Is the DOL Out to Get You? Ft. Warren Williams

Kyle sits down this week with former Department of Labor investigator Warren Williams. They chat about some crazy things Warren has seen during his time with the DOL and the various regulations employment based visas are subject to. Listen to hear it all! 

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Produced & Edited By: Drew Tattam

Transcript

Hey everyone and welcome back to the Immigration guy. Uh, today we're sitting down with Warren Williams. He's a former Department of Labor investigator. Warren has extensive knowledge on Visa programs we focus on at Farmer Law. Uh, so welcome Warren and Warren. Thank you so much for joining us. Is there anything that I miss that you'd want to share with people. Uh, no, that was, that was pretty much it, Kyle. I, I appreciate it and, uh, thank you for the opportunity. Um, and I'm, I'm looking forward to providing as much information as I can to, uh, to your clients and guests that are, that will view this. 

Yeah. Well, I, I, I love what you're doing. Hey y'all.

This is the immigration guy with Kyle Farmer.

How long did you work for the DOL as a wage hour investigator. 23 years. 23 years. And you at, at that time, uh, you're, so, you're in Georgia, uh, and during that time you did a lot of H-2A investigation, right? That's correct. That H-2A and, uh, MSPA of course, some of the re the other laws that Wage and Hour does, but yeah, mainly since I'm here in, uh, in South Georgia, where the, um, actually I live in the biggest agriculture county in Georgia, so it's, it's, it's a lot going on here as far as H-2A.

Yeah, I love it. Yeah. And one thing that's particularly cool about you, uh, even when you are a DOL investigator, uh, cuz you, you and I work together, one thing that I've always appreciated about you and that I think that people can get a lot of value out of from you is not only do you know the rules, which is in of itself extremely valuable, but you've seen through your experience how employers have.

Possible to abide by the extensive regulations associated with H-2A filings. Uh, and so that, you know, I just wanted to share with you, that was something that stuck out to me at, you know, even though we were on opposite sides of the table, you did a great job of that. And the, the practical implications there are huge.

And so, I do encourage people. that if they're looking for information on, man, how do people make this specific aspect of the H way thing work, that reaching out to you is very, very valuable. 

Awesome, Kyle, I appreciate that. Yeah. So, tell me a little bit about how you became a DOL investigator and what was it like?

Uh, let's see. Well, um, I was, at the time I was working as a, um, a eligibility case manager at the, uh, Department of Family Children’s Services here in the county I live in, and I had the great, uh, Web TV, um, nothing like the, uh, the, uh, the computers and stuff we use now, Um, so I had the great web TV, and I was just sitting there scrolling through things one night and, and saw wage hour investigator.

I said, oh, okay. Well, I did investigations in the military, so let me see if I can put in for this job. Um, of course I had encouragement for my wife to do it, and at the time I had been putting in just throwing applications out, uh, for jobs to see if I. Get something else. Working as a case manager was okay, you know, uh, it's not a bad, it was local, quick to get to, but I just wanted to get back into the federal system because dealing with the state, um, you can't buy your time back.

And I had done 12 and a half years in the military, so if I got with the federal, then I could buy that time back and, and. Uh, added towards what I was doing already. Um, oh, that's cool. I didn't know that. Yes. Uh, so I was actually, I was in the, when I was in the service, I was military police, so that was, that was actually a great thing for me to try to transition to from doing this.

And, uh, I found a job, uh, I applied, I, I got accepted and. It's a lot of fun. Uh, but it is also a lot of stress. I mean, I have to be completely honest. It's a lot of stress. It's a lot of work. Um, you, you, you learn all the laws over a certain amount of time. Um, and, and we, and we do quite a bit under wage an hour as far as with, you know, with the laws that we do.

Um, mainly I like agriculture, but you know, we also do fairly with and act. Um, what was the other one? Uh, H-2B. H-1B. Migrant and Seasonal Agricultural Worker Protection Act. Um, Garnishment Law. You did MSPA. MSPA, yeah. Uh, family medical Leave. Uh, oh yeah. Regular, you know, regular failure with staying aside. Minimum wage, overtime stuff.

Uh, goodness. I feel like I'm forgetting something. Um, Garnishment Law. Polygraph Law. Um, but one thing with Wage an hour is that once you kind of fall into an area that you. Uh, specialize in, if you wanna say that, then that's, you, you kind of work that area a lot. And since I was down here in this particular area, that's how I probably, you know, I kind of got engaged with H-2A a lot more than per se, some of my coworkers who are in Atlanta or Savannah or so forth.

But usually that's how it worked. But it's, it was, uh, it's rewarding job, uh, when you help somebody, when you help the employers. Um, I always tried to emphasize that it was not, um, you know, sometimes the stigma on the street about labor law is just labor law for the employee, but there's also a lot of things that we had to emphasize to the employers to make sure that they're in compliance.

