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July 2014, Volume 20, Number 3

H-2A Global; H-2B

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The H-2A program allows US farm employers anticipating labor shortages to request certification from DOL that they need foreign workers. In FY13, almost 6,000 farm employers requested certification to fill 106,000 farm jobs with H-2A workers, and DOL certified 5,700 employers to fill almost 99,000 farm jobs.

North Carolina had the most farm jobs certified, 12,400, followed by Florida, 10,000; Georgia, 9,300; Louisiana, 6,600; and Washington, 6,300. These five states accounted for 45 percent of H-2A jobs certified. The largest employer certified was the North Carolina Growers Association, 9,700 jobs, followed by the Washington Farm Labor Association, 4,500 jobs, and Virginia Ag Growers Association, 1,500 jobs.

Global. The fallout from Beverley Hills-based labor contractor Global Horizons and its CEO, Mordechai Orian, continued in summer 2014. Global brought Thai workers to US farms under the H-2A program a decade ago.

The US Equal Employment Opportunity Commission settled a suit against four Hawaii growers in June 2014 for $2.4 million. The EEOC accused the firms, which obtained Thai H-2A workers via Global, of discriminating against the Thai workers based on race and national origin. Global was earlier in 2014 convicted of violating Title VII of the 1964 Civil Rights Act by engaging in a "pattern or practice" of harassment and discrimination against the Thai workers.

Under the settlement, Mac Farms of Hawaii LLC will pay $1.6 million; Kauai Coffee Company, $425,000; Kelena Farms, $275,000; and Captain Cook Coffee Company, $100,000 to about 500 Thai workers. Del Monte Fresh Produce Inc. settled in 2013 with the EEOC for $1.2 million. In addition to payments to workers, the settlement requires the farmers to conduct audits to ensure farm labor contractor compliance with the decrees, to designate a corporate compliance officer to oversee farm labor contractor compliance with Title VII and to train managers, supervisors and employees on their obligations under Title VII.

In Washington, a federal judge in May 2014 rejected similar EEOC charges against Green Acre and Valley Fruit farms, which obtained Thai H-2A workers via Global Horizons in 2004 and 2005. The EEOC asked Global and the growers to pay $30 million to settle the case, and sued in 2011 when they refused. In dismissing the farms from the EEOC suit, the judge agreed with the farms that they did not set "unreasonable production quotas" for the Thai workers, and did not harass them. The case against Global remains pending.

A separate federal suit alleges that some 600 local workers were displaced by the Thai H-2A workers. A judge ordered Green Acre and Valley Fruit farms to pay $2 million to the local workers in that case, which is being appealed.

Peri. In November 2013, the US Court of Appeals for the Ninth Circuit ruled that farm employers must reimburse workers in their first week of employment for the cost of inbound travel and other migration costs if failure to do so would reduce worker wages to less than the minimum wage. In June 2014, the US Supreme Court refused to hear employer Peri's appeal.

The case, Rivera vs Peri & Sons Farms, involved 24 Mexican H-2A workers employed by a Nevada onion grower. Peri was the largest single employer of H-2A workers in FY13, certified by DOL to fill almost 1,500 jobs with H-2A workers.

Peri in 2012 paid $2.3 million to 1,365 workers and $500,000 in civil penalties for failing to reimburse H-2A worker for expenses that included hiring and recruitment fees of $100 to $500; fees to obtain H-2A visas; lodging costs in Hermosillo, Sonora, Mexico, where the workers obtained H-2A visas at the US consulate; $10 per week for the protective gloves that were required to perform their jobs; and $100 in travel expenses to return to their homes in Mexico at the end of the season.

The Ninth Circuit, following the lead of the 11th Circuit in Arriaga in 2002, ruled that the Fair Labor Standards Act does not clearly exempt farm employers from paying all their employees at least the minimum wage. This means that farm employers must pay the migration costs incurred by H-2A workers that are primarily for the benefit of employers.

The H-2A workers sued Peri because Peri failed to reimburse their migration expenses immediately, which reduced their wages to less than the minimum wage and violated Peri's H-2A job order that promised workers would earn at least the minimum wage. A federal district court rejected the workers' FLSA claims of underpayment of the minimum wage, but the Ninth Circuit reversed the lower court's decision and allowed the H-2A workers to sue Peri for the difference between the minimum wage and their actual expense-deduction-reduced-wages for three years.

