Hey Compliance Warriors!
On December 7, 2021, the U.S. Department of Labor’s Wage and Hour Division (WHD) published Field Assistance Bulletin No. 2021-3 addressing overtime obligations pursuant to the H-2B Visa Program.
WHD enforces federal labor laws related to the H-2B visa program and has the authority to institute administrative proceedings, recover unpaid wages, enforce job orders, and debar violators from future participation in the H-2B visa program when violations are found.
Field Assistance Bulletin No. 2021-3 provides the following guidance:
- If overtime hours will be made available to H-2B workers, the job order must specify that overtime will be available and state the wage offer(s) for working overtime hours.
- Employers must comply with all applicable Federal, State, and local employment-related laws during the period of employment specified on the Temporary Employment Certification (TEC) Application. Where multiple overtime laws apply, the employer must comply with the law that provides the greatest benefit to the employee.
- Employers in the H-2B visa program must ensure that job applicants from the U.S. are fully informed of all benefits associated with the job opportunity, including the potential for overtime wages.
- Employers must pay the wage offered in the job order, free and clear, during the entire period covered by the TEC Application. The offered wage must equal or exceed the highest of the prevailing wage or Federal, State, or local minimum wage.
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