WASHINGTON, DC – The U.S. Department of Labor has announced that it has proposed an 18-month delay in the effective date of a final rule on calculating prevailing wages of certain immigrants and non-immigrant workers. Published in January 2021, the final rule affects employers seeking to employ foreign workers on a permanent or temporary basis through certain immigrant visas or through H-1B, H-1B1 and E-3 non-immigrant visas.

The proposed delay will provide the department with sufficient time to consider the rule’s legal and policy issues thoroughly, and issue an upcoming Request for Information and gather public comments on the sources and methods for determining prevailing wage levels.

The proposed delay will also give agency officials sufficient time to compute and validate prevailing wage data covering specific occupations and geographic areas, complete necessary system modifications and conduct public outreach. This proposed rule follows an initial 60-day delay announced earlier this month. The department based that action on a Jan. 20, 2021, White House memo.

The Federal Register published the proposal in its March 22, 2021, edition. Submit comments on the proposed delay for 30-days from its publication at https://www.regulations.gov/.

MANCHESTER, NH – A Hampstead contractor falsified pay records to mask its failure to pay workers the required overtime wages they earned, but the outcome of a U.S. Department of Labor investigation has set the record straight.

The department’s Wage and Hour Division recovered $87,360 in back wages owed to 28 employees of Facades Inc., a commercial exterior surfaces applicator-installer. In addition, the division assessed a civil money penalty of $19,516 to address the willful nature of the violations, which included the employer’s falsification of payroll records.

Investigators found Facades Inc. violated the Fair Labor Standards Act when it paid straight time for overtime hours worked by employees and concealed those payments as “reimbursements” in payroll registers. Rather than recording and paying for overtime hours at time-and-one-half workers’ regular rates of pay, the employer recorded only up to 40 hours in their records and masked their straight time payment for any additional hours.

“Workers deserve to get paid all the wages they have earned, and our enforcement of the law ensures that happens,” said Wage and Hour Division District Director Daniel Cronin in Manchester, New Hampshire. “In this case, the employer attempted to conceal illegal straight-time-for-overtime payments. In addition to being held accountable for back pay, the employer paid a significant civil money penalty. Other employers should use the outcome of this investigation as an opportunity to review their own pay practices to avoid violations like those found in this case.”

For more information about the FLSA and other laws enforced by the division, contact the division’s toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at www.dol.gov/agencies/whd, including a search tool to use if you think you may be owed back wages collected by the division.

GAINESVILLE, VA – For 17-year-old drivers, the Centers for Disease Control cites inexperience, distracted driving, and night and weekend driving as factors that place them among those with the highest risk for motor vehicle crashes. Putting drivers this age behind the wheel to make “as soon as possible” deliveries also violates federal child labor laws, a fact ignored by the operators of a Virginia pizza restaurant.  

An investigation by the U.S. Department of Labor’s Wage and Hour Division has found Pizza Margherita Inc. NY – operating as Pizza NY Margherita in Gainesville – employed six 17-year-old minors to work as delivery drivers. The Fair Labor Standards Act prohibits minor employees from driving a motor vehicle to make urgent, time-sensitive deliveries.

The employer paid a civil money penalty of $11,052 as result of the investigation, which also noted an overtime violation for one affected employee.

“Employing a minor to operate a motor vehicle to make food deliveries not only endangers the driver, it also puts other drivers at an increased risk for collisions. Fortunately, the worst-case scenario did not occur in this instance, however, we hope this action reminds employers in the industry of the rules related to youth employment, especially in light of the rise in demand for food deliveries during the pandemic,” said Wage and Hour District Director Nicholas Fiorello in Baltimore.  

The FLSA establishes both hours and occupational standards for minor employees. Children under age 18 may not be employed in any occupation the Secretary of Labor has declared to be hazardous. Employers must follow these rules unless a specific exemption applies.

For more information about the FLSA and other laws enforced by agency, contact the division’s toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at www.dol.gov/agencies/whd, including a search tool to use if you think you may be owed back wages collected by the division.

TRAVERSE CITY, MI – The H-2B Visa program exists to help supply employers with temporary foreign workers they need while protecting U.S. workers’ access to the same jobs. The program does not permit employers to misuse the program and not pay foreign and U.S. workers the same legally required wages.

The failure by Universal Cleaners LLC – a Traverse City commercial cleaning company – to meet the program’s requirements has led an administrative law judge in Cincinnati, Ohio, to approve consent findings and a settlement agreement between the company and the U.S. Department of Labor.

Through the settlement agreement, the employer will pay $56,734 in back wages to 10 temporary foreign workers who provided janitorial services and who the company paid less than the required prevailing wage rate. The agreement also required Universal Cleaners to pay $51,309 in civil money penalties.

