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DOL Issues Proposed Rulemaking Revising Wage Calculations For H-2B Workers
According to a DOL press release just issued:
A proposed rule that seeks to improve the H-2B temporary nonagricultural worker program and better protect American workers has just been promulgated. “The proposed rule, to be published in the Federal Register tomorrow, addresses the calculations used to set wage rates for H-2B workers.
The H-2B program allows the entry of foreign workers into the U.S. when qualified American workers are not available and when the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed American workers. The H-2B program is limited by law to a program cap of 66,000 visas per year…
The previous administration promulgated H-2B regulations and did not seek comment in the rulemaking process on the data used to set wage rates. Since the 2008 final rule took effect, however, the department has grown increasingly concerned that the current calculation method does not adequately reflect the appropriate wages necessary to ensure American workers are not adversely affected by the employment of H-2B workers. On Aug. 30, the U.S. District Court for the Eastern District of Pennsylvania ruled that the regulations issued by the department in 2008 had violated the Administrative Procedure Act. The court ordered the department to promulgate new rules that are in compliance with the APA concerning the calculation of the prevailing wage rate in the H-2B program no later than 120 days from the date of the order. Today’s announcement begins the process of complying with the order and with achieving the department’s goal of fully protecting the job opportunities and wages of American workers. The department anticipates a future rulemaking that will address other aspects of the H-2B program.
The proposed regulation would require employers to pay H-2B and American workers recruited in connection with an H-2B job application a wage that meets or exceeds the highest of: the prevailing wage, the federal minimum wage, the state minimum wage or the local minimum wage.
Under the proposed rule, the prevailing wage would be based on the highest of the following:
- Wages established under an agreed-upon collective bargaining agreement.
- A wage rate established under the Davis-Bacon Act or the Service Contract Act for that occupation in the area of intended employment.
- The arithmetic mean wage rate established by the Occupational Employment Statistics wage survey for
that occupation in the area of intended employment.
The proposed rule eliminates the use of private wage surveys, as well as the current four-tier wage structure that differentiates wage rates by the theoretical level of experience, education and supervision required to perform the job, a system that is not relevant to the unskilled positions generally involved in the H-2B program.
Interested persons are invited to submit comments on this proposed rule via the federal e-rulemaking portal at http://www.regulations.gov.”
5th Cir.: FLSA Does Not Require Employer To Reimburse H-2B Visa Workers’ Recruitment, Transportation or Visa Expenses, Absent Showing of “Kick-Back” To Recruiter
CASTELLANOS-CONTRERAS v. DECATUR HOTELS LLC
The aftermath of Hurricane Katrina required New Orleans hotelier Decatur Hotels, L.L.C. (“Decatur”) to look to foreign sources of labor. A group of these employees (collectively, the “guest workers”), who held H-2B visas while working for Decatur, contend that Decatur violated the Fair Labor Standards Act (“FLSA”) by paying them less than minimum wage, free and clear, when Decatur refused to reimburse them for recruitment, transportation, and visa expenses that they incurred before relocating to the United States to work for Decatur.
Decatur filed a motion to dismiss and/or for summary judgment, and the guest workers filed a cross-motion for summary judgment. The district court denied Decatur’s motion, granted the guest workers’ motion in part, and certified its order for interlocutory appeal. A motions panel of this court authorized Decatur to file an interlocutory appeal. In this interlocutory appeal under 28 U.S.C. § 1292(b), Decatur raised three issues of first impression for this court: whether, under the FLSA, an employer must reimburse guest workers for (1) recruitment expenses, (2) transportation expenses, or (3) visa expenses, which the guest workers incurred before relocating to the employer’s location. The 5th Circuit held that the FLSA does not require an employer to reimburse any of these expenses, and reversed the district court’s order, and rendered judgment in favor of Decatur. The Court discussed each of the three reimbursement claims (recruitment costs, transportation and visa expenses) and found that none created a FLSA obligation on behalf of the employer.
“The guest workers contend that they are entitled to reimbursement because, under 29 U.S.C. § 203(m), the expenses they incurred are de facto deductions from cash wages received for their first week of work, leaving a balance owed them by Decatur. In other words, they liken these expenses (in an inverse way) to employer-furnished “facilities,” such as room and board, which the employer may deduct from an employee’s wages; only here, the guest workers contend that Decatur must reimburse them for expenses that they incurred before their first workweek began.
