News from the Courts

The U.S. District Court for the Eastern District of Louisiana recently heard arguments in Castellanos-Contreras v. Decatur Hotels, L.L.C., concerning an issue of first impression for the federal courts, whether the Fair Labor Standards Act (FLSA) applies to non-immigrant alien laborers that temporarily enter the United States on H-2B visas, pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii).  The Court held that the provisions of the FLSA do apply to workers in the United States on H-2B visas.  

The Plaintiffs were guest-workers recruited from various South American countries to work in the Defendant’s luxury hotels in the New Orleans area following Hurricane Katrina’s devastation.  Since the supply of available workers was short, the Defendants arranged for the Plaintiffs to come to the United States on H-2B visas, and then contracted with a personnel services company that assisted in recruiting the workers from abroad with local hiring agents.  In coming to work for the Defendants in New Orleans , the Plaintiffs incurred substantial costs, including travel expenses and visa fees.  In their complaint, the Plaintiffs allege that the FLSA provisions apply to guest workers under H-2B visas, and that Defendants violated the FLSA by failing to reimburse them for these costs, which resulted in a de facto deduction from the Plaintiff’s wages such that they were paid less than $5.15 an hour for their first week of employment.  See 29 U.S.C. § 206(a) (2007) (stating in pertinent part, ". . . Every employer shall pay to each of his employees who . . . is engaged in commerce . . . wages at the following rates: (1) . . . not less than $5.15 an hour beginning Sept. 1, 1997).  

The Court heard arguments on both the Defendant’s Motion to Dismiss and/or Motion for Summary Judgment, as well as the Plaintiff’s Cross Motion for Partial Summary Judgment.  As stated above, the Plaintiffs argued the FLSA applied to the instant case and also that Defendants had violated the FLSA’s minimum wage provisions.  For relevant law, the Plaintiffs cited Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002), which held that H-2A visa workers, under the FLSA,  were entitled to reimbursement of a one time cost of travel to the United States, and for costs incurred in obtaining the H-2A visa.  The Defendants maintained that the FLSA provisions do not protect non-agricultural workers employed pursuant to H-2B visas; alternatively, the Defendants argued that if the FLSA provisions did govern this case, the Plaintiffs were still not entitled to compensation of the alleged costs of migrating to New Orleans .  In support of their alternative argument, the Defendants alleged that the H-2B regulations merely provide that employers who hire H-2B aliens must reimburse them the reasonable costs of return transportation if they are dismissed before the end of the authorized admission period.  See 8 U.S.C. § 1184(c)(5)(A).  

In holding that the provisions of the FLSA do apply to H-2B visa workers, the Court traced the history of H-2B visas, as they diverged from H-2A visa during the Immigration Reform and Control Act of 1986 (IRCA).  See Pub. L. No. 99-603, § 301 (a), 100 Stat. 3359, 3411 (codified at 8 U.S.C. § 1101(a)(15)(H)(i)-(ii)).  The IRCA was enacted specifically for protection of agricultural laborers, as they historically have suffered from low wages, poor working conditions, and long hours.  The H-2A program served the policy of improving these conditions for agricultural workers, but did not make any changes regarding the non-agricultural workers covered under H-2B law.  The Court found that neither Congress nor federal agencies ever stated that H-2B workers were precluded from FLSA protection and that the FLSA applies to any employee, whether he be an alien or citizen.  The Court also noted that although the FLSA did specifically exempt certain classes of employees, none of the exemptions included immigrants; therefore, implicitly H-2B visa workers were included under its protection.  

Although the court held that the Plaintiffs were entitled to assert claims under the FLSA, the court further held that the Plaintiffs prayer for further relief was denied.  Though the Court did not expound upon this second holding, the Court denied the Plaintiff’s request for a declaration that Defendants violated the minimum wage provisions of the FLSA.

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