BALTIMORE (Legal Newsline) — A Florida amusement park company is the latest to be dismissed from a proposed class action lawsuit in which H-2B visa guest workers claim they haven’t been paid for work they did in 2013 when the U.S. Department of Labor (DOL) allowed the companies to appeal a wage increase.
The suit, filed in Maryland federal court, originally included 79 companies. Interstate Amusements of America Inc. is the fifth to be dismissed for allegedly either not employing H-2B workers in Maryland during the specified time period or for having already paid the supplemental prevailing wages in question.
The proposed class action, filed in November by Pablo Gonzales-Aviles and Heleodoro Pena-Gonzalez on behalf of H-2B guest workers, could include all of the employees of the remaining 74 companies it names. It also names the DOL.
The suit claims that the DOL should not have allowed administrative appeals of the Supplemental Prevailing Wage Determinations it issued in 2013, which constituted a wage increase.
As foreign workers performing seasonal work in the U.S., H-2B visa guest workers are paid at least the prevailing wage set by the DOL. The suit alleges that, as a result of the appeals, the workers continued to be paid the lower rate.
At least 65 companies named in the suit have filed a motion for dismissal, arguing that the workers have no legal standing and haven’t demonstrated that they’ve been harmed by their employers, R. Wayne Pierce, one of the defendants' attorneys, told Legal Newsline.
“They’ve got to show standing — they have to show that they’re harmed by what’s happened,” Pierce said.
Instead, Pierce said, the plaintiffs admitted in a brief responding to a motion to dismiss that the employers haven’t done anything wrong, leaving Pierce wondering about their methods in pursuing this suit.
From his perspective, the workers are suing their employers for “exercising their legal rights.”
“The DOL told us we have the ability to challenge our wage rate increases,” Pierce said. “We did that. That wasn’t good enough for them.”
The plaintiffs’ response also stated the DOL’s policy of paying prevailing wages gives them the necessary “injury-in-fact” to establish legal standing.
Defendants are arguing that the workers’ claims are against the government only because they are based on statutes that don’t apply to non-government parties.
For example, the plaintiffs invoke the Administrative Procedure Act, which governs how federal agencies propose and establish regulations.