Human Trafficking: How Businesses Can Combat the Modern Slavery Epidemic

Marisa A. Trasatti , Zachary A. Miller


September 3, 2019

human trafficking risk management

Hundreds of thousands of men, women and ­children are trafficked worldwide every year, according to the U.S. Department of Homeland Security. Trafficking can take many forms and includes forcing individuals to engage in involuntary sex acts (sex trafficking) as well as forcing people to work (labor trafficking) under threats of violence or by other means such as accumulated debt, passport retention, or threat of being reported to immigration authorities.

Recently, there has been an uptick in civil liability arising from human trafficking events, and these claims are cropping up against hoteliers, web service providers, retailers and manufacturers. Because of the increase in these filings, all employees must be trained and educated on how to respond to such claims, especially in the hospitality industry.

Reduced to their most basic form, human trafficking claims are premises liability and negligent training and retention issues, and the plaintiffs’ bar seeks to hold business owners liable for the resulting damages. Not surprisingly, these cases turn on notice and foreseeability—the cornerstone of all premises cases—but unlike many traditional premises cases, trafficking acts are hidden, which makes it difficult for police, courts and business owners to thwart or even spot these crimes, even with the most extensive and sophisticated surveillance. Therefore, businesses need to understand how to navigate these new claims.

What Is Human Trafficking?

The first step in helping combat this problem is understanding the type of acts that are considered to be human trafficking. As defined by Article 3, paragraph (a) of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, human trafficking is the:

[R]ecruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.

Human trafficking takes many forms. Labor trafficking surfaces in manual labor-intensive industries, particularly those that rely on third parties to provide an inexpensive workforce. Construction, domestic services, agriculture, mining, forestry, fishing and manufacturing are particularly vulnerable to such claims. Sex trafficking claims related to forced prostitution arise against hotels, strip clubs, hotel franchisors, website host providers, website software providers, dating sites, massage parlors and nail salons.

Human Trafficking Laws for Business

States are beginning to enact legislation to address the problem. For example, California’s governor approved SB 970, enacted as Section 12950.3 to the Government Code. The new California law requires hotels and motels subject to the Fair Employment and Housing Act to provide at least 20 minutes of classroom or other interactive human trafficking awareness training and education to each employee who is likely to interact or come into contact with victims of human trafficking.

Beginning on January 1, 2020, an employer must provide such training once every two years to employees who have reoccurring interactions with the public, including, but not limited to, those who work in a reception area, perform housekeeping duties, help customers in moving their possessions or drive customers. The mandatory training must include: 1) the definition of human trafficking and commercial exploitation of children; 2) guidance on how to identify individuals most at risk for human trafficking; 3) the difference between labor and sex trafficking as it applies to the hotel sector; 4) guidance on the role of hospitality employees in reporting and responding to this issue; and 5) contact information of appropriate agencies.

California Civil Code § 52.6(e) also mandates that, by January 1, 2021, businesses that operate an intercity passenger-rail, light-rail or bus station shall provide at least 20 minutes of training to its new and existing employees who may interact with or come into contact with a victim of human trafficking or those who are likely to receive, in the course of their employment, a report from another employee about suspected human trafficking. The requisite training will provide information on recognizing the signs of human trafficking and how to report those signs to the appropriate law enforcement agency.

Understanding the Signs of Human Trafficking

Training is essential because human trafficking is regularly misidentified. It can happen in any community and its victims can be any age, race, gender or nationality. Traffickers can be men and women, and use violence, manipulation or false promises of well-paying jobs or romantic relationships to lure victims into trafficking. Consumers of labor and sex services come from all walks of life. Human trafficking is also well concealed—victims will most likely dress in street clothes, and their traffickers may appear to be their significant other, family member or friend.

