Dive Brief:
- A laborer working on an H-2A visa in Wisconsin and Indiana should get a second chance at his lawsuit seeking overtime under the Fair Labor Standards Act, the 7th U.S. Circuit Court of Appeals held (Luna Vanegas v. Signet Builders, Inc., No. 21-2644 (7th Cir. Aug. 19, 2022)).
- The employee worked for a construction company building structures that would later house livestock, according to the 7th Circuit. A federal district court held that the laborer’s construction work fell within the FLSA’s exemption for agricultural workers and dismissed the complaint.
- The 7th Circuit revived the lawsuit, saying the exemption’s applicability wasn’t “beyond debate.”
Dive Insight:
Under federal immigration law, employers may hire foreign laborers, or “guest workers,” to perform agricultural and related work (H-2A visa workers) of a temporary or seasonal nature, the U.S. Department of Labor explains in a series of webpages.
Before an H-2A visa can be issued, employers have to go through several steps, including obtaining DOL certification that there aren’t enough able, willing, qualified and available U.S. workers to perform the job and that hiring foreign workers won’t have an adverse effect on the wages and working conditions of similarly employed U.S. workers.
In addition, any employer using H-2A workers must initially attempt to find U.S. workers to fill the job, according to DOL. The employer must then petition the U.S. Citizenship and Immigration Services for approval.
The H-2A program has grown rapidly, from about 79,000 visas certified in 2010 to 258,000 visas certified in 2019, the 7th Circuit noted. As the program has expanded, so have the complaints of abuse, the court said.
DOL seemingly takes these allegations seriously. In February, for example, the agency announced that it recovered $159,256 in unpaid wages from an Idaho potato farm. It also assessed the farm $25,430 in civil money penalties after investigators found it exposed workers to substandard housing and allegedly threatened to send them back to Mexico if they refused to accept wages at a lower rate than required by the H-2A program.
In general, H-2A workers must be paid at special rates that vary by locality, according to DOL. However, under the FLSA exemption at issue here, employers don’t have to pay overtime to H-2A workers who perform “agricultural” work.
The FLSA defines “agricultural” to mean “farming in all its branches,” including “the raising of livestock” and “any practices performed ... on a farm as an incident to or in conjunction with ... farming operations.” An FLSA regulation provides that “erection of silos and granaries” are examples of work included in the exemption.
The construction company argued that building livestock enclosures is work exempted from overtime because it’s analogous to building silos and granaries. The 7th Circuit said this wasn’t enough to establish that the exemption applied. The company still had to show the H-2A laborer’s work was performed as “an incident to or in conjunction with” the farm’s operations, the court explained.
If a farm’s employees don’t assist with the work performed by a contractor’s employees, or if there is minimal overlap between the farmer’s workers and a construction crew, or if the contractor’s employees work as a unit independent from the farmer’s workers, then the “logical implication is that the contractor’s work does not fall within the ... exemption,” the 7th Circuit said. Although more facts could be brought out later, on the face of the complaint, that looked to be the case, the court concluded.
