Coming Soon: New Requirements for Federal Contractors Regarding Human Trafficking

by Foley Hoag LLP - Corporate Social Responsibility
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TraffickingIn the coming weeks, the U.S. federal government is expected to release amendments to the Federal Acquisition Regulation (“FAR”) that are intended to strengthen existing prohibitions against human trafficking by federal contractors.

The draft FAR amendments were first released in September 2013. The final amendments, once released, will impact all federal contracts, with heightened requirements for contracts performed outside the United States that exceed $500,000 in value.

The FAR amendments are being enacted in order to implement Executive Order 13627 (“Strengthening Protections Against Trafficking in Persons in Federal Contracts”) and Title XVII of the National Defense Authorization Act for Fiscal Year 2013 (“Ending Trafficking in Government Contracting”).

The FAR amendments, as proposed in September 2013, prohibit any of the following activities in connection with federal contracts:

  • destroying, concealing, confiscating, or otherwise denying access by an employee to his or her identity or immigration documents;
  • using misleading or fraudulent practices during the recruitment of employees;
  • charging employees recruitment fees;
  • providing or arranging housing that fails to meet the host country housing and safety standards; or
  • if required, failing to provide in writing an employment contract, recruitment agreement or similar work paper in the employee’s native language prior to the employee departing from his or her country of origin.

In addition, the proposed amendments require all contractors to:

  • provide return transportation, or payment for the cost of return transportation, at the conclusion of an employee’s period of employment for all employees who are not nationals of the country in which work took place and who were brought to the country for the purposes of working on a U.S. Government contract, subcontract, or portion(s) of a contract; or
  • for work performed in the United States, provide return transportation, or payment for the cost of return transportation, upon the conclusion of an employee’s period of employment if the payment of such costs is required under existing temporary worker programs or pursuant to a written agreement with the employee.

Finally, the proposed amendments require all contractors to:

  • protect and interview all employees suspected of being victims of or witnesses to prohibited activities, prior to returning to their country of origin.

Additional Requirements for Contracts Performed Outside the United States that Exceed $500,000 in Value

The proposed FAR amendments establish additional requirements for contracts in which the estimated value of the supplies acquired, or the services required to be performed, outside the United States exceeds $500,000

These requirements do not apply to contracts or subcontracts for commercially available off-the-shelf items.

For contracts covered by these amendments, contractors must:

  • develop a compliance plan applicable to the portions of a contract performed outside the United States; and
  • submit a certification to the Contracting Officer on an annual basis stating that a compliance plan has been implemented

The required compliance plan must include, at a minimum:

  • an awareness program to inform contractor employees about: the U.S. Government’s zero tolerance policy with regard to trafficking in persons, the trafficking-related activities in which the contractor is prohibited from engaging, and the actions that will be taken against employees for violations;
  • a reporting process for employees to use, without fear of retaliation, to report any activity inconsistent with the zero-tolerance policy;
  • a recruitment and wage plan that only permits the use of recruitment companies with trained employees, prohibits charging recruitment fees to the employee, and ensures that wages meet applicable host country legal requirements or explains any variance;
  • a housing plan, if the contractor intends to provide or arrange housing that ensures that the housing meets host country housing and safety standards or explains the variance; and
  • procedures to prevent agents and subcontractors at any tier from engaging in trafficking in persons, and to monitor, detect, and terminate any agents; and subcontractors, or subcontractor employees that have engaged in such activities.

The proposed amendments state that contractor should maintain the compliance plan during the performance of the contract and that the compliance plan should be:

  • appropriate to the size and complexity of the contract; and
  • appropriate to the nature and scope of activities to be performed for the U.S. Government, including consideration of the number of non-U.S. citizens expected to be employed and the risk that the contract or subcontract will involve services or supplies susceptible to trafficking.

Contractors are expected to post the relevant contents of the compliance plan at the workplace(s) where work on the covered contracts will be performed and on the contractor’s website.

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As soon as the final amendments are released, we will provide an update identifying any changes to the requirements posted above.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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