Recently, Western Growers, along with a number of statewide and national agricultural employers and organizations, signed on to an amicus curiae (friend of the court) brief in support of Peri & Sons Farms’ Petition for Writ of Certiorari (request for review) to the U.S. Supreme Court.
The petition came after an adverse ruling in the Ninth Circuit Court of Appeals. The petition asked the high court to consider the following two issues, according to Western Growers:
1 - whether H-2A employers are responsible for reimbursing foreign workers’ pre-employment travel and immigration expenses during the first work week as required by the Fair Labor Standards Act, or after the employee has completed 50 percent of the contract, as provided by the H-2A regulations; and …
2 - whether deference is owed to the Department of Labor’s (DOL) interpretation of the Fair Labor Standards Act (FLSA) and its regulations.
Should you have further questions on the issue, please feel free to contact: Jason Resnick Vice President / General Counsel
On June 16, 2014, the Supreme Court denied Peri & Sons Farms’ petition for certiori. This ruling means that the Ninth Circuit Court of Appeals’ decision requiring reimbursement of pre-employment travel and immigration expenses during the first work week will stand.
This foreign labor case has a ripple effect beyond the H-2A employer community. The Ninth Circuit concluded that it was required to defer to the DOL’s interpretation of an ambiguous regulation, and that interpretation decided the case. Western Growers notes that, unfortunately after the Supreme Court’s denial of review, such deference to an executive agency’s interpretation of its own regulations remains alive and well.
With this decision in place, all employers that utilize H-2A foreign workers should review and revise their policies to ensure that workers are reimbursed for pre-employment travel and immigration expenses during the first work week.
Stay tuned as we follow the H-2A conversation.
