Judge orders concessions operator that shortchanged temporary workers with H-2B visas to pay $203K in back wages, penalties

MINNEAPOLIS – An administrative law judge has dismissed a Minnesota company’s notice of contest and affirmed the U.S. Department of Labor finding that the employer violated a federal program that allows foreign, non-agricultural workers with H-2B visas to temporarily work in the U.S.

Issued on May 26, 2022, the judge’s order comes after Solem Concessions Inc. – a Rochester-based operator of concession stands that travel to state and county fairs, music festivals and other public events in eight states – failed to provide documentation to support its challenge and engaged in a pattern of persistent disregard over the courts’ orders and discovery requests by the Department of Labor. The 30-day period for appeal expired without response from the employer.

Investigators with the department’s Wage and Hour Division identified several violations of the temporary H-2B worker visa program by the employer, and found Solem Concessions owed $148,631 in back wages to 35 non-immigrant H-2B workers hired by the company to staff its stands. The H-2B violations also led the division to assess $54,905 in civil money penalties.

“Federal labor law provides worker protections for nonimmigrant workers employed under the H-2B program and Solem Concessions Inc. violated those requirements, said Wage and Hour District Director Kristin Tout in Minneapolis. “The Department of Labor protects non-immigrant workers’ rights and is diligent in its efforts to ensure they receive the wages they earn. Employers who chose to participate in the H-2B program must ensure they are aware of their obligations and abide by the law.”

Specifically, the division’s investigators determined the employer violated the H-2B program when it:

• Did not pay the required hourly rate. Specifically, paid employees flat salaries that did not compensate them for all hours they worked.
• Failed to accurately report their temporary need by staggering employee arrival and departure dates throughout the work season.
• Failed to maintain accurate payroll and time records, including hours worked per day.
• Did not provide timesheets and earning statements to workers that included the employer’s address and identification number, the employees’ hourly rate of pay, hours worked, the pay period’s beginning and end dates, and the employee’s last and first name.
• Reimbursed visa fees to the workers at the end of the season, rather than during the first workweek.

The federal H-2B visa program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the U.S. The employment must be temporary in nature and be for a limited period of time, such as a one-time occurrence, seasonal need, peak load or intermittent need.

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the division’s toll-free helpline at 866-4US-WAGE (487-9243).

Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division. Download the agency’s new Timesheet App for Android devices to ensure hours and pay are accurate.

United States Department of Labor, Office of Administrative Law Judges, Boston, Massachusetts

Case: 2021-TNE-00017