Employer Obligations for Payment of Transportation Expenses for Nonimmigrant Agricultural Workers
A significant number of employers in Pennsylvania, Delaware, and elsewhere depend upon lawful, nonimmigrant aliens in their workforce. These employees are authorized to enter the United States under nonimmigrant visas. The “H2B program” allows employers to petition the Department of Labor to employ agricultural workers, which includes workers in the landscaping sector, for periods of less than one year, when it can certify that locally available labor could not be found to fill the need.
On January 7, 2008, Judge Louis Pollak of the United States District Court for the Eastern District of Pennsylvania decided a class action case involving H2B workers in the landscaping industry that illustrates some of the features and potential trouble areas of the program. The Brickman Group, Inc., employed workers recruited in Mexico and Guatemala, by retaining recruiting agencies in those countries. In each country, the agency designated another representative as the exclusive entity allowed to present H2B visa applications to the U.S. Consulate. The representative did not, however, locate the workers for Brickman. Instead, Brickman only hired returning workers or those referred to it by returning workers, who then contacted the representative in order to get their visas.
Brickman made the employees responsible for their transportation costs from their country of origin to the Brickman worksites. The employees were also responsible for the costs of obtaining passports and visas, as well as for the fees charged by the workers’ representatives for assisting in obtaining passports and visas. When these fees were subtracted from the wages paid to the employees, the difference was below the minimum wage set by the Fair Labor Standards Act (FLSA). The questions presented to the court were whether Brickman was responsible for these costs.
The court first determined that the minimum wage provisions of the FLSA were not preempted by provisions of the Immigration and Nationality Act (which do not require employers to pay transportation costs for nonimmigrant employees). It then went on to hold that, under the facts involved in the case, the transportation costs, visa fees and representatives charges were primarily for the benefit of the employer and were therefore Brickman’s responsibility. Since H2B visas are specific to the particular employer for which the visa holder is to work, and employment with Brickman could only be obtained by incurring those expenses, they are all seen as primarily for its benefit. Passports, on the other hand, have a broader benefit to the employee, inasmuch as they allow travel to countries in addition to the United States and for other purposes, so they are not the H2B sponsoring employer’s problem.
There is an economic impact of this rule on the agricultural and landscaping industry. It is, of course, not strictly true that local labor cannot be found to perform landscaping services. If the wage were high enough, young Americans would be dropping out of medical school to take those jobs. But, that would require much higher wages than are practical for employers in that sector. Judge Pollak’s carefully written decision makes it clear that some of the potential savings to the employer in finding the employees at the lower wages are offset by the costs of recruiting from beyond our borders.
The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.