Castellanos-Contreras v. Decatur Hotels, LLC
| Decision Date | 11 February 2009 |
| Docket Number | No. 07-30942.,07-30942. |
| Citation | 559 F.3d 332 |
| Parties | Daniel CASTELLANOS-CONTRERAS; Oscar Ricardo Deheza-Ortega; Rodolfo Antonio Valdez-Baez, Plaintiffs-Appellees, v. DECATUR HOTELS, LLC; F. Patrick Quinn, III, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jennifer Jean Rosenbaum (argued), New Orleans, LA, Tracie L. Washington, Louisiana Justice Institute, New Orleans, LA, Mary Bauer, Southern Poverty Law Center, Immigrant Justice Project, Atlanta, GA, for Plaintiffs-Appellees.
Leslie Weill Ehret, Ellen Shirer Kovach (argued), Suzanne Marie Risey, Frilot LLC, New Orleans, LA, for Defendants-Appellants.
Ann Margaret Pointer (argued), John Eugene Thompson, Fisher & Phillips, Atlanta, GA, Keith M. Pyburn, Jr., Timothy Hugh Scott, Fisher & Phillips, New Orleans, LA, for Amici Curiae.
Catherine K. Ruckelshaus, New York City, for Interfaith Worker Justice, New Orleans Workers' Center for Racial Justice and National Employment Law Project, Amici Curiae.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before JONES, Chief Judge, and JOLLY and HAYNES, Circuit Judges.
The aftermath of Hurricane Katrina required New Orleans hotelier Decatur Hotels, L.L.C. ("Decatur") to look to foreign sources of labor. A group of these employees (collectively, the "guest workers"), who held H-2B visas while working for Decatur, contend that Decatur violated the Fair Labor Standards Act ("FLSA") by paying them less than minimum wage, free and clear, when Decatur refused to reimburse them for recruitment, transportation, and visa expenses that they incurred before relocating to the United States to work for Decatur.
Decatur filed a motion to dismiss and/or for summary judgment, and the guest workers filed a cross-motion for summary judgment. The district court denied Decatur's motion, granted the guest workers' motion in part, and certified its order for interlocutory appeal. A motions panel of this court authorized Decatur to file an interlocutory appeal. In this interlocutory appeal under 28 U.S.C. § 1292(b), Decatur raises three issues of first impression for this court: whether, under the FLSA, an employer must reimburse guest workers for (1) recruitment expenses, (2) transportation expenses, or (3) visa expenses, which the guest workers incurred before relocating to the employer's location. We conclude that the FLSA does not require an employer to reimburse any of these expenses. We therefore reverse the district court's order, and we remand the case with instructions that it be dismissed.
Decatur operates luxury hotels in the New Orleans area. Before Hurricane Katrina struck New Orleans, Decatur employed between 600 and 650 workers. After Hurricane Katrina struck New Orleans, the size of Decatur's staff dropped to between 90 and 110 workers. Decatur attempted to recruit local residents to join its staff, but its efforts were largely unsuccessful. Decatur urgently needed to hire maintenance, housekeeping, and front-desk employees.
Virginia Pickering, a Baton Rouge businesswoman, read a news article that mentioned Decatur's staff shortage. Pickering owned and operated Accent Personnel Services, Inc., a company that guided U.S. employers through the process of becoming H-2B visa sponsors.1 As H-2B visa sponsors, the employers legally could hire foreign workers to fill temporary job positions.
Pickering advertised Accent Personnel's services to Decatur's chief executive officer, F. Patrick Quinn III. Pickering offered to guide Decatur through the H-2B application process, to oversee the recruitment of H-2B workers, and to coordinate the workers' arrival times in the United States. If Decatur were to use Pickering's services, it would need only to supply Pickering with information that she would need to complete Decatur's H-2B sponsorship application, to pay H-2B sponsorship-application fees, and to meet its new employees when they arrived in New Orleans. Pickering would do everything else necessary to secure the temporary workers for Decatur. For these services, Pickering would charge Decatur $300 per job position filled.
Quinn agreed that Decatur would use Pickering's services to hire housekeepers, maintenance workers, and front-desk clerks; and Pickering went to work. She identified the wage rate at which Decatur would need to pay the housekeepers, maintenance workers, and front-desk clerks to comply with Department of Labor regulations. She ensured that Decatur recruited U.S. citizens to fill its open job positions before offering the same positions to foreign workers. She prepared Decatur's application to sponsor H-2B visas. She also prepared, and a Decatur manager signed, a blank job offer for each open job position.
