Mexican truckers intentionally misclassified as H-2A workers, lawsuit claims
A California farm labor contractor is being accused of hiring Mexican truck drivers under the H-2A visa program in order to pay them a wage lower than required by federal and state law.
Four Mexican truck drivers filed a federal class-action lawsuit against Fresh Harvest, Farm Labor Association for Growers and SMD Logistics, claiming the companies failed to pay them the prevailing wage required per their H-2A employment contracts. H-2A visas are for agricultural workers, whereas trucking jobs fall under the H-2B program.
According to the lawsuit, Fresh Harvest and the Farm Labor Association for Growers petitioned for H-2A visas for the 2020-23 seasons. Applicants for the jobs were required to obtain a Mexican international CDL, including medical exams and training, at their own cost. As a condition of employment in the U.S., the truck drivers were required to work for Fresh Harvest’s operations in Mexico.
Once hired under the H-2A visa program, the workers were required to transport cargo for Fresh Harvest and SMD Logistics in Arizona, California and Colorado. Despite executing trucking operations, the Mexican drivers were never paid the prevailing wage for truckers.
The companies did hire domestic truckers, whose paystubs listed their primary activity as “hauling commodity” or “trucking.” However, there was a separate payroll entry for H-2A workers driving trucks, including a lower hourly rate than domestic truckers. Per the contract, the Mexican workers were supposed to be paid the same rate as domestic workers performing the same job.
In February 2020, the Department of Labor informed Fresh Harvest that it could not employ truck drivers at agricultural H-2A rates.
In March 2020, the Farm Labor Association for Growers was established using the same address as Fresh Harvest. According to the complaint, Fresh Harvest would tell prospective clients that the association member agreement was a “mere formality in order to apply for truck drivers through an authorized entity and through the H-2A contract.”
Truckers claim in their lawsuit that there were no actual members of the Farm Labor Association of Growers. Rather, Fresh Harvest’s clients were labeled as members whenever they wanted truck drivers at H-2A wages rather than the higher H-2B wages.
SMD Logistics is described as the trucking arm of Fresh Harvest. Mexican workers hired by Fresh Harvest and the Farm Labor Association of Growers under the H-2A program worked as truck drivers for SMD Logistics. To skirt the non-agricultural nature of the work performed, SMD Logistics did not directly employ the H-2A drivers.
Despite performing work for SMD Logistics, Mexican workers were required to complete timesheets and logbooks for Fresh Harvest and Farm Labor Association of Growers. Paystubs did not come from SMD Logistics, and the trucking company was able to hire and fire H-2A employees of Fresh Harvest and Farm Labor Association of Growers.
Essentially, all three companies formed one enterprise for employment purposes, and the structure was used to exploit truck drivers using the H-2A visa program.
SMD Logistics and Fresh Harvest are owned by the Scaroni Family of Companies, according to its website. The lawsuit claims the association is entirely run and operated by members of the Scaroni family.
“Defendants knew that the work was non-agricultural in nature for H-2A purposes, because defendants Fresh Harvest, Farm Labor Association and SMD Logistics were not growers of the crops transported, because there was no actual agricultural association and because the U.S. Department of Labor had so informed these defendants that the positions did not qualify for payment of H-2A field worker wages,” the lawsuit states.
In addition to unlawfully lower wages, the truckers also claim they were denied meal and rest breaks but were instructed to report in their timesheets the breaks were taken.
Additionally, plaintiffs claim the companies retaliated against workers who complained about not being paid for time worked. In a meeting with H-2A drivers, defendants told the workers “that drivers were causing problems and that there would be no work in the coming season because of the problems.” In private meetings, drivers were told to drop their claims or there would be no work for them.
The lawsuit claims the companies violated 10 different federal and state wage and employment laws against more than 40 Mexican truck drivers.
Scaroni Family of Companies could not be reached for comment. LL
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