UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

)

DANIEL CASTELLANOS-CONTRERAS,

)

OSCAR RICARDO DEHEZA-ORTEGA, and )

RODOLFO ANTONIO VALDEZ-BAEZ,

)

)

on behalf of themselves and all

)

others similarly situated,

)

)

)

Plaintiffs,

)

)

v.

)

)

DECATUR HOTELS, LLC and

)

F. PATRICK QUINN III,

)

)

Defendants

)

)

Case No. 06-4340 Sec.L,Mag.l
CompJaintCollective Action

PLAINTIFFS' FIRST AMENDED COMPLAINT 1. PRELIMINARY STATEMENT
1.1. This action is brought by H-2B guest workers recruited by Defendants from foreign countries since Hurricane Katrina to work in the Defendants' luxury hotel operations in New

Page 10/10

Orleans. The workers traveled to the United States from their home countries of Bolivia, Peru, and the Dominican Republic to perform guest services, housekeeping, maintenance, and other essential support functions in the hotel operations of the Defendants. Like thousands of other migrant laborers who have been lured to New Orleans in the aftermath of Hurricane Katrina, l the workers in this case left heir homes and families based on false promises of high earnings, stable jobs, and good living conditions.
1.2. The Defendants brought the workers in this case to the U.S. pursuant to the H-2B "guestworker" program. As a part ofthe application for obtaining certification to bring H-2B guestworkers to the United States, the Defendants certified to the U.S. government that
"qualified persons in the United States are not available" to fill the jobs. See 20 C.F.R. § 655.3.
The Defendants made this assertion despite the fact that local U.S. workers, mostly African Americans, had previously worked in this industry in New Orleans and were available to do so again. The Defendants' goal in using foreign labor instead of seeking the services of U.S. workers was to drive down wages and working conditions.
1.3. J\fter the U.S. government approved the Defendants' application for H-2B guestworkers, the workers traveled to the U.S. ITom their home countries of Peru, Bolivia, and the Dominican Republic for these positions at enormous personal cost, plunging their families .... ----. -- ··-into-debt:--Under1helI;:;2B-program;-the-workers-' immigration status is iiedto-their-employment- - .... - .-- --with the Defendants; they are prohibited from working for any other employer while in the U.S.
1.4. In order to obtain the positions with the Defendants, all of the workers had to pay
exorbitant sums of money; typically between $3500 and $5000. These sums included travel, visa, and recruitment fees, as well as other costs associated with the workers' trips to the U.S.

1 See Browne-Dianis, etal, And Injustice for All: Workers' Lives ill the Reconstruction of New Orleans (July

2006).

.

Page 2 0/10

r'~-·~-----· - --,- - - - - - - - - - - - - - ~-

- - - - - - - ------ -- ~-----

~------

-----~--

---

These sums were expended solely for the benefit ofthe Defendants, who never reimbursed the workers. The Defendants' failure to reimburse the workers' money in their first week of work was a violation ofthe Fair Labor Standards Act, 29 U.S.C. § 201 et seq. As a result of these expenditures, the workers earned substantially less than the minimum wage in their first week of work. Indeed, workers' high level of ongoing debt has left them in: virtual debt peonage, since they can neither payoff their debt by working for the Defendants nor lawfully work for any other employer to earn additional money.
1.5. Defendants exploited Plaintiffs' and other class members' indebtedness·and lack of understanding ofthe laws of the u.S. to violate their legal rights. In recent weeks, their predicament has been complicated by the Defendants' failure to offer them forty hours of work each week.
1.6. The Plaintiffs seek a declaration that their rights have been violated, an award of unpaid wages, an award of liquidated damages, and an award of fees and costs to make them whole for damages they have suffered and to ensure that they and other H-2B workers will not be subjected by the Defendants to such illegal conduct in the future.
1.7. In addition, Plaintiff Daniel Castellanos-Contreras asserts a claim for money damages and injunctive relief related to unlawful retaliation for-the assertion ofhis legal rights
,
.. --- .- ... - ... ul1dertheFair-tabor Standards-kct··Thisc1aim·ispredicated uponthe-retaliatofTfiringof·-· .... Plaintiff Daniel Castellanos-Contreras by the defendants, which occurred immediately after the filing of this lawsuit. II. JURISDICTION 2.1. Jurisdiction is conferred upon this court by 28 U.S.C. § 1331, this case arising under the laws ofthe United States, 28 U.S.C. § 1337, this action arising under Acts of
Page 3 of10

I
Congress regulating commerce, ~d 29 U.S.C. § 216(b), this action arising under the FLSA. 2.2. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§
2201 and 2202. III. VENUE
3.1.· Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (c). IV. PARTIES
4.1. At all times relevant to this action, Plaintiffs and the other class members were H-2B temporary foreign workers within the meaning of8 U.S.C. §1101(a)(15)(H)(ii)(b).
4.2. The work performed by the Plaintiffs and other class members for the Defendants occurred within this District.
4.3. At all times relevant to this action, the Plaintiffs and the other class members were employees ofthe Defendants within the meaning of29 U.S.C. § 203(e)(1).
4.4. At all times relevant to this action, the Plaintiffs and the other class members were employed by the Defendants within the meaning of29 U.S.C. §203(g).
4.5. At all times relevant to this action, the Plaintiffs and the other class members were employed by the Defendants in an enterprise engaged in commerce or the production of goods for COlmnerce. -- ---- ---------- -- -- ---4:6-:-- :E>efendanr:E>ecatur-Hotels;--LLCisa-:touisiana;;based-limited-liability company based in this District.
4.7. At all times relevant to this action, Defendant Decatur Hotels, LLC employed the Plaintiffs and the other class members within the meaning of29 U.S.C. § 203(g).
4.8. At all times relevant to this action, Defendant F. Patrick Quinn III was an individual resident of Louisiana who conducted significant business in this District. He is a founder and
Page 4 0/10

member of Decatur Hotels, LLC and serves as the President and Chief Executive Officer. 4.9. At all times relevant to this action, Defendant F. Patrick Quinn III employed the
Plaintiffs and the other class members within the meaning of29 U.S.C. § 203(g).
v. STATEMENT OF FACTS
5.1. The Defendants own and operate more than a dozen luxury hotels in New Orleans, . Louisiana.
5.2. After Hurricane Katrina, Defendants filed multiple applications with the u.s. government to obtain permission to hire foreign guest workers from other countries on a seasonal or temporary basis, in accordance with the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii)(b).
5.3. The Defendants sought these foreign workers to perfonn various service jobs, which jobs had been held prior to Katrina by U.s. workers. The H-2B workers' duties included maintenance, hotel services, housekeeping, and a variety of other service tasks.
5.4. The Plaintiffs and the other members of the class. were admitted to the United States to be employed in Defendants' hotels.
5.5. Plaintiffs and the other class members were issued temporary visas, commonly referred to as "H-2B visas," as authorized by 8 U.S.C. § 11 01 (a)(15)(H)(ii)(b), its attendant -- regutatiblls, .8-C~F~R: § 21-4:2(h)(6};-20 eF~R:-l 655.3~and administrative-lettersarrdlor--guidance. The Plaintiffs and the other class members were admitted to the United States and were employed by the Defendants.
5.6. The Plaintiffs and other class members spent considerable sums ofmoney to process their H-2B work visas and travel from their home cities and villages to the United States. These costs were incurred by the Plaintiffs and other class members for the primary benefit of their

r-·

- --- --------- -- ---- - -- -~---.-

-----~----.-------~----~.

Page 5 0/10

Defendant employers. 5.7. As a result ofthe enormous sums of money the Plaintiffs paid as a pre-condition of
their employment by Defendants, which costs have never been reimbursed, Plaintiffs did not earn the minimum wage in their first week of work. The Defendants thus failed to pay the Plaintiffs and the other members of the class the minimum wage for all the work they performed.
5.8. Shortly after the filing ofthis lawsuit, Defendants fired Plaintiff Daniel CastellanosContreras and ordered him to vacate the housing owned by the Defendants, where he had resided since his arrival in the United States.
5.9 The Defendants fired Plaintiff Daniel Castellanos-Contreras and ordered him to leave the housing because Castellanos-Contreras had asserted his rights under the Fair Labor Standards Act through this action and previous communications.
5.10. The Defendants' actions as described above constitute illegal retaliation for protected activity under the FLSA.
5.11. As a result ofthe Defendants' illegal retaliation, Daniel Castellanos-Contreras suffered substantial damages.
5.12 Other Representative Plaintiffs and opt-in Plaintiffs fear retaliation by Decatur Hotels LLC and F. Patrick Quinn, III because of their participation in this lawsuit.
- ---- ---- - --- - - ---VI.-COLLECTlVEACTION-ALLEGA1'10NS-- --- ----- -------- --- .-- 6.1. All claims set forth in Count I are brought by Plaintiffs on behalf of themselves and
all other similarly situated persons pursuant to 29 U.S.C. § 216(b) ofthe Fair Labor Standards Act.
6.2. The named Plaintiffs seek to represent a class consisting of all those non-supervisory H-2B workers employed by the Defendants from August 29,2005 until the date of filing of the
Page 60/10

present action,

6.3. The precise number of individuals in the class is known only to the Defendants. The

class is believed to include at least three hundred individuals.

6.4. The questions of fact and law are common to the class, including whether Defendant

failed to pay named Plaintiffs and other class members the minimum wage in the first week of

work, as required by law.

6.S. The claims ofthe named Plaintiffs are typical ofthe class, and these typical,

common claims predominate over any questions affecting only individual class members. The

named Plaintiffs have the same interests as the other members of the class and will vigorously

prosecute these interests on behalf of the class.

VII. COUNT I: FAIR LABOR STANDARDS ACT-Wage Claims

(COLLECTIVE ACTION)

7.1. Plaintiffs incorporate herein all allegations made in Parts I-VI above.

7.2. Pursuant to 29 U.S.C. §216(b), the named Plaintiffs have consented in writing to be

party Plaintiffs in this FLSA action. Their written consents are attached to this complaint.
7.3. The Defendants violated 29 u.s.c; § 206(a) by failing to pay each of the Plaintiffs

and others similarly situated the applicable minimum wage for every compensable hour oflabor

-- --- -they-performed:------ ~ -- --- ~

---- - - - - -- ---- --- -------~------------------~---

--~

--~----

7.4. The violations ofthe FLSA set out above resulted from the Defendants' failure to reimburse the Plaintiffs and others similarly situated for travel, visa, recruitment and other expenses they incurred, which were primarily for the benefit of the Defendants.
7.S. The Defendants' failures to pay the Plaintiffs and others similarly situated their federally mandated minimum wages were willful violations of the FLSA within the meaning of

Page 7 of10

29 U.S.C. § 255(a). 7.6. As a consequence of the Defendants' violations of the FLSA, the Plaintiffs and
others similarly situated are entitled to recover their unpaid minimum and overtime wages, plus an additional equal amount in liquidated damages, costs of suit, and reasonable attorneys' fees pursuant to 29 U.S.C. § 216(b).
VIII. COUNT TWO: FLSA -- Retaliation 7.7. Plaintiffs incorporate the allegations set forth above in the preceding paragraphs. 7.8. This count sets forth a claim by for declaratory relief, injunctive relief, and damages for Defendants' violations of the FLSA's anti-retaliation provisions. 7.9. Plaintiff Daniel Castellanos-Contreras and the other plaintiffs complained to the Defendants on or about August 2,2006 about violations of their rights under the Fair Labor Standards Act. On August 16, 2006, Plaintiff Daniel Castellanos-Contreras and the other plaintiffs filed this lawsuit asserting their rights under the Fair Labor Standards Act. 7.10. These complaints constituted protected activity under the FLSA. 7.11. In response to these complaints, Defendants unlawfully retaliated against Daniel Castellanos-Contreras by firing him and ordering him to vacate his housing. --- ---- -- --- - - -----/:-I-2-.--Defendants~-corrductirrTesponse-to__protectedactivity-violatedthe-FLSA' santi,,--- - - --retaliation provisions, 29 U.S.C. § 215(a)(3). 7.13. As a result of Defendants' unlawful and retaliatory conduct as described above, Plaintiff Daniel Castellanos-Contreras suffered substantial damages. 7.14. As a result of Defendants' violations ofthe FLSA, Plaintiff Daniel CastellanosContreras is entitled to recover damages that arose as a result of Defendants' actions, and any
Page 8 of10

other legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3), pursuant to 29 U.S.C. § 216(b), including reinstatement. All Plaintiffs seek an order enjoining the Defendants from retaliating against the Plaintiffs, the Opt-In Plaintiffs and any of the Defendants' present or former H-2B workers, many of whom are prospective members of this collective action.
PRAYER FOR RELIEF 1. Plaintiffs seek declaratory judgment against Defendants for willfully violating the Fair Labor Standards Act; 2. Under Count I, Plaintiffs and all others similarly situated seek judgment against Defendants on their claims under the Fair Labor Standards Act awarding each ofthese Plaintiffs and all other similarly situated individuals who opt-in to this action hislher unpaid overtime wages and an equal amount in liquidated damages; 3. Under Count II, Plaintiff Daniel Castellanos-Contreras seeks damages and such injunctive relief as maybe appropriate to effectuate the purposes of29 U.S.C. § 215(a)(3), , pursuant to 29 U.S.C. § 216(b); 4. Under ,Count II, all Plaintiffs seek an order enjoining the Defendants from retaliating -against-thePlaintiffs,the 0pt=In-Plaintiffs andanyof-the-Befendants~resent- or-former H~2-B- -- -, ------ ,- --workers, many of whom are prospective members of this collective action. 5. Plaintiffs seek the award of all costs of this action; 6. Plaintiffs seek the award of all reasonable attorneys' fees; and 7. Plaintiffs seek all such further relief as this Court deems just and equitable. Respectfully submitted this 24th day of August 2006
Page 9 of10

sf Tracie L. Washington Tracie L. Washington, Esq. - LSBA No. 25925 2606 Dryades Street New Orleans, Louisiana 70113 TEL: 504.899.1889 tlwesq@cox.net .

sf Jennifer J. Rosenbaum

Jennifer J. Rosenbaum

Tennessee B.P.R. No. 022557

Admitted Pro Hac Vice

jennifer.rosenbaum@splcenter.org

Mary Bauer

Virginia Bar Number 31388

Admitted Pro Hac Vice

.mbauer@splcenter.org

Andrew Turner

Virginia Bar Number 48853

Admitted Pro Hac Vice

.aturner@splcenter.org

\

Immigrant Justice Project

Southern Poverty Law Center

400 V.Iashington Avenue

Montgomery, Alabama 36104

334-956-8200

334-956-8481 (fax)

Melissa Crow DC Bar Number 453487 Admitted Pro Hac Vice National Immigration Law Center 1101 14th Street, NW Suite 410 ... - ...--.-- - Washirrgton;-lJC> 20005-·····_······
202-216-0261 202-216-0266 (fax)

Page 10 0110

 
 •

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 1 of 59

United Stat. . Coun of Applolo Fl~h Cl<eolt
UNITED STATES COURT OF APPEALS FILED
October 1, 2010

THE FIFTH CIRCUIT

Lyle W. Cayce Clerk

No. 07-30942

L- Docket No. 2:06-CV-4340

DANIEL CASTELLANOS-CONTRERAS; OSCAR RICARDO DEHEZAORTEGA; RODOLFO ANTONIO VALDEZ-BAEZ
Plaintiffs - Appellees v.
DECATUR HOTELS LLC; F PATRICK QUINN, Ill
Defendants - Appellants
Appeal from the United States District Court for the Eastern District of Louisiana, New Orleans
Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges. 1

JUDGMENT ON REHEARING EN BANC
This cause came on to be heard on rehearing en bane and was argued by counsel.
It is ordered and adjudged that the judgment of the District Court is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.
__Fpe""e"~' ~~~~ 1Judges Wiener and Clement stood recused and did not participate. ..K..Dktd - C!RmDep _ Doo. No.

