Court allows H-2A worker forced to drive trucks to proceed with federal lawsuit

A South African worker who drove trucks for two Iowa companies despite being brought in on an H-2A visa rather than an H-2B visa can proceed with his lawsuit, a federal court ruled.

A federal district court judge in Iowa denied Golden Opportunities International’s motion to dismiss a case brought by Carel Hanekom, a South African man working in Iowa under an H-2A visa. Hanekom claims the immigration-work-placement company conspired with two Iowa business owners to pay workers less for trucking operations by misclassifying their visa status.

Filed last November, the lawsuit accuses Kuchenbecker Excavating, H&S Farms-Livestock and its owners of exploiting numerous H-2A workers from South Africa by paying them agricultural wages but forcing them to drive a truck, which requires an H-2B visa and higher pay.

Hanekom began working for Kuchenbecker Excavating in July 2021. Hired as an H-2A worker, he was promised a prevailing wage of $17 per hour to help with seasonal work that included hauling and spreading chicken manure on fields.

However, Hanekom never performed any agricultural work. Rather, he drove a truck, intrastate and interstate, hauling loads of construction materials for nonagricultural construction projects.

In order for Hanekom to drive a truck, the companies would need to apply for an H-2B visa, which allows seasonal work for nonagricultural purposes. By hiring Hanekom as an H-2A employee, the companies were able to pay him at a much lower rate.

If hired as an H-2B worker, Hanekom would have been entitled to a pay rate of $25.30 per hour. Instead, he made far less by being paid the adverse-effect wage rate of an H-2A agricultural worker.

In addition to lying about the agricultural operations, both companies are accused of creating a scheme that employed an H-2A worker for several years rather than seasonally. Kenneth Kuchenbecker operated Kuchenbecker Excavation, while his daughter, Heather Smidt, operated H&S Farms. The two would trade off H-2A visas to give off the appearance of temporary work, the lawsuit claims.

For example, Kuchenbecker Excavating filed a job order that expired in August 2021. H&S Farms then filed a job order that began in August 2021, which was followed by another Kuchenbecker Excavating job order that began when H&S Farms’ expired.

According to the lawsuit, both companies submitted multiple temporary employment certification applications through the H-2A program. In total, they have filed more than a dozen H-2A applications that have brought exclusively South African workers on job orders beginning in 2018 to at least November 2023.

During that time period, more than 40 of those H-2A workers left the job before the end of their contracts due to harm they suffered from the companies’ multiple fraudulent misrepresentations in the job orders, according to the lawsuit.

More details about the lawsuit can be found here.

Iowa companies off the hook

The only defendant left in the case is Golden Opportunities International, the company used by Kuchenbecker and Smidt to recruit South African workers.

In the lawsuit, Hanekom names Kuchenbecker Excavation, H&S Farms, Kenneth Kuchenbecker, Heather Smidt, Golden Opportunities International and an employee of the two Iowa companies as defendants. In April, all but Golden Opportunities International were dismissed from the case.

Hanekom alleges that Golden Opportunities International played a role in this scheme. He argues that the immigration-work-placement company knew or should have known that requested forms were fraudulent and that it profited from this fraud by receiving payment for recruiting foreign workers.

Golden Opportunities International asked the court to dismiss the one count of Racketeer Influenced and Corrupt Organizations (RICO) Act violations. The company argues that Hanekom’s employment as a truck driver was the result of managerial decisions of H&S Farms and Kuchenbecker Excavating, thereby relieving it of any RICO claims. The court was not persuaded.

“Hanekom was paid the wage his visa forms stated, but the harm was that the visa forms misstated the class of work he was performing so that he could be paid an agricultural worker’s wage rather than a trucker’s wage,” U.S. District Judge Leonard Strand states in the order. “Thus, the harm was not caused by a series of independent decisions after Golden Opportunities’ involvement ended, but plausibly resulted from its involvement in the allegedly fraudulent visa scheme. Hanekom has sufficiently pleaded the proximate cause requirement of a RICO claim.”

With Golden Opportunities International still on the hook for RICO claims, Hanekom can move forward with his lawsuit. LL