Aviles-Cervantes v. Outside Unlimited, Inc.

• Decision Date: 07 September 2017
• Docket Number: Civil Action No. RDB–16–1214
• Citation: 276 F.Supp.3d 480
• Parties: AVILES–CERVANTES, et al., Plaintiffs v. OUTSIDE UNLIMITED, INC., Defendant.
• Court: U.S. District Court — District of Maryland

276 F.Supp.3d 480

AVILES–CERVANTES, et al., Plaintiffs

v.OUTSIDE UNLIMITED, INC., Defendant.

Civil Action No. RDB–16–1214

United States District Court, D. Maryland.

Signed September 7, 2017

Alfred Darwin Holder, Jr., Holder Law Group LLC, Towson, MD, Edward Tuddenham, Pro Hac Vice, Law Office of Edward Tuddenham, New York, NY, for Plaintiffs.

R. Wayne Pierce, The Pierce Law Firm, LLC, Annapolis, MD, Wendel V. Hall, Pro Hac Vice, Hall Law Office, Washington, DC, for Defendant.

Richard D. Bennett, United States District Judge

MEMORANDUM OPINION

Plaintiffs Rafael Aviles–Cervantes, Pablo Gonzalez–Aviles, Heleodoro Peña–Gonzalez, and Jose Alberto Ramirez–Bernardino have brought this putative class action against Defendant Outside Unlimited, Inc. ("Defendant" or "Outside Unlimited"), a landscaping company operating in Maryland and Pennsylvania, on behalf of themselves and all other temporary guestworkers hired by Outside Unlimited as landscape laborers in 2013, 2014, and 2015, pursuant to the H–2B visa program.¹ Second Am. Compl., ¶¶ 1, 6, ECF No. 24.² Plaintiffs allege violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq . (Count I); the Maryland Wage and Hour Law ("MWHL"), Md. Code Ann., Lab. & Empl. § 3–401, et seq . (Count II); the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code Ann., Lab. & Empl. § 3–501, et seq . (Count III); and two Breach of Contract claims (Counts IV & V), in connection with their employment by Outside Unlimited between 2013 and 2015. Id . ¶¶ 45–52. Currently pending before this Court is Outside Unlimited's Motion to Dismiss the Second Amended Complaint (ECF No. 27). The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated herein, Outside Unlimited's Motion to Dismiss the Second Amended Complaint (ECF No. 27) is DENIED. Although Plaintiffs allege, inter alia , violations of Department of Labor H–2B regulations by Outside Unlimited, this action is properly before this Court on Plaintiffs' Fair Labor Standards Act claims, and Plaintiffs were not required to exhaust Department of Labor administrative remedies prior to filing suit. To the extent that certain Department of Labor H–2B visa regulations are currently under review in related proceedings³ , a stay of this action or severance of claims may be appropriate if those related proceedings are not resolved prior to trial in this case. However, this Court will defer ruling on that issue, as the parties have not fully briefed their positions.

BACKGROUND

In ruling on the Defendant's Motion to Dismiss, this Court "accept[s] as true all well-pleaded facts in [the] [C]omplaint and construe[s] them in the light most favorable to the [P]laintiff." Wikimedia Found. v. Nat'l Sec. Agency , 857 F.3d 193, 208 (4th Cir. 2017). "Since at least 2012, [Defendant Outside Unlimited, Inc. ("Defendant" or "Outside Unlimited") ] has been engaged in the business of providing landscaping services to customers in Maryland and Pennsylvania." Second Am. Compl., ¶ 14, ECF No. 24. "In order to find sufficient workers to fill its landscaping jobs, [Outside Unlimited] petitioned the [United States] Department of Homeland Security ("DHS")" in the years 2013, 2014, and 2015 "for permission to import foreign workers to perform landscape work using H–2B temporary work visas." Id . ¶ 17. Plaintiffs Rafael Aviles–Cervantes, Pablo Gonzalez–Aviles, Heleodoro Peña–Gonzalez, and Jose Alberto Ramirez–Bernardino are "citizens of the Republic of Mexico," hired by Outside Unlimited as "landscape laborers" between 2013 and 2015, pursuant to the H–2B visa program. Id . ¶¶ 1, 5, 14–15.

