Concrete Company Fined by DOL for Misusing H-2B 'Landscapers'

By Dan Cadman on April 19, 2018

Law 360 has published a brief article about a concrete company being fined by the Department of Labor (DOL) for underpaying H-2B unskilled cement workers (partially behind a paywall). It cites DOL as having assessed the Metropolitan Concrete Corporation of Michigan $73,647 in back pay to the workers, and $29,161 in damages, for a total of nearly $103,000.

This is the kind of case that I love to see, because it shows at least a modicum of interest on the part of the federal government in policing the ranks of unscrupulous employers, and maybe even along the way making at least some of them come to understand that paying a decent wage to American workers is easier in the long run than lengthy and disruptive investigations resulting in fines and penalties.

Here are some snippets from the article:

The DOL said in a statement that Metropolitan Concrete Corp. had paid 15 workers hired under the H-2B visa program a lower wage than it should have, due to its misclassification of the workers as landscapers rather than cement masons and concrete finishers....

During an investigation by the DOL’s wage and labor division, investigators found that the concrete company had failed to pay the foreign workers’ transportation costs and did not provide them with the tools or equipment necessary to do their jobs, according to the statement....

The DOL also found that Metropolitan improperly took a portion of the workers’ wages for housing expenses, which the department said were "impermissible deductions."

In a DOL press release, Timolin Mitchell, the Detroit Wage and Hour Division chief, is quoted as saying:

The H-2B program safeguards American employees against displacement and also protects vulnerable foreign workers from being paid less than the prevailing wage or otherwise working under substandard conditions. This case demonstrates our commitment to ensuring all workers are paid what they have legally earned and to leveling the playing field for law-abiding employers. Employers with questions about guest worker programs are encouraged to reach out to us for information and compliance assistance.

That sounds good, but masks some ugly realities, first among them the fact that there aren't enough Wage and Hour investigators nationwide to cover the multiplicity of companies that rely, often through shady means such as Metropolitan's, on cheap, unskilled foreign labor.

Second among those ugly facts is the question of exactly how it was that Metropolitan got away with getting labor certifications and H-2B approvals for these workers in the first place. It doesn't say much for either DOL or the Department of Homeland Security (DHS) vetting procedures that something this obvious slipped through the cracks. After all, this was a concrete company; why wouldn't someone ask why they wanted landscapers before approving the request?

Finally we have the avoid-culpability game played by Congress two years in a row, in which it raised the number of available H-2B slots that the DHS secretary could approve if he/she so chose. The first time they did that, John Kelly was the secretary and he went along with the shell game by approving a hefty increase for businesses that "will likely suffer irreparable harm" from not getting the visas, but claiming that it was the last time it would happen—in fact, you can still find the U.S. Citizenship and Immigration Services web page stating, "This is a one-time increase based on a time-limited statutory authority. It does not affect the H-2B program in future fiscal years. It will expire at the end of the day on Sept. 30, 2017". (Emphasis in the original.)

Of course Kelly is now Chief of Staff at the White House, and the woman who was his chief of staff at DHS, and is now running the show as DHS secretary, nonetheless suggested she was likely to raise the cap after Congress played its shell game by once again hiding an authorized increase of H-2Bs in the Comprehensive Budget Act of 2018 that it finally got around to passing halfway through the 2018 federal fiscal year, potentially making her old boss a liar.

So much for protecting American workers, and so much for "Buy American, Hire American". In the end, it's actions that count, not words.