Kingtom Says CBP Can't Swap ILO Forced Labor Indicators for Statutory Definition of 'Forced Labor'

The argument comes in Kingtom's lawsuit against CBP's finding that Kingtom was using forced labor in its Dominican Republic factory (see 2412260036). CBP's decision said the exporter was responsible for the ILO's forced labor indicators, which are "abuse of vulnerability, intimidation and threats, deception, withholding of wages, physical and sexual violence, restriction of movement, and excessive overtime.”

Kingtom argued in its motion for judgment that these indicators can't take the place of the statutory definition of forced labor, which clearly indicates the work must be "involuntary" to constitute forced labor.

In response to the motion for judgment, the U.S. argued that the statute delegated authority to CBP to implement regulations and that neither the statute nor the agency's regulations bar CBP's use of the ILO indicators as a guide to conducting its forced labor investigations. Kingtom returned to the court and said that while the statute doesn't bar CBP from using the ILO indicators, "that does not give Customs a license to replace the statutory definition of forced labor with the ILO indicators," and the use of the indicators must be "in service to that statutory definition."

The ILO indicators don't directly address whether "the labor is involuntary as required by the statute," Kingtom said, arguing that the "plain language of the statute, the legislative history, and caselaw consistently indicate that the work must be 'involuntary' to constitute 'forced' labor." Kingtom cited the Senate debate on the statute, which routinely contrasts forced labor with "indentured labor" "for which the worker binds himself voluntarily."

The exporter said that while forced labor determinations are fact specific, one factor present in these cases "where a colorable allegation of forced labor was found is that the labor was involuntary in the sense that the workers could not just quit and leave employment." This factor is in line with the "plain language of the statute that defines forced labor to be only work 'for which the worker does not offer himself voluntarily,'" the brief said, adding that the ILO indicators don't directly address this "involuntary element."

In contrast to the government's claims, Congress' grant of authority to CBP to promulgate regulations doesn't give the agency "carte blanche" to swap the ILO indicators for the statutory definition of forced labor, Kingtom argued. The regulations would have to be in line with the statute, and the regulations that do exist center on procedural aspects and don't provide a framework for how to determine if forced labor exists, the exporter said.

And while the U.S. said it's "particularly reasonable" for CBP to consider the ILO indicators, since both Congress and the ILO define forced labor using the same language, this claim is "not persuasive," since the definition of forced labor and the framework used by CBP to find if this definition is met "are two different things." Whether Congress used the ILO's forced labor definition in the statute doesn't bear on whether CBP can use the ILO indicators "without regard to the statutory definition," the brief said.

Kingtom then discussed the evidentiary basis for CBP's forced labor finding, arguing that the decision is arbitrary and capricious. The exporter said CBP failed to provide evidence that the company's merchandise was made by any worker "who did not offer himself voluntarily."

The government's arguments attacked a "strawman," Kingtom said. The U.S. said under Kingtom's standard, "if a worker was told he would receive pay, worked the required hours or more, and yet did not receive his pay, he would have still worked voluntarily because he initially went to work of his own accord." This situation isn't forced labor as statutorily defined and doesn't describe the facts of this case, the exporter replied. And the ILO indicators themselves only describe withheld wages as indicators of forced labor "if the wages are withheld to deprive the worker of the choice of whether to work, which Customs did not determine is the case here," the brief said.

Kingtom faulted the government for overly relying on statements made in worker interviews that "lacked credibility and were not under oath or provided under the penalty of perjury." While the U.S. said Kingtom failed to say why the worker interviews would be unreliable, the exporter said CBP didn't account for the "lack of credibility that the interviews possess by virtue of the fact that they were conducted ex parte and in secret without the penalty of perjury or corroborating evidence by an investigatory agency."