Despite the Sanctity of Diplomatic Immunity, Diplomats May Not Be Able to Violate the Rights of their Workers With Impunity

On Thursday, January 9th 2014, the United States Attorney for the Southern District of New York, Preet Bharara, charged Deputy Consul General of India in New York, Devyani Khobragade with visa fraud and abuse of Sangeeta Richard, her nanny and housekeeper. Ms. Khobragade was arrested on December 12, 2013, searched and locked in a cell, and had to pay a $250,000 bail to be released. The diplomat informed the U.S. Embassy in India that she would pay $4,500 per month to her domestic worker but had allegedly concluded a private agreement with her employee to pay her $3.31 an hour. Aside from paying a significantly lower minimum wage, Ms. Khobragade was accused of verbally harassing her employee, making her work between 94 and 109 hours per week and taking her passport away. In other words, Ms. Khobragade allegedly violated U.S. labor and wage laws despite having pledged in her servant’s visa application that she would follow them. Visa applications for domestic workers accompanying diplomats are approved on the basis of whether the diplomat will follow U.S. labor standards.

The Indian government responded to this incident with outrage and even some retaliation, including shutting down all “commercial activities” at the embassy club and removing the security fences at the U.S. Embassy in India. Also, the Indian government’s outrage was demonstrated through the various statements of state officials who describe the diplomat’s treatment as “despicable and barbaric” and who criticize the U.S. government’s requirement that diplomats pay domestic workers at least minimum wage to be eligible for a visa to bring their servants to the country. Indian government officials allegedly stated that Indian diplomats should not be subject to U.S. labor laws because they do not earn as high of an income as U.S. diplomats and the low pay offered to domestic workers is not unfair because it would be considered a windfall in India.

Meanwhile, activists pushing for increased protection of domestic workers against abuse have criticized U.S. immigration laws as enabling the abuse of foreign domestic workers. Currently, it is international practice to allow diplomats to employ domestic assistance while working on an assignment overseas. U.S. immigration laws offer different visa categories to allow diplomats to bring their domestic servants to the U.S; employers may request to bring domestic assistance as representatives of foreign governments or international organizations so long as they pay the employee minimum wage and they limit his or her schedule to a maximum of 40 hours per week.

Domestic workers’ activists criticize these provisions by emphasizing that these demands are not enough to ensure that domestic workers are not abused. Diplomats could more easily employ a U.S. national or even a national of their home country in order to bypass the requirement of a visa application; however, they often bring servants from their home country in order to cut expenses. Sometimes they are able to bring employees on temporary U.S. visitor visas, which have less stringent requirements and further facilitate grounds for abuse. Because of lack of English language skills, understanding of U.S. laws and sometimes because of threats imposed by employers, many of these foreign domestic workers fail to report adverse work conditions and often endure much abuse. In 2008, for example, the U.S. Government Accountability Office reported 42 cases of domestic employee abuse by foreign diplomats. In 2008, the U.S. government attempted to prevent these abuses by passing the William Wilberforce Trafficking Victims Protection Reauthorization Act, which seeks to identify instances of human trafficking. Furthermore, activists point to the fact that domestic workers are particularly vulnerable to working for extremely low wages, having no day off per week or a fixed schedule.

After intense negotiations between the U.S. government and India, Ms. Khobragade was indicted but was given diplomatic immunity for the visa fraud charges; she was allowed to return to India but warned that she would face charges if she returned. However, tension continues as the Indian government expelled Wayne May, a U.S. diplomat in retaliation for Ms. Khobragade’s treatment. Ms. Khobragade was transferred to a U.N. post, which allows her to apply for a U.S. G1 visa, giving her full diplomatic immunity as a worker for an international organization in the U.S.

If you believe you have been a victim of abuse or that your rights to minimum wage have been violated, please contact The Harman Firm, LLP.