CBP Explains Forced Labor Indictors, Admissibility Phase
The branch chief of the forced labor division at CBP gave importers advice on how to deal with a withhold release order, and what to ask to find out if there are forms of exploitation at your suppliers that qualify as forced labor. When your goods are detained at port, Edward Thurmond said during a webinar Aug. 4, remember you can export the goods instead of paying for their detention. "As of this moment, you can reexport those goods to Canada or Mexico. That option may go away in time. It can go out the next day. It can go out even the same day. You are not forced to wait for the admissibility period."
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If you do want to use the admissibility period to argue that the goods deserve to be entered into commerce, the goods will either have to be in CBP custody, or, if the port director allows, in a bonded warehouse or a foreign-trade zone.
Thurmond said there is confusion among employers on what information CBP wants on goods detained under a WRO. He said this is not the time to argue that the producer doesn't use forced labor. Instead, importers should provide evidence that the producer is not on the target list. For instance, if the WRO is on Malawi tobacco, you can show the tobacco came from Zambia. Or you could show that the company that produced the goods under detention doesn't operate in Xinjiang.
Thurmond walked webinar attendees through the indicators of forced labor that CBP investigates in order to issue a WRO. He noted that WROs have a low burden of proof, just reasonable suspicion. The indicators are physical and sexual violence; intimidation and threats; abusive working and living conditions; restriction of movement; retention of identity documents; withholding of wages; deception; excessive overtime; debt bondage; isolation; and abuse of vulnerability.
Thurmond explained that some indicators are broader than people might think. For instance, intimidation doesn't have to be a threat of physical violence, it could be a threat that if you quit, you'll never work in that area again. Restriction of movement doesn't have to mean you're literally imprisoned; it could be that someone from the company accompanies workers wherever they go when they leave the facility, or that the factory doors are locked. "This is one of the most common ones we see," Thurmond said. Witholding of wages isn't just not paying workers for months. It could also be unfair deductions for uniforms or meals, he said, and can be linked to excessive overtime. If workers have to work overtime to make the local minimum wage, it's often because of these unfair deductions, he said.
Abuse of vulnerability refers to the decision to hire ethnic or religious minorities for jobs, and isolation means workers are not allowed to communicate with their family or others away from the fields or city where they are working far from home.
Abusive living conditions means overcrowded or unhygienic housing provided by the employer, and abusive working conditions mean that workers are exposed to danger, such as working with chemicals without goggles, or that you are slapped if you don't meet your production quota. "Sadly they crop up more times than one would think," he said, referring to these working conditions.
Sometimes employers hold workers' passports or work permits and won't give them back if the worker wants to quit. This can be linked to restriction of movement, he explained, because it can be dangerous to walk around outside without these documents in some countries. "In Malaysia, if you're caught without identification, [officials] might actually beat you and lock you up in a small cage," Thurmond said.
It's also frequently linked to the No. 1 forced labor violation that CBP finds during investigations -- debt bondage. A recruiter will go to a foreign country and tell people that if they pay $1,000 or $3,000, they can get a good-paying job in another country. When they arrive, the job often doesn't pay as well as they had been told (deception). "It is a small fortune for somebody who lives in India, for somebody who lives in Indonesia," he said. "Once they acquire that debt bondage, it makes it impossible for them to leave because they need to pay that off, lest the recruiter goes after their family."
A manufacturer cannot avoid a WRO by explaining they didn't know how their recruiters were operating, Thurmond said. And American buyers must make sure audits of their suppliers go through all 11 indicators, he said. If the audit says there are risks that one of the indicators could be occurring, firms should follow up and ask what the company has done to change its practices.
One of the webinar attendees asked if one of the largest producers of the good they buy is under a WRO, does that mean they can't buy from that supplier any more?
Thurmond said, yes, you need to find another supplier, but then, if you would like to buy from them in the future, ask the company if they are planning to talk to CBP about modifying the WRO.
"We don’t really have modification discussions with importers," he said. "We really need to see the effort coming from the foreign manufacturers."
Thurmond said modification is one of the areas the forced labor division is most proud of. He said there have been many successful modifications at tobacco producers in Malawi.
"It’s not about mitigating the risk of forced labor. It’s about demonstrating to our operations branch that indeed the forced labor situation that may have been occurring in the past has been resolved and will not happen again," he said.