•

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 2 of 59

IT IS FURTHER ORDERED that Plaintiffs-Appellees pay to Defendants-Appellants the costs on appeal to he taxed by the Clerk of this
Court.
DENNIS, Circuit Judge, dissenting, joined fully by ELROD, Circuit Judge; and joined in Sections I and II only by KING, DAVIS, STEWART, and PRADO, Circuit Judges.
ISSUED AS MANDATE: ! 5 OCT a

A True Copy
Attest l! 5 OCT •
New Orlean•, Louisiana

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 3 of 59

UNITED STATES COURT OF APPEALS FOR THE FIFl'H CIRCffiT BU..L OF COSTS
NOTE! 11Je BDI or C...ts is du~ In Ibis offke within 14 daysfrmn the dole tJjthe 11pinWn, See FEII.R. AI'P. P. & S"" Cnt. R. 39. Untimely biDs of co•t• must be accomp•nled by a ""Jlarate motion to rue out of time, whicb tbe court may deny.

Daniel Castellanos-Contreras. eta!. v. Decatur Hotels LLC and F. Patrick Quinn, m. No. 07-30942

Tbe Clerk is requested to tox tbe following oosts &&ain$1! Apnelleg, Daniel Castellanos-Contreras, et aJ.
,
REQUE:SUHI

Appellant's Brief

,..
Copies
..
" "

·"

%.00

·"

~-'"

AlLOWED {If dlffen>nt

Otber! Supplemental Submissions (3) 10103/08, 10106.108,1123109

•••'"

Brief Binding

"
"'"

Response to Motion for Reo:onsideradon

' "

·"

···"""

/ v ...w 30.00

IV

/
·"

I -50 I 16.oV

~~ Other: Snpplemeol>ll Submissions (3)
10/01109, 04116110, 115119110
"

" " "

···"""

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 4 of 59

~

=
'••

< •

u'••••

j

=~•
•'•=••
=<•
< ' ' '

g~

• B

·_=.-,","o•
!?:o~

•fa•'• ••3t5 ""

~~;;;;;:~:;;
~o~u~
••ww~>·""t
"• ' 0 !'<:

•

• 39.1 Tax<>bk Rll/es. The cost ofreprodw.;fug necessary copies ofthe brief. appendtas, or record euerpts shall be ttued at a rate not higher tlum $0. 15 per page. includi11g cover, index, and imemalpages.[or any for ofreproducrkm costs. The cost ofthe binding required by 5"' Cm. R. 32.2.3that mandates that brieft must lie reasonably jlm when op~11uMII
be ntaxable cost but not limited w theforegoing role. Tki• rate is !mended to approximate the currem cost ofthe most ec(mtJmica! OCC<'/'toble method ofreproduction generally
OW1ilable; and the deTk shall, at reasonable interwzls, exnmine and review iii/J reflect current rates. TIUab/e cruts will be audwrizedfor up to 15 copies for a briefand 10 copi£5 ofan appendix Gr re<;()rd exarp«, unless the clerk gives adwmce approval for additUmal Cl>pies.
39.2 NorrTeCOvery ofMallh<g ami Commuci<d Delivery Service Com. Mailing and wmmercia/ deliveryfees incurred in trliJISmilling briefs are not recoverable"" ta:wble costs.
39.3 Time for Filing Bills ofCestJ. Tlu; c/"'k m!Lft receive bills ofcosts and any objections within the timessetjorlh ;, FED. R- APP_ P 19(D). See 5'" Clll R. 26. !.

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 5 of 59

FED.R.APP.P.39.

co=

(a) Against Whom A..se5>ed. The following rule> apply unless the low provides or the court orders otherw1se;

(I) if an appe-•1 is di.<missed, costs ""' ta>eed against the appellant, unless the partieo agree otherwise;

(1) if a judgment is alfrrmcd, costs arc taxed agaiilSI the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, 01 vacated, costs arc taxed only as !he court orders.

(b) Costs Fonond Against tll.e UniJed S/<1/e$.. Costs for or against the United States, its ageucy or officer wil! be assessed under Rule 39(a) only if authorized by law.

©) Cosrs of Copies Each com1 of appeals must, by local rule, fi, the rna•imum rate for taxing the cost of producing necessary copies of a brief or a~dix, or copies of records authorized by rule 30(1). The rate must not exceed that generally charged for such work in the area where tile clerk's office is located and should encouray economical method. of
copying.

(d) Bill ofcosts: Objectfuns; ln•ertion ;,. Mrmdllle.

(I) A party who waots costs taxed IIIllSt - witlrin 14 days afu:r entry ofjudgment- file with the citcuit clerk, with pmof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 10 days afu:r service of !he biU of costs, unless the court extends the lime.
(3) The clerk must prepare and certifY an itemized statement of costs for insertion in the mandate, bm L<suance of the mandate must not be delayed for raxiiig costs. If the mandate
issues before costs are finally determined, the di.<trict clerk most-upon the circuit clerk's request- add the statement of costs, or any amervhnem of i~ to the mandate.

(e) C(}tt$ ofAppeal TQXO./Jk In tit.! Dis/ria Court. The following costs on appeal aie ta:uoble in the dislrict coun for the benefit ofthe party entitled to costs under this rule:

(I) the prq>aration and tra""''lissionofthe record; (2) the reponer'• tnul=ipt, if needed to determint the appeal;

(3) premiums paid for a supersedeas bond or otheT borJd to preserve rights pending appeal; and

(4) the fee for filing the notice ofappeal.

' '

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 6 of 59

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

u.;..ostat.. courto!Ap,.•ls F'Hh C;""''

FILED

October 1, 2010

No. 07-30942

Lyle W. Cayce Clerk

DANIEL CASTELLANOS-CONTRERAS; OSCAR RICARDO DEHEZAORTEGA: RODOLFO ANTONIO VALDEZ-BAEZ

Plaintiffs - Appellees
v.

DECATUR HOTELS LLC; F PATRICK QUINN, III

Defendants· Appellants

Appeal from the United States District Court for the Eastern District of Louisiana
Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges.'
HAYNES, Circuit Judge, joined by JONES, Chief Judge, and JOLLY, SMITH, GARZA, BENAVIDES, OWEN, and SOUTHWICK, CircuitJudgesinfull;joined by KING, DAVIS, STEWART and PRADO, Circuit Judges, as to Section Ill.A. only:
A group of hotel workers present in this country under H-2B visas2 ("the Workers'') sued Decatur Hotels and Patrick Quinn (collectively "Decatur") alleging violations of the Fair Labor Standards Act ("FLSA'"). Decatur moved to
1 Judges Wiener and Cl~ment stood recused and dJd not participate. 'The term "H-2B visa" refers to a v1sa authorized by 8 U.S.C. § 1101(a){l5)(H)(i.J)(b).

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 7 of 59
No. 07-30942 dismiss and for summary judgment, and the Workers moved for partial summary judgment. In a single order, the district court granted the Workers' motion in part and denied Decatur's motions. Thereafter, the court certified that order for interlocutory appeal to this court. On appeal, a panel of this court reversed the district court and rendered judgment for Decatur. See Castellanos-Contreras v. Decatur Hotels LLC, 559 F.3d 332 (5th Cir.). withdrawn and replaced by 576 F. 3d 274 (5th Cir. 2009). En bane review was granted, thus vacating the panel opinion. Castellanos-Contreras v. Decatur Hol.els LLC, 601 F.3d 621 (5th Cir. 2010). We now REVERSE the district court's order denying Decatur's motion and REMAND for entry of judgment in favor of appellants.
I. Facts and Procedural Background In the wake of the devastation wrought upon the city of New Orleans by Hurricane Katrina, Decatur found itself unable to hire a sufficient number of Amcncan workers to staff its hotel properties. It was solicited by Virginia Pickering, who had a business known as Accent Personnel Services, to use her service to navigate the regulations necessary to allow Decatur to legally hire workers from other countries. Pickering also had a business known as VP Consultants that provided data about employers seeking foreign workers to various foreign recruitment companies. The Workers allege these foreign recruitment companies charged them to provide information about U.S. companies seeking foreign workers and the procedures for obtaining such jobs and securing necessary visas. The Workers consist of one hundred people'l from various Latin American countries who came to New Orleans on H-2B visas to work at Decatur's hotels in housekeeping and other service roles. The Workers allege they were required
·' Originally, three foreign workers filed suit seeking to represent themselves and similarly situated H-2B Decatur workers. Ninety-seven such workers filed notices of consent to pmhcipate in the lawsuJt.
2

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 8 of 59
No. 07-30942
to pay (l) placement fees charged by various recruitment companies, (2) their own visa-application fees, and (3) all transportation expenses necessary to relocate to the United States. The parties do not dispute that Decatur did not reimburse the Workers for these expenses. The parties also do not dispute that Decatur paid its own H-2B application fees and the recruitment fees Pickering and Accent charged it.
All parties agree that Decatur paid the Workers more than the minimum wage should the court find Decatur was not required to reimburse the disputed expenses. However, the Workers argue that federal law requires Decatur to reimburse them for their travel expenses. visa fees, and recruitment payments during their first week of work, failing which, such sums must be deducted from the first week's wage before calculating whether a minimum wage, under the FLSA, was paid. Contending that these deductions took their pay below the minimum wage, the Workers sued Decatur under the FLSA.
In the district court. Decatur moved for summary judgment, contending that it was not required under the FLSA (or any other applicable law) to reimburse the travel, visa, and recruitment expenses in question. For their part, the Workers moved for summary judgment contending that the court was required to deduct the disputed expenses as part of the minimum wage calculation and that, under that calculation, Decatur had violated the FLSA. In a single order. the district court granted the Workers' motion in part and denied Decatur's motion entirely. The district court held that the only remaining issues were the strictly mathematical calculations of wages actually paid and, should that yield a fmding of liability, the amount of damages due. Thereafter, it certified this order under 28 U.S.C. § 1292(b) for interlocutory appeal, and a motions panel of this court granted leave to appeal.
The parties and the en bane court agree that the FLSA applies to the Workers in the situation before the court. However, the parties disagree on the
3

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 9 of 59
No. 07-:10942
threshold question of whether this court has jurisdiction to consider this appeal and, unsurprisingly. on the merits question of whether the disputed expenses can or should be deducted as part of the FLSA calculation. A panel of this court opted to utilize its discretion to exercise jurisdiction in this case and ultimately found that Decatur was correct on the merits. After granting en bane rehearing and following reargument of the case, we now issue this opinion, again finding jurisdiction and reversing the distnct court on the merits.
lL Standard of Review The court reviews its own jurisdiction de novo. Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001). The court reviews certified orders de novo. 1'anks v. Lockheed Martin Corp., 417 F. 3d 4!56, 461 (5th Cir. 2005). Under 28 U.S.C. § 1292(b), a grant or denial of summary judgment is reviewed de novo, applying the same standard as the district court, First Am. Bank v. First Am. Transp. Title Ins. Co., 585 F. 3d 833, 836-837 (5th Cir. 2009), but review only extends to controlling questions of law, Tanks, 117 F.3d at 461. Further, the court's inquiry "is limited to the summary judgment record before the trial court." Marteo Ltd. P'ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2009). The court must view the evidence in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. u. Zenith Radio Corp.. 475 U.S. 574, 587 (1986), and the movant has the burden of showing this court that summary judgment is appropriate, Celotex Corp_ v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bolton v. City of Dallas, 472 F. 3d 261, 263 (5th Cir. 2006); see FED. R. C!V. P_ 56(c). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477
u.s_ 212, 252 (1986).
4

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 10 of 59
No_ 07-30942
III. Discussion A Junsdiction
The jurisdiction question presented to the en bane court breaks down into two parts: (l) is there appellate junsdiction to reach any question other than whether the FLSA generally applies to the Workers (i.e., do we have the power to hear the issues Decatur presents), and, if so, (2) should we exercise our discretion to hear this appeal? We address each question in turn.
J_ Appellate Jurisdiction The \Vorkers contend that the district court only certified the question of whether the FLSA generally applies to the Workers, i.e., were the Workers entitled to be paid the minimum wage? In turn, they argue that this question is not one "as to which there is a substantial ground for difference of opinion" and, thus, they contend that we lack jurisdiction at all. As a fall back position, they contend that, at most, we have jurisdiction to decide only this threshold question but not the question of whether federal law requires reimbursement of the expenses in question. Decatur contends that jurisdiction is proper because the order certified necessarily includes consideration ofthe "merits" question of whether the disputed expenses are ever chargeable against wages paid. We agree with Decatur.4 The district court granted in part the Workers' motion for summary judgment and denied Decatur's motion for summary judgment in the single order that is the subject of the certified interlocutory appeaL In order to grant the Workers' motion and deny Decatur's motion, the district court had to examine whether the expenses in question were of the kind for which reimbursement-to the extent necessary to stay at or above minimum wage-is required by the law. The district court itself stated that it considered these
' Mor&over, the Workers conceded at oral <Jrgument that the jurisdictional question that remains before the court is purely prudentiaL
5

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 11 of 59
No. 07-30942
matters to be "factual 1ssues." i.e.. that the law provides for their recovery
depending on the facts of a given case. In deciding that there were "fact questions"" on these issues. the district court necessarily decided that such expenses could sometimes be reimbursable. at least under certain facts. If, as a matter oflaw, they are not, the district court's order would be incorrect.
Under § 1292(b), it is the order, not the question, that is appealable. Yamaha Motor Corp. u. Calhoun, 516 U.S. 199, 205 (1996); see Melder u. Allstate Corp., 404 F.3d 328. 331 (5th Cir. 2005) (raising argument in district court deemed sufficient to render it "fairly included" in the certified order); Brabham v. A. G. Edwards & Sons, Inc., 376 F.3d 377, 380 n.2 (5th Cir. 2004) (reaching alternative grounds addressed in the certified order but omitted from the list of certified questions); Reserve Mooring Inc. v. Am. Commercial Barge Line, LLC, 251 F.3d 1069, 1070 n.4 (5th Cir. 2001) (same): see also Schlumberger Techs. v. Wiley, 113 F.3d 1553, 1557 n.6 (lith Cir. 1997) (holding that, if an issue is contained within the order from which the interlocutory appeal is taken, the district court's refusal to certify that issue does not defeat court of appeals' jurisdiction over that issue). Ifthe district judge makes certification as provided, "[t]he Court of Appeals ... may . . permit an appeal to be taken from such order'' 28 U .S.C. § 1292(b) (emphasis added). Section 1292(b) limits this court's jurisdiction over interlocutory appeals to reviewing "questions that are material to the lower court's certified order." Adkinson v. Int'l Harvester Co., 975 F.2d 208, 212 n.4 (5th Cir. 1992); see Ducre v. Executive Officers of Haller Marine, Inc., 752 F.2d 976, 983 n.16 (5th Cir. 1985) ("Thus, the appellate court may address all issues material to the order and is not limited to consideration of the 'controlling question.' This is especially so when the issues outside the 'controlling q\Jestion' provide grounds for reversal ofthe entire order." (citations omitted)); see also J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107. 115 (2nd Cir. 2004) ("We are not necessarily limited to the certified issue, as we have the
6

