Violations of Fair Labor Standards Act, H-2B nonimmigrant worker provisions
The U.S. Department of Labor obtained a consent judgment from the U.S. District Court of Colorado that ordered Superior Roofing Inc. to pay $143,000 in back wages to 343 workers for unpaid minimum wage and overtime due under the Fair Labor Standards Act. In addition, the court entered an injunction restraining the employer from violating the FLSA in the future and retaliating against any employee who files a complaint with, or cooperates in an investigation by, the department’s Wage and Hour Division. In a separate proceeding, the department’s Office of Administrative Law Judges entered an order approving the parties’ settlement agreement that requires the company to pay $43,000 in back wages and $44,000 in penalties under the H-2B provisions of the Immigration and Nationality Act.
“Employers that choose to participate in the voluntary H-2B program must realize they are required to follow all of the labor standards of the program and other applicable laws,” said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest. “The department is committed to protecting all workers, and no one should have to give up their rights under the law to make a living. This case demonstrates that we are using all tools available, including litigation and penalty assessments, to remedy violations, promote accountability and ensure a level playing field for law-abiding employers.”
The investigation by the division’s Denver District Office determined that Superior Roofing violated the FLSA’s minimum wage requirements when it made illegal deductions for tools and other pre-employment costs. The employer also failed to pay for all hours worked and did not include nondiscretionary bonuses in the overtime rate. Additionally, Superior Roofing did not keep accurate records of employee work hours.
The employer violated provisions of the H-2B nonimmigrant visa program by failing to pay the offered wage rate; employed H-2B workers in jobs for which they were not certified; failed to notify the required federal agencies and pay return transportation when it dismissed H-2B employees before the end of the certification; placed H-2B workers outside the certified area of intended employment; and failed to hire qualified U.S. workers. The U.S. workers unlawfully rejected for employment by Superior Roofing will receive $18,000 in back wages.
The H-2B program permits employers to hire nonimmigrants to perform temporary nonagricultural labor or services in the U.S. To participate in the program, an employer must attest that it will comply with certain obligations required by the H-2B regulations, including compliance with certain recruitment and displacement standards established to protect similarly employed U.S. workers.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses, piece-rate earnings and incentive pay, for hours worked beyond 40 per week. Additionally, the law requires maintenance of accurate records of employees’ wages, hours and other conditions of employment.
Source: DOL
This information is intended to be
educational and should not be considered legal advice on any specific matter.