The violations brought before the judge were found in a U.S. Department of Labor Wage and Hour Division investigation that also determined that, while the company shortchanged the workers’ wages, they also gave preferential treatment to these workers over U.S. workers. The division also identified violations of the Fair Labor Standards Act.

“Temporary foreign workers are meant to fill jobs for which a sufficient number of U.S. workers cannot be found. To protect U.S. workers, the employment opportunities must be advertised to both U.S. and guest workers in an equal manner,” said Wage and Hour Division District Director Mary O’Rourke in Grand Rapids, Michigan. “The Wage and Hour Division is committed to protecting U.S. workers and ensuring employers that use the H-2B visa program abide by all program requirements.”

The division determined Universal Cleaners violated the H-2B Visa program when it:

• Failed to advertise to U.S. workers that housing would be provided with this job.
• Advertised to U.S. workers that job applicants would have to submit to a drug test and meet lifting requirements, but no employees were subject to those requirements.
• Paid temporary foreign workers less than the required prevailing wage rate for janitorial work. The employer should have paid $12.56 per hour but instead paid $10.50 and $11.25 per hour.
• Employed a temporary foreign worker to do landscaping, despite being hired to work as a janitor.
• Failed to reimburse guest workers for their expenses traveling from and returning to their home countries, as required.
• Applied for temporary foreign workers for employment from April 1 to Nov. 30 but actually employed some workers outside of that period.
• Failed to notify proper authorities of the separation of one of the temporary foreign workers.

The division also found Universal Cleaners violated the FLSA when they failed to pay one employee overtime at the legally required rate.  

In addition to paying the penalties and back wages, Universal Cleaners agreed to use a controller to oversee all hiring, payroll and employment practices involving temporary foreign workers. The employer also hired legal counsel specializing in labor and employment law and business-related immigration matters to assist with the H-2B application process and compliance with the H-2B program, and retain a third party to perform H-2B compliance audits. Future violations of the H-2B provisions could result in additional penalties and debarment from the program.

For more information about the H-2B Program, the FLSA and other laws enforced by WHD, contact the Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at www.dol.gov/agencies/whd, including a search tool to use if you think you may be owed back wages collected by the division.

COURT NO: Administrator, Wage and Hour Division, U.S. Department of Labor V. Universal Cleaners LLC, 2020-TNE-00040

DELAWARE, OH – Creative Foundations Inc. has paid $327,848 in back wages to 223 employees after the U.S. Department of Labor’s Wage and Hour Division found the Delaware-based employer violated the Fair Labor Standards Act’s overtime and child labor requirements. The department assessed $671 in civil money penalties for the employer’s child labor violations.

Investigators determined the employer violated the FLSA’s overtime requirements when it paid some employees flat salaries regardless of the number of hours they worked each week. By doing so, the employer failed to pay overtime to those employees when they worked more than 40 hours in a workweek.

Investigators found Creative Foundations further violated overtime requirements when they failed to pay health care employees for time they spent traveling between clients’ locations during the workday. The employer also failed to include employee bonuses in their calculation when determining workers’ overtime rates. This exclusion resulted in Creative Foundations paying overtime at rates lower than those required by law. Additionally, the employer failed to total hours employees worked at different rates of pay within the workweek when determining when overtime was due.  

In addition to the wage violations, investigators determined the employer violated the FLSA’s child labor requirements by employing a minor under age 16 during school hours, for more than 3 hours on a school day, and for more than 18 hours during a school week.

“Health care workers who provide dignity and care to vulnerable clients deserve to be paid all of their hard-earned wages,” said Wage and Hour District Director George Victory in Columbus, Ohio. “Employers are responsible for understanding and complying with federal labor laws. We encourage them to contact us for guidance and to use the compliance assistance tools and information we offer.”

Creative Foundations operates five adult day care service locations for individuals with developmental disabilities and four branch office locations providing home health care services in Ohio.

The Wage and Hour Division offers numerous resources to ensure employers have the tools they need to understand their responsibilities and to comply with federal law, such as online videos, and confidential calls to local division offices. For more information on federal wage and child labor laws, visit http://www.dol.gov/agencies/whd or call the division’s toll-free helpline at 866-4US-WAGE (487-9243).

SMITHFIELD, NC – Temporary foreign workers are essential contributors to America’s agricultural workforce, and laws enforced by several federal departments, including the U.S. Department of Labor, govern their hiring, wages and working conditions.

