Florida Unpaid Overtime Lawyers Whittel & Melton Discuss the H-2B Visa – PCB Business Cheated Jamaican Workers Out of Rightful Wages

June 7, 2019

A Panama City Beach resort and restaurant group has been ordered to pay $60,000 in back wages and fines after federal investigators determined that they cheated their employees.

After an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD), By The Sea Resorts Inc. – based in Panama City Beach, Florida – will pay $38,513 in back wages to 78 guest workers for violating overtime requirements of the Fair Labor Standards Act (FLSA) and labor provisions of the H-2B visa program.

In total, $7,304 in back wages were found as a result of FLSA violations, while $31,209 in back wages were found for H-2B violations. By The Sea Resorts Inc. also paid a civil penalty of $12,695.

By The Sea Resorts Inc. manages resorts and restaurants in the Panama City Beach area that include Beachbreak, Legacy, Shalimar Retreat Center, Sugar Sands, Chateau, and Ocean Breeze. WHD investigators found the employer hired 117 Jamaican employees to work as housekeepers under the H-2B visa program.

The employer violated the H-2B provisions by placing those employees in occupations not listed on the temporary employment certification that they submitted, such as front desk personnel, dishwashers, and bartenders, while paying them as housekeepers, officials determined.

WHD also found that By The Sea Resorts Inc. automatically made deductions from workers’ time for meal breaks regardless of whether or not they actually took those breaks. These deductions led to FLSA overtime violations when the employer deducted time for breaks that workers did not take and this unpaid and unrecorded time resulted in the employees working more than 40 hours in a workweek.

What Is an H-2B Visa?

The H-2B nonimmigrant program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. The H-2B is an employer-sponsored visa for temporary work that is:

• A one-time occurrence
• A seasonal need
• A peak load need
• An intermittent need

The H-2B program mandates that the employer must demonstrate to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable Federal minimum wage, the State minimum wage, or local minimum wage to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification.

The Wage and Hour Division is responsible for ensuring employers meet these requirements. Any employers who violate H-2B provisions may face administrative consequences such as wage payments and civil money penalties.

Wage Requirements for H-2B Employers

It is important for employers that hire H-2B workers to understand that these workers are protected under not only immigration laws but also under the FLSA. The FLSA establishes minimum wage and overtime requirements for employers, as well as other worker protections. Employers are strictly prohibited from making certain deductions from pay for things such as tools, uniforms or similar expenses, if such deductions would bring a worker’s pay below the required minimum hourly wage.

Are H-2B Employees Treated Differently From Other Workers?

No, employers must offer and pay the same current wage to both American workers and H-2B workers. H-2B workers receive a payroll check with itemized deductions for Social Security, Medicare, state income tax, and Federal income tax. Employers are required to pay their share of Social Security and Medicare, along with Federal Unemployment taxes, state unemployment taxes, and Workers’ compensation insurance on all H-2B workers. H-2B workers pay the same taxes as American employees even though they technically cannot collect the benefits.

What Is the Duration of an H-2B Visa?

The H-2B visa is limited to the employer’s need for the temporary workers. The maximum authorized period is one year. However, the employer may extend the time period of the visa up to three years, however immigration authorities will keep a close watch on the operation.

Let Our Unpaid Overtime Attorneys at Whittel & Melton Help You

If you are working anywhere in the state of Florida, and you believe that you have an unpaid overtime claim, whether you are a regular employee or working under an H-2B visa, let our Florida Unpaid Overtime Lawyers at Whittel & Melton help you understand your legal rights. If you are not being paid lawful wages or for overtime work, we can make sure that your employer is held accountable. We routinely assist employees with issues related to H-2B or other employment visas, and we would be happy to help you.