Monday, December 24, 2018

Trafficking in Persons - Recruitment Fees - Methods of Payment

We finished up last week with a couple of posts on trafficking in persons. Thursday we discussed the general prohibition found in statutes and regulations (see Trafficking in Persons) and followed that up on Friday with definition of recruitment fees (see Trafficking in Persons - Recruit Fees). One of the prohibitions found in FAR 22.17 makes it unlawful for Government contractors and subcontractors to charge employees fees for the privilege of working.for the company.

Now we mentioned last week that a lot of firms might try to find some wiggle room in the regulations to, in effect, find a way to charge recruitment fees - finding ways to adhere to the letter of the law if not the spirit or intent of the law. There's a good reason because many of the laborers used to support the military in areas such as Afghanistan and Iraq (to name two) come from impoverished areas where people are unencumbered by any stigma attached to unethical conduct. If people want jobs, they're going to have to pay somebody.

The FAR makes it clear that the method of payment doesn't matter. Specifically, FAR states that a recruitment fee, as described last Friday, is a recruitment fee (i) regardless of whether the payment is paid in property or money, (ii) deducted from wages, (iii) paid back in wage or benefit concessions, (iv) paid back as a kickback, (v) bribe, (vi) in-kind payment, (vii) free labor, (viii) tip or tribute, or (ix) collected by an employer or a third party, whether licenses or unlicensed, including:

  1. Agents
  2. Labor brokers
  3. Recruiters
  4. Staffing firms (including private employment and placement firms)
  5. Subsidiaries/affiliates of the employer
  6. Any agent or employee of such entities, and
  7. Subcontractors of all tiers.
There is one final point that we should discuss - the job has to be accurately described. The regulations prohibit the use of misleading or fraudulent practices during the recruitment of employees or offering of employment, such as failing to disclose, in a format and language understood by the employee, basic information or making material misrepresentations during the recruitment process regarding key terms and conditions of employment, including wages and fringe benefits, the location of work, the living conditions, housing and associated costs, any significant costs to be charged (excluding recruitment fees), and, if applicable, the hazardous nature of the work.

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