The Ninth Circuit Court of Appeals (which includes Arizona and California) has revived a claim for immigration and travel expenses brought by H-2A harvest workers who claim that costs they incurred in procuring employment and travel to the United States dropped their pay below the minimum wage during their first week of employment in violation of the Fair Labor Standards Act (FLSA).
The case was brought by 24 Mexican H-2A workers against Peri & Sons, a Nevada-based onion farm, in 2011. The farmworkers claimed that approximately $500 in travel and visa related expenses they incurred were primarily for the employer’s benefit, and that the company violated the FLSA by failing to reimburse them during their first week of employment.
The federal district court in Nevada tossed out the lawsuit on the basis that the H-2A regulations merely require that employers reimburse an employee who completes 50 percent of the contract period for reasonable costs incurred by the worker for transportation and daily subsistence from the place of recruitment to the place of employment.
The Ninth Circuit disagreed, completely deferring to the Department of Labor and its interpretation that the general FLSA regulation for reimbursement of travel expenses applies on top of the specific H-2A rule.
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