Under the Department of Labor’s H2-A program, an employer must reimburse its employee for the reasonable travel expenses incurred to arrive at the work location. However, the H2-A rules allow the employer to delay this payment until after the employee has performed 50% of the work for which the parties contracted.
A recent decision by the Court of Appeals for the Ninth Circuit, however, limited the application of that rule. In Rivera Rivera v. Peri & Sons Farms, Inc., the court held that where a delayed payment of travel expenses results in a failure to comply with the substantive provisions of the FLSA during the first week of employment, the employer must reimburse the travel expenses immediately.
In Rivera Rivera, 24 employees who traveled from Mexico to work at the defendant’s onion farm in Nevada sued for violations of the FLSA. The plaintiffs claimed that after accounting for their travel, recruitment, and other expenses, their net pay during the first week of employment fell below the minimum wage. The plaintiffs sought damages on this basis under the FLSA and Nevada law. The employer argued that notwithstanding the minimum wage provisions of the FLSA, they were not obligated to repay travel expenses until the plaintiffs had completed 50% of the work they were to perform.
The Ninth Circuit rejected the defendant’s argument that the FLSA does not apply in the context of repaying travel expenses under the H2-A program. The court instead accepted the plaintiff’s position, supported by the U.S. Department of Labor’s amicus brief, that the H2-A repayment provisions do not govern where they would result in a failure to comply with the FLSA.