Many green industry companies rely on H-2B visas to hire seasonal workers from outside the U.S. H-2B workers are covered by the Fair Labor Standards Act (FLSA), and the H-2B program imposes additional requirements on employers, such as providing records, paying certain expenses, and posting legal notices about worker rights.
As one Colorado landscaper recently discovered, violating H-2B workers’ rights can be financially devastating. The U.S. Department of Labor (DOL) recently shared the outcome of their investigation of Parkside Landscaping, Inc., a Denver-area business. Parkside failed to pay the prevailing wage specified in the H-2B labor certification, failed to pay overtime at an overtime rate, failed to provide earnings statements, and violated other conditions of participating in the H-2B program. The result? A DOL settlement that included $26,104 in penalties—and more than $500,000 dollars due in back wages.
The Parkside investigation provides some key reminders for H-2B employers:
- The prevailing wage determination matters. You can’t pay below that rate, even if state, federal, or local minimum wage are lower. And if they’re higher, you must pay the highest rate.
- Administrative requirements matter too. While it might seem tedious, requirements like providing employees with earnings statements are backed by penalties for noncompliance. As Parkside found out, the DOL does enforce these requirements.
- Don’t sign your contracts too early. According to a Colorado newspaper, Parkside underpaid its workers because it had already signed contracts with clients, and the applicable wage then changed. Unfortunately, the DOL isn’t responsible for ensuring your contracts net you a profit. It’s never a great idea to sign contracts before you know what your labor costs will be—but more importantly, contracts don’t exempt you from compliance with the H-2B program.
The DOL’s website provides an overview of participation requirements for employers. If you have questions about hiring workers through the H-2B visa process, including compliance questions, feel free to contact us.