Castellanos-Contreras v. Decatur Hotels, L.L.C.

• Decision Date: 16 May 2007
• Docket Number: Civil Action No. 06-4340.
• Citation: 488 F.Supp.2d 565
• Parties: Daniel CASTELLANOS-CONTRERAS, et al. v. DECATUR HOTELS, L.L.C., et al.
• Court: U.S. District Court — Eastern District of Louisiana

488 F.Supp.2d 565

Daniel CASTELLANOS-CONTRERAS, et al. v. DECATUR HOTELS, L.L.C., et al.

Civil Action No. 06-4340.

United States District Court, E.D. Louisiana.

May 16, 2007.

Tracie L. Washington, Washington Law Firm, New Orleans, LA, Andrew H. Turner, Jennifer Rosenbaum, Mary C. Bauer, Montgomery, AL, Melissa Crow, Washington, DC, for Daniel Castellanos-Contreras, et al.

Leslie Weill Ehret, Ellen Shirer Kovach, Frilot, Partridge, Kohnke & Clements, LC, New Orleans, LA, James Larry Stine, Wimberly, Lawson, Steckel & Schneider, P.C., Atlanta, GA, Michael L. Fantaci, Le-Blanc Butler, LLC, Metairie, LA, for Decatur Hotels, L.L.C., et al.

ORDER & REASONS

FALLON, District Judge.

Before the Court are the Defendants' Motion to Dismiss and/or for Summary Judgment (Rec.Doc.51) and the Plaintiffs' Cross Motion for Partial Summary Judgment (Rec.Doc.71). The motions present what appears to be an issue of first impression in the federal courts, namely whether the provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et. seq., apply to non-immigrant alien laborers that temporarily enter the United States on "H-2B" visas. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). The Court heard oral argument and took these motions under submission. For the following reasons, the Court finds that H-2B guestworkers are entitled to the protections of the FLSA. Accordingly, the Defendants' motion to dismiss is now DENIED and the Plaintiffs' cross motion is GRANTED IN PART, insofar as the Court finds that the Plaintiffs are entitled to assert claims under the FLSA. However, the Plaintiffs' motion is DENIED IN PART to the extent that it requests any further relief.

I. BACKGROUND

On August 16, 2006, Daniel Castellanos-Contreras, Oscar Ricardo Deheza-Ortega, and Rodolfo Antonio Valdez-Baez ("Plaintiffs") filed suit against Decatur Hotels, L.L.C. and F. Patrick Quinn, III, the founder and President/CEO of Decatur Hotels (collectively, "Defendants"). The Plaintiffs are guestworkers recruited from foreign countries following Hurricane Katrina to work in the Defendants' luxury hotels in the New Orleans area. Facing a severe reduction in their available work force, the Defendants arranged for the Plaintiffs to temporarily come to the United States on "H-2B" visas. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). As a part of the application for obtaining certification to bring H-2B guestworkers to New Orleans, the Defendants certified to the U.S. government that qualified persons in the United States were not available to fill the jobs. The Defendants then contracted with the Accent Group, a personnel services company that assisted in recruiting workers from abroad by sub-contracting with local hiring agents. Under the H-2B program, the Plaintiffs' immigration status is tied to their employment with the Defendants; they are prohibited from working for any other employer while in the United States.

In their First Amended Complaint, the Plaintiffs allege that they were enticed to leave their homes in Bolivia, Peru, and the Dominican Republic at significant personal cost to perform guest services, housekeeping, maintenance, and other support functions in the Defendants' hotels based on false promises of high earnings, stable jobs, and good living conditions. Specifically, the Plaintiffs allege that the Defendants violated the FLSA by failing to reimburse them during their first week of employment for travel, visa, recruitment, and other expenses incurred in migrating to the United States. The Plaintiffs allege that such costs ranged from $3,500 to 35,000 per person, and were incurred primarily for the benefit of the Defendants. The Plaintiffs contend that the Defendants' failure to reimburse these costs resulted in a de facto deduction from the Plaintiffs' wages such that they earned substantially less than the $5.15 per hour minimum wage in their first week of employment, in violation of the FLSA. See 29 U.S.C. § 206(a).

