Background
The H2B guest worker program helps contractors obtain the seasonal, temporary workforce needed to honor seasonal contracts and it is a wildly profitable government program for many established landscape contractors.
In order for a company to obtain H2B guest workers, the landscape company must complete a rigorous application process with Fedzilla agencies to verify their need for temporary guest workers.
There’s a number of excellent H2B consulting companies who help contractors go through the Fedzilla created process of becoming a certified H2B employer and assist with recruiting workers from outside of the United States. Learn more about the H2B program here.
Hisorically, many of the temporary guest workers come from Central America. When they get the opportunity to come to the USA and get paid USA wages, they can enjoy big paydays. However, traveling to another country takes them away from their family.
Coming to the USA without their family, they have one goal in mind. Work as many hours as possible so they can earn as much money as possible for the contract period.
When you compare this mindset to that of the typical American worker you’ll find a big contrasting difference.
The average work week in the United States of America is currently 34.4 hours according to the Bureau of Labor Statistics (BLS) June of 2024.
If you are an employer, you know that anytime employees work over 40 hours in one week, you are required to pay one nd a half times the standard hourly rate for the worker pay.
The worker that was willing to work at your company for $20 an hour passes 40 hours in one week and now you are required to pay him $30 an hour. That’s been a requirement since the Fair Labor Standards Act of 1938.
S… There’s a conflict brewing. The worker really enjoys the $30 per hour. The employer would rather pay the $20 per hour. The 50% pay increase can be a huge incentive for workers to get over 40 hours of work. The 50% pay increase is a big financial burden to the employer.
It was decided many years ago that a healthy work week would be centered around the 40 hour work week. Traditionally, you would work 40 hours by working 5 days for 8 hours per day out of the week. But when you hire H2B workers, the traditional 40 hour work week is often destroyed. The H2B workers are ready to work 6 or 7 days a week in hopes of getting 20% or more of their paid hours in the form of overtime and a 50% increase in hourly pay.
If an employer properly budgets for the overtime wages and covers these costs in their pricing model, everything may be fine regarding the costs of wages. But along the way, most employers find some problems working 6 or 7 days a week while using an H2B workforce.
These problems include:
- It costs thousands of dollars to become an H2B employer
- Even if you get your company certified to become an H2B employer, there’s no guarantee you will get your workers each year
- Domestic employees get fed up working overtime hours
- Turnover of domestic workers creates gaps in communications, training or leadership
- Wage rates inside H2B companies may be depressed in such a way it prevents acquisition of domestic workers or managers
- Company culture may ignore the priority of family time for domestic workers
- Overtime pay becomes “expected” by the H2B workers and no longer treated as a special short-term boost in pay
- Workers must be managed and managers end up working more hours than the field workers
- Worker productivity drops the more hours worked each week
- Some workers ride the clock driving overtime hours up, up, up
- Due to the unstable nature of the H2B program, any employer who uses it is gambling on a year to year basis.
There are a number of benefits for participating in the H2B guest worker program including:
- Reduction in turnover at the company in field worker positions
- Improved productivity
- Willingness of workers to work more than 40 hours per week
- Lower pay rates compared to hiring domestic workers
- Many of the Hispanic workers really enjoy working in the field and find great satisfaction in field work building a healthy company culture
- Consistency in workforce productivity and capabilities by enrolling in the H2B program year after year
Let’s be clear. Many domestic American workers are not happy with 50-60 hour work weeks, regardless of the position and regardless of the pay.
Working long hours leads to loss of domestic workers. If 50 to 60 hours becomes your routine, company culture is centered around the work habits of the guest worker instead of the employer or year-round domestic workers. That’s not good for most landscape businesses.
If this describes what’s going on with your landscape company, we have a question for you to ponder…
Who’s In Charge?
The challenge to manage and maintain an H2B workforce is significant. If you are an H2B employer and your H2B employees demand 50 to 60 hours of work per week, you will gain control of overtime by implementing a series of steps to manage your H2B workforce.
Here’s a powerful lesson from managing workers through five recessions. The instant a significant downturn in the economy happens, companies find ways to reduce or eliminate overtime wages. We think it’s good for businesses to ALWAYS carefully manage overtime, regardless of the macro economy.
The Overtime Management Plan includes these steps:
- Clear Scheduling: Employers can create clear, structured work schedules that specify the start and end times for each day to ensure that workers do not exceed the standard 40 hours per week unless overtime is intended. An example might be that our work hours are 7 am to 5 pm M-Th.
- Advance Planning: Effective planning and distribution of work can help avoid unexpected demands for overtime. If you work a 3-man crew, be careful to schedule enough work to fill the workday, but do not over schedule. Think about your daily work schedule as a rule you will always follow.
- Use of Shifts: Implementing shifts with fixed hours can help control when employees work and prevent unauthorized overtime. This also makes it easier to monitor total working hours. A small number of landscape companies, mostly providing commercial services use this strategy to maximize equipment utilization while controlling overtime.
- Overtime Authorization: Employers can institute policies requiring workers to obtain prior approval before working overtime. This helps manage labor costs and ensures that any overtime worked is necessary and accounted for. Employers with clear overtime policies are able to hold employees accountable and stop overtime abuse.
- Hiring Additional Workers: If the workload consistently requires more hours than the existing workforce can cover within normal working hours, considering hiring additional workers may spread the workload more effectively and reduce the need for overtime.In case you missed it, learn about adding a new crew by reading this essay.
- Monitoring and Communication: Who’s in charge at your company? Regularly monitoring work hours and maintaining open communication with workers can help address any misunderstandings about work schedules and overtime policies. It’s important for managers to be aware of the hours being worked by each crew and to communicate expectations clearly.