Yeah. Um, so that was, I think that was our conversation before, was just the main thing to try to help people and I guess I would say muddled through these, these labor halls. Yeah. Uh, to try to try to make it as clear as. Clear as mud or pea soup, if you want to call it that as possible for them, you know, cause, and I've, I've had people, um, say, you know, when they, when they heard, I was coming to do an investigation, they, you know, they got ill, they got sick.

Uh, they didn't know what was gonna happen. And, you know, I think about that and I, and I, you know, looking at small business, I figure small business can really use some help. Um, so, you know, you can sleep well at night or in, in particular with H-2A if somebody said it's coming. Do an investigation for your business, you're prepared and nothing, nothing's perfect, but at least you can be prepared.

Uh, I think this is actually the case with most wage and hour investigators, at least the ones that I've dealt with. Uh, I, you know, every once in a while, you get one that's just, that gives off more of an impression of, I'm out to get you. I, I, I don't think they train y'all that way though. No. Like for the most part, the wage and hour investigators that I've dealt.

That it seems like something that's really important is actually the mentality of the employer beforehand going into it. Like, were they trying to do something wrong, or did they just not know the rule and now we can take some corrective action to make 'em. Getting compliance cuz they weren't in compliance.

Right. Uh, and it, it is kind of funny cuz a lot of times the employers that are most scared of wage and hour investigators are the ones doing the least wrong because they're like, I know I'm trying to do everything right, but right. I, I don't know. 

That's exactly right. Um, and they, and they really have done, um, a lot of businesses you walk into, they have done what they can as, as far as what they know.

Um, yeah. And then, you know, you really, what's, what's helpful if they, if they have, you know, of course somebody like you Kyle, to try to help them along through the process. And, you know, a lot of times I would tell 'em, you know, sometimes you can't really rely on somebody else who had a business and they're trying to start a business because the rules might not apply to you as it did to them.

Yeah. So, we just wanna make sure you, you're in, you know, the part. Uh, as far as compliance goes and. To go from there. But it's, it's really, um, and only, and the, the, the main one I really had a, um, and that's terrible after, I guess I'm thinking after 23 years, the one that's the best that I can remember, uh, it actually happened when I was during the pandemic.

And the girl, um, the employer fired her and would, would, it bothered me so much because she, she had a special needs child and she had done everything she could do to try to meet the needs of the employer. Um, and they really gave her a rough time as far as. Um, it was a family medical leave issue. Um, and then she ended up having to have surgery and so forth.

But to make a long story short, I was able to help her get her job back, um, and, and help the employer with, as far as trying to figure out how to handle the compliance part, dealing with family medical leave and the different little, small steps to come along with that, um, to make sure they're in compliance.

But that was, that was one of the few, um, that I've done. Um, I'll be honest, I've probably done more, a lot of agriculture cases compared to some of the other things that I've done, but it's, yeah, it's just, just something that happens. 

Yeah. Which is, you know, there, there's a lot of regulations in the agricultural specific area, so that certainly makes sense, especially with where you are.

You know, we, we do get this question occasionally, is a company having multiple names and automatic trigger to the Department of Labor? You know, or is it a, a red flag if, if companies are using multiple names, um, for per se, H-2A? Yeah. Um, to me, um, sometimes you didn't find out in the investigation there were other employers until you actually start the investigation.

Yeah. Um, so that's, that's the one thing we have found out particular. because I know some filings. Um, after a little, I did a detail with UTA for a little while. I know some filings have a master filing and you have joint employers on the filing. Yeah. Um, but we don't, from my experience, you didn't know if it was any other players involved until you actually started doing the investigation.

Uh, you, you may get a copy of the 790 and the 9142s and see multiple names on 'em, but you don't know exactly. How those particular people, um, are part of the, uh, the company structure. So that's, that's how sometimes you will find out now, um, as, as far as dealing with the joint employment, no, I haven't, we really haven't in my time, um, seen that happen.

And, and, and unless the agency's doing something to like, oh, we only gonna go out here and look at joint employment. Um, I haven't seen it a lot of times with H-2A, you know, something that has got people in trouble before. Uh, none of our people obviously, but. Uh, I, I know that some people have gotten in trouble because they've used, let's say they use multiple company names and, uh, have basically performed year-round work with the multiple company names.

I, I think I've seen some people debarred from that in, in public disclosures. But yeah, it, it's, I, I, I, and I agree. I, I don't think I've seen companies that operate, you know, like sometimes you have companies that perform different labor services mm-hmm. And so, they put that labor service through a specific entity from a liability mitigation standpoint, but right.

In all their filings, they're being honest. Mm-hmm, uh, this is, this is truthfully the work that people are gonna be performing. It's truthfully seasonal because of these reasons. Um, and I, I haven't seen it make any difference for people at all. 

