U.S. Dept of Labor - Investigating Landscape Ind.

Discussion in 'Business Operations' started by Green Insurance Guy, Sep 13, 2018.

  1. Green Insurance Guy

    Green Insurance Guy LawnSite Member
    Messages: 52

    I got this email for the Texas Nursery & Landscape Assoc. and thought it was worth sharing here...

    *TNLA Member Alert* U.S. DOL to Investigate Landscape Industry Employers Use of H-2B Program
    As of yesterday, the Department of Labor’s Wage and Hour Division (WHD) is announcing a new effort to investigate the users of the H-2B seasonal worker visa program, with a special focus on the landscape sector. The landscape sector is the largest user of H-2B visas, both across the United States and in Texas.

    The Department press release states the new effort’s purpose –

    “This initiative demonstrates our commitment to educate employers about those rules and enforce them to safeguard American jobs, protect guest workers, and level the playing field for law-abiding employers.

    Last year, WHD investigations found more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the landscaping industry. A key component of the investigations is ensuring that employers recruit U.S. workers before applying for permission to employ temporary nonimmigrant workers.”

    Landscape will not be the only sector targeted by the Department of Labor. The WHD announced on Sept. 5th a similar initiative for the hotel and resort industry. A portion of the investigations are being said to be educational in purpose by providing employers with tools to utilize in order to ensure better compliance.

    TNLA remains actively engaged alongside our national partners in monitoring the ongoing nature of this new initiative and we will update our members as more information becomes available.

    For the full Department of Labor press release please click here: https://www.dol.gov/newsroom/releases/whd/whd20180912
    stomachbuzz and hort101 like this.
  2. stomachbuzz

    stomachbuzz LawnSite Member
    Messages: 115

    If they came to my area to shake things up, I think all my competition would disappear overnight! :popcorn:
    hort101 likes this.
  3. TPendagast

    TPendagast LawnSite Fanatic
    Messages: 14,915

    You’re inexperienced with what you’re reading.
    Just because there’s large companies in your area using h2b doesn’t mean anything,
    No one is doing a thing to make h2b go away.

    During the application process there’s a compliance form you hand to fill out.
    It’s a list of any American that applied for the job and why you didn’t hire them.
    Typically it’s the STATE DOL that monitors this process before it’s turned over to the feds.
    If the state has other things to do or the person assigned the case isn’t familiar with what to do,
    You could fill out the paper work with joe schmoe didn’t show up for his interview and there’s my paperwork.

    Part two is if any Americans are doing similar work (like lawn mowing) then you have to pay them the same wage and benefits.
    This means if DOL has determined the h2b rate in your area is $16, everyone needs to get at least that.
    It also means that since you have to pay for the h2b workers to get to the location of the job, Americans are also entitled to the travel benefits, so if a guy from Tennessee applies to a job in Illinois you’re required by law to fly him there or pay for his bid ticket to get to the job, just like h2b from Mexico.
    Additionally when white boy arrives you have to give him some place to stay just like h2b.

    This is where the “back wages” are coming into play.
    The myth h2b workers are getting paid less is a big myth, proven so by this article.

    Part 3 of this is anyone cheating and not paying h2b workers the prevailing wage that’s been determined.

    All that’s required is to look at the companies paperwork.
    Most violations come from a) workers must be paid for a minimum of 3/4 of a work week in 12 week blocks.
    In order to sneak in their workers to get them before the cap is up, companies apply for and bring them up earlier than they can actually use them,
    Let’s say you’re in Illinois and your season doesn’t begin until May 10th but you bring the guys up March 30th so you make sure you have them and they don’t get capped out.
    Law says you have to pay them AT LEAST 30 hours a week. Work or no work

    Let’s say you bring them up and need them for 18 weeks, law says you have to pay them in 12 week increments, meaning there’s still 6 weeks left on their second block of 12 weeks and you owe them 30 hours a week for those six weeks, doesn’t matter if your work need is over....
    this is also where the back wages are coming from.

    So no investigators are going to show up and evaporate your competition. H2b workers aren’t going to be hauled off by the INS
    Their visas are still legal
    Green Insurance Guy likes this.
  4. BrendonTW

    BrendonTW LawnSite Bronze Member
    Male, from Oklahoma City
    Messages: 1,009

    So you have to have them in 12 week increments to make it work best. 12, 24, 36 etc.?

    What if you don’t use all the visas that you apply for?
  5. TPendagast

    TPendagast LawnSite Fanatic
    Messages: 14,915

    You don’t have to USE the visas
    Visas are granted
    Upto 66,000
    When the cap is hit
    There’s typically a cry for more
    Then USCIS looks to see if all the visas granted were actually used.
    If there are unused visas, they grant them to others waiting for workers.

    So the only “issue” with not using all your visas is being a butt hole to other people trying to get theirs.

    That and you do pay for something you didn’t use, so there’s that.
  6. TPendagast

    TPendagast LawnSite Fanatic
    Messages: 14,915

    Also to be clear
    You don’t have to have your workers for 12, 24 or 36 weeks,
    Only that you have to guarantee pay them for 3/4 of that time
    So for example
    If your workers were here for 20 weeks and worked forty hour weeks, you’re good
    You paid them 100 percent of the first 12 and 75 percent of the second
    But if you need them for say 30 weeks
    And they work forty the first 12, forty the second 12 and only 40 for the next 6 weeks
    Then you owe them 120 hours worth of pay.... EACH! because you didn’t pay them the guaranteed 3/4 work weeks for the full 12 week period.

    Understand where the “back pay” is coming from now?
  7. BrendonTW

    BrendonTW LawnSite Bronze Member
    Male, from Oklahoma City
    Messages: 1,009

    So theoretically if you brought them for 9 weeks they will need to have been paid 480 hours. If they logged and were paid 40 hours plus 14 hours of overtime for that 9 weeks, everything is good, correct?
  8. greenlawn33a

    greenlawn33a LawnSite Senior Member
    Messages: 285

    Great news. Where I'm at all the big companies have almost zero Americans working for them... they use the H2B or illegal citizen labor. The Smaller companies and solo all seem to be American citizens... at least make sure the big companies are following the law so the little guy has a equal playing field. I never see landscape adds from the big companies seeking workers. So maybe they are not following all the rules.

    Next the govt. needs to start checking these roofing companies around here.

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