Relating to an affirmative defense to prosecution for certain victims of trafficking of persons or compelling prostitution.

Contracts

• Vendor Indemnification (MSAs): Review Master Service Agreements with staffing agencies, security firms, and third-party labor providers. Ensure indemnification clauses cover losses caused by vendor employees even if a criminal conviction is not secured due to this affirmative defense. You must be able to recover civilly even if the criminal case fails.
• Settlement Agreements: In civil settlements regarding employee theft/fraud, acknowledge that a lack of criminal conviction under Section 8.09 does not negate civil liability or restitution obligations.

Hiring/Training

• Loss Prevention & HR Training: Train internal investigators and HR staff to recognize indicators of trafficking (coercion, lack of document control, scripted responses) during fraud or theft interrogations.
• "Reasonable Person" Standard: Investigators must understand that the law applies a "reasonable person in the actor's circumstances" standard. Internal reports should document whether the employee appeared to be acting under duress, as this is now material evidence.

Reporting & Record-Keeping

• Evidence Retention: Extend retention schedules for surveillance footage and digital logs related to criminal incidents. Defense counsel will subpoena these records to prove "force, fraud, or coercion." Failure to produce them could lead to spoliation claims.
• Incident Reporting: Modify internal incident reports to include a section on "Coercion Assessment." If you refer a case to the District Attorney, you must be prepared to disclose if your internal investigation found signs of trafficking.

Fees & Costs

• Legal Costs: Anticipate higher legal spend during the prosecution of internal fraud cases, as defense counsel will litigate the trafficking status of the defendant.
• Restitution Risk: There is a higher risk of unrecoverable losses. If a defendant successfully uses this defense, criminal restitution orders are unlikely, forcing businesses to pursue costly civil remedies against insolvent defendants.