No, I haven't. And that, I mean, when you, when you might do an investigation per se on a, on an agriculture employer, they may have different.

uh, entities set up, but it's usually all the same person. They might have a, a, a, a farm. They may have a, a payroll company. Yeah. They may have a, uh, a, a shipping and packing operation. But it's usually, you know, with underage an hour as far as the enterprise goes, it's just all one entity. Right. And you just look at it from that aspect of it.

So, they don't, I haven't seen them, uh, like a separate filing for each one of those companies and bring people in and do those kinds of things. It's usually just, you know, under one particular employer and that's who is bringing the workers in to, you know, to uh, perform the services. 

Yeah, yeah, definitely.

Have you seen the new proposed rule changes for employers? A little bit, a little bit. I'm still trying to read through a hundred and what 80 pages. I, I think the most recent one was about 600. So, yeah. Yeah. Good gracious. We won't go too far into that. Okay. Uh, the most recent proposed rule change there was, there wasn't, it seemed like a lot of it was kind of procedural changes.

Nothing. Extremely impactful for employers. One of the ones, one of the things I didn't like in it was they change in employer's ability. This is during the actual certification process though. So, this isn't waging an hour so much is Chicago National Processing Center. Right. Uh, they used to make it where employers could appeal a notice of deficiency, uh, to and then, which we use pretty often, uh, if we got a notice deficiency and we didn't understand the certifying officer's question or if we thought that maybe it would be more impactful to bring this argument straight to a Department of Labor attorney as opposed to certifying officer, cuz the certifying officers are not attorneys and so sometimes it's just nice to get a lawyer involved.

Mm-hmm. And so that was something that we used, but now they're changing it to where employers can't appeal until after the denial. And then there's another one that they're gonna come, come out with at some point, which is a wage rate, uh, methodology change, which is gonna have some pretty enormous implications on agricultural employers, particularly with the prevailing wage, where you can, uh, you can have a prevailing wage in the actual, in the middle of the certification where, say, the, the, the employer's doing a specific crop at that specific, at that specific time, and then they do a wage survey and find out, hey, well, um, we think the price should go up a dime or 15 cents on the bucket, or so forth. And that's, it's only, it's only like two or three weeks. And the employer's like, well, we're already.

In compliance paying the, a war. Yeah. Um, can't we just keep everything the same? So, I did see that portion as far as with the prevailing wage. Um, and I, I was gonna mention too, Kyle, they're doing a, um, and you probably saw it, the, um, OFLC is doing a seminar Thursday. Yeah, uh, I think it's at two o'clock to, to go over some of the rule changes for the, uh, forms and, and so forth.

And I know they mentioned, uh, that they're trying to do the 129, uh, I-129 in, uh, I guess all digital format to submit it. Um, I'd be fine with that. That would've hurt my feelings one bit. Yeah. So, they, I think y'all been waiting for, somebody mentioned 2021. They've been trying to work on doing that. So, um, I don't know.

You know, sometimes, as with the government, it, it crawls out of a snail's pace when you're trying to get things taken care of. Yeah. 

So let, let's talk about some of the main violations you used to see. Uh, what were some of the main violations that you would see as it relates to positive recruitment of US workers?

Um, and then just for the audience here, what, what there. What we're talking about is under the H-2A regulations, there is a requirement that you hire any able, willing, and qualified US applicants that apply for the position. And this requirement is ongoing through 50% of the work contract. So, it doesn't stop just cuz you get H-2A workers.

It continues until 50% of the work. Is complete. And so, what I'm asking here is what were some of the ways that you saw people either violate this provision deliberately or not deliberately? Uh, and then what would you recommend to people to try to keep 'em in compliance as it relates to positive recruitment at US workers?

So, what, what I've seen is a couple things. When new workers come that the. American workers train the new foreign worker to do the job, and then the, the employer will get rid of the, the US worker. Yep. Um, then you would have, uh, not following up as far as. the initial part as far as doing the recruitment, when, what I noticed, and this is just recently when I went out to, uh, do some work out actually Mississippi, when you, when you list the email and the phone number and everything on the 790, the 9142 for contact and the, and the state workforce agencies require you to Periodically check that, um, some of the employers aren't checking it. Yeah. And then when we, when we get a copy of the, uh, referrals list from the state workforce agency, nobody has a clue what's going on within the step. And that, and that could be a problem when you have a, a qualified US worker who's trying to get, um, that particular employment.

Um, I, I didn't do the case count, but I, I do know of, uh, an employer. that blatantly just said they did not want US workers. And that's what they actually made a note, uh, to why they were disqualified on the applications and filed those applications away, um, not thinking that somebody would complain and, and then copies of those same applications were given.

To the investigator that was doing the case, hey, they made your, they made the investigator's job so easy, so easy, Hey, I didn't hire that person cuz they're a US worker. I'm trying to bring in foreign workers. Come on guys. Right? 

