In Rivera v. Peri & Sons, (No. 11-17365 filed November 13, 2013), the Ninth Circuit analyzed the statutory interplay between the Fair Labor Standards Act (“FLSA”) and the H-2A program under the United States Department of Labor (“DOL”) to determine whether visa and travel expenses under the temporary immigrant farmworkers program are reimbursable expenses. The Ninth Circuit agreed with the Plaintiff immigrant farmworkers that travel and immigration expenses are expenses for which they should be reimbursed.
Plaintiffs were hired by Peri & Sons, a producer of onions, to work at their facility in Nevada. As part of the application and hiring process, Plaintiffs had to obtain H-2A visas from the United States Consulate in Hermosillo, Mexico, and incurred lodging expenses while in Hermosillo. Plaintiffs also had to pay a fee to obtain the I-94 Form from the United States Citizenship and Immigration Service and incurred travel expenses to the United States exceeding $400. Some of the Plaintiffs incurred a hiring or recruitment fee of $100 to $500. All Plaintiffs incurred a cost of at least $10 per week for protective gloves during their employment and incurred an additional expense of $100 for their return travel to Mexico.
Plaintiffs and Peri & Sons agreed that their temporary employment relationship was subject to regulations under the DOL’s H-2A program. A dispute arose, however, between Plaintiffs and Peri & Sons as to whether Peri & Sons was also subject to the FLSA. Peri & Sons argued that it was not subject to the FLSA because such an interpretation would render the H-2A regulations superfluous. Peri & Sons contended that under the H-2A, an employer was required to reimburse employees for “reasonable costs incurred by the worker for transportation and daily subsistence from the place from which the worker has come to work for the employer to the place of employment” after the employee completed 50 percent of the work contract period. In contrast, Peri & Sons argued the FLSA requires employers to reimburse certain expenses during the employee’s first week of work.
In analyzing the competing statutory schemes, the Ninth Circuit recognized the DOL’s regulatory interpretation that the FLSA is independent in application of the H-2A requirements. Thus, the key inquiry of whether Peri & Sons was responsible for the Plaintiffs’ immigration and travel expenses was whether the expenses incurred primarily benefited the Plaintiffs or Peri & Sons. The Ninth Circuit found that both Plaintiffs and Peri & Sons benefitted from the employment relationship rendering the identity of the primary beneficiary as ambiguous. When regulations are ambiguous, the Court noted that it is required to defer to an agency’s reasonable interpretation of the regulations. As the DOL interpreted that travel and immigration expenses under a corollary program (H-2B) primarily benefited the employer, the Ninth Circuit held that the DOL’s interpretation that employers are responsible for immigration and travel expenses under the H-2A program was likewise reasonable.
Accordingly, employers who hire immigrant farmworkers under an H-2A visa must reimburse the workers for travel and immigration expenses incurred during their first week of work, to the extent the expenses decrease the workers’ wages below minimum wage.
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