1. H-2B employers have to pay reasonable return travel expenses for H-2B workers who are dismissed early.
2. H-2B employers may have to pay reasonable return travel expenses for H-2B workers who complete the season.
3. This area is unsettled. Proceed cautiously.
One of the most common questions the Hall Law Office receives is "When does an H-2B employer have to reimburse return travel expenses?" It is also one of the most challenging questions because there is Congress' answer, DOL/DHS' answer, and the practical answer.
Congress' answer (8 U.S.C. 1184(c)(5)(A)) is that an employer is liable for "reasonable" return travel expenses only when the H-2B employee is "dismissed" before the end of the "authorized employment."
DOL/DHS' answer is that an employer is always liable for reasonable return travel expenses.
So what is an employer to do? The approach needs to be tailored for a specific business. Factors such as overall risk tolerance and travel costs play an important role. Some businesses will choose to pay to avoid issues with DOL. But that money will never come back if the courts back Congress. Some businesses will choose to comply with Congress, but DOL might try to assess fines and back wages after an investigation. Of course, if Congress' approach prevails before the investigation, the money that would have gone to more productive uses and will never need to be paid. It is important to proceed cautiously because the law is unsettled. As they say, fools rush in where angels fear to tread.