Right. So, it ended up being about 50 people that they didn't hire for you.

50 of them? 50. 

Oh my God. Yeah. Uh, so that's actually a very interesting point. So, what, what happens? You're the wage hour investigator. Uh, this is, you're, I know you're not, but let's just say hypothetically, you're the wage hour investigator. You come in, you realize that these people, uh, deliberately did not hire their US workers.

And let's say that from a timeline perspective, all these people applied prior to the start date of the application. What are the consequences to the employer for that violation? 

Um, so if, when, when we do the investigation, you will, you know, of course reach out and make contact with those US workers and see what actually happened during the process.

Did they get a, did they contact the employer? Did the employer contact them? Did they even get an interview? What did they tell 'em that was disqualifying? Um, and what did you, what did they do after? They were told they just couldn't get the job. Um, of course we know some people don't wanna wait around, wait for a job to start because of the data need and the timeframe of doing the, uh, I guess it's like 60 days for the recruitment portion.

The, the sad part about that is that the employer can be, they can get a heavy, heavy CMP civil money penalty for not hiring that particular worker. And then the, the, the real hard part of it is once we contact the worker and find out the worker's not working at all. Um, there could be a, uh, a back wage liability to the employer making that employee hold up until the point where we start the investigation, um, to say, Hey, from, uh, now let's just say from March 5th until May 25th, you, you owe that worker wages because they could have been working and they were fully qualified on your particular, um, job order.

So that was a. A huge mistake. Um, but I was hoping that we don't, a lot of people don't, you know, get involved with that kind of thing. Some of it may be, um, I, I fired somebody in the middle of the contract before the 50% mark was up. It's real, it's, it is very, Sticky that and that the employers really have to watch that as far as what the recruitment, and I always, I'll try to tell 'em, you know, do a, uh, do a what if to every scenario until you can't, what if it anymore?

Yeah. That way you can cover yourself as far as what the US workers, because the program really is for you to hire you as workers, not to get rid of the US worker and, and hire the, uh, the foreign worker, which I've seen that before in the middle of a, a contract and. As soon as the, as soon as the foreign workers arrive, all of the American workers get fired and, and that's a huge problem.

Yeah, that's wild. That's a huge problem for the employer. Yeah. And so, this, and I'm trying to find right now what the actual civil money penalties are. Uh, I think it's about $18,000 now for that violation. Yeah. So, $18,000, I think that's right. I was, I was thinking it was 17 and change 18. So, $18,000 for failure to hire US workers.

The civil money penalty. Mm-hmm, and then it would be per violation, right? So, $17,000, let's say $18,000 times 50, or would it be just 18? Times 50, $18,000 times 50. Right? And then the back wages, the calculation for the back wages is, uh, it could be that they're not working and that's a big back wage issue.

The other potential issue is, let's say they are working, but they were getting paid $10 an hour, and the adverse effective wage rate, just for math's sake, let's say, was $15 an hour. Right? And so, then there's a, there's a back wage issue of $5 per. And it could be over the duration of the entire work contract.

Right? Right. And that could be whatever, whatever that timeframe they have set on that, that contract. So, 35 hours, 40 hours, 55 hours. Um, it just can be a, uh, that's, and what's the whole problem with that is that's only two violations. Yes. Um, and that, and that, that. that really sets a red flag off, uh, with the agency to say, okay, so what else is wrong, um, at this establishment or going on during this particular job order?

And currently, um, and this is, this is something that's kind of changed recently, Kyle, um, you know, we used to do, when I was doing investigations was the current, uh, contract that was in place. Um, before I left, we were doing a full two year. Yeah. So whatever job orders you had within a two-year period, uh, we could look at all of those.

And if you had that particular kind of violation on all of them where you just said, hey, we're not gonna hire, uh, the US workers because you all don't, you don't have the, uh, two- or three-months experience. But then when we go and interview some of the workers that's on site and find out they don't have experience either, then that's, that's a huge liability for the.

Yeah. Yeah, definitely. Yeah. No, that, that's one of the wild ones because, uh, the, the civil money penalties aren't normally like too crazy, you know, cuz there, there's just so many different regulations you can violate. and pretty much everyone's gonna violate some regulation. Mm-hmm, there's just certain ones like the, uh, harming a US worker won that one $18,000 a person, and that's, that's one where they do stick it on to every individual.

And uh, then the back wages like that, that's how these can get up in the hundreds of thousands of dollars. It's not usually. My time sheets were, were not great, or my time sheets were even not available. Like, those aren't the things that are gonna add up to hundreds of thousands of dollars. Right? The thing that adds up to hundreds of thousand dollars is what you're talking about a scale.

Uh, so a large number of people with a back wage violation and a penalty that is on a per person basis makes a huge difference, right? 

