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Departments of Homeland Security, Labor Adding 20,000 H-2B Visas

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 March 31, 2022. 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 nonimmigrant 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 nonimmigrant 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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Court Orders Gargan To Pay $132K After Alleged Labor Laws Violations

A federal court has ruled that New York-based trainer Danny Gargan must pay $132,631 in back wages and damages to 52 employees. According to a press release issued by the U.S. Department of Labor, Gargan failed to pay his workers overtime wages they had earned.

The fine includes an assessment of $37,368 in civil money penalties for what the Department of Labor is calling a “willful wage theft and for falsifying records in violation of the Fair Labor Standards Act.”

“The defendants took advantage of their employees by underpaying them and then tried to hide this illegal behavior by falsifying their payroll records,” Wage and Hour Division District Director David An said in a statement. “Gargan Stables Corp. and Danny Gargan have learned that disregard for federal labor laws and their employees' rights have costly consequences. We suggest other employers review their own pay practices to prevent violations. The Wage and Hour Division has many tools to assist employers and workers in understanding the law.”

Gargan is just one of many New York trainers fined by the Department of Labor for similar violations. The list includes Chad Brown, Kiaran McLaughlin, Linda Rice, Jimmy Jerkens, Steve Asmussen, Leo O'Brien and George Weaver.

Gargan said he decided to settle with the Labor Department after years of contesting the charges.

“You can't fight them and I fought them for three years and that's why they are mad at me,” he said. “Obviously, I'm not the first guy this has happened to. At some point, you have to settle with them. It weighs on you. Kiaran McLaughlin retired over this. It's a hard thing to be part of.”

The Department of Labor charged that Gargan paid certain employees a fee per horse handled and not per hour as stated in their payroll records. The division also determined that he falsified payroll records to give the appearance that employees were paid by the hour when they were not.

Gargan said the latter charge was not true and that the problem boiled down to his failure to use a time clock.

“We didn't falsify anything,” he said. “We just had time sheets. That's the way we were told to do it. It turns out you have to have an actual time clock. It's not like we lied or anything. They got their overtime. But they don't accept the time sheets and anyone who doesn't have a time clock in New York is going to get a big fine. Believe me, I pay my help.”

As per the court's ruling, Gargan will be required to hire a compliance monitor to review payroll and record keeping practices and to install an electric timekeeping system to record the amount of hours an employee has worked. He must also train employees in a language they will understand about the proper use of the timekeeping system and post and provide employees with information and documents in English and Spanish informing them of their rights under the Fair Labor Standards Act.

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Additional H-2B Visas Soon to be Available During Second Half of Federal Fiscal Year

The U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor have agreed to offer 22,000 additional H-2B visas to employers for the second half of the federal fiscal year that ends Sept. 30. These visas are used by employers, such as racehorse trainers, who seek seasonal guest workers. They are capped at 66,000 annually, with an even split of 33,000 available for each half of the federal government's fiscal year. The additional visas will be made available later this spring or early summer via a temporary final rule in the Federal Register.

“We are pleased to learn that additional H-2B visas will be available for trainers soon and applaud Homeland Security Secretary Alejandro Mayorkas and Labor Secretary Marty Walsh for this action,” said NTRA President and CEO Alex Waldrop. “At the same time, the NTRA supports relief from the burdensome annual H-2B visa cap through a permanent returning worker exemption and urges both departments to reform the program accordingly, enabling affected employers to stabilize their businesses.”

This past December, the Consolidated Appropriations Act of 2021 became law and included a provision that provides the DHS with the discretionary authority to release an additional 64,176 H-2B visas when significant need is demonstrated. The NTRA, through its involvement with the H-2B Workforce Coalition, supports all efforts to make additional visas available to seasonal businesses struggling with labor issues.

Demand for H-2B visas often exceeds their availability and the cap level is quickly reached, leaving employers in need. For the second half of federal fiscal year 2021, DHS announced that by Feb. 12 it had received enough H-2B worker petitions to reach the congressionally mandated cap of 33,000 visas allotted.

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Weaver Pays Over $400K In Earnings, Civil Penalties Related To Labor Laws, H-2B Visa Program

Trainer George Weaver has agreed to pay $325,431 in owed wages to employees and $99,567 in civil penalties related to violations of labor and immigration laws, according to a report by The Miami Herald Friday.

A federal judgment states 59 employees will receive $2,548 each in what the government said was unpaid overtime pay. A portion of the penalties assessed to Weaver were for incorrect timekeeping practices, according to the report.

Several New York-based trainers have come under scrutiny by federal agencies for their employment practices in recent years, particularly timekeeping. Federal standards require employers to have an accurate timekeeping method and pay employees hourly, with a change in rate for overtime pay; this is not typically the method of payment for backstretch employees, who are more commonly paid a flat rate based on the number of days, weeks, or horses worked.

The U.S. Department of Labor also assessed penalties for what it said were violations of the federal H-2B visa program, including adherence to the program's minimum wage standards, charging employees for costs related to utilizing the program, and trying to discourage employees from reporting to federal investigators or cooperating with the proceedings.

In 2019, the Saratoga Institute on Equine, Racing, and Gaming Law touched on the topic of H-2B and wages law in an effort to correct common misconceptions about the federal requirements. You can read more about how those issues impact racing employers from our reporting here.

Read more about the recent Weaver settlement at The Miami Herald

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