Tuesday, June 19, 2012

The US & Human Trafficking: If you live in a glass house, don’t throw stones.

The US makes such a big deal of human trafficking, but from what I see, not so much as it applies to them.

I’ve been in contracting in Kuwait for a while now.  I’ve participated on large bids and I’ve seen the companies I’ve worked for lose contracts based on price rather than technical capability. 

The big question is:  how can some companies undercut others with such huge differences in price?  How do you win contracts if you bid ethically?  Seems like you are destined to fail.

So… a company wins a contract.  They recruit a bunch of people to fill slots; some from third countries, but many from the US.  Many Americans coming to Kuwait don’t understand local employment law and are taken advantage of. "I knew I would have to work long hours.  I knew I was going to be paid well, so I expected it."  Wokey dokey, well what about your RIGHTS as a worker? What about the TCN guy working next to you?  If you were in the US, would you put up with it - or would you be calling the DOL hotline?

Kuwait has a 48 hour work week.  If an employee is in Kuwait, holding an Article 18 visa; that employee is governed by the Kuwait Labor Law.  No if’s and’s or but’s about it. (The law also does NOT differentiate between labor and management; "exempt" or "non-exempt" which are US-based terms and non-existent in Kuwait; all are entitled to the same rights.)  It has been a “gray area” because no one really knows or understands the SOFA agreement Kuwait has with the US Military.  Since it is secret – it can be twisted to appear as if working with the US military in Kuwait, on USG contracts can be “exceptions” to the law.  However, per Kuwait law, all Article 18 visa holders are entitled to the stipulations in the Kuwait Labor Law.  Want proof?  Challenge it through Kuwait’s court system.  And win. Precedent cases:  There are several cases on the internet where former American employees have successfully sued US companies working in Kuwait - and won.  [There is no tort law in the Kuwait legal system.  You will only be given payment for what you rightfully should have been given (in this case, back overtime).  You will not be able to claim damages.]

Bit o' Advice:  Maintain accurate time keeping.  Record your actual hours worked (by law on a USG contract you MUST but employers illegally may tell you differently).  Keep timesheets.  Keep company memos and pay policies regarding overtime.  Build your case.

So let’s go back to how companies are winning contracts with low prices.  They are bidding with no overtime.  They INTEND to make their employees work overtime (anything over 48 hours per week is OT).  They probably have their employees sign time cards with the maximum allowable hours.  (And many of us in Kuwait have seen this.)   How can you work a 14 hour day, 6 days a week (maximum amount of OT in a year ceilings at 180 hours BTW and some companies exceed that) and receive no overtime?  By law, you shouldn't;  But according to some employers here in Kuwait, suuuuuure you can.  You just don’t pay the overtime.  They force their employees to sign a paper stating that they aren’t obligated to receive overtime:  the “exception” I mentioned earlier.

WRONG. WRONG. WRONG.  (And not just unethical, but illegal.)

Is it because the employer's don't know any better?  Emmmm..... no.  They have lawyers.  They get it.

This all falls under a little term the US came up with called, "Human Trafficking".  It pertains to work without compensation.

So if  X company ethically prices their manpower according to a 48 hour work week WITH overtime, and Y company unethically prices their manpower without; who is going to win the bid?  That's right kids, THE LOWEST BIDDER.

Why, pray tell, don’t US contracting officers take this into consideration?  They should.  Maybe because the contracting officers at Rock Island 1) change periodically, so there is never a history of shared knowledge, or 2) just don’t understand local labor laws or perhaps even 3) the “exception” fib is being told to the contracting officers as well.

There is an employment law in the US which is commensurate to Kuwait’s Labor Law.  It is called the US Service Contract Act of 1965 (FAR 22.1001). 

My personal opinion/advice to an ethical company would be to address the elephant in the room immediately in the proposal:  Discuss human trafficking and fair wages/benefits.  Do a comparison matrix of the US Service Contract Act of 1965 and the Kuwait Labor Law.  Attach the Kuwait Labor Law to your proposal.  Detail how your pricing reflects the ethical benefits and wages to be paid to your staff members – by LAW.  Unless more ETHICAL contractors educate those awarding the contracts (and lawmakers/politicians), the cycle is going to continue.

Contracting officers:  practice what you preach.  All these rhetorical conferences I attend (yawn) listening to discussions about ethics in USG contracting.... puh-leeeeeze.  Where is the enforcement?  Where are the audits?  Is it all taken at face value?

