Wage and Hour Division (WHD)
U.S. Department of Labor
CLOVIS, N.M. -- Jimenez Custom Harvesting Inc. in Clovis has agreed to pay 45 current and former workers $66,979 in back wages after an investigation by the U.S. Department of Labor’s Wage and Hour Division found violations of the Fair Labor Standards Act and of the provisions of the H-2A temporary agricultural worker program, established under the Immigration and Nationality Act. Additionally, the department has assessed civil money penalties totaling $35,625.
“The Labor Department will take all necessary actions to ensure that companies follow the law,” said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest. “Agricultural workers are among the most vulnerable in the workforce and are entitled to be paid properly for all hours worked, including those over 40 in a week. The civil money penalties assessed in this case should make it clear that we take compliance with these laws very seriously, and we expect employers to do the same.”
Jimenez Custom Harvesting Inc. harvests wheat, corn, alfalfa, sorghum and other feed crops for area dairy farms. An investigation by the division’s Albuquerque District Office found that the employer violated H-2A program provisions by failing to compensate workers hired through the program for time spent in travel, failing to pay the required hourly rate for all hours worked and making illegal wage deductions for such items as flight change fees and lost keys.
Investigators found that the employer violated the FLSA by paying employees “straight time” instead of time and one-half their regular rates for hours worked over 40 in a week. Although overtime requirements do not apply to all agricultural workers, the overtime requirements were found to be applicable to certain employees in this case when they were performing nonexempt work during non-harvest periods. Additionally, the employer paid truck drivers on a commission basis, without regard to the number of hours they had worked, which resulted in their pay falling below the federal minimum wage of $7.25 an hour. The employer also failed to maintain FLSA-required records.
In addition to paying the back wages owed, the employer has agreed to future compliance with the FLSA and the provisions of the H-2A program.
The H-2A program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform temporary or seasonal agricultural work. The employer must file an application stating that there are not sufficient domestic workers available and the employment of these workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Employers using the H-2A program must meet a number of specific conditions for recruiting, paying, housing, feeding and transporting workers. More information about H-2A requirements is available at http://www.dol.gov/whd/regs/compliance/whdfs26a.htm
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 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, employers must maintain accurate time and payroll records.
For more information about the FLSA and other federal wage laws, call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243) or its Lubbock Area Office at 806-472-7666. Information also is available at www.dol.gov/whd.
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