Mark A Ivener, A Law Corporation

Guestworkers To Recover Wages

In a class action lawsuit, U.S. District Court Judge Clarence Cooper found that unreimbursed expenses incurred by guestworkers for a large forestry contractor, Eller and Sons Trees, Inc., of Franklin, Georgia, may be recovered and that actual damages sought by the workers may exceed $500,000. The employer had sought to cap the damages.

The named plaintiffs are three migrant farmworkers. Eller and Sons Trees provides forest reforestation (tree planting) and forestry services such as brush clearing, boundary marking, and chemical spraying. Most of its employees are engaged in tree planting, predominantly in the southern U.S. during the months of December, January, and February. Eller and Sons Trees cannot find enough employees in the U.S. to perform the work, the decision noted. As a result, most of the workers come from outside the U.S., with the vast majority coming from Guatemala, and others coming from Mexico, Honduras, and Colombia. Eller and Sons Trees obtains temporary seasonal employees through the H-2B visa program.

The guestworkers were represented by the Southern Poverty Law Center (SPLC), and the Legal Aid Justice Center of Virginia is serving as co-counsel. The SPLC said it now must prove how much money is owed to the workers. “This is a great victory for these forestry workers,” said Mary Bauer, director of the SPLC’s Immigrant Justice Project. “For too long this industry has seen guestworkers as a disposable workforce to be used, abused and thrown away. This decision is a signal that those days are coming to an end.”

According to the SPLC, the court also found that the representations an employer makes to the government on H-2B visa applications, such as the total number of hours the employees will work per week, can be enforced by the workers even if they are unaware of what the employer reported to the government. This finding would hold an employer liable for a 40-hour work week promised on its application to federal government, even if the employer never made such an agreement with its workers, the SPLC noted. The judge in this case found that an employer cannot drive a worker’s pay below the minimum wage rate by deducting expenses for things that primarily benefit the employer. The court also found that the prevailing wage rate for the area, rather than the lower minimum wage rate, is protected from such deductions under this principle. The SPLC said that this is the first time such a decision has been reached in a contested case.

The judge found that the costs of passports, visas, and other travel costs not only drove the workers’ pay below the protected rate level but resulted in workers having “negative incomes” in their first week of work. The judge awarded $53,890 to the case’s plaintiffs for expenses that were not reimbursed during their first work week, citing the Fair Labor Standards Act. The SPLC believes that damages for the rest of the class, which the organization expects number into the thousands of workers, may reach into the millions of dollars.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.