Unbeknownst to Decatur, Pickering also owned and operated a second company: VP Consultants, LLC. Through VP Consultants Pickering offered a service that connected with her services at Accent Personnel: after identifying U.S. employers (such as Decatur) that were sponsoring H-2B visas, she provided this information, for a fee, to recruitment companies that represented foreign workers seeking temporary U.S. employment. In exchange for $900 per Decatur job position, or "referral," VP Consultants informed Global Services, Inc., of 70 hotel-clerk positions; EuroUSA, Inc., of 70 housekeeping positions; and International Jobs & Studies S.A.C. of 130 maintenance positions.
Although VP Consultants generated revenue by informing recruitment companies of Decatur's job positions, Pickering testified that she also had been willing to share information about Decatur's job positions with foreign workers who contacted VP Consultants directly. However, there is no indication in the record that such contacts occurred or that, given the foreign workers' circumstances, such contacts were possible. It also is unclear what fee, if any, VP Consultants would have charged the workers to receive information about Decatur's job positions.
In theory, the guest workers also could have contacted Decatur directly to learn about Decatur's job positions; Decatur would have referred such inquiries to Pickering. No guest worker contacted Decatur directly, and it is unclear whether such contact would have been feasible.
Nevertheless, each worker hired a recruitment company to locate H-2B job opportunities on his or her behalf, to guide him or her through the H-2B visa application process, and to arrange transportation to the United States. Each recruitment company charged between $1,700 and $2,000 for its services.2 In addition to this fee, each recruitment company required workers to pay their own visa-application fees as well as all transportation expenses necessary to relocate to the United States. Altogether, each guest worker paid between approximately $3,000 and approximately $5,000 in recruitment, transportation, and visa expenses before relocating to the United States.
When the guest workers arrived in New Orleans, Decatur conducted a week-long orientation session, for which it paid the workers; and the guest workers began to work. Decatur paid the guest workers whom it hired through Global Services, Inc., $6.09 per hour, the guest workers whom it hired through EuroUSA, Inc., $6.02 per hour, and the guest workers whom it hired through International Jobs & Studies S.A.C. $7.79 per hour. As we have said, Decatur did not reimburse the guest workers for their recruitment, transportation, or visa expenses, all of which they incurred before relocating to the United States.
The guest workers, proceeding under the FLSA, filed a complaint in federal district court seeking to recover these expenses, as well as liquidated damages, costs, and attorney's fees. Decatur defended on grounds that the FLSA does not obligate it to reimburse the guest workers for their recruitment, transportation, or visa expenses. To this end, Decatur filed a motion to dismiss and/or for summary judgment; and the guest workers filed a cross-motion for summary judgment. In a single order, the district court denied Decatur's motion and granted the guest workers' motion in part, insofar as it allowed them to proceed with their FLSA claim.
Decatur asked the district court to certify its order for interlocutory appeal. The district court granted Decatur's motion. It identified, as a controlling issue of law as to which there is substantial ground for difference of opinion, the question "whether non-agricultural H-2B guestworkers are entitled to the protections of the FLSA." A motions panel of this court then permitted Decatur to file this interlocutory appeal under 28 U.S.C. § 1292(b). The district court's proceedings have not been stayed.
We first must consider our jurisdiction over this interlocutory appeal. The guest workers contend that we lack jurisdiction—or, in the alternative, that our jurisdiction is limited to answering the single question identified by the district court as a controlling issue of law.
A motions panel's decision to allow an interlocutory appeal is not binding upon the panel that subsequently considers the appeal's merits; United States v. Bear Marine Services, 696 F.2d 1117, at 1119, 1120 n. 6 (5th Cir.1983). We therefore will review the motions panel's decision for improvidence.
We initially examine whether our jurisdiction over this appeal, if accepted, is limited to the single question identified by the district court as controlling. The Supreme Court has held quite clearly that it is not; 28 U.S.C. § 1292(b) grants jurisdiction "over any question that is included within the order that contains the controlling question of law identified by the district court." Yamaha Motor Corp....
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Valdez-baez v. Decatur Hotels Llc., 07-30942.
...court. On appeal, a panel of this court reversed the district court and rendered judgment for Decatur. See Castellanos-Contreras v. Decatur Hotels LLC, 559 F.3d 332 (5th Cir.), withdrawn and replaced by 576 F.3d 274 (5th Cir.2009). En banc review was granted, thus vacating the panel opinion......
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