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 12 of 59
No. 07-30912
discretion to consider any aspect of the order from which the appeal is taken."'); McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1255-56 (11th Cir. 2004) ("[W]e have the power to 'review an entire order, either to consider a question different from the one certified as controlling or to decide the case despite the lack of any 1dentlfied controlling question.""' (quoting Yamaha, 516 U.S. at 205)); Pinney Dock & Transp. Co. u. Penn Cent. Corp., 838 F.2d 1415, 1455 (6th Cir.) ("[E)ven those issues not properly certified are subject to our discretionary power of review if otherwise necessary to the disposition of the case."), cert. denied, 488 U.S. 880 (1988).
The district court's conclusion that there were fact issues was based upon its finding that the expenses in question could be reimbursable. If it is true that the expenses are reimbursable, then liability to the Workers depends upon calculating what each Worker paid for the disputed expenses, subtracting that figure from what each Worker was paid after his/her first week. and dividing the remaining amount by the hours worked. If that amount is above the minimum
wage, no liability attaches. See generally 29 C.F.R. § 531.36 (2010); see also Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1237 n.ll (11th Cir. 2002)
(providing an example of an FLSA minimum wage calculation). If it falls below the minimum wage, then damages are based at least in part on this calculation ofthc "back pay" owed to the employee. See 29 U.S.C. § 216(b) (2010). Thus, the predicate finding that the disputed expenses are reimbursable costs that the employer owes the Workers is critical and material to the district court's conclusion that there are fact issues. However, the threshold question of whether such expenses are, as a category, reimbursable is a legal question that can properly be the subject of interlocutory review. We conclude that we have appellate jurisdiction "to review the question of whether the travel, visa, and recruitment expenses in question are required to be reimbursed as part of the minimum wage calculation under the FLSA.
7

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 13 of 59
No. 07-30942 2. Discretion The conclusion that we have the power to consider these questions does not end our jurisdictional analysis. Interlocutory review under§ 1292(b) is not mandatory; rather, it is discretionary. Thus, we must consider whether we should address these questions at this stage. Suffice it to say that this IS a question about which reasonable jurists can-and, in the case of this court, do--debate. A motions panel of this court permitted Decatur to pursue this appeal, and the original panel exercised its discretion to hear the appeaL Others on our court might have had a different take had they been on either panel. l3ut we are no longer at the beginning of this case; instead. we are very far along. Considerable time has passed, two panel opinions have issued, and the parties have briefed the merits three times: to the original panel, in connection with the rehearing petitions, and in merits briefing to the en bane court. Additionally, this case has been the subject of two oral arguments. After so much time and effort has been expended by both the parties and the court as a whole, the discretionary decision now becomes much different, and the majority of the court agrees it should be resolved in favor of hearing the merits. B. The Merits Turning then to the merits, we address each category for which the Workers claim reimbursement is required: (1) inbound travel expenses; (2) visa expenses; and (3) recruitment expenses. l. Inbound Travel and Visa Expenses No statute or regulation expressly states that inbound travel expenses must be advanced or reimbursed by an employer of an H-2B worker. There are laws that say that outbound travel expenses (i.e., return) must be paid for H-2B workers under certain circumstances and that inbound expenses for H-2A
8

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 14 of 59
No. 07-30942 workers require reimbursement.'; but no statute or regulation expressly requires reimbursement for inbound travel for H-2B workers. See 8 U .S.C.§ 1181(c)(5)(A) (requiring payment of outbound transportation costs in certain circumstances
for H-2B workers); 20 C.F.R. § 665.I02(b)(5)(I) (2009) (requiring payment of inbound transportation costs in certain circumstances for H-2A workers).
Silence on this issue, in the face of these specific laws governing transportation, is deafening.
Similarly, no law or regulation provides that fees for the employee side of the visa application process must be paid by the employer. See 22 C.F.R. § 10.1(l)(l) (2010) (requiring non-immigrant visa applicants, such as the Workers here, to submit processing fees when they apply for visas). It is undisputed that Decatur paid its own fees for the employer side of the process-the application to hire H-2B workers. See 8 C.F.R. §§ 103.7(a), J03.7(b)(l), 214.2(h)(2)(i)(A) (2010) (requiring, collectively, that a U.S. employer submit certain forms and filing fees to become an H-2B visa sponsor).
While this lack of law would seem to end the matter as to both the travel and visa expenses, the Workers advance various arguments in support of their reimbursement claim which we now address. First, the Workers argue that both expenses are '·specifically required for performance of the employer's particular work" because the employee must have a visa and must get to the employer in order to work legally. In short, they cannot "use" the transportation and visa outside the context of that employment. They contend that these expenses are "primarily for the benefit and convenience of the employer." Hence, they argue that these expenses constitute "tools ofthe trade" pursuant to 29 C.F.R. § 531.35
'As defined by 8 U.S.C. § 110l(a)(l5)(H)(11)(a). "'H-2A'" workers include only those md1viduals temporarily relocating to the Umted States to perform "agricultural labor and serv1ces." Conversely, "'H-2B" worker~ mclude only those indJVJduals temporan]y relocating to the United States to perform other non-agricultllral labor or services.
9

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 15 of 59
No. 07-30942
(2010),,; such that their payment ofthese expenses are "de facto deductions" from theJT wages.
This argument stretches the concept of "tools of the trade" too far. Our precedents look to the nature of disputed expenses rather than simply declaring every cost that is helpful to a given job an employer expense. Mayhue's Super
Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1199 (5th Cir. 1972) (asking whether an act tended to shift employer expenses); Brennan v. Veterans Cleaning Servs., Inc., 482 F.2d 1362, 1369 (5th Cir. 1973) (assessing various
claimed expenses by analogy to other expenses previously deemed not properly chargeable). A visa and physical presence at the job site are not "tools" particular to this "trade" within the meaning of the applicable regulations See also 29 C.F.R. § 531.32 (2010) (describing items like safety caps, explosives,
lamps, electric power, company police or security, taxes and insurance on employer buildings, railway fare for maintenance-of-way railway workers, and
uniforms as "other facilities" not subject to deduction from the employees' wages).1
0 The Workers also contend that wages must be paid "free and clear" and that the singular exception contained m 29 U.S.C. § 203{m) supports their position. See 29 U.S.C. § 203(m) (permit.ting an employer to ded1>ct from wages the e<>st of furnishing meals and lodging). Section 20:'\(m) does not directly impose liab1hty upon employers for expenses that employees incur, and it has nothing to do with travel or visa expenses. In short, the Workers· "free and clear" argument begs the questwn of whether these are expenses that the employer is legally reqmred to bear-a question we answer in the negative.
'Additionally, the Workers' argument that these expenses are specific and unique to the employer in question is contradicted by the federal regulation governing the use and transferability of H-2B visas: "If the alien is m the United States and seeks to change employers, the prospective new employer must file a petition on Form I-129 requesting classification and an extension of the ahen's stay in the United States."' 8 C.F.R. § 214.2{h){2){l){D) (2010). In other words, the employee does not have to return to h1s or her home country and start from the bcgmning m order to change employers once in the United States. lt is interesting to note that it appears that at least some of the Workers are still in the United States despite the seemingly temporary nature of the H-2B visa and the recent fifth anniversary of Hurncane Katnna.
10

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 16 of 59
No_ 07-30942
Second. the Department of Labor. briefing as an amicus in support of the Workers, also points to its own recent "interpretation" as informing whether travel and visa expenses are covered under the FLSA 8 However, the
Department's Field Assistance Bulletin No. 2009-2 ("Bulletin") was issued long
after the events in question. The general rule, applicable here, is that changes m the law will not be applied retroactively when the result would be that "new
and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard." Bradley v. Sch.. Bd. of Richmond. 416 U.S. 696, 720
(1974). Thus, even "'congressional enactments and administrative rules will not
be construed to have retroactive effect unless their language requires this result."' Landgraf v. US! Film Prods., 511 lJ .S. 244, 272 (1994) (quoting Bowen v. Georgetown Univ. Hosp., 488lJ.S_ 204, 208 (1988)). Whatever deference may
be due to the Department's informally promulgated Bulletin in the future. it
does not itself in any way purport to apply retroactivelyY Accordingly, we decline to apply it to the situation here.
The dissenting opinion focuses on the Department's previous position that relocation expenses paid by the employer could not be deducted from wages.
8 Notably, the Workers make no effort to rely upon the Departmenfs recently revised ""mterprctatJons'' in support of their own position. In fact, in originally requesting rehearing, the Workers argued that casually promulgated interpretations of the FLSA-like the one now at 1Ssue--should not inform the court"s understanding of the statute.
0 We acknowledge that the regulatory landscape is now very different thau it was JUSt 3 few short years ago. See, e.g., 20 C.F.R. § 655.22(g)(2) (2010) and 8 C.F.R § 214 2(h)(6)(i)(B) (2010). We express no opinion as to how our decision today affects those new regulations.
Moreover, we do not, as the dissentmg opmion suggests, claim that the Secretary's amicus briefing is entitled to no deference because the Bullet.Jn and bnefing were filed after the events giving nse to th1s suit. Rather, the Secretary contends, paradoxically, that the pnsition of the Department has remained the same for fifty years save a 98-day periOd but also concedes that the Department publicly infnrmed employers it would suspend the enfon;ement ofFLSA standards relating to reimbur~ementi~sues from 1994 until2008----when it concluded that reimbur.•ement was not necessary. In short, we decline to engage in the ex post
imposition of new duties that did not clearly exist at the tlme of the events giving rise to this
stut under the guise of Auer deference.
11

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 17 of 59
No_ 07-30942
Significantly, the Department did not address the issue of reimbursing
relocation expenses until 1994. i\t that point, the Department announced it
would analyze the issue of reimbursement and adopted a position of
non-enforcement durmg its deliberations. The first time the Department
specifically spoke to reimbursement in the context of alleged "kickbacks" hke
those at issue here was its announcement in 2008 that it would not require
reimbursement. 10 The Department then reversed itself98 days later to assert
for the first time that reimbursement was required. Carefully read, the
Department ofLabor letters did not in fact include or promote a "reimbursement
required"' position until the Department informally changed course in 2009. In
fact, none of the letters cited in the dissenting opinion expressed a dear,
'"The dissentmg opimon argueb that a 1986 Department letter produced in response to an employer's effort to settle its outstandmg liabihty constitutes an earlier pronouncement of the Department's position_ Properly read m context, it is not. The correspondence answers a specific question: whether the Department persisted m its bel1ef that employers could not make transportation deduc/.ions that eut mto the minimum wage, or, as the employer contended, it had recently adopted that positJOn. The dJssenting opinion's quoted language lS nothmg more than the administrator suggesting that reimbursement likely could be required under the facts of that case. Importantly, the deClSJOns of the district court in the underlying case reveal: (1) the letter addressed agncultural workers(now properly categorized as H-2A workers); (2) the case involved direct payments by the workers to the employer for transportation expenses; and(::!) the letter was 1ssued as a rejection of the employer's attempts to find a way to settle its outstanding minimum wage liability-not a general inquiry into whether such liHbdJty existed_ Thus, the 1986 letter is exactly the sort of posl hoc rationalization m the context of active litigation that the Supreme Courtwarned will undercut the authority of such agency pronouncements. Aner ~-. /Wbbins, 519 U.S. 452, 462 (1 997)_
Moreover, as a litigahon document prepared in a very specific context, it is doubtful that even the most diligent employer could have readily accessed (or would have known to look for) this so-called "interpretatJOn."' \Vhile not d1sposJtive, it is noteworthy that the d1ssenting opmwn would hold an employer liable under such a piece of random, ]JtigatJOn-specJfic correspondence where the affidavits of the very workers at issue m this case do not state that the \Yorkers ever requested or expected reimbursement prior to this litigation_ Even now, after all these years, if D<ecatur wanted to write a check, it would not know the amount. Yet the dissenting opinion would hold that Decatur should somehow have divined such a figure on its own w1tlnn one week of the Workers startmg theu employment, no less, despite the fact that it had no reasonable way of determining it-according to the dissent-had a sua sponte duty to investigate the Workers' costs and provide reimbursement of as yet untold sums during their first week on the job in order to avoid a Wage-Hour violation.
12

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 18 of 59
No. 07-30942
unequJVocal stance that employcc·incurred relocation costs constitute a kickback. Thus. this inconsistency and ambigmty-properly afforded the deference discussed in the dissenting opinion-did not create any affirmative duty to reimburse and, moreover, merely underscores the problem with the suggestion that we retroactively apply the Department's most recent guidance.
Finally, the Workers cite to the Eleventh Circuit's decision in Arriaga v. Fla. Pac. Farms, L.L.C., 305 P.3d 1228 (11th Cir. 2002), to support their position. Arriaga, however, dealt with H-2A workers, not H·2B workers. ld. at 1232-33. Historically, H·2A and H-2B workers have been treated differently. Compare 20 C.P.R. §§ 655.90-.113 (2007) (broadly setting out a distinct regulatory reg:ime for the management of the H-2A program) with 20 C.P.R.§§ 655.1-.4 (providing the regulatory regime for H-2B workers) (2007) 11 : see also Sweet Life v. Dole, 876 F.2d 102, 406 (5th Cir. 1989) (explaining that the H-2 program was specifically redesigned by Congress in 1986 to "separat[e) agricultural from nonagricultural workers in the administrative scheme"). Indeed, the regulations specifically provide some transportation reimbursement obligation for H-2A workers while remaining silent on similar expenses incurred by H-2B workers. Thus, Arriaga's reasoning does not control here.
Accordingly, we conclude as a matter of law that these expenses are not re1mbursable, 12 and the district court erred in denying Decatur's motioJJS on these points.
2. Recruitment Expenses
11 The regula twos c1ted have undergone substantial revision in recent years. The 2007 ed1t10n of the Code ofFederal Regulations is cited because 1t was that version that the district court cons1dered when it concluded that H-2A and H-2B workers were not sufficiently distinguishable to prevent Arriaga from applying to th<e instant case.
"Because we hold that the FLSA does not obhgate Decatur to reimburse the \Vorkers for their transportation expenses, we do not consider Decatur"s argument in the altRrnative that.. even ifthe FLSAotherwise purports to obligate reimbursement, the Portal-to-Portal Ad neYertheless bars recovery.
13

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 19 of 59
No. 07-30942
The Workers raise some ofthe same arguments regarding the recruitment expenses, and we will not repeat our analysis of those arguments. 13 Again, the statute and regulations are silent, so we turn to considering the Workers' additional arguments regarding recruitment expenses.
The Workers argue that they were required to pay recruiting fees and, therefore, those fees should be considered "part of the job," citing Rivera v. Brickman Group Ltd., Civ. No_ 05-1518, 2008 WL 81570 (E.D. Pa. Jan. 7, 2008). They contend that fact issues arc presented as to the nature ofthe payments and whether they were required by Decatur. In response to Decatur's motion for summary judgment, the Workers proffered no evidence to support the concept that Decatur required any recruitment fees to be paid to the foreign recruiters or that it required the Workers to usc these recruiters to apply to Decatur. The fact that the Workers benefitted from these services by finding jobs with Decatur does not suggest that Decatur was the one who required their use of job placement firms. 11
" It is noteworthy, however, that even .4,·riogo did not ncquire reimbursement of the recruitment expenses.
" The Workers' suggesti<Jn that unreRolved fact d1sputes prevent this court from considering this point is behed by the record_ The affidavits submJtted by some of the Workers indeed talk about going to fore1gn recruiters and bemg charged fees but in no way suggest that Decatur charged those fees or required their payment. Instead, the affidavits say that they were told by the foreign recruiter that they "had to pay for the cost of the program to be able to go and work for the Defendants." TI1e only tie between t:he foreign recruiter and Decatur comes in the Workers' statement that they "understood that the [foreign recruiter's] agency was an agency utilized by the Defendants for the recruitment of workers hke me ...." The affiant's "understanding."' WJthoul any stated bas1s for such "understandmg" is no ~vidence of agency tying the foreign recruiter (such as UniverJobs) to Decatur. See Cormier r;_ Pennzoil Exploratwn & Prod. Co., 969 F.2d 1559. 1561 (5tb Cir. 1992) (holding that affidavits offered to support or oppose summary judgnwnt must be based on personal knowledge to create a genuine issue of material fact); seP also FED_ R C!V_ P. 56(e)(l). Nor 18 there any evidence of a contract between UniverJobs or the olher foreign recruiters and Decatur_ Thus, even if we were W follow llwera's reasoning, it would not apply here_
14