Hotels are common sites for human trafficking. Indeed, the anti-trafficking advocacy organization Polaris recorded more than 3,300 cases of trafficking in hotels alone over the past 10 years.

human trafficking risk management resources

In a hotel setting, human trafficking warning signs include: nervous behavior, having large amounts of cash, tipping front desk staffers, guests asking for rooms far from the front desk, excessive phone calls to and from the room, excessive tablets or cell phones in the room, and multiple male guests going to one room. In general, a guest who comes to the front desk every day asking for toiletries should not be an issue, but coupled with some of these other red flags, it could be a sign of human trafficking. Staff should be mindful of foot traffic on the premises and/or vehicle traffic near rooms, especially if they have outward-facing doors. Foot traffic may also come from adjacent parking lots. Red flags also include one man registered to a room with several females and adjoining rooms booked together with flanking rooms registered to yet another person. This may indicate that the flanking rooms are being used to soundproof the adjoining rooms where the illegal activity is taking place. In addition to monitoring trafficking claims at nearby establishments or similar hotels, staff should also be aware of seasonal traffic, construction jobs in the area, and extended stays that are booked from day to day.

Depending on the jurisdiction, there is a recognized legal right of privacy behind a closed hotel door, but there is no right of privacy in terms of trash. Housekeeping staff should report if they see an excessive number of condoms, needles or other drug paraphernalia. Businesses should also implement a policy requiring housekeeping to clean rooms after a certain number of days, if only to assure cleanliness. A guest may decline for a period of time, but at some point, housekeeping must be permitted to enter the room. This policy should be published as part of the literature provided at check-in. If access to a room is declined repeatedly, housekeeping should report this to management.

While none of these signs is a definitive indication of human trafficking by itself, it is important to consider the totality of the circumstances. Hotel staff should not confront guests, allow employees to take the law into their own hands, or make accusations regarding any of the individuals involved in a suspected trafficking act, but instead engage law enforcement.

Following Business Protocols

If a business finds itself in the crosshairs of litigation, it becomes very important to the defense that the business has followed its own protocols, even if they have no causal connection to the acts giving rise to the alleged trafficking. For example, if the business is required to keep notes at the hotel front desk, it should do so. If there is a blacklist of guests who are not allowed on the premises, it should follow through and ensure the list is current (after consulting with an attorney first regarding the legality of keeping such a list). Hotels can also take a number of other actions to reduce the risk including:

  • Blocking certain websites from the hotel’s free Wi-Fi, such as those that provide commercial sex advertisements.

  • Training all new employees and contractors at every level of the company, and making the training an annual requirement.

  • Retaining notes, minutes, conclusions and records of any administrative and/or property management meetings consistent with the state’s records retention policy. Failing to produce documentation can lead to spoliation jury instructions at trial.

Revisiting Security Measures on the Premises

Security is a focus in corporate designee depositions in these cases. For example, if a facility has security cameras on the premises, it must make certain that they are pointed toward the right areas, that they are functioning properly, and that the footage is maintained for a reasonable period of time, such as more than 24 hours. Can the business see foot traffic and all room entrances and hallways with the cameras? If not, they need to be adjusted and monitored regularly. If a business is implementing a security protocol, they must do so in a reasonable, non-negligent manner. This could include having an employee or contractor patrol the premises periodically or hiring private security (although this is not yet the required standard of care).

Implementing Other Preventative Policies

Successful defense of these cases requires the business owner to have situational awareness at all times. For example, in the hospitality industry, be aware of hotel guests paying in cash daily, who is having breakfast at the hotel, whether any children are being brought in for free breakfast who are not registered as guests, excessive visitors to the room, or visitors who come at off hours.

Some may want to take additional measures to reduce the risk further. Document the names of guests and visitors in a guest folio at the front desk and obtain each person’s driver’s license information, so long as permitted by the jurisdiction’s privacy laws. Staff may even want to ask guests for a phone number upon check-in, and search the phone number for listings on commercial sex advertisement or review websites. In addition, do not permit elevator access without a guest room key. Limit the number of people in a hotel room to no more than two to four adults or two adults and two children. Consider requiring all visitors to check in at the front desk, requiring all vehicles to obtain a parking pass, and limiting visitors on the property from 10:00 p.m. to 6:00 a.m. Post signage that the premises is being monitored and consider posting signage regarding combating human trafficking. Hotels may even want to consider discontinuing “do not disturb” cards outside doors.

