The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced that it is conducting a nationwide initiative to strengthen compliance with the labor provisions of the H-2B temporary visa program in the landscaping industry.
H-2B in Landscaping
In 2017, landscaping and groundskeeping positions accounted for 40 percent of all H-2B visa positions. Of these visas, the majority are distributed to the following states: Virginia, Texas, Colorado, Florida, Georgia, Louisiana, Pennsylvania, New York, Missouri and Arizona.
The WHD says the initiative includes providing compliance assistance tools and information to employers, as well as conducting investigations of employers using the program.
Before being approved to host guest workers, employers must first meet a series of qualifications. Employers must first prove that there is an insufficient number of American workers willing to fill the available positions. This not only gives priority to American employees in need of jobs, but also protects the guest workers and their ability to receive fair pay. If any American workers are rejected, the employer must provide documentation outlining why the worker was not hired.
The announcement for this initiative comes after the WHD found more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the landscaping industry.
Parkside Landscaping in Littleton, Colorado, paid their 53 landscaping employees $524,063 in back wages and $26,104 in penalties to resolve violations of the H-2B program and Fair Labor Standards Act. An investigation found that Parkside failed to pay workers the wages that were stated in their H-2B certification.
The owner says these violations only occurred because the government raised the wages required after he had signed contracts with his clients. He has since learned from the experience, paid his fines and is now in full compliance.
In another case, Outdoors Unlimited based in Murfreesboro, Tennessee, was accused of not paying employees proper wages, among other allegations. During the investigation, the owner told authorities that he paid his workers very well. When the case went to court, it was found that the employees were not being paid the overtime that they were owed.
Discrimination Against US Workers
In 2018, the Justice Department (DOJ) reached a settlement agreement with Triple H Services LLC, a landscaping company based in Newland, North Carolina. Triple H was believed to be discriminating against American workers, preferring to hire H-2B employees, which is a violation of the Immigration and Nationality Act.
The DOJ investigation found that, while Triple H did post job listings for 450 positions across 5 states, the positions were written in a manner that misled US workers about the available positions and prevented or deterred some from applying. Triple H also did not consider several qualified US applicants, instead opting to hire H-2B workers. In the settlement agreement, Triple H must establish a back pay fund, with a cap of $85,000 to compensate certain individuals who were harmed by its practices. They must also pay $15,600 in civil penalties.
Stay in Compliance
For landscaping companies, staying in compliance is crucial to business. Many businesses cannot afford to pay hundreds of thousands of dollars in back wages. While many businesses believe themselves to be in compliance, an outside look may be necessary to make sure all of the pieces are in place. The expert team at Phoenix Labor has over 20 years of H-2B experience, meaning they can help to ensure you are taking all of the right steps.