Underpaying and failing to meet other H-2A visa program requirements for its employment of temporary foreign agricultural workers was an extremely costly mistake for Yerington, Nevada-based onion grower Peri & Sons.   

Peri & Sons must pay a record total of $2,338,700 in back wages to 1,365 workers, plus a $500,000 civil money penalty to the Department of Labor for failing to properly pay foreign agricultural workers working under the H-2A visa program under a consent order entered by U.S. Department of Labor Administrative Law Judge Steven Berlin in San Francisco.  The consent order announced by the Labor Department Wage and Hour Division today (July 10, 2012) reminds U.S. businesses of the need to meet compliance responsibilities when employing foreign workers and illustrates the significant risks that employers of foreign workers risk by failing to meet minimum wage and hour, overtime, vis, I-9 and other requirements for employing foreign workers.

The record back pay order stems from charges brought by the Labor Department’s Wage and Hour Division after it determined that Peri & Sons violated the FLSA and the H-2A visa program requirements by underpaying H-2A employees involved in irrigation, harvesting, packing and shipping of onions sold in grocery stores nationwide. All of the affected workers came to the U.S. from Mexico under the H-2A temporary agricultural worker visa program. In most cases, their earnings fell below the hourly wage required by the program, as well as below the federal minimum wage of $7.25 per hour for a brief period of time. Investigators also found that workers were not paid for time spent in mandatory pesticide training or reimbursed for subsistence expenses while traveling to and from the U.S. Additionally, Peri & Sons did not pay the worker’s return transportation costs at the end of the contract period.

The H-2A temporary agricultural worker program permits agricultural employers who expect a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to do temporary or seasonal agricultural work. The employer must file an application stating that a sufficient number of domestic workers are not available and the employment of these workers will not adversely affect the wages and working conditions of similarly employed workers in the U.S. Employers using the H-2A program also must meet a number of specific conditions relating to recruitment, wages, housing, meals and transportation. See more on H-2A visa employment rules here.

Reflective of the Obama Administration’s heavy emphasis of the enforcement of wage and hour and other laws protective of workers, the Peri & Sons order shows the potential risks that employers run when violating these rules.  To minimize these exposures, employers of H-2A or other workers employed under special visa programs should carefully manage these programs to ensure their ability to prove compliance with all requirements of the visa program, the FLSA, and other relevant laws.  These programs should include careful and ongoing due diligence to maintain a current understanding of all applicable requirements for the legal employment of these workers and the establishment of systemized processes and documentation both to support compliance and to preserve evidence necessary to prove this compliance against possible investigations or charges.  When conducting and planning these activities, businesses should keep in mind that employers of foreign workers generally are accountable for meeting all human resources and related laws generally applicale to employees as well as additional visa and other eligibility to work credentialing, documentation, pay and other requirements. 

About Ms. Stamer

Recognized in International Who’s Who, and Board Certified in Labor & Employment Law, attorney and management consultant Cynthia Marcotte Stamer has 25 years experience advising and representing private and public employers, staffing and manpower companies, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, governmental leaders and others on wag hour and other workforce, employee benefits, compensation, internal controls and compliance, and related performance and risk management concerns. Her experience includes extensive work advising domestic and international businesses about employment, recruitment, compensation and management of workers and other human resources, employee benefit and other reengineering, performance management, risk management, compliance, public policy and other concerns and opportunities.

A primary drafter of the Bolivian Social Security privatization law with extensive domestic and international workforce, regulatory and public policy experience, Ms. Stamer has extensive experience advising U.S. and foreign businesses about the employment of foreign workers in the U.S., as well as other cross-border employment and other workforce management and compliance concerns.  In addition, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on human resources and other workforce, health and other employee benefits, insurance, tax, compliance and other matters.  She has represented clients in dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, Federal Trade Commission, HUD and Justice; state legislatures attorneys general, insurance, labor, worker’s compensation, and other state and local agencies and regulators; and various foreign governments and their officials.

Ms. Stamer also shares her experience through leadership involvement in a number of human resources and related management and professional organizations  An Editorial Advisory Board Member and author for the Institute of Human Resources (IHR/HR.com), Insurance Thought Leaders, Employee Benefit News, and various other highly regarded publications, Ms. Stamer also presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative and in various other professional and civic leadership. She previously has served on the Dallas World Affairs Council Board, and has been active in cross border policy, trade and other activities of the US-Mexico Chamber of Commerce and a variety of other organizations.    

A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training on employee benefits, human resources, health care, privacy and data security, technology and other compliance and management topics.  Ms.  Stamer has written and spoken extensively on cross-border migration, workforce, health care, pension, insurance, ethics and internal controls, public policy and other challenges businesses and governments face in connection with cross border or multinational employment or operations.  An Editorial Advisory Board member and author for HR.com, Insurance Thought Leaders and many other publications, Ms. Stamer also regularly serves on the faculty and planning committees of a multitude of symposium and other educational programs. 

Her publications and insights on these and other related topics appear in the Health Care Compliance Association, American Bar Association, Atlantic Information Service, Bureau of National Affairs, World At Work, SHRM, The Wall Street Journal, Government Institutes, Inc.,Business Insurance, the Dallas Morning News, HR.Com, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.   For more details about Ms. Stamer’s services, experience, presentations, publications, and other credentials or to inquire about arranging counseling, training or presentations or other services by Ms. Stamer, see www.CynthiaStamer.com or contact Ms. Stamer at (469) 767-8872 or via e-mail here.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

• 7/24 “Health Plan Update” Workshop Kicks Off 2012 Health Plan-U Coping With Health Care Reform Workshop Series
• Coping With Health Care Reform: 2012 Health Plan Update Workshop July 24, 2012: Register Now!
• OCR Hits Alaska Medicaid For $1.7M+ For HIPAA Security Breach
• Model Language May Aid Section 83(b) Elections Even As Executive & Other Special Compensation Carry Growing Liability Traps
• IRS To Offer Help For U.S. Citizens Overseas With Foreign Retirement Plans, Dual Citizenship Tax Issues
• New EEOC State Discrimination Charge Data Helpful Employer Risk Assessment Tool Discrimination Exposures Grow
• Obama’s Reaffirms Commitment Prosecute Disability Discrimination To Mark Omlstead Anniversary
• IRS Changing Individual Taxpayer ID Number Application Requirements
• Insurer Group Health Inc. To Refund $500,00+ & Change Claims Practices To Settle NY AG Charges It Wrongfully Denied Coverage
• NLRB Moves To Promote Non-Union Employee Use of Collective Action Rights By Launching Webpage
• Making Wellness Work On A Shoestring Budget
• Tighten Defensibility of Criminal & Other Background Check Practices In Light of Labor Department Non-Discrimination Regulation & Enforcement Emphasis
• Review & Update Health Plan Mental Health Coverage As DOL Supplements Guidance On Health Plan Mental Health Parity Rules
• Western Mixers & Officers Ordered To Pay $1.2M+ For Improperly Using Benefit Plan Funds For Company Operations, Other ERISA Violations
• Plan Administrator Faces Civil & Criminal Prosecution For Allegedly Making Prohibited $3.2 Million Real Estate Investment

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com. 

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©2012 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.