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Asmussen Stables To Pay $205K in Penalties, Reimbursements Following DOL Investigation, Litigation

Steve Asmussen Stables has entered into a settlement agreement with the U.S. Department of Labor to reimburse grooms and hotwalkers nearly $130,000 to resolve violations of the federal H-2B worker program, which enables businesses to employ temporary visa workers, according to a release from the Department of Labor. Asmussen was also assessed civil money penalties of just over $75,000 for its violations in addition to the wage penalties.

According to the release, this is the fourth time in recent years that Asmussen has been ordered to make payments to workers, having most recently been ordered to pay more than a half-million dollars in back wages and damages. The DOL investigation in this instance found that the employer violated numerous commitments that it made during the H-2B application process to employ workers in the state of New York. The violations were said to have occurred between December 2016 and December 2019.

According to the release, the violations included:

Failing to pay workers for costs they incurred during travel to and from the U.S. at the beginning and end of the racing season, including visa fees;

Seeking and obtaining kickbacks from workers, supposedly to cover Asmussen Stables' attorney fees;

Employing workers outside of New York, contrary to statements made to the government;

Overstating the number of H-2B workers needed by the employer and;

Not disclosing material terms of the position to potential U.S. job applicants, such as that free housing may be available onsite.

“H-2B workers too often find themselves vulnerable to wage shortages and other violations of their rights,” explained Wage and Hour Division District Director David An in Westbury, New York. “Employers like Steve Asmussen Stables who employ H-2B workers must comply with the law or face sanctions, including fines and potentially being barred from the program.”

The settlement also includes enhanced compliance measures, including hiring of an independent monitor by the stable to conduct regular audits, providing workers with updated training in languages they understand, forbidding certain managers from being involved in the H-2B program and allowing the division to provide training to Asmussen Stables' H-2B workers regarding their rights.

“The U.S. Department of Labor will pursue all necessary legal avenues to obtain proper compensation for employees and prevent future violations by employers,” explained regional Solicitor of Labor Jeffrey S. Rogoff in New York. “This settlement reimburses these underpaid workers, requires Asmussen Stables to pay penalties and seeks to change this employer's behavior and prevent future violations by providing an independent monitor to perform regular audits.”

The division's Long Island District Office conducted the investigation. Department of Labor Senior Trial Attorney Jacob Heyman-Kantor litigated the case for the division before the Office of Administrative Law Judges. View the consent findings and the order approving the findings.

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Additional H-2B Visas for Fiscal Year 2022

Edited press release

The U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) have agreed to offer 20,000 additional H-2B visas to employers for positions starting on or before Mar. 31. These visas are used by employers, such as racehorse trainers, who seek seasonal guest workers.

“This addition of H-2B visas is helpful for the horse racing industry as we continue to see high demand for workers by employers,” said NTRA President and CEO Tom Rooney. “At the same time, the NTRA supports relief from the burdensome annual H-2B visa cap to enable affected employers to stabilize their businesses through a permanent returning worker exemption. We urge both departments to permanently reform the program.”

DHS is also providing additional flexibilities to H-2B petitioners under its general programmatic authority by allowing non-immigrant workers in the United States in valid H-2B status and who are beneficiaries of non-frivolous H-2B to begin work with a new employer after an H-2B petition is filed and before the petition is approved, generally for a period of up to 60 days. This provision clarifies portability eligibility for beneficiaries of pending petitions.

Of these additional 20,000 visas, 6,500 are reserved for nationals of the Northern Triangle countries of Honduras, El Salvador, and Guatemala and 13,500 for returning workers.

The H-2B visa guest worker program is a non-immigrant visa program used by many industries that need temporary non-agricultural help when domestic workers are unavailable. For the horse racing industry, trainers rely heavily on the H-2B program to fill various backside positions.

For more information, view the temporary final rule in the Federal Register.

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H-2B Visa Language Removed from Bill

The H-2B visa guest worker program, used frequently by trainers to fill backside positions, has been the subject of potentially damaging language within the fiscal year 2022 Department of Labor Appropriations bill. United States Representative Andy Harris (R-MD) offered an amendment July 15 to remove certain sections from the bill that would have made it difficult for employers to use the H-2B visa. During committee consideration, the amendment passed by voice vote.

“Thank you to all who contacted their Representative regarding this issue,” said NTRA president and CEO Alex Waldrop. “We also are grateful to Rep. Harris for offering the amendment to eliminate the language that was so threatening to employers, like horse trainers, who use the H-2B visa program.”

The amendment removed sections 116, 118, and 177 from the bill. The language in those sections would have:

Prohibited industries from using the H-2B program if they experienced unemployment in any of the previous 12 months over 10%;
Prohibited construction industries from using the program even in seasonal locations or occupations;
Increased the baseline for wages to at least 150% of the federal or state minimum wage, whichever is higher;
Required wage compliance with a collaborative bargaining agreement for your industry in your area, even if you are not a party to the agreement;
Banned participation in the program for labor/workforce-related infractions outside of the scope of the H-2B program.

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H-2B Visa Program Faces Severe Threat From Bill

Edited Press Release

The U.S. House Appropriations Committee is scheduled to consider the fiscal year 2022 Department of Labor Appropriations bill Thurs., July 15, and language within the bill could devastate the H-2B visa program. The National Thoroughbred Racing Association (NTRA) is urging industry members to contact their Representative immediately and ask for this language to be removed from the bill.

The language of concern appears on pages 46-50 of the bill and would make the H-2B visa program difficult for many employers to use. Specifically, the draft bill would:

Prohibit industries from using the H-2B program if they experienced unemployment in any of the previous 12 months over 10 percent;
Prohibit construction industries from using the program even in seasonal locations or occupations;
Increase the baseline for wages to at least 150% of the federal or state minimum wage, whichever is higher;
Require wage compliance with a collaborative bargaining agreement for your industry in your area, even if you are not a party to the agreement;
Ban participation in the program for labor/workforce related infractions outside of the scope of the H-2B program.

“This appropriations bill contains alarming language for any business or industry that relies on the H-2B visa program to operate,” said NTRA president and CEO Alex Waldrop. “We ask trainers and others in horse racing to contact their Representative today to help get this language removed.”

As suggested by the H-2B Workforce Coalition, of which the NTRA is a member, industry members are encouraged to speak with their representatives and ask that their party leadership delete Sections 116, 117 and 118 of the of Fiscal Year 2022 Labor, Health and Human Services, Education, and Related Agencies Subcommittee Appropriations Bill before the legislation is considered by the Appropriations Committee Thursday. The Capitol switchboard may be reached at (202) 225-3121. Emails can also be sent to representatives via this link.

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