On January 13, 2010, the U.S. District Court for the District of New Mexico granted the motion by two foreign rig hands to amend their complaint. This lawsuit accuses RigStaff Texas LLC, a staffing service company, and Schumberger, an oil field services provider, of violating state and federal law by denying the rig hands overtime and other compensation due under the federal government's H-2B nonimmigrant visa program. The court allowed these rig hands to add claims of fraud, negligent misrepresentation, and civil conspiracy, as well as claims under the New Mexico and Wyoming wage laws.
The genesis of this litigation occurred in November 2008, when two Indonesian workers were recruited by RigStaff to work on H-2B nonimmigrant visas for Schlumberger in the United States. These workers claimed that RigStaff violated the Fair Labor Standards Act ("FLSA") by not paying them and other H-2B workers the legally required overtime rates, even though they worked for Schlumberger at least 80 hours a week. These workers also alleged that both companies breached their contracts by illegally withholding from and converting funds belonging to H-2B workers, and that the companies were unjustly enriched as a result.
In recent years, the Department of Justice and Immigration Customs Enforcement agency have been investigating and prosecuting criminally abuses of the H-2B program. There also has been an increasing number of civil suits around the country by H-2B nonimmigrants and foreign workers in other visa classifications alleging FLSA and related wage/hour violations. These investigations and lawsuits are particularly prevalent in industries that regularly rely on the H-2B program, such as the hospitality, oil rigging, construction, and related industries. All employers, however, should be vigilant on compliance with all immigration programs because violations can open the door to criminal prosecution, civil litigation, and/or other federal agency investigations involving Form I-9, OSHA, and wage/hour-related matters.