Date: Jun 17, 2014
U.S. Supreme Court Denies Review in Foreign Labor Case

As we reported in Spotlight on March 25, 2014, Western Growers, along with a number of statewide and national agricultural employers and organizations, signed on to an amicus curiae (friend of the court) brief in support of Peri & Sons Farms’ Petition for Writ of Certiorari (request for review) to the U.S. Supreme Court.  Peri & Sons Farms produces, harvests, and packages onions and is a Nevada-based member of Western Growers.

After an adverse ruling in the Ninth Circuit Court of Appeals, Peri & Sons petition asked the nation’s high court to consider two issues: (1)whether H-2A employers are responsible for reimbursing foreign workers’ pre-employment travel and immigration expenses during the first work week as required by the Fair Labor Standards Act, or after the employee has completed 50 percent of the contract, as provided by the H-2A regulations; and (2) whether deference is owed to the Department of Labor’s (DOL) interpretation of the Fair Labor Standards Act (FLSA) and its regulations.

Unfortunately, on June 16, 2014, the Supreme Court denied Peri & Sons Farms’ petition for certiori. This means the Ninth Circuit Court of Appeals’ decision requiring reimbursement of pre-employment travel and immigration expenses during the first work week stands.

The case has implications beyond the H-2A employer community.  The Ninth Circuit concluded that it was required to defer to the DOL’s interpretation of an ambiguous regulation, and that interpretation decided the case.  Unfortunately, after the Supreme Court’s denial of review, such deference to an executive agency’s interpretation of its own regulations remains alive and well.

In light of this decision, all employers that utilize H-2A foreign workers should review and revise their policies to ensure that workers are reimbursed for pre-employment travel and immigration expenses during the first work week.

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel

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