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 20 of 59
No. 07-30912 Moreover. the claim asserted rests on the argument that when the Workers paid for recruiting services in their home countries, they paid an expense belonging to the employer. As with visa costs, both employers and employees contribute to the recruiting cost ofusing the program: employers pay recruiters to help them navigate the visa application process and locate workers in foreign countries (here, Decatur hired Accent), and employees pay recruiters in their home countries to help them find work in the United States. The division of payment for each party's respective benefit indicates, as in the visa context, that the Workers' use of recruiters in their own countries was not Decatur's business expense. Again, while recruiters in general may benefit both parties. the payment for that benefit can be (and has here been) apportioned to each party appropriately. It is undisputed that Decatur paid the fees it was charged by Accent for recruiting services. Thus, no material fact issue was raJsed on this point. Newly enacted Department of Labor regulations15 (promulgated after the time m question) actually support the conclusion that recruitment expenses were JJOt reimbursable at the time. These regulations provide protection for guest workers from unscrupulous recruiters by requiring employers to contractually obligate those with whom they work not to charge employees recruiting fees. These new regulations actually suggest that the expenses in question were not previously to be charged against the employers. If they were to be so charged previously, there would be no need to protect the employees as provided in the new regulations. In sum, Decatur was not required to reimburse the Workers for the fees they paid to the various job placement firms. Consequently, the district court erred in denying Decatur's motions on this point.
"20 C.F.R. § 655.22(g)(2) (20HJ) and 8 C.F.R. § 214.2(h)(6)(i)(B) (2010). 15

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 21 of 59 No. 07-30942
Accordingly, we REVERSE the district court's judgment and REI\·fAND for entry of judgment in favor of appellants.
REVERSED and REMANDED for entry of judgment.
16

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 22 of 59
No. 07-30912
DENNIS, Circuit Judge, dissenting, joined fully by ELROD, Circuit Judge; and joined in Sections I and II only by KING. DAVIS. STEWART, and PRADO, Circuit Judges. 1
The majority opimon (I) ignores controlling Supreme Court decisions holding that federal courts must give deference to the Department of Labor's ("DOL") reasonable interpretations of its own valid regulations under the Fair Labor Standards Act ("FLSA"); (2) adopts and applies its own eccentric interpretation of the FLSA and the DOL's regulations, holding, COJJtrary to the DOL's views, that the plaintiffs, temporary workers from South American nations, have no right to sue their employers under the FLSA for paying them sub-minimum wages by refusing to reimburse them for their outlay for visa, tmnsportation and recruitment costs incidental to and for the primary benefit of the employers' foreign-labor recruitment program; (3) misconstrues the record in the district court, treating material facts as undisputed. when, in truth, those facts arc in dispute-the evidence as to them is mostly undiscovered, and the district court has not yet tried or decided them; and (4) misapplies Supreme Court and circuit precedents to improperly reach questions not withm our appellate jurisdictiOn under 28 U.S.C. § 1292(b). I respectfully dissent.
The most unfortunate and harmful part of the majority's decision, which must be addressed first, is its incorrect interpretation and application of the FLSA, the DOL's regulations, and the DOL's interpretation ofits regulations. In its erroneous rulmg, the majority opinion creates a split between us and the Eleventh Circuit and establishes a circuit precedent that pennits employers to
1 In other words, Judges King, Davis, Stewart, and Prado agree with the majority opmwn that 1t 1S appropnate for this court to reach the merits of the case within its limited. certified appellate jurisdiction bnt disagree with the majority as to the merits of the case and join this diSSenting opinion in that respect. Judges Dennis and Elrod dissent from the majority's decisJOn pertaining to both its exercise of appellak jurisdiction and the merits of the case.
l7

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 23 of 59
1\o_ 07-80942
shift their costs in recruiting foreign labor to their temporary foreign worker recruits: this allows those employers to effectively reduce temporary foreign workers' wages below the nationally established minimum wage floor and creates a competitive disadvantage for other employers who pay legitimate wages at or above that floor.
The majority opinion also adopts the panel's cavalier misreading of the district court's decision to erroneously misapply Supreme Court and circuit precedents and to overreach our appellate jurisdiction under 28 U .S.C.§ l292(b). This second unfortunate precedent is also regrettable, but it is less imitable and harmful than the majority's FLSA precedent because the majority opinion cloaks its jurisdictional overreach by misrepresenting the district court's decision as having reached and decided the merits before certifYing a threshold question of law to this circuit.
I. In August 2005, Hurricane Katrina flooded major low-lying parts of New Orleans, causing hundreds of hotel and tourist workers to evacuate the city permanently or for extended periods. Hotel businesses revived quickly, however, because Katrina left the city's tourist venues, located on higher ground, relatively unscathed. Faced with a labor shortage, defendants-appellants hotel employers, Decatur Hotels, LLC and F. Patrick Quinn III ("Decatur"), obtained approval from the DOL to temporarily recruit, employ and obtain visas for plaintiffs-appellees from South American nations as H-2B workers (the "Hotel Workers").2
1 Under the H-2R program, guest workers are "'authori7Rd to come to the United States temporanly to perform servi~es or labor for ___ an employer"' who has "petitioned" for the right to employ H-28 guest workers am! whose petitiOn has been approved by the DOL 8 C.F.R § 2l1.2(h)(l)(i)_ Before H-2B VJsas can he granted. the prospective employer must "establish ___ the need for the employee[s]" and th~t ~uch a need "'will end 111 the near, definabl<e future[,]
!8

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 24 of 59
No. 07-30942
Decatur recruited the Hotel Workers from Bolivia, the Dominican Republic and Peru. The Hotel Workers allege that Decatur's agents required them to pay between $3500 and $5000 each for the recruiters' fees, visa fees and transportation costs. The workers, who served as housekeepers, desk clerks and maintenance staff, were paid between $6.04 and $7.79 per hour, but Decatur refused to reimburse them for their visa, transportation and recruitment costs. Consequently, plaintiffs contend that these costs reduced their effective wages to substantially less than the federal minimum wage of $5.15 per hour in their first pay periods. As a result, they were forced to work for three to five months just to recoup their visa, transportation and recruitment costs. Moreover, it is undisputed that under the H·2B program. they were legally prohibited from working for other employers outside the program who might have paid them higher wages. The Hotel Workers argue that Decatur's system of compensation and de facto wage deductions placed them in debt peonage.
As a result, wage disputes arose between Decatur and the Hotel Workers. On August 16. 2006, the Hotel Workers sued Decatur, alleging that Decatur had failed to comply with the minimum wage provisions of the FLSA, 29 U.S.C. §§ 203(m). 206(a). Specifically, the Hotel Workers alleged that Decatur's refusal to defray the Hotel Workers' out-of-pocket visa, transportation and recruitment
[g]enerally ... one year or less." ld. § 214.2(h)(6)(li)(B). Moreover, the DOL must determme that the workers' employment will not "'displac[e] qualified United States workers"" and that their work will "not adversely affectn the wages and working conditions of United States workers." See id. § 211.2(h)(6)(i)(A). Once admitted, the guest workers' legal status is tied to performing labor for the specific employer who petitioned for the visas. See id. § 214.2. Under no circumstances can the workers remain in the country longer than three years. ld. § 214.2(h)(li'>)(ii}(C). Whal is more. if at any pomt the H-2B VISas expire or the workers are dismissed from their jobs, they are required to 1mmediately leave the country. See id. § 214.2(h)(6)(vi)(E), (h)( 17)(m)(C). To help ensure such an exit, throughout the period ofll-2B employment, the guest workers must maintain a "residence in a forc>gn country" and have "'no intention nf sbandonlllg" it. 8 U.S.C. § ll01(a)(15)(v)(H).
19

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 25 of 59
No. 07-30942 expenses violated the national minimum wage requirement by pushing the Hotel Workers' wages below the minimum wage in their first pay periods.
After only limited discovery, Decatur filed a motion to dismisR and for summary judgment, which the district court construed as contending that the Hotel Workers were not entitled to any protection by the FLSA and, alternatively, that the FLSA did not require Decatur to refund their transportation, visa and recruitment costs as part of the minimum wage requirement. In support of its motion, Decatur filed a unilateral statement of facts. The Hotel Workers produced evidence contesting Decatur's asserted facts and a cross-motion for partial summary judgment. The district court denied Decatur's motion to dismiss and for summary judgment and partially granted the Hotel Workers' motion, but only insofar as Jt held that, as temporary H-2B workers, they were protected by the FLSA's minimum wage requirements. The district court declined to decide whether the FLSA required the visa, transportation and recruitment expenses paid by the Hotel Workers to be treated as de facto wage deductions. On Decatur's further motion, the district COllrt certified its order addressing only the threshold legal question-whether the FLSA's minimum wage protection applies to H-2B foreign temporary workers-for an interlocutory appeal under 28 U.S. C.§ 1292(b). A motions panel of this court granted the appeal. The case was heard and decided twice by an oral argument paneL Ultimately, we granted an en bane rehearing vacating the panel's opinion.
II. Although the majority opinion concedes that the FLSA applies to the wages ofthe Hotel Workers, it does not heed the Supreme Court's decisions that require federal courts to give deference to the DOL's reasonable interpretation ofits valid regulations under the FLSA. The majority does not attempt to reconcile its
20

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 26 of 59
No. 07-30942 decision with the Supreme Court's cases; nor does it try to show that the DOL's interpretations are unreasonable and therefore not controlling. Rather, the majority adopts an unfounded, eclectical approach, applying the statutory, regulatory and interpretive provisions it chooses while disregarding those that are inconsistent with its own notions of justice. I respectfully submit that my colleagues have lost sight of the proper role and perspective that the Supreme Court has said federal courts must maintain in construing and applying a congressionally authorized administrative agency's interpretations of its own regulations. In doing so, the majority opinion has reached a decision conflicting not only with the Supreme Court's decisions, but also with the DOL's interpretations of its own regulations, the decisions of the Eleventh Circuit and the decisions of several federal district courts. Regrettably, the majority opinion also deprives foreign temporary workers in this circuit of minimum wage protection against employers shifting to them costs incidental to and primarily
for the benefit of the employers' businesses, viz.. the costs ofvisas, transportation
and recruitment necessary to hiring foreign workers. Congress created the Department of Labor in 1913 in part, "to foster,
promote, and develop the welfare of the wage earners of the United States." An
Act to Create a Department of Labor, Pub. L. No. 62·426, § 1, 37 Stat. 736 (1913).
In 1938, Congress passed the Fair Labor Standards Act, creating the Wage and Hour Division in the Department of Labor and codifying worker protections such
as minimum wage and overtime pay. 29 U.S.C. § 201 et. seq. Prior to the Hotel
Workers filing this lawsuit in August 2006, the FLSA required Decatur to pay
each of its employees not less than $5.15 an hour. 29 U.S.C. § 206(a)(l) (2006)
(amended 2007). The FLSA also provides that the '"Wage' paid to any employee includes the reasonable cost. as determined by the Administrator [of the Wage and Hour Division], to the employer of furnishing such employee with board,
21

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 27 of 59
No. 07-30942 lodging, or other facilities, if such board, lodging, or other facilities are customarily furmshed by such employer to his employees.'' 29 U.S. C. § 203(m).
Congress expressly granted the DOL the authority to promulgate necessary
" rules, regulations or other orders under the FLSA and amendments thereto.
Moreover. in cases arising under the FLSA, the Supreme Court has held that the power of the DOL to administer the FLSA "necessarily requires the formulation of policy and the making of rules to fill any gap left. implicitly or explicitly, by Congress." Long Island Care at Home, Ltd. tJ. Coke. 551 U.S. 158, 165 (2007) (quoting Chevron, U.S.A., Inc. v. Natural Res. De(. Council, Inc., 467 U.S. 837, 843 (1984)) (quotation marks omitted). "When an agency fills such a 'gap' reasonably, and in accordance with other applicable (e.g., procedural) requirements, the courts accept the result as legally binding." Id. (citing Chevron, 467 U.S. at 843-44; United States v. Mea.d Corp., 533 U.S. 218, 227 (2001)).
The Supreme Court has also held that the DOL's interpretations of its own regulations are '"controlling' unless ·plainly erroneous or inconsistent with' the regulations being interpreted'' Long Island Care at Home, 551 U.S. at 171 (quoting Auer v. Robbins, 519 U.S. 452. 461 (1997), in turn quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 3a2, 359 (1989), in turn quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other quotation marks omitted). Our circuit and others have held that opinion letters, handbooks and other published declarations of an agency's views, including amicus briefs, are authoritative sources of the agency's interpretation of its own regulations. Belt v. EmCare, Inc., 444 F.3d 403, 415 (5th Cir. 2006) ("We conclude that Auer applies, so we give controlling weight to the DOL's position adopted in the 1974
'See 29 U.S.C. § 259(a); see also Fair Labor Standards Act, Pub. L. No. 99-150,§ 6, 99 Stat. 787. 790 (198.')); Fair Labor Standards Act, Pub. L No. 89-601. § 602, 80 Stat. 830, 844 (1966); Fmr Labor Standards Act. Pub. L. Nn. 87-30. § 14. 7[} Stat. 67, 75 (1961).
22

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 28 of 59
No. 07-30942 opinion letter. 1994 Handbook. and amicus brief ...."); see also IntraComm. Inc. v. Baja}, 492 F.3d 285, 293 (4th Cir. 2007) (noting that "the Secretary[ ofLabor]'s interpretation of her own combination-exemption regulation in opinion letters and in her amicus brief to this court is entitled to [Auer] deference"'); In re Farmers Ins. Exch., 481 F.3d 1119, 1129 (9th Cir. 2007) ("We must give deference to the DOL's mterpretation of its own regulations through, for example, Opinion I~e ttcrs.").'
As shown above, the statutory text of the FLSA clearly leaves relevant gaps. For example, it does not define the scope of terms such as "wage" and "board, lodging, or other facilities." 29 U.S.C.§ 203(m). Consequently, it provides the DOL with the power to fill these gaps through reasonable regulations.
The DOL responded by issuing a series of regulations defining the minium wage under the FLSA. 29 C.F.R. pt. 531; id. §§ 531.32, 531.35. In doing so, it followed all necessary procedural requirements-"[i]t gave notice, it proposed regulations, it received public comment, and it issued final regulations in light of that comment."' Long Island Care at Home, 551 U.S. at 165. See also 32 Fed. Reg. 13575 (1967) (promulgating the regulations). "The subject matter of the regulation[s] in question concerns a matter in respect to which the agency is expert, and it concerns an interstitial matter, i.e., a portion of a broader definition, the details of which, as we said, Congress entrusted the agency to work out." Long Island Care at Home. 551 U.S. at 165.
'See &It, 444 F.3d at 416 n.35 ('The most important reason for extending greater deference loan ann<"us brief that purports to interpret an agency·s own amb1guous regulation (under A!ler), than a brief that interprets the organic statute directly (under Chen·on). is the greater expertise and famihanty of the agency with respect to the hiMory and content of Its own enacted rul<es. See John F. Manning, Constitu.tiorwl Str!ldure and J.,dicial Deference Ia Agency lnterprelatwns vf Agency Rules. 96 Colum. L. Rev. 612, 630·31 (1999).").
23

