Eventually, using her small savings, Shanti fled the Malhotras’ apartment in 2010, seeking help from a woman she had recently met in a grocery store. After escaping her abusive employers, Shanti discovered Adhikaar, a New York City organization that works with the local Nepali community. The group connected Shanti to critical resources—specifically, to Amy Tai, an attorney with the Urban Justice Center’s Community Development Project. After sharing Shanti’s situation, Tai, who works with a network of private law firms’ pro bono practices, was able to secure a lawyer from the international law firm Gibson, Dunn and Crutcher to represent Shanti in a suit against the Malhotras.15 It is not standard practice for big law firms to insert themselves in matters involving domestic workers’ rights unless there is substantial abuse and potential for a settlement; that the firm took the case demonstrates just how egregious Shanti’s situation was. On March 16, 2012, the Southern District of New York ordered that Shanti Gurung be awarded nearly $1.5 million in damages. The Court found that under the Fair Labor Standards Act (FLSA), Shanti was entitled to back wages in accordance with New York’s minimum wage—a higher wage than the federal minimum wage. Shanti was also awarded breach of contract damages, federal and state liquidated damages, and damages for emotional distress. Notably, Shanti’s judgment also included overtime relief, as prescribed by New York State’s Domestic Workers’ Bill of Rights. Prior to the 2010 passage of the bill, FLSA exempted live-in workers from the overtime requirement.
Unfortunately, the case of Shanti Gurung is all too representative of the harsh treatment of many domestic workers at the hands of foreign diplomats. In 2008, the Government Accountability Office (GAO) issued a report identifying at least forty-two cases of abuse of domestic servants by foreign diplomats since the year 2000. The report concluded that the US government’s efforts to reduce the incidence of abuse by foreign diplomats against domestic workers could be improved.16 It also stated that the number of cases of abuse could potentially be much greater, because many abused household workers are afraid of reaching out to authorities. The report also found that diplomatic immunity, secured in the 1960s by the Vienna Convention on Diplomatic Relations, is an effective shield for diplomats from criminal prosecution and civil suits, and presents a major barrier to justice for domestic workers.17
The problem is particularly acute in New York City and Washington, DC, where foreign diplomats typically reside. Ivy Suriyopas, director of the Anti-Trafficking Initiative with the Asian American Legal Defense and Education Fund, has been an anti-trafficking advocate in New York City for nearly a decade. According to Suriyopas, New York and Washington, DC, are “hotbeds for diplomatic and consular activity. We have identified a number of domestic workers trafficked into consular households. Manhattan is a stratified city but there is lots of wealth too; there are a number of families in need of domestic workers but who do not want to pay or follow basic standards.”18
The US State Department currently issues A-3 visas for workers of diplomatic personnel and their families, and G-5 visas for workers of foreign officials for international organizations including the World Bank and the United Nations. Janie A. Chuang of the American University Washington College of Law points out that visas are not tied to the worker but rather to the diplomat, providing the domestic worker with lawful status only during the working arrangement.19 When applying for the visa, diplomats must produce an employment contract stating that they will follow US labor laws, offer information about scope of work and payment schedules, as well as agreeing not take away the worker’s passport or visa, or require the worker to remain at work after hours without compensation. However, these provisions are not necessarily adhered to, as the case of Shanti Gurung illustrates. The State Department’s Foreign Affairs Manual sets forth what the working conditions for employees of diplomats ought to be, but these are not enforceable.20 In addition, exploited workers rarely receive copies of their employment contracts, and the US consular offices only recently began keeping copies of the contracts themselves.21 Even if protections were stronger, exploited workers are often too fearful of retaliation against their families in their home countries, or afraid for their own physical safety, to risk speaking up.
As Shanti Gurung’s story demonstrates, the adoption of the Thirteenth Amendment in 1865 outlawing slavery did not end demand for or supply of free or cheap domestic labor in the United States. On the contrary, US policy has long enabled the importation of cheap domestic laborers but excluded these workers from legal protections. For example, Congress passed the Alien Contract Labor Act in 1885, “to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia.”22 The purpose of the act was to prevent cheap, unskilled labor from penetrating American borders and lowering wages. Yet the importation of domestic workers by other foreigners, such as diplomats, was explicitly permitted under the act.23
Even as the right of workers to labor protections took root as an American value during the New Deal, US policy continued to allow some employers to pay little or no wages to workers who had difficulty advocating for their rights. Says Nelson Lichtenstein of the Center for the Study of Work, Labor, and Democracy at the University of California, Santa Barbara, “Employers for a century have been trying to import workers who have something less than full citizenship.” He adds that from a management perspective, “They’re the perfect workers.”24
The role of capitalism in this mix is clear. Tayyab Mahmud, director of the Center for Global Justice at the Seattle University School of Law, has written that “the construct of free wage-labor, envisaged as consensual sale of labor-power by an autonomous and unencumbered individual in a market of juridical equals governed strictly by economic laws of supply and demand, is the bedrock of the purportedly universal category of labor under capitalism.”25 The vestiges of slavery flourish along with this demand, as does the economic vulnerability of people who provide cheap labor.
As far in the past as slavery may seem, the practice continues to play a role in today’s America. Domestic servitude in the United States (and around the world) influences how many domestic workers are treated, and is often rife with abuse. Legally termed “human trafficking,” the abuse of domestic workers includes the denial of compensation, the demand that laborers work around the clock, and, above all else, the threat or infliction of physical or emotional abuse. The International Labour Organization (ILO) estimates that 2.4 million people are trafficked worldwide each year, about 17,500 of them in the United States.26 Over the years, human trafficking specifically for labor purposes has continued to plague the United States: in 2012, a report released by California attorney general Kamala Harris pointed out that many of those who are trafficked into or within the United States each year are hired into domestic labor situations.27 According to the US government’s Trafficking in Persons Report:
A century and a half [after emancipation], slavery persists in the United States and around the globe, and many victims’ stories remain sadly similar to those of the past. It is estimated that as many as 27 million men, women, and children around the world are victims of what is now often described with the umbrella term “human trafficking.” The work that remains in combating this crime is the work of fulfilling the promise of freedom—freedom from slavery for those exploited and the freedom for survivors to carry on with their lives.28
While human trafficking is often associated primarily with sex trafficking, labor trafficking is in fact more common, but far less likely to be reported.29 Commercial sexual exploitation represents a sizeable part of forced labor and tends to be more widely known and understood among the general public, but the majority of forced laborers actually engage in domestic, agricultural, or sweatshop labor; work in nail salons, factories, construction projects, farming, or hotels.30 There are approximately