Misreading of the visa application? Does that take away Devyani’s charges?
Issued on 28 December, 2013
In the most recent turn of events, Devyani Khobragade’s attorney Daniel Arshack has argued that there has been a major error with regard to reading the visa application documents, and that Ms. Khobragade’s salary of $4500 has been mistakenly understood to be that of her domestic worker Sangeeta Richard. Arshack has claimed that in visa application form for Sangeeta (DS-160), $4500 may be the figure mentioned in the box asking for salary of the employer (in this case Ms. Khobragade). This may have been mistakenly read as the intended salary of the domestic worker. As recent news reports indicate, this claim has also been supported by a screenshot of the visa application form, indicating that Preet Bharara’s office may have misread the visa form. In this statement, we investigate the implications of this latest development for the deeper underlying charges laid down in the official complaint against Ms. Khobragade, and if there was a misreading, whether that constitutes valid ground for the charges to be dropped.
According to a news report, “Khobragade is said to have helped Sangeeta fill up DS-160 around October 15, 2012. On November 11 the same year, the diplomat and her maid signed the state department mandated employment contract, which guaranteed Sangeeta an hourly wage of $9.75, indicating certain benefits and stating that impermissible deductions would not be made. It projected an average of 40 working hours per week (approximately a salary of $1560 per month) and stipulated off days and other details, all as required by the US state department for receiving the A-3 visa”.
The news report further states that Sangeeta is later said to have asked for a second employment contract, requesting that her basic salary of Rs. 30,000 be transferred to her husband’s account in Delhi, as he was unemployed. A separate employment contract was, thus, signed between Ms. Khobragade and Ms. Richard on November 23, 2012, guaranteeing this.
The report further notes, “According to government sources, Khobragade fulfilled all her commitments in the form of $560 (or Rs 30,000 transferred to Sangeeta’s bank account in India every month), another $375 as deducted from the salary to pay for her chargeable utilities like telephone usage, cable TV, non-work related conveyance, expenses and another $625 given in cash, occasionally with signed receipts. As there were several months where the weekly hours fell well below 40 working hours, the cash payment was apparently adjusted accordingly”.
The second unlawful contract and labour trafficking allegations
We argue that this claim takes attention away from the core charges against Ms. Khobragade, as per the text of the original complaint against her. We must not forget that as per the original complaint against her, she is accused of lying on the visa form about payments to her domestic worker, and drawing up a second unlawful contract. Those charges cannot be brushed away irrespective of whether $4500 was mistakenly read as the intended salary of the maid.
The criminal charges against Ms. Khobragade allege she lied on official documents submitted to obtain an A-3 visa for her domestic help and never intended to comply with the terms of the employment contract set therein. Ms. Khobragade is known to have obtained an A-3 visa for her domestic help, for which she submitted an employment contract that listed her hourly wage as $9.75, as per the prevailing wage. She is accused of later signing a second unlawful contract, which was concealed from the U.S. authorities, and which attempted to revoke rights guaranteed by the first contract and by U.S. law. The second contract did not list fair hours or working conditions/duties, and held that Ms.Richard would be paid a maximum of 30,000 rupees per month (about $3.31/hour) – an expected monthly salary of Rs. 25,000 per month, and an additional Rs. 5,000 for overtime. Ms. Richard has alleged that she was instructed not to mention anything about the second contract in her visa interview, and maintain that she would be paid the hourly wage of $9.75, and that she would work 40 hours per week.