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 29 of 59
No. 07-30942
These regulations. promulgated in 1967 without subsequent change, explain that a minimum wage is only paid if it is provided "finally and unconditionally or 'free and dear.'"' 29 C.F.R. § 531.35. They elaborate on this rule by continuing:
The [minimum] wage requirements of the Act will not be met where the employee "kicks-back" directly or indirectly to the employer or to another person for the employer·s benefit the whole or part of the wage delivered to the employee. This is true whether the "kick-back" is made in cash or in other than cash. For example, if it is a requirement ofthe employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer's particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act. See also in this connection § 53l.32(c). !d. § fi81.35. 29 C.F.R. § 531.32(c), the provision cross-referenced in§ 5;H.35, provides further examples of items understood to be for the benefit of the employer and therefore prohibited from being paid by the employee or charged against his or her wage so that the effective wage is reduced below the statutory minimum in any pay period. These examples include expenses that further the employer's business, such as "fs]afety caps, explosives, and miners' lamps," or that are incurred by the employee to fulfill his or her job function, such as "charges for rental of uniforms where the nature of the business requires the employee to wear a uniform," as well as costs that merely facilitate the smooth and consistent operation of the employer's enterprise, such as "company police and guard protection." ld. § 53l.32(c). 29 C.F.R. § 531.32 also describes expenses that would not be considered to be for the employer's benefit and therefore could be paid by the employee or
24

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 30 of 59
deducted from his or her minimum wage despite reducing it below the statutory minimum. Jd_ § 531.32(a). Such expenses, the regulation explains. "must be something like board or lodging." !d. By contrast, it continues, they cannot include transportation costs where those costs are "incident of and necessary to the employment'' ld.
The majority opinion docs not challenge the validity or reasonableness of these DOL regulations. Therefore, according to the Supreme Court's cases, we must accept the DOL's regulations as legally binding and then consider the DOL's interpretations of them. Because the agency's interpretations are creatures of its own regulations, the DOL's interpretations of them are, under Supreme Court jurisprudence, controlling unless plainly erroneous or inconsistent with the regulations being interpreted. See Long Island Care al Home, 551 U.S. at 171 (citing Auer, 519 U.S. at 461).
For nearly fifty years. the DOL has interpreted its regulations pertinent to this case to mean that employers must bear the visa, transportation and recruitment costs incidental to their hiring of temporary foreign guest workers, and that they must reimburse these costs to workers whenever the employer's failure to do so would effectively reduce the employee's wage below the statutory mm1um m the fust pay period.5 Because the majority opinion contends incorrectly that the DOL did not interpret its regulations to reqmre reimbursement of employees for any such costs prior to 1994, a detailed examination of the agency's interpretations is necessary.6 Starting on May 11,
'While the mmimum wage requirements of the FLSA must be satisfied in each pay period, only tlw flrHt pay penods ofthe Hotel Workers are relevant here because the1r out of pocket visa, transportation and recruitment costs were expended prior to the commE'ncement of their employment.
''MaJOrity Op. ll-12 & 11 n_9_
25

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 31 of 59
No. 07-30912
1960, DOL opinion letters and handbooks have consistently held that, in the
language of the regulations. guest workers' transportation costs from the point
of hire to the place of employment were for the benefit of the employer as they
were "incidental to the recruitment program[s]"; thus, they could not be properly
considered as a "part ofwages." Wage-Hour Opinion Letter, dated May II. 1960.'
A letter issued on September 26, 1977, reiterated this interpretation of the
regulations, explaining that transportation costs must be paid by the employer
because they were "regarded as part of the employer's recruitment cost, which
must be borne by the employer." Wage-Hour Opinion Letter, dated Sept. 26, 1977
(emphasis added). Moreover, a letter from November 28, 1986, stated that "an
employee who pays his or her own transportation must be reimbursed to the
'See also Wage-Hour Opimon Letter No. 937, •: 66-69 CCH-WH 1i 30,949, dated Feb. 4, 1969 ("(B]ecause the cost of transportation to and from a work-site was normally regarded as part of the employer's recruitment cost, it could not be dedueted from employees' wages, if the re"ult would be to reduce the wages below the mmimum required by either the Service
Contract Actor the Fair Labor Standards Act.''): Wage-Hour Opimon Letter No. 1139, 'i 69-73,
CCH-WH ~30, 709, dated Nov. 10, 1970 ("The rost of transporhng employees to and from the point ofh1re would not properly be computed as part of mdividual employe~s wages for either 'direcr or 'indirect' employees as such expense is a cost incidental to an employer's recrmtment program whwh should be borne by the employer. Moreover, withholding of such transportation costs could not be legally made to the extent that they reduce wages below statutDrily required minimum wages or overtime compensation. FLS1\, Sectwn 3{m) and Regs., Section 531.36 and .:17''); Wage-Hour Opinion Letter, dated Sept. 26, 1977 {statmg the same principle); WageHour Opmion Letter, dated Nov. 28. 1986 {"lt remains our poaition that where, as here, migrant workers are hired in Puerto Rico for employment elsewhere. no deduttion that cut-s into the minimum wage may he made for transportation of m1grant workers from the point of hue and return to that point. The rationale for th1s position is that transportatJOn cost.~ incurred m this connection are deemed to be primarily for the benefit of the employer."); U.S. D~p't of Labor. Wage-Hour Field Operations Handbook, ~ 30c13(e) (1988) (stating the same principle); \Vage-Hour Opinion Letter No. 531, 1990 WL 712744, dated June 27, 1990 ("Under the FLSA it has always been the position of the Department of Labor that no deductwn, that cuts mto the mimmum wage, may be made for transportation of workers from, the pomt of hiw and return to that point. Th1s lS so. because such transportation costs incurred in this connection are deemed to be primanly for the benefit of the employer (29 Ci''R Part i'>31.32(c))."); Wage-Hour Opinion Letter dated May 10, !996("The Department's current policy remains that worker·incurred transportation costs from the point of remote hire to the worksite are primarily for the benefit of the employer.").
26

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 32 of 59
No. 07-30942 extent the wages received the first week of employment less the transportation costs total less than the minimum wage for all hours worked''; the letter thereby made clear that the DOL interpretations do not solely address wage deductions, but also establish a reimbursement requirement. Wage-Hour Opinion Letter. dated Nov. 28, 1986 (emphasis added). See also Wage-Hour Opinion Letter, dated May 10, 1996 ("It is also the Department's policy that employees remotely hired under the H-2A program may not be required to bear the cost of transportation to the worksite to the extent that such expenses infringe on the employee's receipt of the FLSA minimum wage."'). These same interpretations were in place at the time the Hotel Workers were hired and thus when their FLSA rights were violated in their first pay periods. Letter from Kristine A. Iverson, Assistant Sec'y for Cong. & Intergovernmental Affairs_. U.S. Dep't of Labor, to Senator John W. Warner (May 30, 2001) ("Let me first summarize the [DOL's) existing policy with regard to enforcing the general [FLSA] interpretation on worker-incurred transportation costs. Employers are liable for worker-incurred transportation costs for remotely-hired workers from their point of hire to the employer's worksite.'"). Thus. contrary to the majority's assertion, a careful reading of the DOL's prior interpretations reveaho that (l) well before 1994, in fact, as early as 1986, the DOL interpreted its regulations to require reimbursement of expenses that were primarily for the benefit of the employer because they reduced the employee's wage below the statutory minimum; and (2) as early as 1977, the DOL regarded travel costs as part of the employer's "recruitment costs," which must be borne by the employer. Therefore, historically, and at the time this case arose, the DOL interpreted its regulations to require the employer to reimburse foreign temporary workers their recruitment-related costs.
As recently set forth by the DOL in the 2009-2 Field Assistance Bulletin issued by the United States Department of Labor, Employment Standards
27

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 33 of 59
No. 07-30942
Administration, Wage and Hour Division, the DOL stated that its consistent,
long-lived interpretations of its regulations, commencing in 1960, are the same
as the DOL's current and prevailing interpretation of the regulations in 2009. ln
its Bulletin's interpretation, the DOL reads the pertinent regulatwns. which have
not been changed since 1967 in any relevant sense. to require employers to
reimburse H-2B employees for their inbound transportation, visa and
recruitment costs.8 The Bulletin explains that this has always been the DOL's
interpretation ofthe relevant regulations,9 except for a short-lived interpretation
by the DOL issued in December 2008. w That single inconsistent interpretation
8 Wage and Hour Division, U.S. Dep't of Lalxlr. Field Assistrmce Bulletin No. 2009-2 (2009), aoailoble at http://www.dol.gov/whd/FieldBulletins/Fieldi\sslstanceBulletin 2009_2 htm. The Bulletin states: "'Accordingly, in the context of the H-2B temporary nonimmigrant visa program. we conclude that such travel and visa c"sts arc for the primary benefit of the employer. Therefore. the employer must re1mburse those costs in the first workweek to the extent that they reduce the employee's wage below the mm1mum wage'' ld. at 12 (footnote omitted). "fU]nder both the visa program regulations and tlw FlSA, we believe that employers aJ"<> responsible for paymg the fees of any recruiters they retain to recrmt foreign w"rkers and provide access to the job opportunity." Jd. "Whenever the employer is found to be the pnmary beneficiary, the employer must reimburse such expenses if the fallure to do so would bring the employee's wage below the minimum wage.· Id. at 9 n.3.
0 The Bulletin states: "Over a period of 30 years beginning m J%0, Wage and Hour ISSued a series of opinion letters consistently concluding that the cost nftransportmg remotely hired tcmp"rary employees to and from the point of hire is a cost that must be borne by the employer. as a cost JOCldental to the employer's recrmtment program, because the transportatiOn IS primarily for the employer's benefit: therefore. such transportation costs could not reduce the employees' wages below the required mmimum wage.'' ld. at 3. Emphasizing that 1ts pnor interpretations reqmred reimbursement, as well as pre\·ented deduction, ofsuch costs, the Bulletin also explains that "(i]n a letter datRd May 10, 1996, Wage and Hour clarified that its 'policy remams that worker-incurred transportation costs from the P"int of remote hire to the worksite are primarily for the benefit of the employer.'"" ld. at 4.
10 The llulletm also exphcitly disagrees with the sccxmd panel opinion m this case, which. like the instant majority. had held that the FlSA does not require employers to re1mburse H-2B employees for theirtransportatwn and related costs. The Bulletm states: "We thus disagree with the Fifth Circuit's recent decision in Castellonos·Con/reras [v. Decatur Hotels, LLC] holding that the Fl.SA does not require employers to reimburse H-2B employees for their transportation and related fees. [576 F.3d 274 (5th Cir. 2009).] The court concluded that, because the FLSA kick-back regulation does not specifically address transportation, visa
28

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 34 of 59
No_ 07-30942
was issued on December 19, 2008, but was withdrawn 98 days later, on March
2€, 2009.n See Labor Certification Process and Enforcement for Temporary
Employment in Occupations Other than Agriculture or Registered Nursing in the
United States (H-2B Workers) and Other Technical Changes, 73 Fed. Reg. 78020,
and recru1tmenl expenses and the Department ofHomeland Secunty and Department ofState regulations do not require employers to pay su~h expenses, they are not employers' bu~ine~s expenses. (Jd.] The court declined to follow Arriaga [c·. Florida Paci[1:c Farms, T•. LC., 30[} F.3d 1228 (lith Cir. 2002)] both because that deciswn mvolved H-2A (workers], instead of H-2B [workers], and because it relied upon sectwn 3(m) [of the FLSA, 29 U.S.C_ § 203(m)] and the 'incident of and necessary to' standard in § 53L32 instead of§ 531.35 (the kick-back regulation). The court also slated that the fact that the 2009 H-2B regulations newly require employers to forbid their recrmters from chargmg fees to employees suggests that such fees were not previously an employer expense. We believ<e that the Arriaga court correctly rehed upon the sectwn :l(m) principle-that an employer may take credit only for a facility that is for the employee's primary benefit and may not reqmre an employee to bear an employer business expense if that will reduce the employee's pay below the minimum wage-as that prmc1ple is interpreted in both § 531.32 and § 53L3f> (indeed, § 531.35 contams a cross-reference to§ 531 32).1'he fact that§ i'>3L:F> does notspccifically address transportation, visa and recruitment fees for temporary formgn workers IS Irrelevant to the analy~is_ The regulation sets forth the general prohib1l!On agamst k1ck-hacks and has one example relatmg lo tools of the trade: that doe~ not indicate that kick-hacks for other employer expenses are permissible. The CasiFllano~-Conlr~ros deci~ion is, of course, binding precedent in the Fifth Circuit." Id. at II n.5. This statement does not depnve the DOL's interpretation of its controlling force. As the Supreme said in Long Island Care at Home, "(w]e have no reason_ . to suspect that [this] interpretation is merely a post hoc ratwnalizatw[n] of past agency action, or that it does not refiecl the agency's fair and considered judgment on the matter in question. Where. as here, an agency's course of action indicates that the mterpretation of its own regulation reflects its considered views ... we have accepted that mterpretat1on as the agency's own even if the agency set those views forth" in response to litigation and decisions m the lower courts. 551 U.S. at 171 (third and fonrth altf-ration in ongmai) (quoting Auer, 519 U.S. at 462) (quotabon marks omitted)_
11 "The [December 19, 2008] preamble [interpretation] inaccurately characterized these expenses as 'relocation· costs when in fact the expenses arfl costs incurred as a result of travel away from the employee's foreign home for temporary employment. not a change in the employee's domJClle for permanent employment. Moreover, th1s situation involves the employer's assertion. and the Department ofLabor's certification, that there are not suffiCJent U_S_ worker~ availabl<e to perform the work. After weighing all the factors relevant to transportation and other costs incident to temporary employment under the H-2B program, we believe that the employer is the pnmary beneficwr_y of the temporary employee's travel and immigration-related costs_·• Fwld Assistance Bulletin at 7.
29

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 35 of 59
No. 07-30942 78039-78041 (Dec. 19, 2008) (containmg the 2008 interpretation); Withdrawal of Interpretation of the Fair Labor Standards Act Concerning Relocation Expenses lncurred by H-2A and H-2B Workers, 74 Fed. Reg. 13261 (Mar. 26, 2009).
What is more, the Secretary of Labor, in an amicus brief filed in this case with our permission, interprets the DOL regulations at issue here as having always meant (except for the brief three-month period between December 2008 and March 2009) that transportation and visa fees are an incident of and necessary to H-2B employment, requiring employers to repay employees for advancing those costs, if failure to do so would reduce an employee's pay below the national minimum wage floor12 The Secretary concludes,
Thus. but for a brief three-month period, the Department has expressed a consistent interpretation of the requirements of the FLSA for some 50 years. The Department's interpretation, as manifested by its extensively-supported Field Assistance Bulletin setting forth the application ofits longstanding interpretation ofthe FLSA in the particular H-2B context, is entitled to substantial deference. 13 The Secretary states that the DOL does not have sufficient facts in this case to express a view regarding whether Decatur ultimately must reimburse the Hotel Workers for their outlay ofrecruitment fees." However, "the Secretary notes that the December 2008 H-2B final rule [which is distinct from the withdrawn preamble) prohibits employers and their agents from seeking or receiving payment for recruitment costs and requires employers contractually to forbid their foreign labor contractors or recruiters from seeking or receiving payments
" See En Bane Brief for the Sec'y of Labor as Amicus Curiae in Support of PlaintiffsAppellees at 20, 24, 2010 WL 3049082.
"Jd. at :.!5 n_8_
30

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 36 of 59
No. 07-30942 from prospective employees'''" In this connection, the Secretary also notes that the preamble to that final rule "states that requiring employers to incur such costs is reasonable because a recruiter is essential to the securing of such workers."'6 Finally. the Secretary concludes that "an employer would be responsible for paying for 'de facto recruitment fees charged for access to the H2A program,'''" and that '·[s]imilarly, under the FLSA, the employer is the primary beneficiary of the recruiter fees when the employer has retained a recruiter to locate foreign workers and effectively limits the job opportunity only to workers using that particular recruitcr." 18 Therefore, the Secretary's amicus brief is an immediate and case-specific interpretation of the DOL's regulations that the transportation. visa and recruitment expenses alleged by the plaintiffs to have been required of them were primarily for the benefit of Decatur Hotels and thus must be reimbursed if they reduce the plaintiffs' wage below the statutory minimum.
"[T]he Secretary's interpretation comes to us in the form of a legal brief; but that does not, in the circumstances of this case. make it unworthy of deference.'' Auer, 519 U.S. at 162. See also Long Island Care at Home, 551 U.S. at 171 ("Where, as here, an agency's course of action indicates that the interpretation
"Id. (Clting 20 C.F.R. § 655.22(g)(2), (j)). "Id. (Clting Labor Certification Process and Enforcement for 'Temporary Employment
in Occupations Other than Agriculture or Registered Nursing in the United States (H-2B Workers) and Ofher Technical Changes, 73 Fed. Reg. 78020, 78037 (Dec. 19, 2008)).
"ld. (quoting 'Temporary Agncultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6881,6925 (Feb. 12, 2010)).
" Id. (c1ting Rivem v. Bric/1man Group, Lid., C1v. No. 05-1518, 2008 WL 81.')70, at •J3l1 (E.D. Pa. ,Jan. 7, 2008) (unpublished); Morales·Arcod•:o v. Shannorn Produce Farms, inc., No. 605CV062, 2007 WL 2106!88, at •14 (S.D. Ga. July 18, 2007) (unpublished)).
3!