- Legal and Contractual Compliance: We don’t provide legal advice, but we have witnessed many employers playing all kinds of tricks with payroll to avoid paying overtime wages. Ensure that all payroll strategies comply with the Fair Labor Standards Act (FLSA), state labor laws, and the terms of the labor certification associated with the H-2B visa. Employers should consult with legal counsel to ensure that their policies are lawful and enforceable.
And speaking of “legal matters”, hold your H2B workers accountable. We thought we should remind you about the rules available to help you manage your H2B workers. Never be held hostage by workers who fail to follow your policies.
Remember the following. If your H2B workers demand you provide overtime, you need to remind them of their contractual obligations to you and your company.
If they leave (or threaten to leave) remind them of these possible consequences:
- Visa Violation: The H-2B visa is tied specifically to the employer and the job for which the visa was issued. Leaving the employer without authorization or transferring to another employer without proper authorization is a violation of the visa terms.
- Loss of Legal Status: By leaving the designated employer and not returning to their home country or securing another legitimate employment arrangement under a valid visa, the worker loses their legal immigration status in the U.S. This means they become subject to removal (deportation) and could face difficulties in obtaining future U.S. visas.
- Employer Responsibilities: Employers are required to notify the U.S. Citizenship and Immigration Services (USCIS) when an H-2B worker absconds or terminates employment earlier than the date specified in the petition. Failure of an employer to report such incidents can lead to penalties for the employer.
- Bar on Re-Entry: If an H-2B worker stays in the U.S. beyond the authorized period without maintaining legal status, they could be barred from re-entering the United States for a period of time. This can range from three to ten years, depending on the length of their overstay.
- Deportation and Ineligibility: If found by immigration authorities, the worker could be placed in removal proceedings and deported. Additionally, they may be deemed ineligible for future U.S. visas or entry into the United States based on the overstay or unauthorized employment.
Yes. If you have felt like you are being held hostage by your H2B employees, you can play hardball and use the rules of the program to help manage the workforce. In order for the worker to be eligible for future employment with YOU or ANY H2B employer…they better follow the rules.
Which brings me to the most overlooked “H2B Overtime Management Strategy” we have discovered.
Learn how to legally share your H2B workers with a second employer.
Yes, an H-2B worker can work for multiple employers, but each employer must separately obtain approval from the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS). This means that before an H-2B worker can begin working for a new employer, the new employer must file their own H-2B petition and receive a temporary labor certification that demonstrates the need for additional labor.
This requires significant planning and cooperation. But we see this as an opportunity for creativity and sound, legal business practices. You need to carefully partner with another employer who wants to hire H2B workers and share those workers.
Here’s what we know that could help you legally reduce overtime.
Under the Fair Labor Standards Act (FLSA), overtime is calculated on a per-job basis rather than cumulatively across multiple jobs. This means that an H-2B worker who works 35 hours for one employer and 20 hours for another in the same week would not necessarily be eligible for overtime, as long as neither job individually exceeded 40 hours. Each employment situation is treated separately:
- Overtime Calculation: If an H-2B worker works more than 40 hours in a week for a single employer, any hours over 40 are typically paid at a rate of one and a half times the regular rate of pay for that job.
- Separate Employments: For H-2B workers who have multiple employers, each job is considered separately for the purpose of calculating hours and overtime. The hours worked for one employer do not combine with the hours worked for another employer to trigger overtime.
- Employer Agreement and State Laws: It’s important to note that some states might have different or more stringent rules regarding overtime, and individual employment agreements can also vary. Employers must comply with both federal and state labor laws.
Employers are required to follow these regulations strictly and ensure that all compensation complies with the labor certifications and the terms outlined in their petitions to the U.S. Department of Labor and USCIS. This includes adherence to any overtime rules applicable under federal or state law.
If you are interested in pursuing such an arrangement, you’ll need to think at least one year in advance to execute the plan.
Here’s the process briefly:
- Labor Certification: Each potential employer must apply for and receive a temporary labor certification from the DOL. This certification verifies that there are no qualified U.S. workers available for the job and that employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
- Petition Approval by USCIS: After receiving labor certification, the new employer must file a Form I-129, Petition for a Nonimmigrant Worker, with USCIS. The petition must be approved before the worker can legally start working for the new employer.
- Concurrent Employment: The process allows for concurrent employment, where the H-2B worker is approved to work for multiple employers simultaneously. Each employer must go through the certification and petition process independently.
- Change of Employment: If the worker is already in the U.S. under H-2B status and seeks to change employers, the new employer must file a new H-2B petition and receive approval before the worker can commence employment with the new employer.
It’s important for both employers and workers to ensure all legal and procedural requirements are strictly followed to maintain compliance with immigration laws.
We share this strategy in today’s Wealthy Landscaper Letter out of respect for the employers who we have witnessed being held hostage by H2B workers demanding 60-70 hours of work per week.
Further, after providing consulting services to over 400 lawn and landscape companies, we’ve only found this process being used by a handful of companies. Would this work for you?
Hopefully you will learn to effectively manage overtime within your workforce by implementing clear work schedules, proper scheduling and right-sizing your workforce.
But when all else fails, understanding your options and the rules that you and your employees should follow can be helpful.
Let us know what you think about this report and the strategies we’ve laid out for you.
Profit Greatly. You deserve it!
Tony Bass, founder
866-923-0027
PS – When you are ready to improve your skills in finding, hiring and retaining domestic workers in your lawn or landscaping company, we invite you to get your copy of The Landscaper’s Guide to Finding, Hiring and Keeping Great Employees. Order online here.