Section 203(m) defines wages as cash or “the reasonable cost … to the employer of furnishing [the] employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.” (Emphasis added.) The provision’s plain language thus permits employers flexibility in the method of paying employees. This section of the FLSA, contrary to the guest workers’ suggestion, does not impose liability upon employers for expenses that employees incur. See Donovan v. Miller Props., Inc., 711 F.2d 49, 50 (5th Cir.1983) (per curiam) (“[S]ection 3(m) of the Fair Labor Standards Act, 29 U.S.C. § 203(m), … allows an employer to credit toward its obligation to pay the minimum wage ‘the reasonable cost … of furnishing [an] employee with board, lodging, or other facilities’ ….”) (emphasis added). Section 203(m) provides no ground for Decatur to have violated the FLSA by refusing to reimburse the guest workers for recruitment, transportation, and visa expenses that they incurred.
We thus turn to the argument that Decatur’s failure to pay these pre-employment expenses encumbered the guest workers’ wages, so that Decatur did not pay the wages “finally and unconditionally or ‘free and clear’ “:
Whether in cash or in facilities, “wages” cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or “free and clear.” The wage requirements of the Act will not be met where the employee “kicks-back” directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee. This is true whether the “kick-back” is made in cash or in other than cash. For example, if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer’s particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act.
29 C.F.R. § 531.35.
The above-quoted regulation does not define when an employee-incurred expense constitutes a kick-back. Our precedents, however, clarify that an employer-imposed condition of employment is a kick-back if it “tend[s] to shift part of the employer’s business expense to the employees.” Mayhue’s Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1199 (5th Cir.1972).
We now consider whether, under 29 C.F.R. § 531.35, the guest workers are entitled to reimbursement of their recruitment, transportation, or visa expenses.
We begin with the visa expenses. Although § 531.35 does not specifically address employers’ obligation to reimburse guest workers for these expenses, other regulations clarify that employee-paid expenses to obtain H-2B visas more properly belong to the guest worker than to the employer. See
22 C.F.R. §§ 40.1( l )(1) (requiring nonimmigrant visa applicants, such as the guest workers here, to submit processing fees when they apply for visas). The expense of applying to become a sponsoring employer of H-2B employees, by contrast, more properly belongs to the employer. See
8 C.F.R. §§ 103.7(a), 103.7(b)(1), 214.2(h)(2)(i)(A) (requiring, collectively, that a U.S. employer submit certain forms and filing fees to become an H-2B visa sponsor). These regulations, which assign H-2B visa processing fees to visa applicants and H-2B sponsorship-application fees to employers, show that requiring the guest workers to bear the visa expenses at issue did not tend to shift part of Decatur’s business expense to the guest workers. We hold that Decatur has no FLSA responsibility to reimburse the guest workers for the visa expenses that the employees incurred.
We next consider the transportation expenses. For many years, the Department of Labor interpreted the FLSA and its implementing regulations as requiring employers to bear guest workers’ inbound transportation expenses. See Wage & Hour Div. Op. Ltr., 1990 DOLWH LEXIS 1, at *3 (June 27, 1990) (“Under the FLSA, it has always been the position of the Department of Labor that no deduction, that cuts into the minium wage, may be made for transportation of workers from the point of hire and return to that point…. [S]uch transportation costs [are] primarily for the benefit of the employer.”). The agency, however, has called this interpretation into question. See Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 Fed.Reg. 78020, 78041 (Dec. 19, 2008) (“[T]he cost[ ] of relocation to the site of the job opportunity generally is not an ‘incident’ of an H-2B worker’s employment within the meaning of 29 CFR 531.32, and is not primarily for the benefit of the H-2B employer.”); Withdrawal of Interpretation of the Fair Labor Standards Act Concerning Relocation Expenses Incurred by H-2A and H-2B Workers, 74 Fed.Reg. 13261, 13262 (Mar. 26, 2009) (“DOL believes that this issue warrants further review. Consequently … DOL withdraws the [December 19, 2008,] FLSA interpretation … for further consideration and the interpretation may not be relied upon as a statement of agency policy ….” (footnote omitted)); see also De Luna-Guerrero v. N.C. Grower’s Ass’n, 338 F.Supp.2d 649, 659 (E.D.N.C.2004) (“[T]he issue [of an employer’s liability for transportation expenses] has been under review by the DOL…. DOL’s policy regarding de facto deductions [of transportation expenses] is anything but clear.”); Rivera v. Brickman Group, Ltd., 2008 U.S. Dist. LEXIS 1167, at *37-39 (E.D.Pa. Jan. 7, 2008) (“The DeLuna-Guerrero court refused to rely on the opinion letters because it believed the Department of Labor’s position to be too unclear. I agree, and in so doing, I note that the Department of Labor’s position is not merely unclear, but untenable. * * * Given the apparent (and now more than thirteen-year-old) incoherence at the Department of Labor with regard to this issue, I am not persuaded that I should accord the older opinion letters any significant weight [under Auer v. Robbins, 519 U.S. 452 (1997), or Skidmore v. Swift & Co., 323 U.S. 134 (1944) ].”).