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 37 of 59
No. 07-30942 of its own regulation reflects its considered views-the Department has clearly struggled with the third-party-employment question since at least 1993-we have accepted that interpretation as the agency's own, even if the agency set those views forth in a legal brief."). "The Secretary's position is in no sense a 'post hoc rationalizatio[n]' advanced by an agency seeking to defend past agency action against attack." Auer, 519 U.S. at 462 (alteration in original) (quoting Bowen l'. Georgetown Uniu. Hosp., 488 U.S. 204, 212 (1988)). "There is simply no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question." /d.
The majority opinion does not appear to appreciate the significance of the Secretary's amicus brief, for it seems to follow its own rule that FLSA regulations are to be narrowly construed against employees and that minimum wage protections are to be withheld except as to employees plainly and unmistakably within their terms and spirit. "But that is a rule governing judicial interpretation of statutes and regulations, not a limitation on the Secretary's power to resolve ambiguities in his own regulations. A rule requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute." /d. at 462-63.
Under the Secretary's and the DOL's legally binding interpretations of the DOL's regulations, Decatur must bear the visa, transportation and recruitment costs that, under the alleged facts, were necessarily incurred in temporarily hiring the foreign Hotel Workers to work in their New Orleans hotels in 2005 and 2006. Further. under the DOL's controlling view ofthe regulations, Decatur was obligated to reimburse the Hotel Workers the sums that each advanced to pay these necessary expenses; Decatur's failure to do so within each foreign worker's
32

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 38 of 59
No_ 07-80942 first pay period caused it to pay the Hotel Workers sub-mmimum wages in violation of the FLSA. As the DOL has explained, the visa, transportation and recruitment costs were incidental to and primarily of benefit to Decatur's business. Although the temporary foreign workers, of course, received some benefit from their employment, under the DOL's interpretation ofits regulations, they were not the primary benefic1aries of Decattu"s foreign worker program because they were visaed servants of Decatur while in the United States and legally bound to return to their foreign nations after their temporary employment_ Thus, the majority opinion. by following Jts own erroneous view of the DOL's regulations rather than the Secretary's or the DOL's interpretations ofthem, reaches the legally opposite and clearly wrong conclusion that the FLSA can never afford the Hotel Workers, or any foreign temporary workers in their situation, any relief or compensation for having been made to absorb the visa, transportation and recruitment costs necessary to Decatur's foreign labor recruitment venture.
The Secretary's interpretation of other DOL regulations pertaining to recruitment fees paid by temporary foreign workers under the H-2B and H-2A programs further counsels against denying the Hotel Workers' claim for reimbursement of such expenses as a matter oflaw_ The Secretary stated in her amicus brief that under these regulations t]JCre is at least one scenario in which the Hotel Workers could prevail, viz.. by showing that Decatur authorized or ratified foreign recruiters' actions in charging foreign workers substantial fees as a condition of employment by Decatur. In the district court, the Hotel Workers filed declarations asserting that they were charged fees by recruiters as a precondition oftheir employment by Decatur. See Declaration ofRodolfo Antonio Valdez-Baez (Recruiters provided Valdez-Baez a contract to work for Decatur,
33

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 39 of 59
No. 07-30942 pre-signed by a Decatur employee. and informed him that if he wanted the job he would have to pay them $1800 as part of "the cost of the program to be able to go and work for the Defendants."' His declaration goes on "I understood that the [recruitment agency] was an agency utilized by Defendants for the recruitment of workers like me to work for them with H-2B visas."); Declaration of Oscar Ricardo Deheza-Ortega (stating very similar facts); Declaration of Daniel Castellanos-Contreras (stating that his recruiter told him "that in order to obtain
an H-2B visa and this job with the Defendants, I had to pay all of the expenses
of the program" and that the recruiter charged him a fee); Declaration of Francisco Sotelo-Aparicio (stating very similar facts). Moreover, they produced a contract between a subdivision ofthe defendants-employers' domestic recruiting firm and the defendants-employers stating that the subdivision agreed "to act as the authorized agent on Client's [the defendants-employers] behalf to prepare and submit the required documents to petition for temporary labor from outside the United States under the H2B [sic] labor certification process." The Hotel Workers also produced evidence showing that the defendants-employers worked closely with those recruiters to provide necessary job-related information and prepare the H-2B applications. The district court took as undisputed that the foreign recruiters were "sub·contract[ors]" ofthe defendants-employers' domestic recruiting firm. Castellanos-Contreras u. Decatur Hotels, L.L.C., 488 F. Supp. 2d 565, 567 (E.D. La.), amended in part by Castellanos-Contreras l!. Decatur Hotels, L.L.C., No. 06-4340, 2007 WL 6867035 (E.D. La. July 19, 2007) (unpublished). The district court was never called upon to evaluate the credibility of the plaintiffs' declarations or attempt to resolve the obvious dispute between the parties over whether the recruiters acted as the defendants-employers' agents in charging the Hotel Workers recruiters' fees.
34

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 40 of 59
No. 07-30942 Therefore, no party, nor this court, has sufficient knowledge to decide whether, under the Secretary's interpretation of these regulations, Decatur owes reimbursements to the Hotel Workers for foreign recruitment costs. A proper reading of the district court's record and decision clearly shows that the facts surrounding the charging and payment of recruitment fees in this case were very much in dispute. undecided and subject to further and ongoing discovery when the district court certified only the threshold legal issue ofFLSA coverage vel non to this court. Thus, the majority opinion manifestly errs in precluding the Hotel Workers from any possibility ofrecovering from Decatur for the fees they paid the recruiters in their foreign countries. Only by applying its own erroneous view of the DOL's regulations, instead of the Secretary's or the DOL's, or by assuming or reading into the record undisputed facts that simply are not there, or both, can the majority opinion reach its clearly incorrect conclusion. Because the majority uses its own eccentric methodology, rather than that prescribed by the Supreme Court, it reaches erroneous conclusions, which it in turn uses as incorrect premises in support of the majority opinion. First, the majority assumes that an H-2B foreign temporary worker may not recover from his or her employer for visa, transportation and recruitment costs, unless the FLSA and the DOL's regulations expressly and specifically authorize such recovery. Because ·'[n]o statute or regulation expressly states that inbound travel expenses must be advanced or reimbursed by an employer of an H-2B worker"19 the majority concludes, "this lack oflaw would seem to end the matter as to both the travel and visa expenses.'' 2~ As noted above, however, the
'" Majority Op 8. '" Jd_ at 9.
35

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 41 of 59
No_ 07-30942
Supreme Court has not confined the DOL to such a literal or wooden approach in its regulations interpreting the FLSA. "When an agency fills [an explicit or implicit statutory] gap reasonably, and in accordance with other applicable (e.g.. procedural) requirements, the courts must accept the result as legally binding." Long Island Care at Home. 551 U.S. at 165 (quotations marks and citations omitted).
Second, the majority opinion similarly ignores the DOL's interpretatJon and the plain words of the regulation in reading 29 C.F.R. § 531.35. The majority concludes that for a cost to be "primarily for the benefit of the employer" under that regulation, it must fall literally within the "tools of the trade" tcrm. 21 However, the DOL reasonably, and therefore permissibly, reads its regulation as using "tools of the trade" as merely an "example" of the kind of costs that are "for the employer's benefit."22 The plain meaning of the regulation is the same.23 Here, the DOL's interpretation of its regulation falls well within the principle
"Majority Op_ 9-10.
"See, e.g., Wage and Hour Division, U.S. Dep'tofLabor, Field Assistance Bulletin No. 2009-2, at 11 n_5 (2009), available of http://www.doLgov/whd/FieldBulletins/ FieldAssJstanceBulletin2009_2.htm ("The fact that §5.'11 ..'11 does not specifically address transportatiOn, VJSa and recruitment fees for temporary foreign workers is Irrelevant to the analysis. The regulation sets forth the general proh1bition against kick·backs and has one example r~lating to tools of the trade: that does not indicate thatkick·backs for other employer expenses are permissible."'): En Bane Bneffor the Sec'y of Labor as Amicus Curiae m Support of Plaintiffs-Appellees at 5, 2010 WL 3049082 ('"The regulations further state that expenses such as tools of the lrade ... are primarily for the convenience of the employer and, therefore. may not. be included as wages.").
"As 29 C.F.R § 5.'11.35, m pertment part, plainly states: "For example, if 1t 1S a requirement of the employer that the employ<"e must provide tools of the trade wh1ch will be used in or are specifically required for the performance of the employer's particular work_ there would he a violation of the Act m any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages reqmred to be paid him under the Act.''
36

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 42 of 59
No_ 07-30942 that an agency's interpretation of its own regulations is '"controlling" unless "plainly erroneous or inconsistent with' the regulations being interpreted." Long Island Care at Home, 551 U.S. at 171 (other quotation marks omitted) (quoting Auer, 519 U.S. at 416, in turn quoting Robertson, 490 U.S. at 359, in turn quoting Bowles, 325 U.S. at 414).
Third, the majority opinion refuses to apply the DOL's interpretations of its valid regulations under the FLSA for the inaccurate reason that the Immigration and Nationality Act (INA) statutes and regulations require employers to pay H-2A workers' inbound transportation costs, but do not speak to H-2B workers' inbound transportation or visa expenses. This reasoning fails to recognize that the FLSA is a separate statutory scheme with distinct regulations that must be given their own meaning and effect. The FLSA and its regulations represent a self-sufficient set of rules meant to prevent "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202. See Barrentine IJ. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) ("The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, 'labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers."' (alteration in original) (quoting 29 U .S.C. § 202(a))). That the DOL's regulations under the FLSA, particularly regarding whether the minimum wage requirement is satisfied, are not repeated in other statutes or regulations does not detract from the regulations' binding legal effect. In Powell u. United States Cartridge Co., the Supreme Court stated that to the extent the FLSA's requirements overlap with those of another statute, we must
37

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 43 of 59
t\!o_ 07-30942 apply the provisions of both so long as "comphance with one [does not] make[] it impossible to comply with the other:' 339 U.S. 497, 519 (1950). Here, there has been no showing that it would be impossible for Decatur to comply with both the INA and its regulations and the 1-'LSA's minimum wage requirements. See Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1235 (11th Cir. 2002) ("[T]hc Supreme Court has stated that when employment statutes overlap, we are to apply the higher requirement unless the regulations arc mutually exclusive. There has been no demonstration here that it is impossible to simultaneously comply with both'' guest worker and FLSA regulations. (citation and footnote omitted)).
Lest there be any doubt that the FLSA's minimum wage requirements control, the majority's own authority states as much. The cited immigration and nationality regulations, when describing the H-2B visa program, state that "an employer subject to the FLSA may not make deductions that would violate the FLSA." 20 C.F.R. § 655.22(g)(I). See. e.g., !d. § 655.17(g) (stating with regard to H-2B workers that "[t]he wage offer, or in the event that there are multiple wage offers, the range of applicable wage offers. __ must not be less than the highest of the prevailing wage, the Federal minimum wage, State minimum wage, or local minimum wage applicable throughout the duration of the certified H-2B employment").
Fourth, the majority opinion is simply mistaken in stating that we owe no deference to the DOL's interpretations of its regulations in its amicus brief and its 2009-2 Field Assistance Bulletin because they were filed or issued "after the events in question."2' Both the Bulletin and the amicus brief demonstrate the
"'Majority Op_ II.
38

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 44 of 59
No. 07-30942 agency's considered views and interpretations of its own regulations-the DOL has clearly studied and interpreted its regulations on the question of reimbursement of temporary foreign workers' visa, transportation and recruitment expenses since at least 1960. In such circumstances, the Supreme Court has accepted and adopted that agency"s interpretation, even when the interpretation is contained in documents drafted after the case at bar was filed. See Long Island Care at Home, 551 U.S. at 171 (citing Auer, 519 U.S. at 462). Similarly, in the 2009-2 Field Assistance Bulletin, the DOL sets forth comprehensively the DOL's past, present and prevailing interpretation of its regulations: that employers are responsible for paying the transportation, recruitment and visa expenses of H-2B employees where shifting these costs to employees would effectively bring their wages below the FLSA minimum wage in their first work week of employment.
The Bulletin acknowledges that the DOL briefly advanced the opposite interpretation, for 98 days beginning December 19, 2008, but notes that this mconsistent interpretation was withdrawn on March 26, 2009.2r' The Bulletin clarifies that the DOL reaffirms its past long-standing interpretation as its prevailing interpretation and explains why it concludes that the employer, not the employee, is the primary beneficiary of visa and transportation costs necessary and incidental to the employment oftemporary foreign workers.26 As for the responsibility for foreign recruiter fees in obtaining such workers, the Bulletin provides:
"'Wage and Hour DlVlSJOn, U.S. Dep't of Labor, l'ield Assistance Bulletin No. 2009·2, at. ;}-6 (2009), available at http://www.dol.gov/whd!PieldBulletins/FieldAssistanceBulletin 2009_2.htm.
"Id. at 9·12.
39

