HUMAN TRAFFICKING COMPLIANCE

Transcription

1 HUMAN TRAFFICKING COMPLIANCE How Could This Possibly Apply to What Our Company Does? Presented by Walter T. Featherly SCCE Compliance & Ethics Conference, Anchorage, Alaska June 23, 2016 Copyright 2016 Holland & Knight LLP. All Rights Reserved What is Human Trafficking? Trafficking is the Recruitment Harboring Transportation Provision Obtaining (or attempting to do so) of a person By means of Force Fraud Coercion EXCEPT: Force, fraud and coercion are not required to show trafficking of a minor for commercial sex acts. For the purpose of Commercial Sex Acts Involuntary Servitude Peonage Debt Bondage Slavery From: Trafficking Victims Protection Act of

2 Human Trafficking is a Global Crime Industry 3 What Types of Victims are There? HUMAN TRAFFICKING PROSECUTION SEMINAR 4 2

3 What is the Government s Response 5 Federal Acquisition Regulation (FAR) 80 FR 4967 Prohibited Acts:» Employee Identity Documents» Fraudulent Recruitment» Problematic Recruiters» Charging Recruiting Fees to Employees» Substandard Housing» Failing to Have Written Contracts Native Language Return Transport 6 3

4 Where Estimated Value Performed Outside U.S. Exceeds $500,000» Contractors must develop and maintain a compliance plan for portions of contract performed outside the United States. Compliance plan should be: - appropriate to the size and complexity of the contract; - appropriate to the nature and scope of activities to be performed, including consideration of: number of non-u.s. citizens expected to be employed; and risk that the contract or subcontract will involve services or supplies susceptible to trafficking» Contractors submit a certification to the Contracting Officer on an annual basis stating that a compliance plan has been implemented 7 Federal Certification Requirement» After having conducted due diligence, to the best of the contractor s knowledge and belief: neither it nor any of its agents, subcontractors, or their agents, is engaged in any trafficking activities;» or if abuses related to any prohibited activities have been found, the contractor or subcontractor has taken the appropriate remedial and referral actions 8 4

5 California Transparency in Supply Chains Act» Any retail seller or manufacturer doing business in California and having at least $100 million in annual worldwide gross receipts» A company is doing business in California if: (i) it is organized or commercially domiciled in California; (ii) its sales in California for the applicable tax year exceed the lesser of $500,000 or 25% of the company s total sales; (iii) the real property and the tangible personal property of the company in California exceed the lesser of $50,000 or 25% of the company s total real property and tangible property; or (iv) the amount paid in California by the company for compensation exceeds the lesser of $50,000 or 25% of the total compensation paid by the company 9 California Supply Chains Act Enforcement» Exclusive enforcement of the Act is vested with the Attorney General» Franchise Tax Board to list retail sellers and manufacturers meeting Act requirements based on tax returns» Remedy = injunctive relief» Does not preclude civil actions brought under other state statutes For example, Costco Wholesale Corp. and Nestle USA Inc. California suits. Plaintiff classes alleging unfair business practices and relying, in part, on Act. 10 5

6 Importance of Compliance with Human Trafficking Laws/Regulations» Criminal penalties under: 18 U.S.C (False Statement) 18 U.S.C. 545 (Smuggling) 19 U.S.C (Forced Labor Prohibitions) 31 U.S. C (False Claims Act) 48 C.F.R (Debarment) Suspension» Unfair Competition Civil Class Action Suits (e.g., Alaska) 11 Best Practices for Compliance with California Act» Set out in California DOJ Resource Guide: Conspicuous format for Web Site link to Disclosures Detail methodology for verification, frequency of verification and whether verification addresses third party recruiters or labor brokers Identify methodology of auditing for compliance and whether such is random or announced, including auditor selection, timeline and frequency Confirm supplier certification requirements including description of requirements, effect for violations, compliance with foreign country laws, other measures taken Internal accountability Training 12 6

7 Special Concerns for Oil & Gas» Market Volatility and Pricing Pressure Industry Wide Compliance Pressure» Extraction Industries Are Lumped Together» Extraction Regulations Vary Widely Globally» History of Government Investigations» Active NGO Community & Media Interest 13 High Risk Areas» Off-Shore Extraction Risks Chase Vessel Support Vessel Staff Port Facility Staff PEP Involvement in Staffing» On-Shore Transport, Food Supplies, Security, General Field Work Rural Salaries in Rural Areas PEP Involvement in Staffing Companies 14 7

8 Case Study» Global Shrimp / Fishing Industry» International / Multi-National Nature of the Work» Media Focus and Investment in Research» Nation State Involvement» International Business Pressures on Wholesale and Retail Operators» Media Pressure on Governments» Private Trial Bar Pressures and Suits» Civil Litigation» Business Impact» Media Impact» Third Party Investigation and Report 15 NGO and Charitable Trusts Partner with DOJ & State 16 8

9 Human Trafficking in the News Alaska Dispatch News (May 31, 2016) 17 Holland & Knight Offices Anchorage Portland London Boston San Francisco Denver Chicago Stamford New York Northern Virginia Los Angeles Atlanta Charlotte Washington, D.C. Dallas Mexico City, Mexico Bogotá, Colombia Houston Austin Tallahassee Tampa Lakeland Jacksonville Orlando West Palm Beach Fort Lauderdale Miami 18 9

10 Walter T. Featherly Walter T. Featherly is the executive partner of Holland & Knight's Anchorage office. Mr. Featherly focuses his practice on Alaska Native- and Native American-owned businesses. He regularly counsels boards of directors and executives on matters including corporate law and governance, the Alaska Native Claims Settlement Act, the Alaska National Interest Lands Conservation Act, securities law, intellectual property protection, government contracting, employment practices, finance and real estate. Mr. Featherly assists minority-owned businesses to navigate the regulations governing admission to the Small Business Administration's (SBA) 8(a) Business Development and the Historically Underutilized Business Zones (HUBZone) programs, particularly those related to subcontracting and team opportunities. In addition, Mr. Featherly regularly speaks on the subjects of corporate governance and compliance, teaming and joint venturing, the requirements of the Federal Acquisition Regulation, the SBA and other laws applicable to small, minority and disadvantaged contractors and the large companies that team with them.» Walter T. Featherly» Executive Partner» Anchorage, Alaska» (907) » Practice Education Bar Admission Compliance Services Corporate Governance Public Companies and Securities Native American Law Risk and Crisis Management Harvard Law School, J.D. St. John s College, B.A. Alaska 19 10