CBP Defends Forced Labor Finding Against Kingtom Aluminio on Remand at CIT
CBP stuck with its finding that exporter Kingtom Aluminio uses forced labor in manufacturing aluminum extrusions following a decision from the Court of International Trade that the agency failed to adequately explain its initial forced labor finding. CBP found that "Kingtom submitted its employees to situations that align with multiple [International Labour Organization] (ILO) indicators of forced labor" (Kingtom Aluminio v. United States, CIT # 24-00264).
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Specifically, the agency said, an analysis of seven of the 11 ILO forced labor factors led to the conclusion that Kingtom was employing forced labor. The seven factors are the abuse of worker vulnerability, deception of workers, "restriction of movement," "excessive overtime," physical and sexual violence, the withholding of wages and intimidation and threats.
In his September decision (see 2509230043), CIT Judge Timothy Reif had noted that the only support for CBP's determination is one statement, which says CBP has determined through its investigation that there's "sufficient information to support a Finding that Kingtom Aluminio S.R.L. is using convict, forced, or indentured labor" to make aluminum extrusions.
Reif said the forced labor finding doesn't cite documents in the administrative record nor describe the circumstances of the investigation in detail. Instead, CBP merely recited the statute and relevant agency regulations, the judge held.
On remand, CBP showed its work, citing the administrative record frequently in its discussion of each of the seven factors that indicate the existence of forced labor.
For instance, CBP said "Kingtom leadership took advantage of workers' vulnerabilities by exploiting poverty, illegal immigration status, language barriers, and desperation for employment."
The agency said it found disparate treatment of Haitian and Dominican workers in Kingtom's factory. Nine of the 16 workers CBP interviewed during its site visit were of Haitian descent, and seven of the nine interviewed workers "admitted to being illegally present in the Dominican Republic or working without a visa," the remand results said.
Evidence shows the workers' illegal status was exploited, CBP said. For instance, the Haitian workers said they were "treated much worse than their Dominican co-workers," reporting instances of physical abuse "based on their nationality and legal status." One worker said Kingtom preferred to hire undocumented Haitians, since they wouldn't "retaliate given their lack of understanding of the Dominican law," CBP said. Other instances of discrimination include management paying for medical care for Dominican workers who suffered workplace injuries, while no similar care was provided for Haitian workers.
Kingtom workers repeated various wage-related abuses by management, including deception, the withholding of wages and excessive overtime requirements, CBP said. The workers said Kingtom leadership lied about when wages would be paid, the amount they would be paid, the work that would be performed, work conditions, time off, vacation days and more, yet "these promises were not fulfilled." Workers were frequently required to work "seven days a week, twelve hours a day" and docked pay through "fines and penalties for arbitrary reasons, including but not limited to going to the bathroom without permission, sitting down, and forgetting to clock in and out," CBP said.
A Dominican court twice found that Kingtom violated domestic labor laws and ordered the company to account for its wage abuses, and CBP said it's "unaware whether Kingtom complied with these judgments."
Workers also reported instances of physical and sexual violence. For instance, CBP said the workers reported that "Kingtom management hit, kick, and beat them." In addition, the workers were threatened with the termination of employment, withholding of wages or "physical abuse (some of which were carried out)," the agency said.
CBP also said it looked for evidence of "remediation" from Kingtom, ultimately finding it didn't find evidence that the company "has taken any steps to identify, correct, or prevent conditions of forced labor." The agency noted that Kingtom was "sanctioned for closure twice" by the Dominican Republic Ministry of Labor due to "labor violations and unsafe working conditions."
The ministry said when it tried to investigate Kingtom, it was met with resistance, "making it impossible to carry out the investigation." After the first investigation, the company reopened after two weeks. CBP said it's "not satisfied that two weeks is sufficient time to implement meaningful remediation of forced labor practices, because addressing such issues requires comprehensive audits, systemic changes in employee policies and procedures, and the implementation of sustainable, long-term solutions to ensure compliance, including employee grievance mechanisms."