Following an investigation by the department’s Wage and Hour Division, Administrative Law Judge Dana Rosen has issued an order debarring Francisco Valadez Jr. LLC – a Smithfield-based farm labor contractor – from applying for certification to request temporary foreign workers under the H-2A temporary agricultural program for 2 years. The order also assessed a $17,892 civil penalty for Valadez’s violations of the program’s labor provisions. 

Division investigators found Valadez, who provided H-2A workers to harvest blueberries at Winzeler Farms LLC in Kelly and Sleepy Creek Farms in Harrells, failed to:

• Pay some workers required wages.
• Reimburse workers’ travel expenses from their home countries to the employer’s facility.
• Reimburse workers for their visa costs and border crossing fees.
• Forbid cost shifting, allowing seven workers in Mexico to pay recruiting fees to be placed on a list of workers to come to the U.S.
• Meet transportation safety requirements by transporting workers without required driving authorization, driving workers with a suspended license.
• Provide housing free of waste material and kept in sanitary condition.

The employees filed private action lawsuits for back wages owed through Legal Aid of North Carolina, the North Carolina Justice Center, and the Indiana Legal Services.

Sleepy Creek Farms provides berries to retailers such as Trader Joe’s, Harris Teeter, Driscoll’s, and Food Lion, among others. 

“The H-2A program specifically requires employers and contractors to provide workers with safe working conditions, housing and transportation. It also demands that they pay workers the wages they have legally earned,” said Wage and Hour Division District Director Richard Blaylock, in Raleigh, North Carolina. “This program protects low-wage, vulnerable guest workers at the same time it protects U.S. farm workers. Our enforcement ensures these protections and prevents employers who do not follow the rules from gaining an unfair advantage over other H-2A employers. We strongly encourage growers against hiring known debarred labor contractors who may attempt to continue to offer their services using another name or newly-formed company names and LLCs. The Wage and Hour Division will continue to investigate any allegations made regarding these debarred H-2A employers.”

Federal law empowers the division to suspend, revoke or withhold renewal of farm labor certificates for contractors that commit multiple violations under the Migrant Seasonal Protection Act or that fail to comply with a final order requiring the payment of a civil money penalty for a violation. Employers are encouraged to review the MSPA eligible farm labor contractor and H-2A debarment lists prior to contracting for labor.

The division offers multiple compliance assistance resources, including an agriculture compliance assistance toolkit, to provide employers the information they need to comply with the law. For more information about MSPA, H-2A and other laws enforced by the division, contact the toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at http://www.dol.gov/agencies/whd. For additional information regarding the ongoing lawsuits with legal aid, please call (919) 523-6665 for the Legal Aid of North Carolina or (317) 762-4253 for the Indiana Legal Services.

Read this news release En Español.

TAMPA, FL – A Tampa restaurant enterprise has paid $102,894 in back wages to 11 workers after a federal investigation found the employer illegally denied them overtime pay.

U.S. Department of Labor Wage and Hour Division investigators determined Sarione Restaurant Inc. – operating as Sarione Korean Restaurant – and Sarione Grill Inc. violated the Fair Labor Standards Act by incorrectly classifying cooks and dishwashers as exempt from overtime requirements, and paying them fixed semi-monthly salaries, regardless of the number of hours they worked. By doing so, the employer failed to pay these workers overtime when they worked more than 40 hours in a week. In addition, the employer failed to record the number of hours the employees worked.

“Employers must understand that paying workers a fixed salary does not automatically excuse them from paying overtime,” said Wage and Hour Division District Director Nicolas Ratmiroff, in Tampa, Florida. “Unless a specific exemption applies, even workers paid on a salary basis must be paid overtime when they work more than 40 hours in a week. The essential workers in this case deserve to be paid every cent they have earned. The U.S. Department of Labor encourages all employers to contact their nearest Wage and Hour Division office for assistance understanding their responsibilities under the law.”

The division offers numerous resources to ensure employers have the tools they need to understand their responsibilities and to comply with federal law, such as online videos and confidential calls to local Wage and Hour Division offices. Learn more about the FLSA. Contact the Wage and Hour Division toll-free at 866-4US-WAGE (487-9243) for more information.

ORLANDO, FL – An Orlando landscaping employer will pay $48,978 in back wages to 39 workers after a federal investigation found the employer paid employees illegally for the hours that they worked.

U.S. Department of Labor Wage and Hour Division investigators determined Aaction Scape Inc. violated the Fair Labor Standards Act by incorrectly classifying workers as exempt from overtime requirements and paying them flat biweekly salaries, regardless of the number of hours they worked. By doing so, the employer failed to pay workers the additional half time required by the FLSA when they worked more than 40 hours in a workweek. In addition, the employer failed to keep a record of the number of hours the employees worked.

