News for the Hospitality Executive
With a Huge Increase in Funding and Staffing the U.S.
Department of Labor
Expected to Ramp-up Compliance Audits Targeting the Hospitality Industry
Under Scrutiny: H-2B Labor Certifications,
Minimum Wage, Overtime
and Family and Medical Leave
By Jim Butler and the Global Hospitality Group®
July 14, 2010
The U.S. Department of Labor (DOL) is taking historic action. With a huge increase in funding and staffing, the DOL is specifically targeting audits and enforcement actions for every hotel, motel, and resort in the U.S. The program will search for violations of overtime rules, minimum wage, and classification of exempt and non-exempt positions. In addition, one of the primary focal points of these audits will be employers with workers holding H-2B visas.
Hotel labor lawyer Marta Fernandez and hotel lawyer, Jim Abrams, both senior members of the JMBM Global Hospitality Group®, say, " We expect that the DOL compliance audits will cover all of the laws administered by the DOL and WHD including H-2B labor certification wage requirements and other federal laws such as minimum wage, overtime, and family and medical leave."
Hotel Labor Lawyer Alert: U.S. Department of Labor targets the hospitality industry
Specifically targeting the hospitality industry, the WHD plans to audit hotel employers for violations of overtime rules, minimum wage, family and medical leave, classification of exempt and non-exempt positions, and virtually every Federal labor wage and hour regulation.
Because the DOL is also in the process of drafting new regulations for the H-2B visa program -- a program relied upon by many employers in the hospitality industry -- it is likely that employers with workers holding H-2B visas will be scrutinized for violations under the H-2B program during the audit process.
Here is the information that Jim Abrams and Marta Fernandez have provided, including the "4 things you can do now, before it is too late."
Every hotel, motel and resort in the U.S. will be targeted - audits, enforcement actions and plaintiff litigation
According to the American Hotel & Lodging Association (AH&LA) in a bulletin issued on June 21:
The AH&LA is urging hotel employers to contact their elected officials and urge them to contact the DOL to express opposition to the hospitality industry being singled out for compliance audits.
The H-2B workers program is being scrutinized
The H-2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. Many hotels rely on the H-2B workers program to meet their needs under these requirements.
In January 2009, the Department of Homeland Security delegated to the DOL the responsibility for enforcing compliance of the H-2B labor certification requirements. The DOL's WHD may impose wage payments and civil money penalties against employers who violate certain H-2B provisions.
The DOL is in the process of drafting new regulations for the H-2B program. The proposed new regulations will not be released until November 2010 and what they will look like or how they will impact the hospitality industry -- as they surely will -- is unknown.
We are aware that plaintiff groups have filed lawsuits against hotel employers with H-2B workers, alleging violations that are surely to gain the attention of the WHD. Whether private lawsuits exist against hotels or not, compliance with H-2B labor certification requirements will certainly be reviewed in the pending hotel audits by the WHD.
4 things you can do now - before it's too late:
1. Perform an internal audit. Talk to your hotel labor lawyer who can organize an internal audit of your payroll practices, hiring practices, and recordkeeping procedures and then help ensure that your organization is in compliance with Federal laws, including H-2B requirements. It is important that you avoid precipitous action to terminate any employees that do not meet the H-2B visa requirements, because there are anti-discrimination laws that also apply to any termination based on immigration status.
Marta Fernandez is a partner in JMBM's Employment and Labor Department and a senior member of JMBM's Global Hospitality Group®. As a management labor lawyer with more than 20 years of experience, Marta specializes in representing hospitality industry clients in all aspects of labor and employment including labor-management relations such as union prevention, collective bargaining for single as well as multi-employer bargaining units, neutrality agreements and defense of unfair labor practice charges before the NLRB. She defends employers in administrative and litigation claims, such as employee claims of sexual harassment and discrimination and counsels clients in preventative strategies such as executive training, arbitration enforcement, and policies and procedures. For more information, please contact Marta Fernandez at 310.201.3534 or at email@example.com.
James Abrams is Of Counsel at JMBM and is a senior ember of JMBM's Global Hospitality Group®. Jim has served the hospitality industry for 40 years and specializes in lodging and hospitality law and in representing and advising trade associations and other non-profit entities. Jim has significant experience in government affairs at the national level, the state level - including the California Legislature and scores of state agencies - and with local governments and agencies. He has authored successful ballot measures and scores of bills for his clients. Jim served as the President and CEO of the California Hotel & Lodging Association from January 1, 1991 through December 31, 2008 and is currently an adjunct professor in the Hospitality Industry Management Program at the University of San Francisco. He is a frequent speaker and writer on all aspects of the law relating to the lodging and hospitality industries, and he is the author of the book Laws Pertaining to the California Innkeeper, which is published by the California Hotel & Lodging Association. To read Jim's articles, go to www.HotelLawBlog.com. For more information, please contact Jim Abrams at (415) 398-8080 or firstname.lastname@example.org.
|Also See:||The H-2B Workforce Coalition Says Comprehensive Immigration Reform Must Include Relief for Seasonal Employers / December 2009|