The charges that led to her arrest are based on the differences in the two contracts, the second of which fell way below U.S minimum wage regulations, and are also driven by Ms. Khobragade’s alleged treatment of Ms. Richard. Ms. Khobragade has been accused of making Ms. Richard work for more than 40 hours a week, from morning until late at night, seven days week, amounting to a wage of less than $3 an hour. Ms. Richard’s lawyer, Dana Sussman, a staff attorney at Safe Horizon, a New York based non-profit working with victims of trafficking, has argued that “she essentially worked very long hours, was isolated within the home, and attempted to ask for more time off, ask for more reasonable hours, but those attempts to resolve the issues were unsuccessful.” In a petition to the Delhi High court filed in July 2013, Phillip Richard, Sangeeta’s husband alleged, “Even though the contract stipulated that Sunday would be an off-day she worked from 6 am to 11 pm, minus 2 hours for church even on Sunday. She worked from 6 am to 11 pm on Saturday as well.” He has argued that “the treatment of Sangeeta by Devyani Khobragade is tantamount to keeping a person in slavery-like conditions or keeping a person in bondage”.
The family has further alleged that Ms. Khobragade confiscated Ms. Richard’s passport upon her arrival in the U.S, and turned down her requests to be sent back to India, indicating a coercive situation for the domestic worker. Ms. Richard, who worked with Ms. Khobragade from around November 2012 to June 2013, left the house after her requests were turned down, as she could no longer stand the miserable working conditions. It is claimed that she left with clothes on her back, and very little money, and lived off help from the Indian American community, through whom she eventually connected with Safe Horizon. In addition to the charges of non-payment of minimum wages and disregard for fair working hours, the ones that have surfaced with regard to confiscation of passport, turning down Ms. Richard’s requests to be sent back to India, and retaliation and threats by Ms. Khobragade to Ms. Richard and her family in India indicate a coercive labour situation, and collectively rise to the level of labour trafficking.
Driving attention away from core charges
By zeroing down upon the figure of $4500 as a misinterpretation, Ms. Khobragade’s attorney is seeking to divert attention from the underlying charges against her, which are based on the fact that there was a ‘second’ unlawful contract, indicating that Ms. Khobragade never intended to pay her domestic worker as per U.S laws. Further, the claim that her salary amount was adjusted partly by payments to her family in India, and partly adjusted towards her living expenses and chargeable utilities in the U.S, is once again violative of U.S laws. For, a careful reading of the text of the complaint against Ms. Khobragade, which is also clearly referenced against the required terms of an employment contract under an A-3 visa, indicates that, “The contract must state that after the first 90 days of employment, all wage payments must be made by check or by electronic transfer to the domestic worker’s bank account. Neither Mission members nor their family members should have access to domestic workers’ bank accounts… Further, the bank account must be in the United States so that domestic workers may readily access and utilize their wages.”
All this once again draws attention to the case that Ms. Khobragade clearly misrepresented the terms of the employment contract, and that this misrepresentation goes way beyond the figure of $4500. It lies in the forging of a second employment contract that was violative of U.S laws, in Ms. Khobragade’s treatment of Ms. Richard, and in the manner of transaction of payments, which are compounded by the allegations of threat and coercion.
This case, and the subsequent reactions to it, once again highlights the need for greater protections for domestic workers across the world and the role of their home countries and the countries where they work. In the shadow of a groundbreaking international covenant on domestic worker rights at the International Labor Organization, it is unfortunate that domestic workers like Sangeeta continue to face extreme exploitation and retaliation from employers. And when they work for consular officials and diplomats, too often their home countries actually act to defend the rights of their abusers.
We urge the Indian Government to reverse its course and take a human rights position going forward. Specifically, we demand that the Indian government:
1) Stop blocking the prosecution of Ms. Khobragade and waive any applicable immunity so that the case against Ms. Khobragade can move forward in the U.S. courts;
2) Respect and recognise the rights of domestic workers at home and abroad;
3) Enact a Comprehensive National Level Legislation to protect the rights of domestic workers
4) Ratify ILO Convention 189 -Domestic Workers Convention 2011
1) Anannya Bhattacharjee
Gharelu Kaamgar Sangathana, Haryana.
Executive Council Member, New Trade Union Initiative (NTUI)
2) Varghese Theckanath S.G.
Domestic Workers’ Forum – India, (NDWFI)