Yes. Yes. And that's, um, and, and it can get huge. Yeah. I mean, you can get to a couple hundred thousand dollars, half a million dollars really quick if you're, if you're a big employer mm-hmm. Um, and, and you have those kinds of violations. Or even if you, um, like you say with the, say the person was paid the $10 with the AEWR and, um, the act actual AEWR is 15. And then you, you go through, here we are six months into a job order that's 10 months long. Yeah. And, and you have. in this area, I get huge ones.

So, um, you, you got three, 400 workers. You might have 600 workers and you, and you missed it by a dollar. And then now you gotta go back and go, but how many hours did they work per person and add a dollar? Uh, yeah. And then, and then there's that also that civil money penalty that they can be. Per person or a requirement type situation.

And usually when it's a pay situation, it's always gonna be a per person. Yeah. It's always gonna be a per person. Unless the, uh, from my experience, if the back wages are low, you know, you got 50 people that's due $10,000, they're not gonna allow you to do a, a 50 person per $1,800 CMP. That's not gonna work.

Yeah. The, uh, solicitors won't do that. Yeah. No, they're not gonna, yeah. They, I, I haven't seen them ever just. Far exceed the back wages with the civil money penalties. I've seen 'em get close, like to the actual, to where it's like doubling it. Basically $150,000 issue becomes a $300,000 issue. I've seen that.

Right, right. Uh, but I haven't ever seen, you know, a $15,000 issue becomes a. Hundred $50,000 issue. I've never seen that. And I think another one too, call is, uh, mainly with the first week employment when you're dealing with the, uh, the rule and you're trying to make sure that people make at least a minimum wage when you have, and I know it's one of the questions that I might be getting ahead.

I'm sorry. No, no. 

This is, this is a good point. So let, let's, let's tell people really quick what we're talking about. So. Whenever H-2A workers, let's say they're coming in, they, and they ha they've accrued all these expenses. So, let's say they paid their embassy fees, they, uh, paid for their inbound transportation costs for their meals and their hotels, and let's say that all that together costs that worker $600 bucks.

And then they come in and they work for a week and their first week's paycheck is $800, uh, and they worked, I don't know, 60 hours mm-hmm. And so, they got paid $200 net to, for, for those 60 hours. So, what, what's the issue there, Warren? 

Uh, so if they paid those fees and weren't reimbursed for those fees, and they, and they made, uh, they made $200 for that week.

Um, they're actually in the hole. So basically, you take that $200 divided by the hours that they worked, and we come up with an hourly rate. That's kind of a quick look at it. Yeah. But if I'm looking at it from the payroll standpoint, uh, the person made $200. They pay $800 in fees. They're. Uh, based on our math, looking at that, that's, there's $600 in the hole.

Yeah. Already. And then you have to bring them up through hole for the minimum wage. So, um, you, you could be in a potential, uh, fair Standard Act violation for, um, minimum wage, and that's gonna be $600 for that. They're in the hole and you gotta add another whatever number of hours they work. Times minimum wage.

Yeah. So that, that could be $800. A thousand dollars per person for those type of, uh, fees. Yeah. Um, and then you have, then you got a, a fairly standard act violation, and then you're also gonna get a, uh, fairly comply with other laws violation under the, uh, H-2A rule. Yeah. So, you, you're gonna get a CMP under that particular violation also.

So, one thing that I, I've been seeing a lot. We've been seeing a lot, and I'm in the southeast, so people having to pay fees and, and when I say fees, Kyle, um, the last case I did, uh, the employees from Mexico were required to pay $35,000, uh, pesos. I'm sorry. Um, just to get on the job order to come. Yeah. 

So, the, in this situation, worker from Mexico is paying for the opportunity to come and work on an H-2A Visa.

So that they paid 30 what? I don't know what that, uh, um, converse to in US dollars. Probably a thousand dollars somewhere close. Yeah. Um, to just to come. And then you come and then they have to work. What we found is that you talk to the employees, and they say, hey, I don't, uh, you know, how much did you make this week?

And they say, well, I didn't make anything. I have to get my check back to the, uh, to the foreign labor contractor. Yeah. And, and, and that, that's a red flag to us. Cause we feel Okay, what's going on? The payment. So, there's a lot that goes on back and forth with that, which is helpful. A lot of times those transactions are cash, so you really don't have any kind of paper trail.

Uh, but the most recent case that I did, uh, all those guys kept their receipts, and they also kept the name of the person who they were given the money to, and how that person was linked to the foreign labor contractor here in Georgia. Uh, it just happened to be the farm labor contractor sister that lives in, in, in Mexico that they were given the money to so she could give him the money up here.

To take care of them being transported and so forth, but. It, it never happened. Um, as far as that goes. And we, you know, all I can say is if I'm paying for a hundred people under the certification to, to bring those people in and so forth, your records should, you should reflect if I paid, um, those kinds of monies to get somebody on the program to whomever I had to pay for.

