Since 2010, the U.S. Department of Labor (“DOL”) has been issuing an increasing number of Notice of Audit Examination (“NOAE”) requests to companies that employ H-2B temporary workers. As a result of the increasing audits, the agricultural and green industries have been one of the sectors absorbing a large amount of the audits issued.
While the auditing process may be stressful and uncomfortable for small businesses that employ H-2B workers, it is necessary to be diligent in your recordkeeping and adherence to the DOL regulations. Failure to adequately follow the regulations that an employer has agreed to with the DOL can ultimately lead to a denial of any future labor certifications, stricter scrutiny for future work visa applications, and administrative fines of up to $10,000 for each violation. Given the possibility of these sanctions, here are some tips to make sure that you are following the guidelines of the DOL:
(1) Make accurate predictions as to hiring needs based on business projections.
(2) Maintain records of all DOL Labor Certification application materials and approvals.
(3) Maintain copies of all H-2B worker applications and approval notices.
(4) Maintain detailed lists of information of all employees under H-2B status including the employee’s visa number, hire date, hire source, and termination.
(5) If using a foreign recruiting service, include explicit clauses in the contract forbidding recruiters from receiving payments from prospective employers.
(6) Ensure that the H-2B workers are working full-time in their proposed positions.
(7) Maintain detailed payroll records.
(8) If an H-2B employee is terminated or personally abandons employment, be sure to notify the Office of Foreign Labor Certification (“OFLC”) and the Department of Homeland Security (“DHS”) in writing within 48 hours of the separation.
Lastly, if audited, stay calm and obtain counsel to help guide your business through the response process. With the right preparation and assistance, you can make the audit process much easier.
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