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 45 of 59
No. 07-30942
"The fact that a recruiter is essential to the securmg of such a worker does not dissuade the Department from requiring the employer to bear the expense; rather, it underscores the classification of that payment as a cost allocable to the employer." 73 Fed. Reg. at 78037. The Department continues to believe that employees should not have to pay a recruiter for access to this visa program, because the employer is the primary beneficiary of these costs. Thus, under both the visa program regulatJOns and the FLSA, we believe that employers arc responsible for paying the fees of any recruiters they retain to recruit foreign workers and provide access to the job opportunity. See Rivera v. Brickman Gronp, Ltd., 2008 WL 81570, at *"'13-14 (E.D. Pa. 2008) (because the H-2B employer required the employees to use a particular recruitment company, it was required to reimburse them where the recruiter fees reduced their wages below the FLSA minimum).2'
Thus, as the Bulletin states. under the DOL's interpretation of its regulations-prevailing both (i) when the plaintiffs' FLSA actions accrued in 2005 and 2006 and (ii) at the time this court's en bane decision is rendered in 2010-cmployers are required to bear the visa, transportation and recruitment costs of foreign temporary workers, if shifting those costs to employees effectively reduces their wages below the FLSA minimum wage in their first work week of employment. Therefore, application of that long-standing DOL interpretation to the present case would be neither retroactive nor improper. Instead, the majority's refusal to defer to the DOL's prevailing interpretation, in effect, supplants it with the withdrawn 98 day aberrant interpretation that has no relevance to this case. The agency's interpretation-in its Bulletin and amicus brief-ofthe "regulations falls well within the principle that an agency's interpretation of its own regulations is 'controlling' unless 'plainly erroneous or inconsistent with" the regulations being interpreted'' Long Island Care at Home, 551 U.S. at 171 (other
"ld. at 12.
40

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 46 of 59
No. 07-30942
quotation marks omitted) (quoting Auer, 519 US at 461. in turn quoting Robertson, 490 U.S. at 359, in turn quoting Bowles, 325 U.S. at 414).28
Fifth. the majority opinion's efforts to distinguish the underlying principles
that govern this case from those applied by the Eleventh Circuit in Arriaga v.
Florida Pacific Farms, L.L.C., 305 F.3d 1228 (II th Cir. 2002), are superficial and
without merit. It is true that the Eleventh Circuit performed a direct plain
language analysis of29 C.F.R. §§ 531.32, 531.35, rather than a deferential reading
ofthe DOL"s interpretations as I have applied here, following the Supreme Court's
cases. However, the Arriaga court's interpretations ofthe regulations are almost
identical to the DOL's interpretations. The Eleventh Circuit concluded that "it is
" The majonty opinion's efforts to suggest a retroactiv1ty problem e1ther in the application of the DOL's interpretatwn in the Bulletin or 1ts mterpretation in the 1ts amicus brief are without merit. See Majority Op. 11 & n.9. Th1s case does not call upon us to decide an arguable retroactivity issue Under 29 U.S.C. § 205, an employee'" right of action agamst his employer for underpayment of minimum wages accrues upon the employer's violation of the FLSA. Cf. Unexcelled Chem. Corp. v. United Stales, 31i> U.S. 59. 65 (1953} ("We conclude that 'the cause of action accrued' ... when the minors were employed.'}: Riley c'. Dow Corning Corp., 767 F. Supp. 735, 743 (N.D.N.C. 1991} (stating a plaintiffs claim under the FU)A accrued when he was denied his proper wage), off'd, 986 F.2d 1414 (4th Cir. 1993) (unpublished table decision}. Thus, the Hotel Workers' rights of action against Decatur because of1ts alleged FLSA violations accrued in 2005 and early 2006· and the workers t1mely brought this smt on August 16, 2006. The DOL's interpretation of the regulatwns that fore1gn temporary workers' visa, transportation and recruitment costs were for the employer's benefit was the same then as Jt JS now. Thus, we are not required to choose between two different interpretations of the regulatwns in this case. ]\,loreover. as noted above, the DOL's decisions to, at times, not enforce its interpretatwns of 1ts regulations, in no way altered the meamng or import of tho~e interpretations, which created a right for the Hotel \Vorkers to have the expenses at issue m this appeal reimbursed. 29 C.F.R. § 790.18(a). The cases cited by the majority opinion. Bmdley v. School Boord of R!chmond, 116 U.S. 696. 715-17 (1974) (holding that "an appellate court must apply the law m effect at the time Jt renders Jts decision," unless such application would work a mamfest injustice or there is statutory direction or legislative history to thewntrary), and I.andgra/v. USI Film Products., 511 U.S. 244, 286 (1988) (holdmg that proviswns of the Civilllights Act of 1991 creating a right to recover compensatory and punitive damages for certain violations of Title VII. and providing for trial by jury if such damages are claimed, did not apply to Title VII case pending on appeal when tbe statute was enacted on retroactivity grounds}, arc mappositc to this case.
41

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 47 of 59
No. 07-30942 apparent that the line is drawn" between expenses that are for the benefit of the employer and those that can be charged to the employee "based on whether the employment·related cost[s][are] a personal expense that would arise as a normal living expense." Arriaga, 305 F.3d at 1243. "Uniforms provide an illustration of this dividing line. 'Charges for rental uniforms,' when required by the employment, are considered to be primarily for the benefit of the employer[,] 29 C.F.R. § 531.32(c)[,]" because they would not arise from normalliving.Jd. at 1243· 44. By contrast, "ifthe employer merely prescribes a general type ofordinary basic street clothing to be worn while working and permits variations in details of dress[,] the garments chosen would not be considered uniforms . and [are] therefore not primarily for the benefit ofthe employer" as their expense would be analogous to a typical living expense. ld. at 1244 (citations omitted) (first
alteration in original) (quoting Ayres v. 127 Rest. Corp., 12 F. Supp. 2d 305, :hO
(S.D.N.Y. 1998), in turn quoting U.S. Dep't of Labor Wage & Hour Field Operations Handbook§ 30c12(f)) (quotation marks omitted).
In light of this plain language reading of the regulation, the Eleventh Circuit held that foreign guest workers' inbound "transportation cost Is] [are] 'an incident of and necessary to the employment,,. as their "employment necessitates that one·time transportation costs be paid." Arriaga, 305 F.3d at 1242 (quoting 29 C.F.R. § 531.32(a), (c)). Therefore, these costs must be borne by the employer. ld. at 1242-43. Similarly, the "visa costs here were necessitated by" the employers' use of the guest worker program.Jd. at 1244. "By participating in the . . program, the Iemployers] created the need for these visa costs, which arc not the type of expense they are permitted to pass on to the"' workers.Jd.
The Eleventh Circuit did hold that the recruitment fees at issue in that case did not need to be reimbursed. Arriaga, 305 F.3d at 1244-45. However, this was
42

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 48 of 59
No. 07-30942 only '"[b)ecause the principles of agency law d[id) not hold the [employers] responsible for the recruitment fees." !d. at 1245. Nonetheless, under the Eleventh Circuit's logic, had the recruiters been found to be the employers' agents, as the Hotel Workers in the instant case allege and adduce evidence to show, the court would have held that recruitment costs also must be reimbursed. It would have been an expense incidental to and incurred for the benefit of the employers.
The majority also would have us ignore the entirety of Arriaga because it addresses H-2A rather than H-2B workers; "H-2A" denoting that the guest workers at issue were involved in agricultural work, rather than non-agricultural work for which H -2B visas are issued. 8 C.F.R § 214.2(h)(l)(ii) (distinguishing H2A from H-2B workers based on whether they were performing"agricultural work of a temporary or seasonal nature"). Yet this argument fails to recognize relevant cases and contradictory facts. Specifically, the Eleventh Circuit has adopted and applied Arriaga's reasoning in the H-2B context as well. See Morante-Navarra v. T& Y Pine Strow, Inc., 350 F.3d 1163, 1165-66 & n.2 (llth Cir. 2003). So have several district courts. See Rosales v. Hispanic Employee Leasing Program, LLC, No. 1:06-CV-877, 2008 WL 363479 (W.D. Mich. Feb. 11, 2008) (unpublished); Ritwa v. Brickman Group, Ltd., Civ. No. 05-1518, 2008 WL 81570 (E.D. Pa. Jan. 7, 2008) (unpublished); Recinos-Recinos u. Express Forestry Inc., No. Civ. A. 051355, 2006 WL 197030, at *14 (E.D. La. Jan. 24, 2006) (unpublished). Further, there is no reasoned basis on which to distinguish between H-2A and H-2B workers. The H-2A/H-2B distinction is a relatively new one. The regulations at issue were promulgated when the H-2A and H-2B programs were one and the same. See 29 C.F.R. §§ 531.30, 531.32, 531.35; Glen M. Krebs, H-2Bor Not To&, 56-Jul Fed. Law. 62, 62 (2009). Therefore, Arriaga should be recognized as pertinent precedent and the majority opinion should be understood as creating a
43

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 49 of 59
No. 07-30912
circuit split without justification. Moreover, and perhaps most importantly, the DOL has approved of Arriaga's analysis of the regulations as being consistent with its own, while criticizing the panel opinion in this case as being in conflict with the regulations. 29
Sixth, the majority incorrectly asserts that "[t]he first time the Department specifically spoke to reimbursement in the context of alleged 'kickbacks' like those at issue here was its announcement in 2008." MaJority Op. 12. As quoted above, the DOL's 1986 opinion letter stated that "an employee who pays his or her own transportation must be reimbursed to the extent the wages received the first week of employment less the transportation costs total less than the minimum wage for all hours worked." Wage-Hour Opinion Letter, dated Nov. 28, 1986 (emphasis added). That is the precise Circumstance presented in this case. The majority's statement that this letter speaks to deductions, not reimbursements, is belied by the quoted language. Majority Op. 12 n.IO. So is the majority's contention that this interpretation IS limited lo the specific facts presented in the opinion letter-the interpretation does not refer only to the specific employees of the employer in that case but to an employee generically. Majority Op. 12 n.IO.:Jo
'"Wage and Hour D1v1sion, U.S. Dep't of Labor, Field Assistance Bulletin No. 2009-2, at 9, 11 n.D (2009), uvui /able or ht.tp'/lwww .dol.govlw hdJFieldBulletinsl FwldAssislanceBulletin2009_2.htm _
'"The majority also arguee the 1986letter should be ignored because it was a "po.<! hoc ratwnalizatwn" of the agency's position, unworthy of deference under Auer. Majority Op. 12 n.lO (citing Auer, 519 U.S. at 462). It IS unclear why the majority thinks this out-of-context quotatiOn from Alter is apphcable lo the 1986letter. The language from Auer reflected the Court's concern with whf'ther and when it should defer to an agency posJtJon adopted for the purpo~es of the litigation at bar, not with providing deference to an agency position taken decades before the present litigation was initiated. Auer, 519 U.S. at 462 (noting that the fear of agency "post hoc rationahzation' was 10 response to the Court possibly defcrnng to an agency amicus briefsubmitted in the case at bar, not deferring to prior agency mterpretations (alteration omJtted)). Moreover, the notion that the J986letter was developed in response to

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 50 of 59
No_ 07-:~0942
Moreover, the 1986letter is merely a clear and accurate illustration of the DOL's consistent position regarding the meaning of the FLSA. Wage-Hour Opinion Letter, dated Nov. 28, 1986. The regulation, 29 C.F.R. § 531.35, promulgated in 1967, prohibits "kick-backs" from the employee to the employer that reduce the employee's wage below the statutory minimum. As cited above, the DOL has also issued numerous other interpretations ofthe FLSA, all ofwhich, prior to 2008. are consistent with the 1986 opinion letter. The DOL's amicus brief to this court and its 2009 Field Assistance Bulletin state that the agency's interpretation of its regulations has been consistent except for the 98 day period at the turn of 2008-2009; and these consistent interpretations are fully worthy of deference under the Supreme Court's decisions.
To the extent that the majority means to suggest that these clear and unequivocal agency interpretations should be disregarded because the DOL was not, at times, "enforcing" its interpretations, Majority Op. 12, such an argument is also erroneous. Auer requires us to give deference to an agency's interpretations
litigation appears baseless. The citations m the letter are to a District Court for the District of New ,Jersey judgment entered in October 1979, more than seven years beforf' the letter wa~ written. See Wage-Hour Opinion Letter. dated Nov. 28, 1986 (citing Marshall"· Glassboro Sen·s. Ass'n, Inc, No. 78-377. 1979 WL 1989 (D.N.J. Oct. 19, 1979))_
1n a further effort to discredit the 1986letter, the majority also falls back on some of its earlier platitudes, arguing the letter should be disregarded because 1t addressed H-2A, not H·2B, workers and illS "doubtful that even the most diligent employer could have readily accessed'" the letter to know h1s or her responsibihties and thus might "not know the amount" he or she was required to pay the employees. MaJority Op. 12 n.JO_ Howev<er, as described above, the H-2AIH-2B distinction drawn by the majority is a false one_ in no way supported by the majonty·s citations or analysis_ Moreover as already noted, an employer need not have relied upon the letter to discern 1ts employees' rights to reimbursement for transportation, visa and recruitment expenses, as there were numerous other interpretations and regulations supporting employees' rights to the reimbursements sought in the instant case. The majority's concern that the mmimum wage m1ght be difficult to calculate is of no moment. Majority Op. 12 n.IO. The FLSA imposes a minimum wage requirement upon the defendants-employers and it must be satisfied.
45

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 51 of 59
No. 07-30942 of its re'gulations, not to its enforcement practices. See Long Island Care at Home, 551 U.S. at 171 (quoting Auer, 519 U.S. at 461). The DOL's regulations, in place since 1947, state that "administrative practices and enforcement policies differ from ... [the) decisions or views which the agency has set forth in its regulations, orders, rulings. approvals, or interpretations." 29 C.F.R. § 790.18(a). See also id. § 790.18(c) ("An administrative practice or enforcement policy may, under certain circumstances be at variance with the agency's current interpretation of the law."). Thus, that the DOL chose not to enforce certain regulations or interpretations in particular cases or periods should in no way be understood as altering the DOL's interpretations of the regulations themselves. ld. § 790.18(a), (c). Enforcement is a discretionary agency action. See Massachusetts u. EPA, 549 U.S. 497, 527 (2007) ("As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities."). Under the FLSA, these plaintiffs have an independent right of action that is anchored in the statute's rights and responsibilities, as properly interpreted by the Department of Labor. See 29 U.S.C. § 255.
Seventh. the majority contends that the Hotel Workers "proffered no evidence to support the concept that Decatur required any recruitment fees to be paid to the foreign recruiters or that it required the Workers to use these recruiters to apply to Decatur." This is not true. Even under the majority's incomplete and distorted view ofthe district court's order, the majority recognizes that the district court explicitly stated that additional discovery was required before it could resolve any of the disputed issues offact pertaining to Decatur's alleged liability for the reimbursement of visa, transportation and recruitment costs. As demonstrated above, the plaintiffs introduced numerous declarations
46

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 52 of 59
No_ 07-30942
suggesting that the recruiters acted as the defendants' agents and charged fees for their recruitment services. Consequently, the majority errs here, in addition to its errors discussed above. in failing to remand this case in order to allow the district court to consider and decide this controverted factual issue_
For these reasons, I respectfully but vigorously dissent from the majority opinion's refusal to defer to the Secretary's and DOL's reasonable interpretations of the agency·s own valid regulations under the FLSA and from the majority's order to the district court to enter a final judgment dismissmg the plaintiffs' claims for unpaid minimum wages without a trial on the merits.
III. This court of appeals has jurisdiction under 28 U .S.C. § 1292(b) to address the issue of whether the FLSA applies to H-2B workers; it does not have jurisdiction to address whether the hotels violated the FLSA, or whether the hotels owe the workers reimbursement for transportation, visa or recruitment expenses, because those issues are part of the merits of the case and are not material to the order issued by the district court that simply held that the FLSA applies to H-2B workers. Section 1292(b) provides, in pertinent part: When u district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question oflaw as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination ofthe litigation, he shall so state in writing in such order. The Court of Appeals __ . may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it withm ten days after the entry of the order .... 28 U.S.C. § l292(b).
47

