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Defense Base Act applied to human trafficking case in Iraq July 19, 2008

Posted by Aaron Walter in Uncategorized.
Tags: , , ,

I came accross this July 11, 2008 story from the Washington Business Journal.

It tells the sad tale of 12 men from Nepal hired by KBR subcontractor, Daoud & Partners to work in a luxury hotel in Jordan. Unfortunately, these men were forcibily re-directed, if not kidnapped, by the subcontractor and sent to Iraq to serve as cheap labor at US military bases. In an even more unfortunate turn of events, the men were kidnapped by insurgents and eventually killed.

The case is a good example of how wide the reach of the Defense Base Act really.  It does not merely provide coverage for workers ON military bases. It covers all employees of contractors working for/with the US government, including both US Citizens and foreign nationals.

One thing to note though is that whether you are from Nepal, Germany, Russia, or Houston, Texas, the DBA provides that your weekly benefits will be paid in US dollars. Given the state of the US Dollar, that isn’t always a good thing.


D.C. attorneys win human trafficking case in Iraq

Washington Business Journal – by Bryant Ruiz Switzky Staff Reporter

District lawyer Agnieszka Fryszman’s pro bono odyssey started three years ago with a story she read in the Chicago Tribune.

A dozen men from Nepal had been hired by a U.S. defense subcontractor and taken against their will to work at a military base in Iraq. On the way, they were captured by insurgents, taken hostage and executed.

“A friend of mine told me about this story and said, ‘You should do something to help,’” Fryszman said. And she did.

Fryszman is head of the pro bono practice at the D.C.-based Cohen, Milstein, Hausfeld & Toll PLLC. She called a colleague, attorney Matthew Handley, who had served in the Peace Corps in Nepal and still has many connections in the country.

On behalf of nine of the slain men’s families, they filed suit in 2006 against the Jordanian subcontractor, Daoud & Partners, and its insurance company.

This past April, they won. A judge in the U.S. Department of Labor’s Office of Administrative Law ruled that the men’s families were entitled to benefits. The judge ruled on summary judgment — essentially saying there were enough undisputed facts that there was no need to go to trial.

Handley, who knew the slain men’s hometown from his Peace Corps days, went to Nepal last month to oversee the wire transfer of the first $100,000 payment. The families needed it. They were deep in debt after paying the middlemen who connected the slain men with Daoud & Partners.

In 2004, the Nepalis had been told they were going to work at a luxury hotel in Jordan. But there were no hotel jobs. Instead, the men were to serve as cheap labor, cleaning and cooking at a U.S. military base in Iraq. On the way to the base, Iraqi insurgents dressed as police stopped the vehicles and kidnapped the Nepali men. In messages posted on Web sites, the insurgents branded the men as infidels “in Iraq to help America’s ‘crusader forces,’” according to the 2005 Chicago Tribune article, which was submitted as evidence by Fryszman and Handley.

After 12 days as hostages, one Nepali had his throat slit, and the others were shot. The killings were recorded and broadcast internationally through the news media.

Daoud & Partners was hired by KBR Inc., but KBR wasn’t named in the suit because the insurance policy was written for Daoud & Partners, Handley said. “That was the best way to get a recovery for the victims. It doesn’t mean that KBR wasn’t involved.”

He added that other Nepali men working in Iraq were managed by KBR employees who wore KBR uniforms.

“It raises questions about KBR’s involvement and role in this, and we’re looking into that,” Fryszman said.

KBR, in an e-mail, said the company “in no way condones or tolerates unethical or illegal behavior,” adding that all employees go through a “trafficking in persons” course.

Houston-based KBR, a former Halliburton Co. subsidiary, has more than 52,000 employees worldwide and an office in Arlington.

In 2006, top military commanders ordered a crackdown on contractors and subcontractors in Iraq who used abusive labor practices, such as confiscating passports and forcing workers to live in substandard conditions. They promised harsh consequences for violators, such as canceling contracts and blacklisting them from future work, according to Department of Defense memos leaked to the Chicago Tribune and cited in a 2006 story.

That was a departure from previous policy. In a memo dated a few weeks before the crackdown story, the inspector general’s office in the Defense Department acknowledged the problem of human trafficking in Iraq by defense subcontractors, but claimed no jurisdiction. The department’s relationships are with the prime contractors, such as KBR and Haliburton, which, in turn, hire the subcontractors, the memo said.

“To date, there are no clauses in contracts between KBR/Haliburton that make them responsible for labor fraudulently procured by independent contractors or subcontractors,” said the memo, which was filed as evidence by Fryszman and Handley.

This lawsuit ultimately wasn’t about human trafficking. The attorneys sued under the Defense Base Act, which is similar to a workers’ compensation statute for military facilities overseas. They argued the men’s families were entitled to death benefits, which will amount to about $100,000 over the life of each man’s beneficiaries.

“It doesn’t sound like much, but it’s an absolute fortune [in Nepal],” Handley said. The per capita income in Nepal is about $1,200 per year, according to the CIA World Fact Book.

The case sets a precedent. The Defense Base Act had apparently never been used before to cover workers who wound up on military bases not knowing they were going there, Fryszman said. “It should expand government contractors’ notions of which workers they’re liable to. You can’t treat foreign workers as disposable labor.”

Daoud & Partners’ attorney was not available for comment. In court documents, the company argued that Fryszman and Handley didn’t prove that some of the Nepali families qualified as dependents.

While Fryszman said the monetary award is very meaningful for the Nepali families, she conceded it would probably do little to deter human trafficking.

View the entire article in context at: http://washington.bizjournals.com/washington/stories/2008/07/14/story3.html?b=1216008000%5E1666656



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