As this Court has recently explained in Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec. , No. ELH-16-1015, 2017 WL 3189446, at *2 (D. Md. July 27, 2017), "[t]he H–2B visa program permits [United States] employers to recruit and hire foreign workers to fill temporary unskilled, non-agricultural positions for which domestic workers cannot be located." (citing 8 U.S.C. § 1101(a)(15)(H)(ii)(b) ; La. Forestry Ass'n, Inc. v. Sec'y of Labor , 745 F.3d 653, 658 (3d Cir. 2014) ). Pursuant to Department of Homeland Security regulations, prior to authorizing an eligible employer to hire H–2B guestworkers, the United States Department of Labor ("DOL") must "determine whether (1) qualified workers in the United States are available to fill an employer's job and whether (2) the alien's employment will adversely affect wages and working conditions of similarly employed [United States] workers." Id . (citing 8 C.F.R. § 214.2(h)(6)(iii)(A) ). "If, after reviewing an employer's job offer and recruitment efforts, the Secretary of Labor determines that [United States] workers are not available to fill the jobs described in the employer's application and that the offered terms of work will not adversely affect similarly employed [United States] workers, DOL issues a ‘temporary labor certification’ that the employer must attach to the H–2B visa petition it submits to [the Department of Homeland Security]." Id . (citing 8 C.F.R. §§ 214.2(h)(6)(iii)(C) and 214.2(h)(6)(iv)(A) ). "No petition for H–2B visas may be issued by DHS without an approved labor certification from DOL." Id .

"Because the numbers of [United States] workers who accepted [Outside Unlimited's] jobs were not sufficient to fill all of the company's landscape laborer jobs," the Plaintiffs contend that "Outside Unlimited filed labor certification applications on ETA Form 9142–B so that it could hire additional foreign landscape workers to work in Maryland and Pennsylvania in 2013, 2014 and 2015." Second Am. Compl., ¶ 21, ECF No. 24. "Those forms set forth the terms and conditions of work [Outside Unlimited] was offering to its H–2B workers, [including]...an assurance that the wage offered by Outside Unlimited [ ] would equal or exceed the prevailing wage that was or would be issued by the DOL for the specified period of employment." Id . "Based on those offered contract terms, the DOL approved Defendant's temporary labor certification applications and DHS approved Defendant's H–2B visa petitions."Id .

Plaintiffs allege that in 2013, 2014, and 2015, Outside Unlimited "entered into work contracts with the [United States] and foreign H–2B workers it recruited to work as landscape laborers, including Plaintiffs." Id . ¶ 24. "Those work contracts explicitly and/or by operation of law, offered the terms and conditions of work set forth in Defendant's ETA Form 9142–B temporary labor certification applications, including the promise to pay the offered rate, which rate would equal or exceed the latest prevailing wage set by DOL (including prevailing wages set during the course of a season) and time-and-a-half the offered rate for hours over 40." Id . "In the summer of 2013, DOL notified [ ] Outside Unlimited [ ] of supplemental prevailing wage determinations that required Outside Unlimited to increase the wages of its landscape laborers because of an increase in the applicable prevailing wage." Id . ¶ 25. Plaintiffs contend that Outside Unlimited "did not increase its wages in conformity with the notices it received from DOL and failed to pay Plaintiffs and the other landscape laborers at the new prevailing wage rate despite its contractual commitment to Plaintiffs and other class members to pay at least the prevailing wage that ‘will be’ issued by DOL during the course of the 2013 season." Id .⁴

Plaintiffs additionally allege that Outside Unlimited failed to reimburse them for pre-employment visa, transportation, and lodging expenses; took improper deductions from their weekly wages for uniform services and housing; failed to pay workers for approximately 1–2 hours of work per day for time spend loading and unloading trucks and traveling from Outside Unlimited's "yard" to job sites and back again; failed to pay workers who were employed by Outside Unlimited to drive workers between their housing and the yard an additional 3–4.5 hours per week; and failed to pay the applicable prevailing wage to Plaintiffs and other workers performing supervisory and driving tasks. Id . ¶¶ 26–40. As a result of these unlawful practices, Plaintiffs contend that they and other class members received less than their contract wages and less than the federal and state minimum wages. Id . ¶¶ 41–43.

Plaintiffs have now brought this putative class action on behalf of "[a]ll H–2B temporary guestworkers hired by Defendant to fill jobs described in Defendant's 2013, 2014 or 2015 ETA Form 9142 labor certification applications," alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq . (Count I); the Maryland Wage and Hour Law ("MWHL"), Md. Code Ann., Lab. & Empl. § 3–401, et seq . (Count II); the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code Ann., Lab. & Empl. § 3–501, et seq . (Count III); and two Breach of Contract claims (Counts IV & V). Id . ¶¶ 7, 45–52. Plaintiffs filed their initial Complaint in this action on April 22, 2016 (ECF No. 1), but have subsequently amended that Complaint twice. Plaintiffs' Second Amended Complaint (ECF No. 24) is now the operative complaint. Outside Unlimited previously filed a Motion to Dismiss the First Amended Complaint (ECF No. 13), but that motion was rendered moot upon Plaintiffs' filing of the Second Amended Complaint. See Letter Order, ECF No. 29. Outside Unlimited has now filed a Motion to Dismiss the Second Amended Complaint (ECF No. 27), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

STANDARD OF REVIEW

Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is "to test...