H-2B and the Landscape Industry by Steven Paciorek

Steven J. Paciorek, U.S. Department of Labor, Wage, and Hour Division

Since 2009, the United States Department of Labor’s Wage and Hour Division (WHD) has been conducting investigations of businesses that employ H-2B workers. H-2B violations can result in employers having to pay back wages and/or civil money penalties. Violations may also result in debarment, which means the employer is disqualified from participating in the H-2B program for a period of up to three years.

The landscape industry uses more H-2B workers than any other industry. WHD is interested in helping H-2B employers in the landscape industry understand their obligations under the H-2B program, as well as the other laws enforced by the Division, so that violations can be prevented.

In addition to H-2B, the WHD also enforces the Fair Labor Standards Act (FLSA). The FLSA generally requires that workers be paid for all hours of work at not less than the minimum wage. In addition, overtime pay—time and one half of the regular rate of pay for hours over 40 in a workweek—is required.

In the landscape industry, some investigations have found that workers were not paid for all hours of work. This may occur when workers report to the place of business and are not paid for preliminary work activities, such as loading tools and equipment onto a truck or receiving instructions, or for traveling to and from work sites at the beginning or end of the day. The most common FLSA violation results from workers not receiving overtime pay for hours over 40 in each workweek.

FLSA violations generally result in employers having to pay back wages to workers. WHD may also seek liquidated damages , which, in effect, doubles the back wages. In addition, civil money penalties may be assessed.

Employers who have a temporary or seasonal need for nonagricultural workers that cannot be met by the U.S. workforce may apply for foreign workers through the H-2B provisions of the Immigration and Nationality Act. Businesses that use workers with H-2B visas are required to comply with requirements specific to the program.

In applying for H-2B workers, an employer must attest that it will offer terms and working conditions that are normal to U.S. workers similarly employed and will offer workers a bona fide full time job opportunity. The H-2B workers may not displace U.S. workers or replace workers involved in a labor dispute.

Prospective H-2B employers must actively recruit and hire qualified U.S. workers for the H-2B job opportunity. A recruitment log must be maintained with information on all job applicants and reasons why any applicants were not hired. H-2B workers and U.S. workers hired in response to the recruitment efforts have to be paid not less than a prevailing rate, which will be noted on the approved application. There are restrictions regarding deductions from workers’ pay. For example, workers cannot be made to pay for application, agent, or attorney fees, whether directly or through an agent. Nor can they be made to pay for an employer’s recruitment or other business costs.

H-2B workers cannot be relocated to work in another area unless the employer obtains a new certification. If an H-2B worker quits or is fired early, the employer is obligated to promptly notify both the Department of Labor and the Department of Homeland Security that the H-2B visa holder is no longer employed. If a worker is dismissed prior to the end of the employment period, the employer is liable for the full cost of return transportation home.

Under the FLSA, an H-2B employer generally must pay for transportation costs incurred by H-2B workers traveling between their homes and the U.S. work locations to the extent that these costs would result in the workers earning less than the FLSA minimum wage in their first or last week of work.

An employer must accurately advertise and state on the application the actual rate (or range of rates) to be paid to the H-2B workers as well as any perks to the job, such as the possibility of earning bonuses. Investigations have found that it is not unusual for H-2B employers to pay some or all H-2B workers more than the rate shown on the application. This is a violation because the failure to disclose the higher rate of pay, bonuses, etc. means that potential U.S. workers were offered less favorable terms than the H-2B workers, which may result in U.S. workers not applying for the job.

Other matters which must be accurately specified on the application include the reasons for and the dates of temporary need and the number of workers needed.

Many employers use attorneys or agents to prepare H-2B applications. Even when an application is prepared by an attorney or agent, the employer is still responsible for the accuracy of all information contained in the application.

The above is a very brief overview which we hope will be helpful to landscape industry employers. More detailed information can be found on our website at www.dol.gov/agencies/whd.

Although an enforcement agency, the Wage and Hour Division is committed to assisting employers in complying with the laws that we enforce. Please contact your local WHD office if you have any questions or if you would like us to provide a presentation for your business association meeting. B

Steven J. Paciorek is the Community Outreach & Resource Planning Specialist for the U.S. Department of Labor, Wage and Hour Division. He may be contacted at Paciorek.Steven@dol. gov or 614.643.2961