Wage and Hour Division (WHD)
U.S. Department of Labor
EDGEWATER PARK TOWNSHIP, N.J. -- Jim Dunphy’s Landscaping LLC has paid $75,199 in back wages to 37 workers and $13,500 in civil money penalties after an investigation by the U.S. Department of Labor’s Wage and Hour Division found violations of the Fair Labor Standards Act and the H-2B provisions of the Immigration and Nationality Act.
“Jim Dunphy’s Landscaping undercut employment opportunities for U.S. workers by offering them a lower rate than what was being paid to nonimmigrant workers from Mexico,” said Patrick Reilly, director of the Wage and Hour Division’s southern New Jersey office. “Vulnerable workers in this case, both the U.S. workers and the guest workers, were exploited by this employer. The resolution of this investigation demonstrates the department’s commitment to using all legal means at our disposal to ensure a level playing field for all businesses and workers.”
The H-2B guest worker program permits employers to temporarily hire nonimmigrant foreign workers to perform nonagricultural labor or services in the United States. Jim Dunphy’s Landscaping employed landscape laborers from Mexico.
The investigation found that the company violated the FLSA when it failed to pay overtime by paying workers at straight-time rates, in cash, for hours worked beyond 40 per week. The FLSA requires payment of time and one-half employees’ regular rates of pay for those hours. The employer also failed to pay the federal minimum wage by requiring the Mexican laborers to pay inbound and outbound transportation costs to and from Mexico in 2010 and 2011, which reduced their wages below $7.25 per hour. Additionally, Dunphy’s Landscaping failed to accurately record daily and weekly hours worked.
The investigation also found H-2B violations when the company failed to comply with recruitment requirements by offering potential U.S. workers rates of pay below those paid to foreign workers and failed to notify federal agencies—the departments of Labor and Homeland Security—when H-2B workers were terminated prior to the completion of their contract terms. The civil money penalty was assessed due to these violations.
Under consent findings and an order signed by an administrative law judge of the department, in addition to paying the civil money penalty the company has agreed to comply in the future with all applicable provisions of the INA and its regulations.
H-2B employment must be of a temporary nature, such as a one-time occurrence, or for a seasonal or peak load need. The program requires the employer to attest to the department that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable federal minimum wage, state minimum wage or local minimum wage for the occupation in the area of intended employment during the entire period of the approved certification. Additionally, certain recruitment and displacement standards have been established to protect similarly employed workers in the U.S. The Wage and Hour Division continues to enforce the provisions of the 2008 H-2B final rule.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Additionally, the law requires that accurate records of employees’ wages, hours and other conditions of employment be maintained.
For more information about federal wage laws, call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243) or its southern New Jersey office at 609-538-8310, or visit http://www.dol.gov/whd.
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