If it, if it was to an attorney, to an agent, to the agency. What was frustrating with that was that the, the farm labor contract, he just couldn't produce the records for me, and I did that, and he didn't, he couldn't get the records until six months. He said he paid on the credit card. I said, well, just pay your, just call your credit card company and get the, uh, the timeframe when you paid it and send it to me.

Um, I, I would think if you paid for a hundred people to come. To the United States, I could call my credit card company and say, hey, I don't have that statement. Can you send me a copy of that statement right now? 

Yeah. Cuz you're paying. So, in, in that circumstance, let's say you're paying for a hundred workers, $190 a worker, you've got a $19,000 charge on your credit card for their embassy fees.

Yeah. You would think you could hunt that down pretty quick. 

I was, yes. Right. And you, you have a decent enough credit line on your card Yeah. To, to, to, you know, to particularly cover that. So, um, I thought that was one of your, one of the questions I saw as far as on with the fees is becoming a, a huge thing.

Um, yeah. And I, and I think in the proposal, if I'm not mistaken, Kyle, the, uh, The Visa fee proposal is to be raised at $310. 

That's right. Yeah. They're gonna try to increase that. Um, I wanna circle back really quick on one of the FLSA things that you mentioned a second ago. Cause so the spot where I see people get hit with the Fair Labor Standards Act provision as it relates to reimbursement of the workers on their first pay.

So, what, what we were talking about there, where let's say it costs the worker $800 to get in and they only got paid $200 on their first check. So, there's $600 in the hole. The, the spot where I see this oftentimes is where it costs the worker, let's say $600 to get here and they, they only made $700 on their first check, so they only had a hundred dollars. uh, the difference is a hundred dollars, but mm-hmm, if you take that and divide it by the federal minimum wage of $7.25 an hour mm-hmm, they, they likely worked more hours than that, so they actually just didn't get paid the minimum wage. And so, the same thing has to happen. They have to increase the or they have to give 'em back wages to get 'em to.

Minimum wage on that first one. But the spot where that tricks people, and this also tricks agents, is the regulations say that you don't have to reimburse the workers until they complete 50% of the work contract. And everyone just forgets to look in that part, in parenthesis that says subject to the Fair Labor Standard Act.

And so, I've, I've had people argue with me about, Where I was telling 'em like, no, this is actually a violation. And then they say, well, look in the regulations right here where it says I didn't have to reimburse the workers until they completed 50% of the work contract. And I'm like, you left out the part of the regulations where it's in parentheses and says it's still subject to the Fair Labor Standard Act.

This is an FLSA violation. Right. It is funny because it, I understand why they make the mistake it to, it makes sense. Mm-hmm, it's just. Yeah, there's, it's, it's more complicated than people realize. And the spot where I see that one most often. Is with people from South Africa mm-hmm, because their inbound transportation cost is so expensive.

Mm-hmm. And so, I, you know, from, from a practical standpoint, if you can pay for all that stuff at the beginning, so you don't either have to reimburse it or if you are just reimbursing it on the first check so you're not dealing with this FLSA issue. Right. 

And that's a, um, and that, that's a, a real valid point.

Cause I was gonna mention with the South Africans and the, from the cases that I did with them, The. The employers, what's happening is they will pay half of the reimbursement because they pay full price for their ticket. Yeah. On a roundtrip ticket to go back. So, they pay half of the reimbursement. Uh, but it should be half of the ticket, full amount of the visa.

Yes. And what they're doing is they're taking the whole lump and just cutting it in half. Yeah. And that's how they pay the half. And then you have a violation of, okay, well you didn't pay that other, let's say 90 bucks or the Visa, um, and then that, that's another violation. So, you, you, you got a cost shifting violation then.

So, then that can be per person or per requirement, and it just, it can, it can just turn into this biggest. Snowballed. That's, that's going crazy, um, for somebody who's new into the program and trying to learn that, but exactly, uh, what you said as far as dealing with that, with the South African workers, and I even ran into recently a Ukrainian worker.

Yeah. Um, that, that he, it took him three months just to get through the border. Since everything's going on over there, to come over here and actually work. Um, so, and then, and then you have the ones who go back and forth. A family member gets sick or something like that and they get hurt or whatever. But the main thing I found recently was dealing with the South African workers in that, that, uh, paying for that plane ticket and, because I know that's probably, uh, what did some of the guys say?

Anywhere from $1,300 to $1,500 Yep. For the plane ticket and then the visa fee, and then the, the border crossing fee, I think in Mexico is like six bucks. Um, so just a whole bunch of little fees. Yeah. Um, that the employers have to say, okay, so what fee is this? What's the fee for that one? Um, and honestly, I think most of the farmers I did with here, they try to make that reimbursement the first week, even though I know the regulation says you got to the 50% mark.

