Connecticut landscaping company to pay for violations of worker visa program

Ultimate Services Professional Grounds Management Inc., a Wolcott landscaping company that the U.S. Department of Labor claims violated federal law by failing to hire U.S. workers and underpaying temporary foreign workers, will pay $280,000 in back wages to 80 workers and nine job applicants and $20,000 in civil money penalties. The company signed consent findings approved by the Labor Department’s Office of Administrative Law Judges and agreed to actively engage in enhanced recruitment of U.S. workers.

Investigators from the Labor Department’s Wage and Hour Division’s New Haven Area Office, part of the Hartford District Office, found that Ultimate Services Professional Grounds Management violated provisions of the H-2B temporary visa program during the 2011 and 2012 hiring seasons. The investigation determined that the company did not employ most of the U.S. workers listed as “hired” on its recruitment records and failed to pay its H-2B employees the required prevailing wage rate. 

“Our investigation found that Ultimate Services Professional Grounds Management’s failure to adhere to federal law harmed domestic workers and temporary workers by denying job opportunities for some and denying proper pay for all,” said Michelle Garvey, Wage and Hour Division’s district director in Hartford. “The Wage and Hour Division is committed to ensuring that the H-2B program is used as it was intended by making jobs available for U.S. workers and providing stronger protections for all workers.”

The H-2B program allows employers to bring in foreign workers on a temporary basis to perform work only when no U.S. workers are able, willing, qualified and available to do the work and when the employment of H-2B workers does not adversely affect the wages and working conditions of similarly employed U.S. workers. The program also requires employers to take proactive efforts to recruit and hire U.S. workers first.

Michael Felsen, the department’s regional solicitor of labor in Boston who oversaw litigation of the case said, “This should alert employers who voluntarily utilize the H-2B program that they must take fulfilling their responsibilities seriously. The Labor Department will pursue necessary legal action to ensure that workers receive the employment opportunities, fair treatment and proper wages they’re entitled to.” Boston regional solicitor’s office trial attorney Dustin Saldarriaga handled the litigation for the Department.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Garcia Forest Service debarred from federal contracts for 3 years following DOL investigation

A U.S. Labor Department investigation has resulted in the debarment of Garcia Forest Service LLC, and its president, Samuel Garcia, from eligibility for further service contracts with any U.S. government agency for three years. The investigation found that the Rockingham, N.C.-based company violated the McNamara-O'Hara Service Contract Act and the Contract Work Hours and Safety Standards Act by failing to pay fringe benefits, minimum wage, overtime and holiday pay to workers hired for a reforestation project in the Superior National Forest in Minnesota. Administrative Law Judge Kenneth A. Krantz issued the debarment order in Newport News, Va. The consent findings were filed by the department's Regional Office of the Solicitor in Chicago.

"Contractors that do business with the federal government have an obligation to abide by the law, pay their employees the required contractual rates and benefits, and keep accurate and complete required records," said Laura A. Fortman, principal deputy administrator of the Wage and Hour Division. "The Service Contract Act requires debarment when violations are found unless the high standard of 'unusual circumstances' is met. Debarring this employer illustrates the department's commitment to vigorous enforcement of government contracting laws and helps level the playing field for law-abiding employers."

Garcia Forest Service entered into a contract in 2007 with the U.S. Forest Service, an agency of the U.S. Department of Agriculture, for reforestation services, such as planting seedlings and clearing brush in the Superior National Forest. The company primarily uses the H-2B Visa Program to recruit and employ foreign guest workers to perform seasonal work under its contracts.

An investigation by the department's Wage and Hour Division's district office in Minneapolis found that the company violated the SCA and the CWHSSA by failing to ensure hours worked were accurately reported resulting in minimum wage violations, not paying required fringe benefits, overtime and holiday pay. The company and its president, Garcia, cooperated fully with the Wage and Hour Division during its investigation and subsequently paid 12 workers $27,489 in back wages.

Garcia Forest Service had previously been investigated by the Wage and Hour Division regarding three contracts during the period of 2005-2006. That investigation found the company had failed to pay holiday pay under these contracts. The company provided back wages to the effected employees as a result of the investigation.

The SCA applies to every contract entered into by the United States or the District of Columbia, the principal purpose of which is to furnish services in the United States through the use of service employees. The SCA requires that contractors and subcontractors performing services on covered federal contracts in excess of $2,500 must pay their service workers no less than the wages and fringe benefits prevailing in the locality.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

Superior Roofing Inc. of Aurora, Colo., ordered to pay unpaid wages and penalties

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.

