Employers who obtain H-2B workers take on specific legal obligations that continue throughout the workers' authorized period of employment. The employer must pay the prevailing wage that was established in the DOL certification for the duration of the employment, and wages cannot fall below that rate for any reason, including reduced hours. The employer is also responsible for providing or reimbursing the workers' inbound transportation costs under certain circumstances, and must provide housing if the employer has represented to DOL that housing will be provided. Failures to meet these obligations can result in back wage liability and debarment from the H-2B program.
Recordkeeping is another compliance area that landscaping employers sometimes underestimate. DOL regulations require H-2B employers to maintain payroll records, copies of all recruitment documentation, and evidence of compliance with the wage and working condition requirements for a period of three years following the date the certification was issued. These records may be audited by the DOL's Wage and Hour Division, and employers who cannot produce them face adverse findings regardless of their actual compliance. Brodzki Jacobs helps establish the recordkeeping systems that protect the employer in the event of a DOL review.
