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New Proposed Rule Defines “Recruitment Fees” in Combating Trafficking in Persons Rule

May 11, 2016

Today, the Federal Acquisition Regulatory Council (Council) published a proposed rule to amend the Federal Acquisition Regulation (FAR) to provide a definition of “recruitment fees” to the Combating Trafficking in Persons rule. The rule implementing new compliance and enforcement anti-trafficking policies went into effect on March 2, 2015 and, as we previously discussed, prohibits contractors, subcontractors, and their employees and agents from charging recruitment fees but left contractors in the dark on the meaning of the term.

The proposed “recruitment fees” definition includes fees, charges, costs, assessments, or other financial  obligations assessed against employees or potential employees for a laundry list of activities associated with the recruiting process, including, for example:

  • advertising, soliciting, interviewing, training, and providing new-hire orientation costs
  • labor certification, visa, or processing petition fees
  • border crossing fees
  • photographs and identity documentation fees
  • medical examination and immunizations costs
  • background and security clearance checks
  • recruiter, agent, attorney, or language interpreter fees

The definition further provides that recruitment fees are not limited to those collected by an employer and encompass collection of such fees by third parties, including, but not limited to, agents, recruiters, staffing firms, subsidiaries and affiliates of an employer, and subcontractors at all tiers. In addition, the proposed rule states that “recruitment fees” are not limited to demands for cash payments, but may take many forms, such as wage deductions, benefit concessions, kickbacks, bribes, or free labor.

The proposed rule seeks to amend FAR subpart 22.17 and the associated clause at 52.222-50. The Council welcomes feedback on all aspects of the proposed rule and also highlights specific issues and elements of the definition for public comment. The proposed rule will be open for public comment until July 11, 2016.