FLSA generally applies, unless there is a valid exemption, to employers who participate in these programs. Failure to comply with FLSA by an H-2A or H-2B employer becomes potentially even more serious than would otherwise be the case because the employer has specifically agreed to comply with applicable laws.
In addition to FLSA, there are H-2B employers who are subject to the Service Contract Act (e.g., landscape maintenance for federal agencies). See SERVICE CONTRACTORS.
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It is possible that a very small business will have some employees who are not covered by FLSA, but most H-2B employers are obligated to comply with FLSA, including the overtime compensation standards. Each employer's circumstances must be examined to determine application of coverage and exemptions. For example, it is possible for certain covered employees of an H-2B employer to be exempt from overtime standards as "agricultural" employees. This is, however, rare.
H-2A employees are typically exempt from the overtime standards because of the "agricultural" exemption. However, the definition of "agriculture" that applies to the H-2A program is not synonymous with the FLSA definition of "agriculture." It is possible for some employees of an H-2A employer, in some of the workweeks, to fail to qualify for agricultural exemption (overtime standards would apply).
Morris is not able to offer consultation regarding the H-2A and H-2B programs, but he can help these employers in the examination of exemption possibilities and compliance status regarding FLSA or SCA. He is also able to work with H-2A and H-2B employers in the event of an investigation by DOL to enforce FLSA or SCA. See INVESTIGATION.
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