Court of Appeals Affirms Foreign Workers Right to Seek Prevailing Wage

Court of Appeals Affirms Foreign Workers Right to Seek Prevailing Wage

WASHINGTON D.C — A group of amusement ride operators, food handlers, and game attendants who worked a Degeller’s carnivals, owned by Deggeller Attractions Inc., filed a suit against the company claiming that it failed to pay minimum and overtime wages in violation of the Fair Labor Standards Act (FLSA). Additionally, the workers claimed that the company also failed to pay them the prevailing wage as dictated by regulations governing the H-2B visa program. The suit purports to represent a proposed class of over 100 H-2B workers who were recruited and brought to the U.S. from Mexico and south Africa.

H-2B Worker Wage Rights

At issue in the suit are the wage rights of H-2B migrant workers. H-2B workers are brought to the country under a visa program that permits them to come to the United States to perform temporary nonagricultural services or labor. Prior to the approval of an H-2B visa petition, the U.S. Department of Homeland Security requires that the Department of Labor issue temporary labor certification.

Initially, a federal district court dismissed their claims because it believed that temporary labor certifications issued by the U.S. Department of Labor (DOL) did not provide the workers with contract rights against the company to be paid a certain wage. However, a federal court of appeals reversed that decision, stating that DOL regulations imposed upon the company a legal obligation to pay its H-2B employees at least the prevailing wage identified. Additionally, the court of appeals affirmed the H-2B workers’ right to seek legal redress when their employers fail to pay them the prevailing wage.

Prevailing Wage

Under the DOL’s H-2B regulations, workers brought to the country under this visa program must be paid at least the specified prevailing wage rate obtained from the DOL for that particular job order. This rate must be met free and clear without unauthorized deductions or kickbacks to the employer. Employers may pay H-2B employees using commissions, bonuses, or other incentives, as long he or she is paid the equivalent of the offered wages. If not, then the employer must supplement the pay so it equals what he or she would have earned had the pay been computed based on the offered hourly wage. Finally, the overtime protections of FLSA apply to H-2B workers in the same manner as they apply to other U.S. workers.

Foreign workers under the H-2B visa program should not be deprived of their wage rights by their employers. They have the right to file a claim in court to enforce DOL’s wage protections. If you believe you are being deprived of your wage rights, you should call (855) 754-2795 or complete the Free Unpaid Overtime Case Review form on the top right of this page. Our top-rated team of wage lawyers will evaluate your situation to determine your best course of action. We will also determine if it is in your best interest to file a lawsuit against your employer. There are strict time limitations for filing, so it is important that you call our experienced attorneys today.

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