09 May H-2B Visa Program Violations – Non-Compliance Could Cost You!

The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) is tasked with enforcing federal minimum wage, overtime pay, recordkeeping and child labor requirements of the Fair Labor Standards Act (FLSA), as well as the Family and Medical Leave Act (FMLA), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and a number of other employment standards and worker protections.

The Wage and Hour Division (WHD) selects certain businesses and industries for investigation. For example, the WHD often targets low-wage industries due to high rates of violations, the employment of vulnerable workers and rapid industry changes, such as growth or decline.

It can be difficult to comply with the varied and complex requirements of employment laws. Therefore, employers should regularly review their wage and hour obligations and ensure their businesses remain compliant. The case study below is an example of one organization’s failure to pay H-2B Visa workers fair pay after promises were made to entice them into the United States.

Real World Case Study

SEATTLE—A holiday wreath producer was ordered to pay $1.8 million in back wages and damages after a WHD investigation found that the employer violated migrant and seasonal workers’ rights and failed to pay them required overtime wages. Federal law requires employers who hire workers from outside the United States on temporary nonagricultural H-2B visas to ensure safe working conditions, pay the prevailing wage rate (including overtime), and accurately represent the terms and conditions of the job.

What went wrong:

The employer submitted, under penalty of perjury, fraudulent information about wages, housing and transportation to bring workers to the United States.

• The employer failed to inform workers of employment conditions, furnish wage statements, pay wages on time, ensure safe and healthy housing, and provide temporary workers with safe transportation, all of which are in violation of the MSPA.
• The employer denied hundreds of H-2B workers their required overtime pay for hours worked in excess of 40 in a workweek, in violation of the FLSA.

H-2B Visa Program

The DOL oversees a number of temporary work visa programs, including the H-2B visa program. This program allows employers to hire nonimmigrant workers to perform temporary nonagricultural work on a one-time, seasonal, peak load or intermittent basis. Employers may seek out temporary workers as an effective way to fill labor gaps during peak seasons. To hire employees in accordance with the H-2B visa program, employers must satisfy certain requirements, including but not limited to ensuring safe transportation and working conditions, paying the prevailing wage rate (i.e., the average wage paid to similarly employed workers in a specific occupation in the area of intended employment) and overtime, and accurately representing the terms and conditions of the job.

Noncompliance with the visa program requirements can lead to sizeable penalties, including back pay and civil monetary damages. In the Seattle, Washington, case study, the WHD ordered the employer to pay over $1.8 million as a result of violating nonimmigrant worker laws. Therefore, employers who take advantage of the H-2B visa program should ensure they comply with all of their obligations under the program, including paying appropriate wages and overtime when due, providing safe working and transportation conditions, furnishing wage statements, and accurately conveying the terms and conditions of the position.

Conclusion

Employers are subject to a wide range of wage and hour regulations, and noncompliance can result in significant financial penalties. Therefore, it’s vital that employers seek professional guidance before making costly employment decisions.