Employees who should be getting OT but are not:  DO something about it.  It is your right. Get a Kuwaiti lawyer, file a case and a power of attorney, and when you are ready to leave – hand it over to them to get your compensation.  A group of wronged employees can’t do much in Kuwait, but if the company they are working for is a US company and working on a USG contract; get back to the States and file a class action suit.  (All those tuff looking contractors running around and they're not going to stand up for their own rights?  Nancy boys!)

For more on this subject, see my previous post on the FAR and OT at:  http://desertgirlkuwait.blogspot.com/2011/11/little-diddy-on-far-and-kuwait-labor.html


American Girl said...

Brilliant post! I would love to know about a statute of limitations if one exists. I could retire if I collected all of my unpaid indemnity and overtime!

Also, when these contracts are bid (without overtime included) they also fail to mention how much of the work is going to be subcontracted out to foreign nationals at a drastically reduced rate. They bid the contract with a certain number of Security Clearance holding Americans yet fill the slots with the opposite. Talk about human trafficking. Shameful.

Howboutcha said...

Sounds like someone should be offering their services as a consultant. We'd start calling you "Big Money". Good post.

Anonymous said...


If I were them, I would be all over the companies on Arifjan, pull their books and find any descrepancie in labor law violations and publish in the press my results if they disagree with this report. Good Post!

Desert Girl said...

Anonymous 9:31 - EXACTLY!!! But it seems as though DCAA is just too damn lazy or uneducated on labor law to do it.

I saw the Arab Times article you mentioned this morning. Ironic, isn't it?

I also saw the gynormous headline stating that there is a "Large military presence eyed in Kuwait" - more contractors.

2003 - Contingency
2005/6 - Sustainment
2012 - Seriously DCAA?? Shoudn't you be embarrassed?

Anonymous said...

Here we go! It's starting. In today's Arab Times someone wrote to the lawyer.

US-based Company Violating Labour rights

Currently I’m, working for a US-based company at Arifjan in Kuwait under the sponsorship of a local firm.
Recently, for several days, the company sent us back home because of sandstorms and the management told us that we will not be getting pay for these days. We all signed the contract on a monthly salary. We are working 6 days a week 10 hours per day. Is it allowed to deduct our pay if it is not possible to work due to climatic conditions. Do we have a right to claim pay for those days.

Name withheld
Answer: You may be working for a US-based company but you are under the sponsorship of a local firm. Morever, you are working on Kuwait soil, under the Kuwait Labour Law. This company, regardless of the fact it is a US-based firm and working on a US base, has to follow the Kuwait Law. It can give you more rights than mentioned in the laws not less. Secondly as you are working on a monthly contract, the company has to pay you for the lost days due to no fault of yours. It also can’t make you work 10 hours a day, six days a week. You are only allowed to work on a maximum of 48 hours, spread over a maximum of 6 days regardless of what is written in your contract, unless they are paying you for the extra two hours.

Foreign firms do not enjoy an ‘immunity’ as far as Kuwaiti laws are concerned. The best thing would be to file two complaints — one against the US firm with the base commander and secondly with the Labour Dept of your area

Anonymous said...

Who is DCAA?

Desert Girl said...

DCAA = Defense Contract Audit Agency http://www.dcaa.mil/. They are the people who are supposed to be auditing US DOD contracts (here, there, everywhere). They don't always audit/enforce everything and OT doesn't seem to be one of the areas that they focus on.

Fraud, mismanagement, waste can be reported through the DoD hotline: e-mail hotline@dodig.mil and number (800) 424-9098

Anonymous said...

As always I find your blogs insightful. Brilliant post. You not only put the issue upfront, you also suggested possible solutions. But most often the management lends a deaf ear to issues such as these. And the workers remain in shadows for fear of repercussions hence the cycle continues until someone makes a case.

Desert Girl said...

Anonmous 2:38 - Thank you. Yes, I completely agree with you. I have been in several situations with unethical employers in Kuwait where I found myself in the difficult position of facing repercussionsshould I choose to do something.

Perhaps this is where Kuwait can assist itself in getting off the DOS' Tier 3 of human rights/human trafficking; by setting up means for employees to be protected from such repercussions.

I'm American and very hesitant to file a case; what about a poor TCN with no support system? Who is looking out for them? This is why I believe so strongly that Westerners should take up the sword for those less fortunate; many within their own organizations.