Um, go ahead and get that out your way so you're not dealing with, um, missing that mark. Yeah. Um, and then that, that can cause a problem. Yeah. That's, and I think that's great advice. That's always the advice I give people too, is just make the, make the reimbursement on the first check abscond. It is. Which is where the workers just leave without telling you.

Mm-hmm, or get, or, or let's say you have a separation because you have to fire the worker for some reason it's not so common. Like it's just not common at. And so it happens, but mm-hmm, if you got a large-scale operation and you're holding back and risking an FLSA issue for a hundred workers because you're worried about the one person that might get reimbursed before they had to, it's not a good business practice.

Like it ends up costing you more in the long run. 

Right. That's correct. That's correct. Now they do, they do call on the, uh, since you mentioned the folks that absconded the policy, current policy is, and I say the employer is getting a buy because say we find out they, when we do the investigation, that they don't report those people that absconded.

So, then you had a situation where the three-quarter guarantee is still running for those particular employees? Yep. Uh, that they did not get reported. But if it's the first time, no history for that particular employer. Um, there is no back wage violation on that one and there is no CMP. Yeah. But if it happens the next time, then, then they really, you know, it's gonna be stacked upon you to, uh, make sure you take care of that.

Yeah. 

No, it's, uh, and then another point I wanted to bring up was the one that you made about the workers. paying for the opportunity to work on a visa. Mm-hmm, uh, this is a particularly interesting one, what's common in, in this world, which age two is, uh, unfortunately riddled with corruption? I mean, I, I know that you've had to see the worst of it.

Workers paying for the opportunity to work on a visa is extremely common. Uh mm-hmm. and, and you, so there's a lot of stuff employers can do to protect themselves, but one question that employers bring up all the time is, one, how do I protect. Work with someone that's reputable. That's one of the best ways.

Sure. Get a lot of things signed that says, I'm not charging employees for the opportunity to work on a visa. Ae all employees prior to ever getting their visa need to sign something that says that when they get up here, they need to sign something that says that when they leave, they need to have something that says that.

So, you have a nice long paper trail of them saying they never paid for the opportunity to work on a visa. Right. But let's say hypothetically, you had documents that said, or no, let, let's say that you didn't have documents that said that. Then let's also say that I, as the employer, had no actual knowledge that they paid this fee.

I just brought people to work here. I wasn't getting a kickback for it. Uh, I was just using some bum in Mexico that decided that this was a great opportunity to exploit my workers. Mm-hmm. What are the consequences to me as the employer if that happened? Um, if the main thing, I guess is, is of course, evidence to prove it.

Um, if, uh, sometimes those guys have little paper receipts, they might have something that they said they paid somebody. Um, some monies down in Mexico so they could come on this particular job order. Um, we, I've, I've had employers that, like you said, don't even know that somebody who's working for them on the contract up here has gone back home and done recruitment work.

And say, hey, you know, for you to go, you gotta pay me 500 payloads to get on and I can help get you on the list. Yep. Um, that's gonna, that's gonna have some repercussions to the employer. Um, as far as recruitment goes and illegal fees and so forth, um, that takes a lot of interviews, Kyle for sure to make sure we, and signed interviews, not just, uh, uh, over the phone kind of situation from per se our dealing with my solicitors when I was in the.

Um, that can be serious repercussions to the employer for, um, those kinds of fees if it's proven. Of course, everything, uh, has to be proven and, and, you know, make sure we got proper evidence so we can say that these workers, um, and, and if, and if you have 30, 40 people telling the same story. Yeah. Giving the money to the same person.

Um, you, you, you keep hearing this name of somebody in Mexico who's helping. But nobody knows who this person is and they just, you know, you have those kinds of situations where I know some agents actually have people at the border who do the interviews, like you said, um, to sign the document to make sure, hey, did, did you pay any money?

I mean, I hate to, I don't, I don't wanna sound like you, you know, I'm, I'm. I'm twisting your hand, but we wanna make sure, hey, did you, did you pay somebody, did you not pay somebody? Uh, but like I said, you, you want to have the evidence in the investigation to prove that kind of information, um, as to who's doing it.

Now, I've even, I've even had people videotape. on these great smartphones videotape the conversations between some of the other workers giving the money to the person and that person doesn't know they're being recorded. Um, so that, that's great evidence. Um, when you have that or text messages or those things back and forth where you can show that this person.

Um, is, is doing that kind of, uh, I would say impropriety, if you want to call it that. Yeah. And, and just taking advantages of the, you know, that some of the workers, you know, they might, uh, I've, I've seen Guatemala workers, some of 'em say I had to put my house up. Um, I had to, um, sell all my belongings just to get here.

You know, just horrible stories. I know. Um, for that kind of exploitation of the workers. Yeah. Uh, it's, it's, it's a little rough on the employer. Um, so if they can avoid that, they can do whatever they can to avoid that, um, that helps 'em out. Yeah. And then if, if it does happen, uh, and this is one of the tough things is let's say that employer did the right things.