US Labor Department recovers more than $268,000 in back wages and penalties following investigation of Gem Interiors Inc. of Milford, Ohio

Company debarred from participating in the H-2B visa program
 
The U.S. Department of Labor’s Wage and Hour Division investigated Gem Interiors Inc. and found violations of the Fair Labor Standards Act and the H-2B temporary nonimmigrant visa program. The company agreed to pay $126,944 to 95 drywall installers for FLSA minimum wage and overtime violations, and an additional $58,617 to 22 of these workers for violations of the H-2B provisions. The company has been debarred from participating in the H-2B program until 2014, and has paid $82,968 in civil money penalties for its H-2B violations.

Investigators from the division’s Columbus District Office found that Gem Interiors violated H-2B program requirements by certifying false statements on its Temporary Employment Certification applications in 2010 and 2011. Violations included falsely stating the occupation as construction laborer instead of the higher paid drywall installer, using the wage rate for laborer instead of drywall installer and employing workers outside the area of intended employment. Investigators found the workers were required to cut grass, remove trees and do other work at the employer’s home, jobs not covered in Gem Interior’s Temporary Employment Certification.

“Employers who choose to participate in the voluntary H-2B program must realize they are required to follow all of the labor standards of the program,” said George Victory, district director of the Wage and Hour Division in Columbus. “This case demonstrates that we are using all tools available, including penalty assessments, to remedy violations, promote accountability and ensure a level playing field for law-abiding employers.”

Gem Interiors did not pay the H-2B workers the rate certified on their application for all hours worked; they required H 2B workers to pay unlawful expenses; and it failed to follow proper reporting procedures required by the H-2B program.

The firm also violated the FLSA, which 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 of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers also are required to maintain accurate time and payroll records. Gem Interiors failed to reimburse some H-2B employees for inbound travel expenses and required individuals to purchase their visas, creating a minimum wage violation. The company also failed to keep records of hours worked and to pay proper overtime compensation for hours worked in excess of 40 per week.

The H-2B program permits employers to temporarily hire nonimmigrant foreign workers to perform nonagricultural labor or services in the United States, but only when qualified U.S. workers are unavailable, and the employment of the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The employment must be of a temporary nature for a limited period of time, such as a one-time occurrence or for seasonal, peak load and intermittent needs. The program requires an employer to attest to the department that it will offer a wage that equals or exceeds the highest of the following: the prevailing wage for the occupation and geographic area, applicable federal minimum wage, state minimum wage or local minimum wage. The program also establishes recruitment and displacement standards to protect similarly employed U.S. workers. For more information about the H-2B program, the FLSA and other federal wage laws, call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

 

Judge orders Ed Bayer Design Group of Pittsburgh to pay nearly $27,000 in back wages and penalties following US Labor Department investigation

Company violated H-2B temporary nonimmigrant worker program provisions

Pittsburgh-based landscape company Ed Bayer Design Group has been ordered to pay $9,372 in back wages to 11 temporary workers from Mexico employed as landscape laborers and $17,483 in civil money penalties after an investigation by the U.S. Department of Labor’s Wage and Hour Division disclosed violations of the H-2B temporary nonimmigrant visa program. Administrative Law Judge Thomas M. Burke, from the department, entered the decision and order on July 3. The decision and order resolves a lawsuit filed by the Labor Department’s Philadelphia Regional Solicitor’s Office.

The judge upheld the findings by the investigators from the division’s Pittsburgh District Office that the company misrepresented the dates of need, number of employees sought, job requirements and job duties to be performed, and drug testing requirements, when submitting an application for workers under the H-2B program. The company also made impermissible deductions from the workers’ wages for employer-provided substandard and overcrowded housing as well as application and recruitment fees. The Fair Labor Standards Act provides that an employer cannot take credit for the cost of housing that is furnished in violation of any law, and the judge’s decision states “testimony clearly shows that the lodging violated the state housing code.”

“Employers who choose to participate in the voluntary H-2B program must realize they are required to follow all of the labor standards of the program,” said John DuMont, district director of the Wage and Hour Division in Pittsburgh. “The department is committed to protecting the rights of all workers covered by the laws we enforce. This case demonstrates that we are using all tools available, including penalty assessments, to remedy violations, promote accountability and ensure a level playing field for law-abiding employers.”

The H-2B guest worker program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. H-2B employment must be of a temporary nature, such as a one-time occurrence, or for a seasonal or peak load need. The program requires the employer to attest to the department that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable federal minimum wage, state minimum wage or local minimum wage for the occupation in the area of intended employment during the entire period of the approved certification.
Additionally, certain recruitment and displacement standards have been established in order to protect similarly employed workers in the United States.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.