Human Trafficking Regulations in Government Contracts

Human Anti-Trafficking Rule - Origins

Executive Order 13627, signed Sept. 25, 2012

The United States has long had a zero-tolerance policy regarding Government employees and contractor personnel engaging in any form of this criminal behavior.

The United States Government bears a responsibility to ensure that taxpayer dollars do not contribute to trafficking in persons.

This order helps protect vulnerable individuals as contractors and subcontractors perform vital services and manufacture the goods procured by the United States.”

Executive Order 13627, signed Sept. 25, 2012

(a) Within 180 days of the date of this order, the Federal Acquisition Regulatory (FAR) Council, shall take steps necessary to amend the Federal Acquisition Regulation.”

Human Anti-Trafficking Rule - DoD, NASA, and GSA

Federal Acquisition Regulation; Ending Trafficking in Persons, Effective March 2, 2015 Applies to all new contracts as well as future orders under existing IDIQ contracts

Severe forms of trafficking in persons INCLUDES: “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”

Human Trafficking - Prohibited Conduct

ALL contractors, subcontractors, and their employees are prohibited from engaging in the following conduct (In the performance of this contract):

Engaging in severe forms of trafficking in persons

Procuring commercial sex acts

Using forced labor

Destroying, concealing, confiscating, or otherwise denying access by an employee to the employee’s identity or immigration documents.

Using misleading or fraudulent practices during the recruitment of employees

ALL contractors, subcontractors, and their employees are prohibited from engaging in the following conduct (In the performance of this contract):

Engaging in severe forms of trafficking in persons

Procuring commercial sex acts

Using forced labor

Destroying, concealing, confiscating, or otherwise denying access by an employee to the employee’s identity or immigration documents.

Using misleading or fraudulent practices during the recruitment of employees

Using recruiters that do not comply with local labor laws in the country that the recruiting takes place

Charging employees recruitment fees

Failing to provide return transportation for an employee who is not a national of the country where the work is taking place

Providing or arranging housing that fails to meet the host country housing and safety standards

•Failing to provide an employment contract or recruitment agreement, if required by law or contract

Human Anti-Trafficking Rule - Contractor Requirements

CONTRACTOR REQUIREMENTS Required to inform employees and agents of the requirements and possible penalties

Required to fully cooperate with government investigations and provide “reasonable access”

Shall immediately notify the CO, agency IG, and if appropriate, law enforcement, of any “credible information” regarding a violation

Contracting officers shall enter any substantiated allegations in the Federal Awardee Performance and Integrity Information System (FAPIIS), and consider appropriate remedies

Contractors will be allowed to respond to any report, to include mitigating factors such as a compliance plan or awareness program

Human Trafficking Rule - Additional Requirements for Contracts Exceeding $500,000 Outside the U.S.

Contracts for supplies or services, others than COTS items, outside of the United States where the estimated value exceeds $500,000 The successful offeror (and subcontractors) must provide, before contract award, a certification that the offeror and its subcontractors have: Implemented an anti-human trafficking compliance plan and implemented procedures to prevent any prohibited activities and to monitor, detect, and terminate the contract with a subcontractor or agent engaged in prohibited activities After due diligence, either: (1) to the best of the offeror’s knowledge and belief, neither it nor any of its agents or subcontractors has engaged in such activity; or (2) if abuses were identified, appropriate remedial actions were taken.

Human Anti-Trafficking Rule - Enforcement Mechanisms

Requiring contractor to remove employee or terminate subcontract

Suspension of contract payments

Loss of award fee

Declining to exercise options

Termination for default

Suspension or debarment

Civil or criminal penalties for false statements and false claims

Human Anti-Trafficking Rule - Added Protections

Amends DFARS to improve awareness, compliance, and enforcement of DoD policies on combating trafficking in persons, effective January 29, 2015 Requirements Requires the display of hotline posters on combatting trafficking in persons and whistleblower protections for contracts exceeding $5M, inside or outside the U.S.

Requires all contracts and solicitations that exceed the simplified acquisition threshold to include a contractor representation regarding anti-human trafficking policies

Requires a contractor employee bill of rights to be displayed (and enforced) in all areas where contractors are supporting U.S. Armed Forces outside the U.S.

Human Anti-Trafficking Compliance

How to Comply: PLAN

Understand what is required by these new rules Evaluate current policies and procedures for compliance Including subcontractor and agency compliance, recruitment practices, oversight mechanisms, etc. Assess labor supply chain to identify specific risks Product and industry risks Risks related to particular countries or geographic region Jan. 2015 Verité report funded by U.S. State Department: Strengthening Protections Against Trafficking in Persons in Federal and Corporate Supply Chains, available at http://www.verite.org/

How to Comply: ACT

Revise (create) policies and procedures to ensure compliance with new trafficking rules Code of Conduct and third-party Code of Conduct Standard operating procedures for employees, sub contractors, and agents that are clear and easy to follow—an actionable document If required or desirable, a compliance plan for your company AND your subcontractors/agents Employee awareness program A process for employees to report violations Recruitment, wage, and housing plans Procedures to prevent employees from engaging in human trafficking, and to monitor, detect, and terminate those who have engaged in trafficking

How to Comply: ENGAGE

Annual training for your employees, sub contractors, and agents Posters on your job sites—in the local language Provide a means for whistleblowing If your subsidiaries do not have a hotline, provide employees with yours (the prime) Conduct audits of your sub contractors and agents Ensure you have access to their records, and check them HAVE A PLAN IN PLACE—you will be far more protected (mitigating factors) if you do the work upfront, have a plan in place, and engage with your employees, subsidiaries, and agents

Lesbian, Gay, BiSexual and Transgender (LGBT) Executive Order

The OFCCP announced its final rule on regulations to implement an Executive Order (EO) signed this summer by President Obama which bans discrimination against LGBT workers by federal contractors. The rule does not require contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees and it does not require contractors to collect any information about applicants’ or employees’ sexual orientation or gender identity. However, it does not prohibit contractors from asking applicants and employees to voluntarily provide this information.

Sexual Orientation and Gender Identity Compliance

DO NOT ask applicants and employees to voluntarily provide sexual orientation or gender identity information. Provide Training Revise EEO statements and advertising EO 13672 amended section 202 and section 203 of EO 11246, by substituting the phrase “sex, sexual orientation, gender identity, or national origin” for “sex or national origin.” This final rule implements EO 13672 by making the same substitution wherever the phrase “sex or national origin” appears in the regulations implementing EO 11246