A group of 24 Mexican farmworkers, hired to work on a Nevada onion farm under the temporary worker H-2A visa program, will get their day in court to pursue claims they are entitled to reimbursement for visa and travel expenses.
The 9th U.S. Circuit Court of Appeals Wednesday reinstated much of the lawsuit by the workers, who claim the Fair Labor Standards Act entitles them to repayment from their employer for hundreds of dollars in recruitment fees, visa application fees, travel expense and the cost of protective gloves.
The panel said the FLSA does apply to workers on the temporary H-2A visa program and revived the lawsuit.
The farmworkers were hired at Peri & Sons farms in Nevada to work picking onions and then return to Mexico. The workers had to pay Peri & Sons employees recruitment fees of $100 to $500, a $400 each to travel from Herosillo, Mexico to Nevada as well as the cost of buying protective gloves at a cost of $10 a week. They also incurred costs of $100 each returning home to Mexico.
“Regulations concerning the H-2A program require employers to reimburse an employee who ‘completes 50 percent of the work contract period… for reasonable costs incurred by the worker for transportation and daily subsistence from the place for which the worker has come to work for the employer… to the place of employment,’” wrote Judge Diarmuid O’Scannlain.
Peri & Sons argued that applied only to the first week of work.
O’Scannlain agreed that the costs primarily benefited the employer and were covered under the FLSA. Refusal to reimburse workers for travel costs and the cost of gloves for the job was a violation of FLSA and breached their contract.
The panel also reinstated Nevada state law violation claims. The workers claim Peri & Sons failed to pay wages due under their employment contracts.
The court also reinstated wage and hour claims and found the workers sufficiently alleged willfulness by the employer on the wage claim that the two-year statute of limitations does not apply.
The court sent the case back to the judge in Nevada.
Case: Rivera v. Peri & Sons Farms, Inc., No. 11-17365
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