We agree with the Rivera court that Auer deference to the DOL’s older interpretation seems inappropriate. Furthermore, inasmuch as the DOL never fully explained why it adopted that interpretation in the first place, we agree with the Eleventh Circuit that Skidmore deference seems inappropriate. See Arriaga v. Fla. Pac. Farms, 305 F.3d 1228, 1239 (11th Cir.2002) ( “Because of this lack of explanation, it is impossible to weigh the ‘validity of its reasoning’ or the ‘thoroughness [ ] in its consideration.’ ” (quoting Skidmore, 323 U.S. at 140) (alteration in original)). Relying on case law that defers to the interpretation similarly seems inappropriate, and thus we can accord no weight to the guest workers’ cited authorities such as Marshall v. Glassboro Service Ass’n, 1979 U.S. Dist. LEXIS 9053, at *6 (D.N.J. Oct. 19, 1979); and Torreblanca v. Naas Foods, Inc., 1980 U.S. Dist. LEXIS 13893, at *13 (N.D.Ind. Feb. 25, 1980).
As is the case with visa expenses, the regulation addressing employer kick-backs does not specify whether an H-2B guest worker’s inbound transportation expenses belong more properly to the employer or to the guest worker. Other statutory and regulatory provisions may guide this determination.
Two provisions have some relevance. Under the Immigration and Nationality Act, an H-2B guest worker’s outbound transportation expenses sometimes belong to the employer. See 8 U.S.C. § 1184(c)(5)(A).FN4 Under U.S. Citizenship and Immigration Service regulations, an H-2A agricultural guest worker’s inbound transportation expenses sometimes belong to the employer. See 20 C.F.R. § 655.102(b)(5)(i). No provision, however, requires an employer to bear an H-2B guest worker’s inbound transportation expenses. We find silence in this context indicative that Congress most likely did not intend for the employer to bear H-2B guest workers’ inbound transportation expenses.FN5
The guest workers do cite two cases which, without relying on the DOL’s now-unclear FLSA interpretation, hold that employers must bear guest workers’ inbound transportation expenses. See Arriaga, 305 F.3d at 1244 (11th Cir.2002); Rivera, 2008 U.S. Dist. LEXIS 1167, at *42-44. Arriaga involves H-2A guest workers. It holds that employers must bear guest workers’ inbound transportation expenses because the expenses are “incident of and necessary to” the guest workers’ employment. See 305 F.3d at 1241-44. We find Arriaga distinguishable insofar as its analysis derives from the case’s H-2A, as opposed to H-2B, origins. Arriaga also is distinguishable because its “incident of and necessary to” standard originates from 29 C.F.R. § 531.32 instead of § 531.35. Section 531.32 implements 29 U.S.C. § 203(m); and, as we have said, our Donovan precedent from 1983 informs us that, under Fifth Circuit law, § 203(m) imposes no obligation on employers to bear employee-incurred expenses. We will not follow Arriaga.
Rivera essentially does follow Arriaga, albeit in the H-2B context. Rivera quotes 29 C.F.R. § 531.35 at length, 2008 U.S. Dist. LEXIS 1167, at *36-37, but ultimately decides the issue of transportation expenses under 29 U.S.C. § 203(m): “point-of-hire transportation is primarily for the employer’s benefit, both because it is dissimilar to lodging and board, and because the expense arises out of Brickman’s decision actively to recruit workers in foreign countries.” Id. at *43. We do not necessarily agree with Rivera that Arriaga ‘s reasoning extends so readily from H-2A guest workers to H-2B guest workers. In any event, Donovan forecloses us from following Rivera ‘ s § 203(m)-based analysis. Just as we will not follow Arriaga, we will not follow Rivera.
