Court cuts H-2A travel reimbursement deadline
A federal appeals court has greatly reduced the amount of time in which farmers must repay H-2A foreign guest workers for travel expenses.
A ruling by the 9th U.S. Circuit Court of Appeals effectively holds that farmers must reimburse guest workers within their first week of employment, as opposed to halfway through their employment contract.
The National Council of Agricultural Employers fears the ruling will discourage farmers from hiring workers under the H-2A visa program, which already has stringent bureaucratic requirements.
“It’s just another barrier for people using the H-2A program,” said Frank Gasperini, the council’s executive vice president.
Paying guest workers for travel expenses when their contract is half finished provides an incentive for them not to abscond early in the season, he said. “Fifty percent is more reasonable.”
Otherwise, a worker who is reimbursed in the first week may take off and not provide the farmer with much return on the investment, Gasperini said. “You wouldn’t earn much money for the grower in a week.”
The quicker reimbursement period is financially problematic, he said.
Some farmers, for example, paid guest workers a portion of their travel expenses each week so as to fully reimburse them by the time the contract is halfway up, Gasperini said.
Now, growers have to make a substantial expenditure before they’re able to harvest and sell much of their crop, he said.
“You need to have that money up front. You have to be able to afford that and not everybody can,” Gasperini said. “Smaller growers may have a real problem with cash flow that soon.”
The 9th Circuit decision stems from a lawsuit filed by 24 Mexican guest workers against a Nevada onion farm, Peri & Sons, in 2011.
The workers claimed they weren’t properly reimbursed for roughly $400 in travel expenses that each had to pay to work at the onion farm, among other allegations.
A federal judge in Nevada dismissed their complaint, but the 9th Circuit has now revived some of their claims and allowed the lawsuit to proceed.
A key finding in the 9th Circuit opinion is that travel reimbursements for H-2A workers are governed by the Fair Labor Standards Act, which has a much shorter period for repayment than the H-2A regulations.
Peri & Sons argued the H-2A regulations should not by rendered superfluous by the stricter reimbursement period under the Fair Labor Standards Act.
However, the 9th Circuit found that the U.S. Department of Labor — which weighed in on the case in a court brief — was reasonable in applying the shorter reimbursement period, and the three-judge panel deferred to the agency.
Gasperini said he was concerned the Department of Labor will extend this logic to domestic workers who apply for jobs advertised under the H-2A program. Farmers are required to advertise positions to domestic workers before hiring foreigners.
The worry is that the agency will require farmers to reimburse domestic workers for travel expenses in the first week of employment if they accept H-2A positions, he said. “We don’t want the DOL to say, ‘You have to pay the travel cost.’”