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The 11th U.S. Circuit Court of Appeals has ruled that transportation costs for nonimmigrant H-2A farm workers from a staging site in their home country to the state of their employ were “an incident of and necessary to the employment;” growers were therefore required to reimburse the expenses up to the point that the FLSA minimum wage was met. Similarly, the growers were required to reimburse visa costs, visa application fees and immigration fees for entry documents up to the amount needed to comply with the minimum wage laws, since such costs were necessitated by the employment of the farm workers, and were not ordinary living expenses. Arriaga v. Florida Pacific Farms, LLC (11th Cir. 2002). After being unable to meet labor requirements for the harvesting of strawberries and raspberries from local workers, the growers sought and obtained permission from the DOL to hire nonimmigrant foreign workers for temporary agricultural employment under the H-2A program. The growers used a travel service to assist in recruiting workers. Interested workers were charged $130 for transportation from Mexico to Florida, $45 for a visa application, $100 for the visa, and a $6.00 fee for entry documents. Additionally, despite grower instructions to the contrary, the workers were charged recruitment fees by local recruiters. The 11th Circuit observed that the costs in dispute were de facto deductions that, if not permissible, drove the farm workers’ pay below the minimum wage. Thus, the court was required to determine whether or not the costs constituted “other facilities,” and analyzed whether the costs incurred by the farm workers were primarily for the benefit or convenience of the employer. Since the costs were primarily for the benefit of the employers, the growers were required to reimburse the farm workers up to the point that their wages satisfy the minimum wage. Here, the court noted that transportation and visa charges were an inevitable and inescapable consequence of having foreign workers employed in the United States. In participating in the H-2A visa program, the growers understood the alien workers were not coming from a commutable distance and that their employment necessitated that transportation costs be paid by someone. Similarly, by participating in the program, the growers created the need for the visa costs, and they were not permitted to pass the costs along as “other facilities.” However, the growers were not responsible for the payment of recruitment fees charged by village recruiters and an employee of a travel service. With respect to the recruitment fees, there was no statement or conduct of the growers causing the farm workers to believe that the growers consented to the recruitment fees demanded on their behalf. � 2002, CCH INCORPORATED. All Rights Reserved.

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