DOL Wrongfully Convicts 90% Of The H-2B Employers It Investigates
While assisting an employer in an H-2B Final Conference, the investigator made a stunning admission. He stated that about 90% of the employers that he wrote up had made good faith mistakes. Think about it 9 out of 10 H-2B employers that DOL investigated are now listed in a public database as having abused workers. In other words, of the 36,386 H-2B employersfound to have violated the law since FY 2015, 32,747of them were innocent.
At least 90% of the people that DOL convicts are innocent. What’s worse is that most people convict themselves by just writing a check.
How can that be? This is how. Congress knew how technical the H-2B regulations were and didn’t intend for honest people to be tripped up by them. Congress therefore limited WHD’s enforcement authority to bad faith, willful violations of the statute or regulations that are objectively major. Take a look at the law: 8 U.S.C. §§ 1184(c)(14)(A), (D).
A good faith mistake – no matter how bad – does not violate the law. This is worth repeating: A good faith mistake no matter how bad does not violate the law. The problem is that DOL enforces the H-2B statute as if good faith doesn’t matter. That’s why 32,747 H-2B employers are now labeled as “guilty” when, by law and by right, they are innocent.
So what did it cost them? First, it cost their reputation. They are now publicly listed as people who intentionally and deliberately abused workers. No one cares that the “violation” was technical – certainly not the plaintiff’s attorney planning to sue. Second, they are now “second” violators in DOL’s eyes – much higher fines, more intrusive investigation, less sympathy from administrators, less sympathy from judges, and a much higher likelihood of Lastly, money that they should have had to pay. How much? Since FY 2015, WHD assessed $11,800,719 in improper fines – money it took the federal government just 78 minutes to blow through.
What to do? Don’t let DOL tell you that your good faith mistake violated the law. It didn’t. Make sure you get the investigator on tape admitting that you acted in good faith. Stand your ground and get the right people to help you.