The Plaintiffs seek a declaration that the Defendants have violated the FLSA, thereby entitling them to awards of unpaid wages and liquidated damages, as well as attorneys' fees and costs. The Plaintiffs also seek to represent an FLSA "opt-in" collective action of all non-supervisory guestworkers employed by the Defendants between August 29, 2005 and August 16, 2006. The Plaintiffs contend that there are approximately three hundred similarly situated H-2B employees; indeed, to date, the Court has received numerous notices from individuals expressing a desire to join the putative collective action. However, the issue of conditional certification of an FLSA collective action is not presently before the Court.¹

II. PRESENT MOTIONS

The parties have filed cross motions seeking resolution of a threshold legal issue in this case, namely whether the FLSA applies to non-agricultural guestworkers brought to the United States under the H-2B program. The Plaintiffs contend that the FLSA applies in this case, but go further and ask the Court to find that the Defendants have violated the minimum wage provisions of the FLSA by failing to reimburse the Plaintiffs for visa, travel, and recruitment costs. The Defendants argue that non-agricultural workers employed pursuant to the H-2B program do not enjoy the protections of the FLSA. Alternatively, the Defendants argue that the Plaintiffs are not entitled to reimbursement of the noted costs under the FLSA. The Court has also received an amicus curiae brief supporting the Defendants' motion to dismiss submitted by several employers that utilize guestworker programs.²

III. LAW & ANALYSIS

A. Statutory & Regulatory Framework

"[T]hrough the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., Congress has set the basic rules governing whether and under what conditions non-citizens, or `aliens' to use the term of art, may enter and remain within the United States." Daylily Farms, Inc. v. Chao, 357 F.Supp.2d 356, 357 (D.Mass.2005). "United States employers wishing to hire alien workers must navigate a maze of statutory provisions and regulations administered by the Immigration and Naturalization Service and the Department of Labor." Kooritzky v. Reich, 17 F.3d 1509, 1510 (D.C.Cir.1994); see also United States v. Richard Dattner Architects, 972 F.Supp. 738, 741-42 (S.D.N.Y.1997) (discussing the statutory and regulatory framework). The details of this process are not specifically implicated in the instant case, but it will suffice to say that "[a]n alien seeking to emigrate from a foreign country `to the United States may not legally enter without an immigrant visa issued by the United States Consul in his country." Kooritzky, 17 F.3d at 1510.

Non-immigrant aliens temporarily entering the United States to work do so on one of several types of visas, depending on the type of work they will be performing. An alien coming to this country to "perform agricultural labor or services" generally enters on what is known as an H-2A visa, named after the statutory section authorizing such entry. See 8 U.S.C. § 1101(a)(15)(H)(ii)(a). The Plaintiffs in this case entered the country on what is known as an H-2B visa, named after the statutory section which authorizes aliens to come "temporarily to the United States to perform ... temporary service or labor if unemployed persons capable of performing such services or labor cannot be found in this country." See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). As one court has explained:

The H2A and H2B programs, created by the [Department of Labor] pursuant to the Immigration Reform and Control Act, contain various hiring requirements with which all employers must comply prior to hiring temporary alien laborers. The practical distinction between the two is that H2A prescribes an employer's treatment of agricultural workers, whereas H2B prescribes the treatment for nonagricultural workers.

Chao v. N.C. Growers Ass'n, 280 F.Supp.2d 500, 504 (W.D.N.C.2003).³

"Before a consular officer may issue an H-2B visa, the employer petitioning for the alien's admission must obtain `certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers.'" United Ass'n of Journeymen v. Barr, 981 F.2d 1269, 1271-72 (D.C.Cir.1992) (quoting 8 C.F.R. § 214.2(h)(6)(iv)(1)). There is no dispute that the Defendants in this case successfully navigated the statutory and regulatory maze, and that the H-2B visas were properly issued to the Plaintiffs.

B. H-2A vs. H-2B

The Plaintiffs principally rely on Arriaga v. Florida Pacific Farms, L.L. C., 305 F.3d 1228 (11th Cir.2002), in which the United States Court of Appeals for the Eleventh Circuit held that, under the FLSA, migrant farm workers entering the United States on H-2A visas were entitled to reimbursement of (1) the one-time cost of travel from Mexico to Florida, and (2) the cost associated with obtaining the H-2A visa. The Arriaga court began its analysis by noting that "[t]he protections of the minimum wage provisions of the FLSA indisputably apply to the Farmworkers. See 20 C.F.R. § 655.103(b) (Turing the period for which the temporary alien agricultural labor certification is granted, the employer shall comply with applicable federal, State, and local employment-related laws and regulations ... `)." Id. at 1235. In light of this clear guidance on the applicability of federal employment law, the court focused its analysis on the provisions of the FLSA and concluded that the plaintiffs were entitled to reimbursement because transportation and visa charges are "an inevitable and inescapable consequence of having foreign H-2A workers employed in the United States." Id. at 1242. In the instant case, the Plaintiffs ask the Court to follow Arriaga and find that non-immigrant aliens employed pursuant to the H-2B program enjoy the same rights under the FLSA as H-2A...