NYU Stern Center for Business and Human Rights Comments on the FAR Case

The Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council
C/O – General Services Administration (GSA), General Secretariat

July 7, 2016

FAR Case 2015-017: Combating Trafficking in Persons – Definition of “Recruitment Fees”

The NYU Stern Center for Business and Human Rights welcomes the proposal by DoD, GSA, and NASA to amend the United States Federal Acquisition Regulation’s (FAR) Subpart 22.17, entitled Combating Trafficking in Persons, and the associated clause 52.222-50, in order to further clarify the FAR’s definition of “recruitment fees.” We also appreciate the opportunity provided to the public by the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council to submit early input in this pursuit.

The Center for Business and Human Rights is examining issues related to the recruitment of migrant construction workers bound for Gulf Cooperation Council (GCC) countries. Through a mix of original research, convening, and public policy advocacy, we seek to propose and promote reforms to improve labor recruitment practices in South Asia and the GCC.

While our research focuses on the GCC region and on construction workers in particular, recruitment fees are commonly paid by migrant and other workers – particularly those from economically or socially disadvantaged groups. These practices occur in all regions of the world, and are in contravention of international norms. The US government (DoD, GSA, and NASA) rightly recognized the magnitude of this phenomenon when it banned the practice for federal contractors and affiliated parties in the FAR’s 2015 Ending Trafficking in Persons Rule. This rule implemented Executive Order 13627 and title XVII of the National Defense Authorization Act for Fiscal Year 2013.

In response to the particular questions posed by the Councils, we submit that:

  • The definition of a recruitment fee should not vary depending on the salary rate or location of the job in question; and
  • The illustrative list of recruitment fees is very helpful in understanding what costs an employee may and may not be charged. However, we propose the identification and inclusion in the definition of additional potential avenues for payment, via the following edits to the proposed language:
 
  1. To paragraph (1), add “or timing” to “regardless of the manner of their imposition or collection” (i.e., “regardless of the manner or timing of their imposition or collection”). This change would reflect the fact that migrant workers often pay recruitment fees prior to direct interaction with the employer’s official representative (for example, to locally-based “sub-agents” affiliated with the latter).
     
  2. To sub-paragraph (1-i), add “providing advice” and “arranging for travel and/or accompanying the applicant on that travel” to the list of actions in exchange for which the payment of fees is banned. In the countries of origin for these migrant workers, potential employees who may never have traveled outside of their immediate provincial regions are often made to feel that agents or “sub-agents” should be paid for providing such guidance-type services.
     
  3. At the end of sub-paragraph (1-ii), add: “or of any activity related to labor procurement.” Employers and recruiters often charge workers for a variety of costs they claim to have incurred as a result of the recruitment process.
     
  4. Break sub-paragraph (1-viii) into two separate sub-paragraphs. The first could read: “For the cost of procuring medical examinations and immunizations and obtaining background, reference and security clearance checks and examinations; additional certifications.” The second could read: “Charged as a condition of access to the job opportunity by any entity enumerated in paragraph (2) below, and/or for any reason listed in this section.” The act of charging a potential worker for access to an opportunity in the first place is the basis of the current problematic system, and can take the form of charges for a wide variety of “services provided.”
     
  5. Add a new sub-paragraph to paragraph (1), reading: “For covering or reimbursing bribes or kickback payments made by the employer, recruitment agent, or any related individual or organization.” As noted in Verité’s recent report on this matter, recruitment agents and their representatives often charge potential workers for, inter alia, kickback fees that they made in order to secure contracts. Sometimes these payments are made to representatives of the employer itself, with potential employees footing the bill.
     
  6. In sub-paragraph (2-v), change “Any agent or employee of such entities…” to “Any agent or employee of such entities, including ‘sub-agents’ or other licensed or unlicensed representatives...” See above comment on paragraph (1) for more on the importance of specifically naming “sub-agents.”

We would be happy to answer your questions related to these specific suggestions or to our overall assessment of problems associated with the charging of recruitment fees more generally.