Employers that need seasonal employees often rely on foreign workers to fill those slots. Workers from other nations must apply for an H-2B visa before coming to the United States to work.
Until now, the 5th Circuit Court of Appeals, which covers Texas employers, had not yet decided whether expenses related to H-2B workers’ travel to the United States had to be reimbursed by the employer. It has now decided that they do not.
Recent case: A group of guest workers, who came to the United States after being recruited on behalf of Decatur Hotels, sued the hotel operator. They claimed they had paid for their own visas and transportation costs to come to the United States, and those expenses made the total pay they received fall below the minimum wage.
The 5th Circuit Court of Appeals ruled that nothing in the Fair Labor Standards Act forced employers to pay the expenses, or that those costs should be deducted from the guest worker wages when determining whether they earned minimum wage. It dismissed the lawsuit. (Castellanos-Contreras, et al., v. Decatur Hotels, No. 07-30942, 5th Cir., 2009)
Final note: The court also considered whether the hotel operator had to reimburse fees paid by the guest workers to the recruiting company. It said no, but noted that a new Department of Labor regulation that went into effect recently barred such fees. Make sure any recruiter you use doesn’t charge fees to the employees you eventually hire.
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