The Department of Labor (DOL) Wage and Hour Division (WHD) has issued new guidance which better protects workers’ rights in the H-2B program. Directed at WHD’s field investigators, who are tasked with investigating cases at the local level, this new and updated guidance addresses two widespread abuses that workers, advocates, and CDM have raised—misclassifying jobs and failing to pay overtime.
We are pleased with these developments, which are critical to ensure workers are not robbed of their wages.
Employers often misclassify jobs in order to run an inroad around DOL. When employers apply for employment certifications from DOL, they are supposed to describe the work that H-2B workers will do. In reality, unscrupulous employers describe one job to get an H-2B employment certification and then require workers to do an entirely different job, often underpaying them in the process.
Employers mislead the government and workers by misclassifying jobs to avoid paying the prevailing wage—the wage the law requires them to pay to H-2B workers. By clarifying that employers must pay the highest prevailing wage if a job involves two distinct roles, and reiterating WHD’s commitment to enforcing that protection, the DOL is taking an important step towards ending misclassification. We applaud DOL’s efforts to stop this practice.
Without oversight, abusive employers who misclassify jobs may underpay H-2B workers by thousands of dollars over a season.
The misclassification guidance follows WHD’s December 2021 guidance on overtime pay for H-2B workers. There, the WHD emphasized an issue that workers and CDM have raised for more than a decade—H-2B employers must follow state and local overtime laws in paying H-2B workers overtime.
The WHD’s new guidance is a promising first step towards ending common wage abuses in the H-2B program. We urge the WHD to prioritize protecting H-2 workers’ rights by promptly investigating complaints about employer abuses.