It is difficult to imagine that the evil of human trafficking, and all the pain and suffering it entails, can still be so pervasive this deep into the 21st Century. One would have expected that contemporary domestic and international law enforcement, to say nothing of the United Nations and all the monies it has at its disposal for such purposes, would serve as a resolute bulwark against this scourge of modern humanity. And yet it is a dominant player in the headlines as we learn daily of some new outrage perpetrated by those who would profit from human misery, sexual abuse, prostitution, illegal narcotics distribution, and other criminal enterprises.
There is a particularly scurrilous, often unrecognized activity within this umbrella of behavior that gets little attention and yet may be among the most pervasive—the grooming by US domiciliaries (whether or not citizens) of young, poor and often undereducated foreign nationals—from Asia, Central and South America, Eastern Europe and Africa—to serve as household servants under the guise of promising adoption, education, employment and other illusory opportunities in the United States. Indeed, in conjunction with our public service law colleagues, we are representing such individuals in pro bono civil litigation against their captors in efforts to obtain both just compensation for the services rendered (routinely denied them), the restoration of their passports (typically taken from them), and the opportunity to be freed from what amounts to indentured servitude.
These situations exist among us, in our own neighborhoods, in the most unsuspected of places. The law provides us with robust means of rooting them out and remedying the situation.
California Wage Order 15
We write today about the application of California Department of Industrial Relations Wage Order 15 (codified at 8 Cal. Code Regs. § 11150) to this “household occupations” circumstance. Subject to certain well-articulated (and largely inapplicable) exceptions, Wage Order 15 addresses the necessary minimum wages and employment times and conditions (e.g., meal and rest periods; facilities) to be afforded those working in the home environment. These include prospective deductions for meals and lodging provided to the worker.
The typical situation we address in this context concerns a young man or woman brought to the United States from their home country by a “patron” who has perhaps promised to adopt them and otherwise provide for their education, sustenance, housing, and employment in America. Some victims might be requested to lie about their age and status (claiming to be an “orphan” even if one or both parents are alive) in order to ease any “adoption” process. Once in the United States, however, the relationship changes dramatically. The patron seizes the victim’s passport and enslaves the victim in the patron’s or another’s home to serve as a virtual around-the-clock servant, often without pay and perhaps even charging “rent” for the provision of room and board.
In cynical efforts to avoid the requirements of Wage Order 15, the patron may claim that the Order, by its terms, does not apply to legally adopted children (8 Cal. Code Regs. § 11150 (1)(C)) and/or that the victim is serving as a “personal attendant” to the patron’s elderly or infirm family member (8 Cal. Code Regs. § 11150 (1)(B)). The realities of the situation demonstrate, however, that neither avenue is availing.
Wage Order 15 Exemptions Do Not Apply
First, there can be no “lawful” adoption of the victim where it was procured by fraud—for example, the misrepresentations of the patron and victim; the inducements promised to the victim which never materialized. Second, the victim often falls well outside the personal attendant designation. A “personal attendant” is “any person employed by a private householder or by a third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision.” (Cal. Lab. Code. § 1451(d)) Prior to 2014, Wage Order 15 exempted personal attendants from California’s overtime provisions and meal and rest break requirements. However, the Domestic Workers Bill of Rights (“DWBR”), which became effective on January 1, 2014, eliminated the personal attendant exemption from Wage Order 15. Under the DWBR, employers are required to pay live-in personal attendants overtime compensation at one and one-half times the employees’ regular rate of pay for all hours worked in excess of nine hours per day or 45 hours per week.
If the victim spent more than 80% of her working time feeding, bathing, dressing, toileting, and caring for the patron’s family member, she would satisfy the personal attendant definition. However, as is more routinely true, if more than 20% of the victim’s work time was not engaged in this direct type of activity with the family member, then she would not be considered a personal attendant. This would include activities such as cooking, cleaning, doing laundry, making beds, and other household tasks that do not involve direct contact with the family member.
Coupled with the available and robust civil causes of action for, among other things, peonage and involuntary servitude; human trafficking; solicitation of employee by misrepresentation; conversion; various Labor Code violations; false imprisonment; emotional distress; and breach of contract, Wage Order 15 provides a powerful weapon in pursuing the patron and obtaining justice for the victim.