DOL cracks down on H-2B users over first line supervisors Email
News
Tuesday, October 25, 2016 06:00 AM

supervisorThis year, landscape companies relying on the H-2B guest worker program to fill seasonal positions with foreign nationals have been “counseled” by U.S. Department of Labor (DOL) that the role of supervisor is being redefined. Owners who have hired H-2B workers for as many as 20 years say DOL’s position defies logic, common sense and standard industry practice.

What is a first line supervisor? The complaint from all companies was DOL’s assertion that employees hired and paid as general labor were in fact “first line supervisors.” DOL maintains when a general laborer drives a vehicle, answers a question from a co-worker about how to do something, or asks a question like, “did you mow the back corner?” – then that employee has become a front line supervisor who should be paid $26/hour instead of the minimum Denver area prevailing wage of about $13.64/hour.

DOL is standing firm. Landscape companies that have been warned during DOL audits of this new interpretation could face fines for non-compliance next season.

The fact is, companies do pay long-time experienced H-2B workers more than $13.64, but not $26 per hour. One owner has been warned by DOL that the first line supervisor ruling will be enforced in 2017. According to another owner, DOL “made it very clear that we have been warned about what a first line supervisor is and that all companies are misrepresenting their “lead” and “foreman” positions.

This owner believes the ruling is meant to kill the program because companies cannot pay the inflated wages and remain competitive. The auditors, say all, have created rules and gray areas that create unfair burdens and disregard common sense.

One owner described their audit as “two years of worry and wondering what gray area was going to be enforced.”  Ultimately, the company was not fined, but “counseled” on several gray areas they were told will be enforced in the future – including compliance with DOL’s position on first line supervisors.

“DOL’s stance is they will enforce these gray areas until challenged by H-2B users – meaning when companies with deep pockets are willing to challenge DOL in court. It’s the only way DOL will look at the rules,” he said.

Read more about DOL, OSHA audits and other government involvement in business in the Government shakedown issue of Colorado Green that will be in your mailbox soon.

Read more in this issue of Colorado Green NOW:
2015 Day of Service project continues to thrive
Interns and apprentices help grow the industry
Why and how to use a safe harbor provision in your handbook
Industry stance on upcoming ballot issues