Jottings By An Employer's Lawyer

Thursday, February 12, 2009

5th Circuit - No Duty To Reimburse Expenses Under H-2B Visa Program


Not many Katrina related cases have been employment law cases, but yesterday the 5th Circuit dealt with an FLSA challenge arising out of a hotel's hiring of workers under the H-2B visa program in the hurricane's aftermath. The challenge was simple. The hotel did not reimburse the workers for their recruitment, transportation and visa expenses, and therefore they did not pay them the minimum wage, free and clear.

The Court said no, basically relying on a regulation by the Bush Department of Labor issued on December 19, 2008. See Fed. Reg. 78020 et seq. The bottom line, the employer is not on the hook for the expenses. Castellanos-Contreras v. Decatur Hotels (5th Cir. 2/11/09) [pdf].

Updated (7.22.09): I haven't read it, but the 5th Circuit today withdrew the above opinion and replaced it with a new decision (here) [pdf] , but with the same result.

Updated (3.24.10): The 5th Circuit has now voted to hear the case en banc, see my post here.

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