Peri argued that H-2A regulations call for reimbursing the inbound transportation costs of H-2A workers only after they complete 50 percent of the contract period, not during the first week of employment. The Ninth Circuit disagreed, concluding that Peri was subject to both H-2A and FLSA regulations in the first and subsequent weeks of their H-2A employment.

A similar case in Florida, Steven Davis Farms, resulted in an order to reimburse 29 H-2A Haitian workers some $60,000 for visa and travel expenses so that their first week wages did not fall below the minimum wage.

Altendorf. Altendorf Transport Inc. of Minto, North Dakota hires H-2A workers from South Africa, New Zealand, Romania and other countries to combine and transport grain. Workers are offered work for 40 or 48 hours a week, but some allege that, after arriving in the US, they are asked to sign new contracts that require more hours of work. In June 2014, a federal judge certified a class action suit against Altendorf.

Housing. A DOL administrative judge in March 2014 ruled that farmers seeking H-2A workers did not have to provide housing for families because family housing is not a "prevailing practice" in Oregon. DOL's OFLC had insisted that Adelsheim Vineyards in Newberg, Oregon provide family housing.

However, another ALJ in April 2014 upheld DOL's OFLC and concluded that, under Oregon state law, Cal Farms of Oregon City must provide family housing if it provides housing for single workers. This ALJ reasoned that providing only housing for single workers would give farm employers an incentive to hire H-2A workers, who come to the US without families.

In May 2014, an ALJ concluded that Sakuma Brothers in Washington did not have to provide housing to non-employee family members. The 4th US Circuit Court of Appeals has found that farmers do not have to provide family housing when seeking H-2A workers, but its decision applies only to states in its jurisdiction.

TEGLs. DOL uses Training and Employment Guidance Letters (TEGLs) to advise State Workforce Agencies and others who administer the H-2A program. US workers in October 2011 sued DOL, alleging that they would take sheepherding jobs if the $750 to $1,422 monthly wage in 2011 specified in a DOL TEGL was raised.

The workers who sued first arrived in the US as H-2A workers but settled and are now legal immigrants who qualify as domestic US workers who must be given preference for sheepherding jobs.

Employers must normally pay the higher of the adverse effect wage rate, the federal or state minimum wage, or the prevailing wage; the AEWR of $9 to $12 an hour in 2011 is usually the highest of the three. However, there are "special procedures" to determine wages for certain occupations, and the TEGLs specify monthly wages for sheepherding and open range cattle grazing.

Mountain Range Agricultural Services and the Western Range Association, which provide 1,500 to 2,000 H-2A sheepherders to farm employers, intervened in the US workers' suit, alleging that the US workers did not have standing to sue. A US District Court agreed and dismissed the workers' suit.

In June 2014, the US Court of Appeals for the District of Columbia Circuit overturned the District Court in Mendoza v. Perez, concluding that DOL makes substantive decisions in TEGLs and thus TEGLs must go through regulatory notice and comment procedures. The Appeals Court further ruled that the workers who sued did not have to accept wages that they thought were too low to prove they wanted to be sheepherders, since their affidavits that they wanted to work as sheepherders demonstrated their availability.

H-2B. Employers seeking labor certification from DOL to hire H-2B workers must indicate their temporary need for the workers as well as the starting and ending date of that need. In April 2014, DOL's Office of Foreign Labor Certification announced that seafood processors such as the Chesapeake Bay crab industry could bring H-2B workers into the US at any time during the 120-day period on or after their certified start date of need as long as they meet certain conditions, including re-assessing the availability of US workers.

The North Carolina Growers Association founded by Craig Eury is the largest single employer of H-2A workers, obtaining about 8,000 Mexican H-2A workers a year for its grower members. Eury was also CEO of the International Labor Management Corporation, founded in 1994, to submit H-2B applications. In January 2014, ILMC was indicted by a grand jury for requesting more H-2B visas than ordered by their clients in order to have a labor pool of extra H-2B workers available in case the 66,000 a year cap was reached.