We have been getting a lot of questions about H-2A workers recently. In addition, we are in the process of wrapping up two Wage and Hour Inspections from earlier in this ginning season. It still remains to be seen whether the inspectors will show up in West Texas, but if they do, it is important to be sure you are paying overtime properly to all workers, including your H-2A workers.
DOL Wage and Hour audits have found gins’ failing to comply with overtime rules by not paying their H-2A employees appropriately. Please remember that the Fair Labor Standards Act extends to H-2A employees. Therefore, the same 14-week partial overtime exemption applies to these H-2A employees, and overtime must be paid in accordance with this partial exemption. In addition, if you are using H-2A employees and you are hiring local workers who are performing the same jobs as described in your H-2A job order, both the local employees and the H-2A workers must be paid the same wage rate, which would typically be the Adverse Effects Wage Rate in effect for those H-2A workers in your state.