • Conduct interview with child • Investigate facts of case • Work with child’s attorney to determine eligibility for TVPA relief and benefits • Ensure the promotion of the best interest of the child • Ensure that child understands legal proceedings

22. Child Eligibility for Benefits • ORR reviews guardian ad litem’s report to determine eligibility

23. Termination of Appointment • Duties complted • Child leaves U.S. • Child granted LPR status in U.S. • Child reaches 18 • Child is placed in custody of parent, legal guardian, or licensed child welfare agency

24. Powers of Guardian Ad Litem • Reasonable access to child including while child is in detention, with foster family or any other temporary living situation • Permission to review all non-privileged information on proceedings • Advance notification of all hearings and interviews involving the child in connection with any INA matters or any investigation or prosecution of the trafficking, and may be present at such hearings and interviews • 24 hour advance notice of child’s transfer to a different placement

25. Training • ORR authorized to provide training for guardian ad litems regarding the special problems faced by child trafficking victims and their immigration benefits and other rights under the TVPA of 2000.

26. Domestic Trafficking • Establishes a pilot program of residential treatment facilities for minor victims of domestic trafficking in the United States. • Establishes a grant program for states and local law enforcement to work with victim service providers to investigate and prosecute acts of domestic trafficking in persons.

27. Assembly Bill 22 • The California Trafficking Victims Protection Act • Comprehensive anti-trafficking legislation • Criminalizes trafficking in the state • Provides access to state social services • Provides a trafficking civil remedy • Creates a victim-counselor privilege