Migrant Landscapers Clamor Over Wages

     PHILADELPHIA (CN) – A Pennsylvania landscaping business underpaid the noncitizen Mexican workers it employed pursuant to a visa program, a class claims in court.
     Rogelio Ortega Hernandez is the lead plaintiff in the complaint filed Aug. 20 against Earth Care Inc., of Honey Brook, and its owners Scott and Kim Risbon.
     He says Earth Care hired him as a seasonal laborer from 2010 through 2014 pursuant to the federal H-2B temporary non-agricultural worker visa program.
     “Defendants misused this visa program to hire foreign workers who were likely to be unfamiliar with their rights as employees, and took advantage of these workers in order to increase their own profits by paying the workers less than they were entitled to,” the complaint filed in the Philadelphia Court of Common Pleas states.
     The seasonal work begins for Earth Care and its temporary force of 100 workers, plus 56 year-round employees, in March, a “peak” time for landscaping, and goes through December, according to the complaint.
     Before he would get to the job of digging and planting for Earth Care clients every day, Ortega says he first reported to Earth Care’s shop to receive his job assignment.
     While Earth Care paid Ortega $9.91 an hour in 2010, and $14.87 an hour for overtime, he sometimes worked on projects that required a higher prevailing wage rate than their usual positions, according to the complaint.
     Ortega says he and his fellow H-2B workers were never paid at that legally mandated rate.
     The complaint describes a similar scheme in 2011 and 2012, but notes that the Department of Labor revised the prevailing wage determination for his line of work in 2013, bringing that rate to $13.43 an hour.
     “Upon information and belief, at no time after June 5, 2013, did Defendants increase the wage rate to the required prevailing wages of $13.43 per non-overtime hour worked and $20.15 per overtime hour worked,” the complaint states.
     When Ortega was earning $10 an hour last year, he says “no Mexican national H-2B employees of Defendants were paid the required minimum prevailing wage rate of $14.04 per hour at any time in 2014.”
     Ortega calls the wage scheme discriminatory since the defendants deprived “Mexican H-2B workers of the same rights to make and enforce contracts as is enjoyed by white citizens.”
     Since the Department of Labor investigated Earth Care in 2009, its failure to comply with the Fair Labor Standards Act should be considered willful, according to the complaint.
     Ortega says improper deductions “also brought some workers’ paychecks below the state and federal minimum wage of $7.25 per hour.”
     Such deductions stemmed from Earth Care trying to recoup the money it loaned H-2B workers “to cover travel expenses from Mexico City to Philadelphia” every year, according to the complaint.
     Earth Care also allegedly deducted from each H-2B worker the $150 that the company paid in “Banamex” visa-application fees.
     Ortega notes as well that Earth Care “did not reimburse other seasonal H-2B workers who completed their term contract of employment with Defendants for their return transportation expenses to their homes in Mexico.”
     Noting that the company touts itself online as “a multi-million dollar company,” the class seeks damages for violations of the federal Fair Labor Standards Act and the Civil Rights Act, for breach of contract, and for breaches of the Pennsylvania Minimum Wage Act and Wage Payment and Collection Law.
     They class is represented by Arthur Read and Stephanie Dorenbosch of Friends of Farmworkers, a community advocacy organization that offers free legal representation to “vulnerable low-wage landscapers,” according to its website.
     Earth Care has not returned a request for comment.

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