On the authorities before us, we hold that the FLSA does not obligate Decatur to reimburse its guest workers for their inbound transportation expenses.FN6
Finally, we consider whether the FLSA obligates Decatur to reimburse its guest workers for the expenses that they incurred with foreign recruitment companies. The FLSA’s provisions do not require reimbursement of these employee-incurred expenses. See
29 U.S.C. § 201 et seq. Neither do the FLSA’s implementing regulations-unless the expenses were “kick-backs” to Decatur. See 29 C.F.R. § 531.35.
We hold that the recruitment expenses were not kick-backs within the meaning of § 531.35. The expenses differed in all fundamental characteristics from the expenses that our court has labeled kick-backs. See Mayhue’s Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1199 (5th Cir.1972) (deduction from cashiers’ wages to pay for every shortage in employer cash-register accounts, regardless of the reason for the shortage); Brennan v. Veterans Cleaning Serv., Inc., 482 F.2d 1362, 1370 (5th Cir.1973) (employee’s wage deduction in favor of employer to recover the cost of a wrecked company truck). The expenses were not treated as an employer obligation by custom or practice of Decatur’s industry. In sum, there is no basis in custom, practice, or law to include the recruitment expenses as part of Decatur’s business expense.
Our attention, however, has been brought to two relatively new regulations that for the first time address unscrupulous practices in recruiting workers to participate in the H-2B visa program. Effective January 18, 2009, the Department of Labor requires an employer seeking H-2B labor certification to attest that “[t]he employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2B workers to seek or receive payments from prospective employees, except as provided for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A).” 20 C.F.R. § 655.22(g)(2). Also effective January 18, 2009, the Department of Homeland Security forbids an employer, employer’s agent, recruiter, or similar employment service from collecting any “job placement fee or other compensation (either direct or indirect)” from a foreign worker as a condition of an H-2B job offer or as a condition of H-2B employment. 8 C.F.R. § 214.2(h)(6)(i)(B).FN7 These regulations ultimately may influence whether H-2B employers will reimburse the recruitment expenses of future guest workers, but they do not affect Decatur’s obligations here. See, e.g., Sierra Med. Ctr. v. Sullivan, 902 F.2d 388, 392 (5th Cir.1997) (“Generally, courts will not apply regulations retroactively unless their language so requires.”); 20 C.F.R. § 655.5 (indicating, by creating a transition period for implementing the Department of Labor’s January 2009 changes to 20 C.F.R. part 655, that the changes do not apply retroactively); 73 Fed.Reg. 78103, 78127-30 (Dec. 19, 2008) (giving no indication that the Department of Labor’s January 2009 changes to 8 C.F.R. part 214 apply retroactively). Furthermore, because the regulations for the first time forbid an H-2B employer from permitting guest workers to bear such recruitment expenses, they strongly suggest that the guest workers’ recruitment expenses incurred long before the regulations became effective were not part of Decatur’s business expense.
Finally, our conclusion is not disturbed by the one case that the guest workers cite holding recruitment expenses can be part of an employer’s business expense. See Rivera, 2008 U.S. Dist. LEXIS 1167, at *47-*50. The employer there, Brickman, required guest workers to hire a particular recruitment company, which charged them fees. See id. at *48-*49. Because the employer required the guest workers to use the recruitment company, the court concluded “that fees associated with Brickman-designated workers’ representatives [we]re costs ‘primarily for the benefit of the employer,’ and that Brickman, therefore, was not allowed to pass those costs along [to the guest workers] to the extent that doing so reduced their wages below the FLSA minimum.” Id. at *50.
Assuming the correctness and continued validity of that case’s reasoning, the case is distinguishable. Here, there is no evidence that Decatur even knew about the foreign recruitment companies, much less that the companies charged a fee to the guest workers as a condition of receiving an offer of employment. Decatur paid Pickering $300 per job position filled, which itself was in the nature of an employer-paid recruitment fee. Although the record does show that the guest workers knew of no other way to obtain employment with Decatur, the record also shows that Decatur did not require, or approve, any guest worker to pay any sum to anyone as a condition of an H-2B job offer or as a condition of H-2B employment.
For all of the foregoing reasons, we hold that the FLSA does not obligate Decatur to reimburse the guest workers for their recruitment expenses.
In sum, we hold that Decatur incurred no FLSA liability to reimburse its guest workers for the recruitment fees, transportation costs, or visa fees that they incurred to work in the United States. We REVERSE the summary judgment, RENDER judgment in favor of Decatur, and REMAND for entry of same.”