“Employers must understand that paying workers a salary does not excuse them automatically from paying them overtime,” said Wage and Hour Division District Director Wildalí De Jesús in Orlando, Florida. “These workers deserve to be paid all the wages they have earned. The U.S. Department of Labor encourages all employers to contact their nearest Wage and Hour Division office for assistance with understanding their responsibilities under the law.”

The division offers numerous resources to ensure employers have the tools they need to understand their responsibilities and to comply with federal law, such as online videos and confidential calls to local Wage and Hour Division offices. Learn more about the FLSA. Contact the Wage and Hour Division toll-free at 866-4US-WAGE (487-9243) for more information.

ATLANTA – The U.S. Department of Labor’s Wage and Hour Division is currently engaged in an education and enforcement initiative to increase compliance with federal labor laws in the Southeast’s agricultural industry. In addition to enforcement activity, the initiative provides compliance assistance to employers and educates workers and other stakeholders.

The division, together with industry stakeholders in Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee is exploring a variety of methods to raise industry awareness and provide information and tools to increase compliance. Outreach by division representatives has included regional educational events hosted by local fruit and vegetable growers’ associations. In the months ahead, outreach will extend to various commodity groups, trade associations, and farmworker advocates. Compliance assistance and enforcement work hand-in-hand, and data supports the need for the division’s focus on both fronts.

In calendar year 2020, investigators in the division’s Southeast Region found violations in 78 percent of the more than 280 investigations they completed of agricultural employers. These investigations found that the employers owed more than $2.7 million to more than 4,400 employees, and led the division to assess more than $3 million in civil money penalties. During the same period, the division debarred seven Southeast growers and farm labor contractors from eligibility to participate in the H-2A temporary labor certification agricultural guest worker program. In addition, the department liquidated more than $250,000 in employer surety bonds to secure back wages owed to workers.

“Vulnerable, low-wage farm workers deserve to be paid every penny they have earned, and to work in safe environments,” said Wage and Hour Division Regional Administrator Juan Coria, in Atlanta. “These workers have kept our country moving forward under very difficult circumstances. Our work ensures that they are both protected and respected, and levels the playing field for employers throughout this vital industry. No one should gain an unfair economic advantage by skirting the rules.”

Federal law empowers the division to suspend, revoke or withhold renewal of farm labor certificates for contractors that commit multiple violations under the Migrant Seasonal Protection Act or that fail to comply with a final order requiring the payment of a civil money penalty for a violation. Employers are encouraged to review the MSPA eligible farm labor contractor and H-2A debarment lists prior to contracting for labor.

The Wage and Hour Division offers multiple compliance assistance resources, including an agriculture compliance assistance toolkit, to provide employers the information they need to comply with the law. For more information about MSPA, H-2A and other laws enforced by the division, contact the toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at http://www.dol.gov/agencies/whd.

Read this news release En Español.

MANCHESTER, NH – Two Nashua restaurants learned that paying flat salaries to its workers doesn’t waive their responsibility to pay overtime when those employees work more than 40 hours in a workweek. Doing so violated the Fair Labor Standards Act, and resulted in the back wages found due in a U.S. Department of Labor Wage and Hour Division investigation.

The division recovered $108,043 in back wages for 17 employees and cited Lilac Blossom North and Lilac Blossom South for violations of the FLSA’s minimum wage and overtime requirements.

Investigators found the employer paid cooks and bussers flat salaries, regardless of the number of hours they worked per week. By paying flat salaries, the employer failed to pay overtime when those employees worked more than 40 hours in a workweek, in violation of federal law. The division also found the employer violated FLSA recordkeeping requirements when it failed to record the number of hours employees worked, including time some employees spent transporting other workers to and from employer-provided housing.

In addition, the employer violated the FLSA’s minimum wage requirements when it failed to provide a final paycheck to one employee at its Lilac Blossom South location.  

“Simply paying someone a salary doesn’t mean they are exempt from overtime,” said Wage and Hour Division District Director Daniel Cronin in Manchester, New Hampshire. “Most employees, even those paid a fixed salary or flat amount per day or shift, are entitled to overtime unless a specific exemption applies. Workers deserve to take home every penny they have earned, and other employers should use this case as an opportunity to review their own pay practices to ensure they comply with the law.”

The division offers numerous resources to ensure employers have the tools they need to understand their responsibilities and to comply with federal law, such as online videos and confidential calls to local Wage and Hour Division offices. Learn more about the FLSA. Contact the Wage and Hour Division toll-free at 866-4US-WAGE (487-9243) for more information.