Northeast Company Fined in H-2B Investigation
A Northeast ice cream company has agreed to pay $34,200 in back wages to 55 workers and $48,000 in civil money penalties after an investigation by the U.S. Department of Labor’s (DOL) Wage and Hour Division found violations of the H-2B provisions of the Immigration and Nationality Act.
The H-2B guest worker program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. The company had recruited workers from Eastern Europe, Central and South America and the Caribbean to drive trucks and sell ice cream throughout the Northeast.
The investigation found that the company misrepresented the number of positions available and dates of need when submitting an application for workers under the H-2B program; misrepresented the wages to be paid when recruiting U.S. workers; placed workers in areas outside the area of intended employment described on the application; failed to pay the workers the offered wage rate indicated on the application; and failed to notify the DOL and the U.S. Department of Homeland Security when H-2B workers were separated early from their employment.
H-2B employment must be of a temporary nature, such as a one-time occurrence or for a seasonal or peak load need. The program requires the employer to attest to the DOL that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable federal minimum wage, state minimum wage or local minimum wage for the occupation in the area of intended employment during the entire period of the approved certification. Additionally, certain recruitment and displacement standards have been established in order to protect similarly employed workers in the United States.
Employers who bring in foreign workers under the H-2B program must demonstrate they have taken certain steps to recruit U.S. workers and will pay the foreign workers wages that do not have an adverse effect on wage rates for U.S. workers, says the DOL. The investigation revealed that H-2B workers were paid commissions not disclosed to potential U.S. workers during the recruitment period, which is likely to have discouraged them from applying for these positions.
In addition to the back wages and penalties, the company has agreed to comply fully with all terms of the H-2B program in the future; implement compliance monitoring through a neutral third party to review hiring, employment and payroll practices; and implement an improved program for seeking out qualified U.S. workers to fill jobs. The company also agreed that if it commits any future violations that go uncorrected, it will be subject to an automatic one-year debarment from the H-2B program
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