$82,200 in Back Wages and Penalties for Violations of the Immigration and Nationality Act by Ice Cream Company

Monday, December 10, 2012

Popsy Pop LLC in Somerdale has agreed to pay $34,200 in back wages to 55 workers and $48,000 in civil money penalties after an investigation by the U.S. Department of Labor’s Wage and Hour Division found willful violations of the H-2B provisions of the Immigration and Nationality Act.

The H-2B guest worker program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. Popsy Pop recruited workers from Eastern Europe, Central and South America and the Caribbean to drive trucks and sell ice cream throughout New Jersey, Pennsylvania and Delaware.

The investigation found that the company misrepresented the number of positions available and dates of need when submitting an application for workers under the H-2B program; misrepresented the wages to be paid when recruiting U.S. workers; placed workers in areas outside the area of intended employment described on the application; failed to pay the workers the offered wage rate indicated on the application; and failed to notify federal agencies — the U.S. Department of Labor and the U.S. Department of Homeland Security — when H-2B workers were separated early from their employment.

H-2B employment must be of a temporary nature, such as a one-time occurrence or for a seasonal or peak load need. The program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable federal minimum wage, state minimum wage or local minimum wage for the occupation in the area of intended employment during the entire period of the approved certification. Additionally, certain recruitment and displacement standards have been established in order to protect similarly employed workers in the United States.

“Employers who bring in foreign workers under the H-2B program must demonstrate they have taken certain steps to recruit U.S. workers and will pay the foreign workers wages that do not have an adverse effect on wage rates for U.S. workers,” said Patrick Reilly, director of the Wage and Hour Division’s Southern New Jersey office. “This investigation revealed that H-2B workers were paid commissions not disclosed to potential U.S. workers during the recruitment period, which is likely to have discouraged them from applying for these positions.”

Under consent findings and an order signed by an administrative law judge of the Department of Labor, which provide for an enhanced compliance program in addition to the back wages and penalties, Popsy Pop agreed to comply fully with all terms of the H-2B program in the future; implement compliance monitoring through a neutral third party to review hiring, employment and payroll practices; and implement an improved program for seeking out qualified U.S. workers to fill jobs. The company also agreed that if it commits any future violations that go uncorrected, it will be subject to an automatic one-year debarment from the H-2B program.

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