Business owners should have an employee manual, written protocols, training materials and/or guidelines, and have employees acknowledge in writing that they understand and will follow the manual. In the context of hotels, these manuals should address housekeeping, security, surveillance cameras, suspicious behavior, human trafficking, guest interactions, reservation procedures, photo identification requirements, age requirements for renting rooms, policies about alcohol on the premises and parties in the room and/or conference rooms, and the number of guests and friends allowed in a room. Where applicable, a business should also address inspections and the division of labor between the company and its franchisor, if applicable, as well as any training offered by the franchisor on these subjects.

Rules created by the hotel must be enforced consistently, including the rates they charge guests. Guests who are given discounts draw the attention of plaintiffs’ lawyers who seek to paint a picture of some sort of relationship between business staff and traffickers.

Notice and Foreseeability

At their heart, human trafficking cases are premises liability cases. In any premises case, the key issues are notice and duty. If a business is on notice of trafficking, the business has a duty to act. Plaintiffs’ counsel will look for prior alleged criminal acts, including some that may not directly involve human trafficking, to show that the hotel or business knew or should have known that human trafficking was happening (or was foreseeable) on the premises.

This underscores the importance of being familiar with the police call log relating to the business’s property. Any individual can access the call log at the local police station with a freedom of information law request. By being vigilant with respect to these records, businesses can inform future conduct and hopefully pre-empt unnecessary phone calls to the police, where possible, or allegations of a “disorderly house.” The admissibility of such evidence in these cases depends on the jurist and case law in the applicable jurisdiction.

Preventing Negligent Hiring, Retention and Supervision Claims

Many trafficking cases also include negligent hiring, retention and supervision claims. Therefore, it is critical for businesses to do their due diligence on applicants, within the confines of local law. Research applicants for any criminal background, online presence, and reasons for dismissal from prior employers. Training of human resources is essential for insurance, reputation, on-site safety and any potential litigation. California Government Code 12950.3 recommends training using materials and information provided by the U.S. Department of Justice, the Blue Campaign of the Department of Homeland Security, and private nonprofit organizations that represent the interests of human trafficking victims, like Freedom Light and Safe House of Hope.

Employers should also monitor employees who break the rules. The violation could be wholly unrelated to human trafficking, but a plaintiff’s lawyer might use that history to argue negligent hiring and retention to buttress their premises cases arising from alleged human trafficking.

Working with Law Enforcement and Staying Vigilant

Businesses should cooperate with law enforcement. At the same time, it is important to be mindful of over-reporting, which can result in a business getting a reputation as a disorderly establishment. Businesses should monitor their reputation in the community and make sure they are aware of any media attention, particularly attention that presents the establishment in a negative light. They should also monitor TripAdvisor and other online review websites, and address reviews with the customer, police and any franchisor.

As basic as it may seem, the more vigilant employees are, the less likely the business is to be the site of human trafficking. Police and fire personnel numbers should be accessible to front desk staff at all times. Hotel security should monitor commercial sex advertisements and review websites for mentions of the business—some websites rate hotel front desks with respect to a visitor’s ability to bypass security.

Hotels and other retail establishments should also consider providing guests with a human trafficking hotline phone number, such as the National Human Trafficking Hotline (1-888-373-7888) and establish referral relationships with local service providers for trafficking victims. The California statute also requires that the telephone numbers of the appropriate local law enforcement agencies be provided as part of employee training.

Business owners must become more aware of the human trafficking epidemic. By better understanding the problem, businesses can create a protocol for employees to follow to more accurately identify and combat this illegal activity on its premises. By engaging in human trafficking training now, businesses can help thwart liability claims down the road.
Marisa A. Trasatti is general counsel of Sciton, Inc., and a partner at the national law firm Wilson Elser.
Zachary A. Miller is an associate litigation attorney at Wilson Elser.