Uh, at least they tried, you know, you can only do so much, but they, they, they hired someone to help 'em. Uh, they've known this person for the last 30 years. They really trusted 'em. Uh, they didn't have any of the documents signed by the workers or, or, or the person that recruits, but, uh, they really trusted this person.

They had no knowledge of it. Never got a kick. Workers are out a thousand dollars each. There are 50 different workers, and the Department of Labor ends up proving it. Mm-hmm. part of the mm-hmm. One of the issues with this violation is it's, it doesn't have a knowledge component. Mm-hmm, it doesn't matter if the employer knew about it.

That's why the employers need to do the things preemptively that keeps themselves from getting in trouble because there's not an actual knowledge requirement in this and that the employer, their best friend from 30 years just cost 'em $50,000. by taking these kickbacks from these workers. And that's a right, tough thing for these guys.

It is. And then, and then, um, the, the one time I guess you could say that there was a, a decent investigation was that the, uh, the person who was taking the kickbacks in Mexico was still in the United States working as part of the crew. Um, so you. Kind of nail down that person and say, hey, you know what, you know what, what kind of money are you taking from these people?

If of course, if they talk to you, it’s. But when the workers say, hey, I got the money from, uh, I gave my money to John Smith. And John Smith is one of the people who is. actually, on the, on the payroll and who's actually physically working. And you, you say you talk to the employer and say, Hey, well, no. Does, uh, does, does John Smith do any kind of recruitment for you down in Mexico and, and whatever that comes from that particular conversation?

Uh, let's just say it goes to which, where it makes it negative? Well, yeah. We, we like for him to go down and ask people if they want to come to the United States and work and, and, and do this and do that and blah, blah blah, and do. Well, did you know that John Smith was also getting $500 a. and he collects his money on the weekends after everybody's gotten paid at the housing.

And that's when the employers in a, in a kind of like a gotcha situation where they don't know that because you know, hey, it's Friday night work is done, or Saturday and they're at their house and they're at the housing and yeah. Nobody knows what's being, what's going on. 

Of course. Yeah. I mean, and yeah, but then they still get stuck with it because it is their responsibility.

So, you know, that's just, uh, that's one of the tough parts. Uh, and then Warren, just so you know, we've got a lot of questions left here. Uh, this mm-hmm. conversation is super interesting to me. I think this is something I can probably talk about all day. We can do another one. Cause we've got, and we're, we're what, we're three questions into it and we still get, but it is interesting.

Well, it's nice because like a lot of times I'm talking to people about this that just don't know what I'm talking about. They haven't seen it like this. And so, it's so cool to me that, that you have, and I think it's really interesting. All right. Well, Warren, I do wanna get you back on the podcast again cuz I know we've got a lot of material left to cover.

I appreciate the time that you've taken today. It's been super interesting. I really enjoy talking to someone that is familiar with these rules, uh, and that has seen it from the other side of the table, but you've seen the same stuff that I've seen, and I think that that's great. Uh, in the meantime, if our listeners are trying to get ahold of you to give them some good guidance on how they can run a compliant H-2A program, how can they, how can they connect?

Okay. Um, they can call me. Of course. It's Warren Williams. Uh, my cell phone number here in Georgia is 229-589-2288. I've started my business. It's called uh, WLW2 Consulting, and, uh, my slogan is to put on your cap. And cap stands for a compliance assessment and action plan, compliance assessment and action plan.

I am freaking love it. It's beautiful, man. Well, I, I really do appreciate you being here. We we're gonna have you back on really soon. Uh, okay. Cause this conversation's really interesting to me. I hope it's interesting to you too. It's fun to Oh yeah. It's great. You're, you're probably one of like nine other people in the United States that find this stuff interesting to talk about.

So, oh, wow. There's, there's not a lot of us. We're, we're, we're the outcast here. Oh yeah. And it's, it's a lot that goes on with it. And, um, I guess, oh yeah, also Kyle, I guess they can email if they want too Yeah. With it. And if they wanna get that from you, that can, uh, happen. So, my email is, uh, is wlwilliams6684@gmail.com. 

Awesome. Perfect. Well, thank you Warren. I really do appreciate it, and we will be, uh, back in contact with you super soon. Thank y'all for listening to the Immigration Guy Podcast. We really appreciate it. You can find us on our website, go to www.farmerlawpc.com. You can find me on LinkedIn and Twitter.

Just search at Kyle Farmer, FLPC. Uh, you can find our law firm on Twitter, Instagram, YouTube. All you have to do is search for a Farmer Law PC. Go ahead and subscribe to download all the episodes of our podcast. You can download 'em and listen to 'em whenever and wherever you want. Uh, we'll be releasing new episodes every Wednesday on Spotify, Apple Music, Stitcher, which is apparently a real thing.

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Thank you.