Human Trafficking, Huh?

It appears that nurses are hired from overseas, paid significantly below the normal wage, and chained to their employer by contracts that call for massive penalties if they leave before their time is up.

A nurse has initiated a lawsuit against one of these operations alleging that their practices amount to human trafficking.

I would not have thought to do that, I am an engineer, not a lawyer, dammit,* but I am impressed by this legal tactic.

Hopefully, the agency in question, Health Carousel LLC, will get nailed to the wall:

A couple of years ago, Novie Dale Carmen paid $20,000 to quit her nursing job. She was less than halfway to fulfilling the three-year commitment she’d made to Health Carousel LLC, the health-care staffing agency that had helped get her from the Philippines to a hospital in Muncy, a town about three hours northwest of Philadelphia. From across the Pacific, the deal had seemed like a good one, but once she was in Pennsylvania, she began to feel differently.

Carmen says she was paid much less than the American nurses around her. She was banned from discussing her working conditions or going out of town without notifying the agency. Health Carousel seemed to keep finding ways not to count her work toward the 6,240 hours on her contract—the first three months of shifts didn’t qualify, the company said, because it considered that time part of her orientation period. Mandatory overtime didn’t count toward her quota, either. And because she couldn’t refuse overtime, her shifts could stretch as long as 16 hours in an understaffed emergency room.

………

Now Carmen is the one suing. She’s filed a proposed class action in Health Carousel’s home state of Ohio, accusing the company of human trafficking. Although “trafficking” evokes images of people brutally beaten or chained in captivity, the legal definition is much broader and includes trying to coerce someone to do something by threatening serious harm or abuse of the legal process. In June a U.S. district judge rejected Health Carousel’s motion to dismiss the case. At the end of last year, Carmen added claims of wage theft and racketeering, and two more plaintiffs.

………

Carmen’s lawsuit has started off humbly, but it could redefine the terms of one of the biggest trends reshaping U.S. health care: the replacement of burnt-out American caregivers with cheaper foreign workers who can’t simply quit. More than 1 in 6 U.S. health-care workers has quit their job since the start of the pandemic, and almost 1 in 3 front-line health-care workers has been thinking about leaving the profession, according to a 2021 survey by the Kaiser Family Foundation and the Washington Post. For the companies that bring people like Carmen to America, the Great Resignation has been a central talking point. Last year a staffing agency released a survey of U.S. nurses who said things like: “Every shift is the worst shift I’ve ever worked.”

………

Hundreds of health-care employees have been sued by staffing agencies like Health Carousel for trying to quit or refusing work, according to U.S. state court dockets reviewed by Bloomberg Businessweek. Some sued the workers for trying to change their own visa status, or trying to initiate mediation, or encouraging co-workers to quit, or, as in the case of one worker in New York, having “unexpectedly and surreptitiously left the apartment” rented for him before abandoning work.

Staffing agencies tend to win these fights. In 2015, Arvie Vitente, a Filipino physical therapist in South Carolina, signed a consent judgment—essentially a mutually agreed upon court order—stating that he had caused $93,500 of damages to Health Carousel by failing to work for the period he agreed to and owed that amount plus interest and the agency’s court costs. Health Carousel had argued that a clause in the contract he’d signed, agreeing to indemnify the company against claims “arising out of or resulting from your participation and performance,” obligated him to pay the company’s expenses for suing him, because he’d left them no choice. “Health Carousel had to file a lawsuit against you because of things you have done under the agreement, correct?” the agency’s lawyer asked when deposing Vitente, who’d accused the company of violating wage law, which it denied. Vitente said, “Yes, sir,” then explained that he felt he’d been forced to breach the agreement because of his alleged mistreatment. Health Carousel said in an email that it negotiated a three-year repayment plan for significantly less than $20,000 with Vitente, who didn’t respond to inquiries.

………

A victory for Carmen’s class action could set off a reckoning for the industry, inspiring more litigation and legislative reform efforts, says Jonathan Harris, a professor at Loyola Marymount University’s law school. “A win in this case will send a signal to the recruitment industry generally, at least in the health-care sector, that they can’t continue to use these types of contracts without the very serious risk of the contracts being found unenforceable and the recruitment agencies being called human traffickers,” he says.

It would seem to me that these sorts of abusive employment conditions would be forbidden by the 13th Amendment to the US Constitution, but these sorts of employment contract requirements are pretty common.

Maybe the DoJ should devote more effort to going after abusive employers.  Wage theft, bogus non-competes, and contracts that prohibit quitting, are endemic int he American workplace.

^*I love it when I get to go all Dr. McCoy!