Employer to pay $384K in back wages, penalties for H-2B violations

An employer in Pennsylvania will pay more than $384,000 in back wages and civil penalties to resolve H-2B violations.

As an FYI, the federal H-2B visa program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the U.S.

The program has several general requirements that employers must follow. Among other things, the employment must be temporary in nature and be for a limited period, such as for:

• a one-time occurrence
• seasonal need
• peak load, or
• intermittent need.

In a press release that highlighted a Philadelphia-area employer’s expensive mistakes, Philadelphia’s WHD District Director Jim Cain explained, “Employers who choose to participate in the H-2B program must ensure they are aware of their obligations and abide by the law.”

Here’s what happened:

The high cost of noncompliance: Back wages and civil penalties   

Who was involved: GSI Pool Finishes Inc., a Philadelphia-area swimming pool subcontractor, and a total of 59 workers, three from the U.S. and 56 from Mexico.

What happened: According to an investigation by the DOL’s Wage and Hour Division (WHD), the employer violated provisions of the H-2B program by failing to pay the required wages to workers hired as cement masons. Instead, the workers were paid a piece rate that was lower than the offered wage rate, which meant the employer owed $266,627 in back wages to the workers, the WHD found.

In addition to the wage violations, the employer also allegedly violated provisions of the H-2B program by:

• Failing to include housing availability in its advertisement or Temporary Employment Certification.
• Failing to conduct drug tests and criminal background checks, despite advertising that it would.
• Improperly classifying three workers as a yard helper, truck shop helper and warehouse helper. The employer was only permitted to employ workers as cement masons.
• Failing to include all required info on the employees’ earning statements.
• Failing to provide inbound, outbound and daily subsistence to workers for their travel to and from the employer’s worksite from either the U.S. or hometowns in Mexico.
• Failing to provide workers with a written job disclosure, as required by H-2B regulations.
• Failing to keep accurate records of employee hours worked and any monies paid to workers for travel.
• Failing to recruit U.S. workers as required, as part of supplemental recruitment in 2018.

Result: The employer must pay a total of $384,746, which includes:

• $266,627 in back wages to the affected workers
• $50,470 in travel expenses as part of their back wages, and
• $67,649 in civil money penalties.

Info: Swimming Pool Subcontractor Must Pay $384K in Back Wages, Penalties After DOL Finds H-2B Guest Worker Violations, 4/17/23.