On December 20, 2018, the FAR Council published a final rule amending the FAR rule on human trafficking to provide a definition of “recruitment fees.” Federal Acquisition Regulation: Combating Trafficking in Persons—Definition of “Recruitment Fees,” 83 Fed. Reg. 65466.
The final rule identifies the types of charges and fees that contractors, subcontractors, and their employees or agents are prohibited from charging to employees or potential employees under the government policy on combating trafficking in persons. Under the rule, “recruitment fees” are defined as “fees of any type, including charges, costs, assessments, or other financial obligations, that are associated with the recruiting process, regardless of the time, manner, or location of imposition or collection of the fee.” Recruitment fees include, but are not limited to, fees that are associated with the recruiting process for:
- Soliciting, identifying, considering, interviewing, referring, retaining, transferring, selecting, training, providing orientation to, skills testing, recommending, or placing employees or potential employees.
- Obtaining permanent or temporary labor certifications or visas, including associated fees.
- Acquiring photographs and identity or immigration documents, such as passports, including any associated fees.
- Accessing the job opportunity, including required medical examinations and immunizations; background, reference, and security clearance checks and examinations; and additional certifications.
- An employer’s recruiters, agents or attorneys, or other notary or legal fees.
- Language interpretation or translation, arranging for or accompanying on travel, or providing other advice to employees or potential employees.
- Government-mandated fees, such as border crossing fees, levies, or worker welfare funds.
- Transportation and subsistence costs.
The list of examples set forth in the final rule are illustrative of the types of prohibited fees, but the list is not exhaustive. All fees that meet the definition, meaning all fees associated with the recruitment process, constitute prohibited recruitment fees regardless of the industry or type of job, the timing of the fee, or whether an employee or a third party collects the fee. Other factors such as whether the fee is paid in property or money, deducted from wages, paid back in wage or benefit concessions, or paid back as a kickback, bribe, in-kind payment, free labor, tip, or tribute are also inconsequential and do not alter a fee’s status as a prohibited recruitment fee if incurred in association with the recruitment process.