Last week, plaintiffs from a proposed class action involving H-2B visa guest workers voluntarily dismissed a Florida amusement park company from the pending litigation. The case involves the prevailing wage rate offered to guest workers.
This proposed class action involves the guest workers’ ability to receive supplemental prevailing wages. The prevailing wage rate involves two government agencies: the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL). The DHS issues H-2B visas for foreign workers coming to the United States to perform non-agricultural labor. The DOL requires that employers pay these workers at least the prevailing wage.
In November 2015, Pablo Gonzales-Aviles and Heleodoro Pena-Gonzalez filed a complaint on behalf of H-2B guest workers against the DOL and 79 identified employers. The potential class could exceed 1,500 workers—all the workers in the 79 companies’ employ. The complaint alleges that the guest workers on H-2B visas have yet to receive payment for work performed in 2013 because the DOL allowed the employers to challenge a wage increase. The complaint further alleges the wages were required pursuant to Supplemental Prevailing Wage Determinations (SPWDs) that the DOL issued to H-2B employers in accordance with a court order in Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933 F.Supp.2d 700 (E.D. Pa. 2013) and the DOL’s Interim Final Rule published on April 24, 2013, in response to the order. 78 Fed. Reg. 24,047 (Apr. 24, 2013). Due to the employers’ challenge to the DOL, the plaintiffs allege, the employers kept the lower wages throughout 2013.
On February 17, the plaintiffs voluntarily dismissed one of the 79 named companies, Interstate Amusements of America, Inc., a Florida-based amusement park company. This dismissal follows the February 1 filing of a motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction. Several of the companies jointly filed this motion to dismiss, stating the workers lack legal standing to bring this lawsuit. On February 18, the plaintiffs filed a response to the motion to dismiss, stating the DOL’s policy on paying the prevailing wage gives the workers the necessary “injury-in-fact” to establish constitutional standing.
The case is pending in the U.S. District Court for the District Maryland, Case No. 1:15-CV-03463-MJG.