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 53 of 59
No. 07-30942
Under § 1292(b), a court of appeals can ··exercise jurisdiction over any
question that is included within the order that contains the controlling question of law identified by the district court." Yamaha Motor Corp., U.S.A. v. Calhmm, 516 U.S. 199, 204 (1996) (quoting Yamaha Motor Corp., U.S.A. v. Calhoun, 514 U.S. 1126 (199fi)) (internal quotation marks omitted). But to be included within the order, the question must at least be material to that order. See Note, lnterlocu.tory Appeals in the Federal Courts Under 28 U.S. C. § 1292(b). 88 Harv. L. Rev. 607, 629 (1975) (stating that the "scope of review [includes] all issues material to the order in question"), quoted in Yamaha, 516 U.S. at 205. As this court succinctly put it in Adkinson v. International Harvester Co.: "An appeal under 28 U.S. C.§ 1292(b) is from the certified order of the district court, not from any other orders that may have been entered in the case." 975 F.2d 208, 211 n.4 (5th Cir. 1992) (citing United States v. Stanley, 483 U.S. 669, 677 (1987)). "Our jurisdiction, although not confined to the precise question certified by the district court. is confined to the particular order appealed from." ld. (citing Stanley, 483 U.S. at 677). "In short, on a certified interlocutory appeal under section 1292(b), we have jurisdiction to hear only questions that are material to the lower court's certified order." ld. (citing United States v. Fleet Factors Corp., 901 F.2d 1550, 1554 n.2 (11th Cir. 1990)).
Here, the order issued by the district court simply holds that "H-2B guestworkers are entitled to the protections ofthe FLSA," Castellanos-Contreras v. Decatur Hotels, L.L.C., 488 F. Supp. 2d 565. 566 (E. D. La.), amended in part by Cas!.ellanos-Contreras v. Decatur Ilotels, L.L.C., No. 06·4340, 2007 WL 6867035 (E.D. La. July 19, 2007) (unpublished)-that is. that the FLSA applies to H-2B workers period. A fair and common-sense reading of the district court's opinions shows that this simple holding of law is all the district court judge intended, and
48

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 54 of 59
No. 07-30942 all the defendants originally intended-that this court review and either affirm or reverse on interlocutory appeaL No other reading ofthe district court's opinions makes any sense. The district judge said repeatedly that he was not deciding whether the defendants had violated the FLSA, or whether the defendants owed the workers reimbursement of any transportation, visa or recruitment expenses. !d. at 572 n.5 ("[\\1hether or not the Defendants have violated the FLSA is a factual issue that is not appropriate for summary judgment."): CastellanosContreras, 2007 WL 6867035, at *2 ("[Tihe Court ... refus[es] to determine, as a matter of law, whether or not the FLSA has been violated in this case_ _")_ Further. the district court refused to stay further proceedings pending resolution of this interlocutory appeal. but instead "allow[ed] discovery to proceed uninhibited." Castellanos-Contreras, 2007 WL 6867035, at *2. As an experienced district court judge, he evidently anticipated that this court would affirm his order that the FLSA applies to this case and that he would have to try the merits issues of the case. including violations vel non, and, if there were violations. reimbursements vel non. As a very competent trial judge, he would not have certified or requested that we revJew issues that he had not yet tried or decided, 1.n:z., whether the defendants had violated the FLSA and, if so, whether they owed the plaintiffs reimbursements. His plain intention was to issue an order deciding the "threshold legal issue in this case, namely whether the FLSA applies to non-agricultural guestworkers brought to the United States under the H-2B program;' 488 F. Supp. 2d at 567, and, if this court affirmed. to proceed to trial on the merits. He did not intend to shirk his duty and allow this court to decide the case on the merits, including violation and reimbursement issues; he merely intended to have us resolve the threshold legal issue of FLSA applicability before expending further significant judicial trial court resources.
49

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 55 of 59
No. 07-30942 Because the order the district court certified for our review was only the threshold legal ruling that the FLSA applies to H-2B workers. the questions ofthe defendants' alleged violations and reimbursement obligations plainly are not material or even relevant to the certified threshold legal order. Once we decide that the district court correctly held that the FLSA applies, that decision will stand no matter what the district court ultimately dec1des in respect to whether there were violations or whether reimbursements are due. Thus, these questions going to the merits of this particular case are simply not material or relevant to the threshold question ofwhether the FLSA applies to H-2B workers. Accordingly. the violations and reimbursement issues are not material to the district court's certified order and are not properly before us. See Adkinson, 975 F.2d at 211 n.4. Viewed in this light, the present case is ultimately a simple one in which the certified order and the certified question arc coterminous and virtually identical. The order that the district court certified was that the FLSA applies to H-2B workers; the question that the district court certified is whether the FLSA applies to H-2B workers. However, even in more complicated cases in which the certified order and the certified question are not closely similar, this court and others have adhered to the same principle that courts of appeals have jurisdiction under
§ 1292(b) to hear only questions that are material to the district court's certified
order. .For instance, in Link v. Mercedes-Benz of North America, Inc., the Third
Circuit refused to consider on§ 1292(b) interlocutory appeal the issue of"whether there may be separate juries utilized during the liability and damage phases of a bifurcated triar' because the portion of the district court decision addressing that question was not "definitive, effective, and in a posture capable of affirmance or reversal." 550 F.2d 860, 861, 863 (3d Cir. 1976) (en bane). The district court had
50

•

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 56 of 59

No. 07-30942
opined about the inefficiencies inherent in a bifurcated trial and had contemplated alternatives. ld. at 863. However, it had "entered no order directing separate juries and whether it [would do so was] a matter of pure speculation" at the time of the interlocutory appeaL ld. at 864. Therefore, the appellate court found that deciding the question of separate juries would not only be improper under § 1292(b), but would be an unconstitutional exercise of its jurisdiction because its judgment would be "an advisory opinion'' !d. at 864-65.
Here, all that has happened with this case is that the district court has determined that the FLSA applies to H-2B foreign temporary workers. Therefore, to reach an entirely distinct determination, not resolved by the district court, such as whether the defendants are liable under the FLSA for the visa, transportation and recruiter fee reimbursements sought by the plaintiffs, would be improper under§ 1292(b). That question is neither contained within, nor material to our reviewing of the order appealed from deciding only that the FLSA applies to the wages ofH-2B foreign temporary workers.
Likewise. in Adkinson. our court recognized that the district court had decided only one legal issue in its order denying summary judgment (namely, "whether the Mississippi Supreme Court would apply principles of contribution and indemnity to a breach ofimplied warranty ofmerchantability claim," 975 F.2d at 211-12), and therefore determined that the other issues the appellant sought to raise on appeal (timely notification and proximate cause, id. at 211 n.4) were "not material to the District Court's order" and hence ~not properly before us," id. at 211 n.4. The court in Adkinson followed the principle that "we have jurisdiction to hear only questions that are material to the lower court's certified order.'" ld. The questions that were "not properly before us" were not material to the question the district court had decided: whether contribution and indemnity principles
51

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 57 of 59
No_ 07-:-30942 applied under Mississippi law had nothing to do with whether a party had given timely notification or whether a party's breach of warranty had proximately caused harm to another party_ Id. at 211-12 & n.4.
In the instant case, the issues of whether the defendants violated the FLSA and whether they owe any reimbursements are just like the issues of notification and proximate cause in Adkinson: They are not properly before us because they are not matenal to the district court order from which this interlocutory appeal was taken_ The district court did not need to decide those subsidiary issues in order to decide whether the FLSA has any application at all to this case, and the judge explicitly and repeatedly wrote that he was deciding only whether the FLSA apphed. Just as in Adkinson, the additional issues the appellants seek to raise are not properly before this court.
Again, in Withhart v. Otto Candies, L.L.C., 431 F.3d 840 (5th Cir. 2005), our court recognized the "limited" nature of "[o]ur appellate jurisdiction under § 1292(b)" and did not review additional mixed questions oflaw and fact that went beyond the "'controlling question of law"" that the district court's order had decided. Id. at 841 (quoting 28 U.S. C. § l292(b) and Malbrough u. Crown Equip. Corp., 392 F.3d 185, 136 (5th Cir. 2004)). The legal questions material to the district court's order were "whether general maritime law recognizes suits by vessel owners for property damage caused by negligent seamen," and if so, "whether the Jones Act or the FELA precludes" such claims. Id. at 842-43. This court therefore emphasized that it had jurisdiction to review "only" whether the appellant could assert such a claim, and not whether the claim could succeed, i.e., whether the defendant seaman was liable. Id.
In this case, likewise, the district court decided a "controlling question of law" (whether the FLSA applies to H-2B workers) in the order certified for
52

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 58 of 59
No. 07-30942 interlocutory appeal; it expressly did not decide the mixed question oflaw and fact concerning whether the defendants are actually liable for reimbursing visa, transportation and recruitment costs to the plaintiffs under the FLSA. Just as in Withhart, "our review is limited" to the certified order holding that the FLSA applies to H-2B workers; we do not have jurisdiction to reach the subsequent, immaterial questions concerning whether the defendants violated that law and are liable for reimbursements.
"The manifest purpose of§ 1292(b) is to support appeal from orders that cannot otherwise be reviewed by final judgment appeal or interlocutory appeal under some other provision of§ 1292(b)." 16 Charles Alan Wright et al., Federal Practice and Procedure§ 3929.1, at 400 (2d ed. 1996 & Supp. 2010). It is self· evident that the purpose of § 1292(b) is not to undermine 28 U.S.C. § 1291's requirement of final judgment on the merits of a case before it may be appealed of right. "'The basic requirement for interlocutory appeal under§ 1292(b) is that the district court have made an order" that is not otherwise appealable, but has "some concrete effect'' Id. § 3930, at 416-17. A district court's mere speculation on the consequences of one possible trial resolution of disputed factual issues is not ripe for review under§ 1292(b). See id.
No one can reasonably dispute that the district court has never tried the merits of the present case, which include the issues of FLSA violations and reimbursement vel non; that the judge in fact stated repeatedly they were not ripe for trial; and that he therefore refused to stay the trial court proceedings and allowed full discovery to proceed in preparation for trial. The majority opinion's argument that the district court somehow decided or issued an order on the merits of the case is simply an unfounded assertion that is without merit. The only concrete legal order made by the district court is the order that the FLSA applies
53

Case 2:06-cv-04340-EEF-SS Document 219 Filed 10/25/10 Page 59 of 59
No. 07-30942 to H-2B workers such as the plaintiffs in this case. That JS the only order certified by the district court to this court in the interlocutory appeal. Because no judge on this court appears to disagree with the order that the FLSA applies to H-2B workers, it is this court's duty to affirm that order and to remand the case to the district court for trial on the merits, including whether the defendants have violated the FLSA and, if so, whether they owe reimbursements to the plaintiffs.
For these reasons, I respectfully but emphatically dissent.
54

 
 Case 2:06-cv-04340-EEF-SS Document 217 Filed 03/20/09 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

DANIEL CASTELLANOS-CONTRERAS, ET AL. VERSUS DECATUR HOTELS, L.L.C., ET AL.

CIVIL ACTION NO. 06-4340 SECTION “L” (1)

ORDER For administrative purposes, IT IS ORDERED that the following motions are DISMISSED AS MOOT: 1) Plaintiffs’ Motion to Certify Class (Rec. Doc. 98) 2) Defendants’ Motion for Appeal of Magistrate Judge Decision (Rec. Doc. 182) 3) Plaintiffs’ Motion for Clarification of Magistrate Judge’s Order (Rec. Doc. 183) New Orleans, Louisiana, this 20th day of March, 2009.

UNITED STATES DISTRICT JUDGE

 
 488 F.Supp.2d 565 (2007)
Daniel CASTELLANOS-CONTRERAS, et al. v.
DECATUR HOTELS, L.L.C., et al.
Civil Action No. 06-4340.
United States District Court, E.D. Louisiana.
May 16, 2007.
566 *566 Tracie L. Washington, Washington Law Firm, New Orleans, LA, Andrew H. Turner, Jennifer Rosenbaum, Mary C. Bauer, Montgomery, AL, Melissa Crow, Washington, DC, for Daniel Castellanos-Contreras, et al.
Leslie Weill Ehret, Ellen Shirer Kovach, Frilot, Partridge, Kohnke & Clements, LC, New Orleans, LA, James Larry Stine, Wimberly, Lawson, Steckel & Schneider, P.C., Atlanta, GA, Michael L. Fantaci, Le-Blanc Butler, LLC, Metairie, LA, for Decatur Hotels, L.L.C., et al.
ORDER & REASONS
FALLON, District Judge.
Before the Court are the Defendants' Motion to Dismiss and/or for Summary Judgment (Rec.Doc.51) and the Plaintiffs' Cross Motion for Partial Summary Judgment (Rec.Doc.71). The motions present what appears to be an issue of first impression in the federal courts, namely whether the provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et. seq., apply to non-immigrant alien laborers that temporarily enter the United States on "H-2B" visas. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). The Court heard oral argument and took these motions under submission. For the following reasons, the Court finds that H-2B guestworkers are entitled to the protections of the FLSA. Accordingly, the Defendants' motion to dismiss is now DENIED and the Plaintiffs' cross motion is GRANTED IN PART, insofar as the Court finds that the Plaintiffs are entitled to assert claims under the FLSA. However, the Plaintiffs' motion is DENIED IN PART to the extent that it requests any further relief.
I. BACKGROUND
On August 16, 2006, Daniel Castellanos-Contreras, Oscar Ricardo Deheza-Ortega, and Rodolfo Antonio ValdezBaez ("Plaintiffs") filed suit against Decatur Hotels, L.L.C. and F. Patrick Quinn, III, the founder and President/ CEO of Decatur Hotels (collectively, "Defendants"). The Plaintiffs are guestworkers recruited from foreign 567 countries following Hurricane Katrina to work in the Defendants' luxury *567 hotels in the New Orleans area. Facing a severe reduction in their available work force, the Defendants arranged for the Plaintiffs to temporarily come to the United States on "H-2B" visas. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). As a part of the application for obtaining certification to bring H-2B guestworkers to New Orleans, the Defendants certified to the U.S. government that qualified persons in the United States were not available to fill the jobs. The Defendants then contracted with the Accent Group, a personnel services company that assisted in recruiting workers from abroad by sub-contracting with local hiring agents. Under the H-2B program, the Plaintiffs' immigration status is tied to their employment with the Defendants; they are prohibited from working for any other employer while in the United States.
In their First Amended Complaint, the Plaintiffs allege that they were enticed to leave their homes in Bolivia, Peru, and the Dominican Republic at significant personal cost to perform guest services, housekeeping, maintenance, and other support functions in the Defendants' hotels based on false promises of high earnings, stable jobs, and good living conditions. Specifically, the Plaintiffs allege that the Defendants violated the FLSA by failing to reimburse them during their first week of employment for travel, visa, recruitment, and other expenses incurred in migrating to the United States. The Plaintiffs allege that such costs ranged from $3,500 to 35,000 per person, and were incurred primarily for the benefit of the Defendants. The Plaintiffs contend that the Defendants' failure to

reimburse these costs resulted in a de facto deduction from the Plaintiffs' wages such that they earned substantially less than the $5.15 per hour minimum wage in their first week of employment, in violation of the FLSA. See 29 U.S.C. § 206(a).
The Plaintiffs seek a declaration that the Defendants have violated the FLSA, thereby entitling them to awards of unpaid wages and liquidated damages, as well as attorneys' fees and costs. The Plaintiffs also seek to represent an FLSA "opt-in" collective action of all non-supervisory guestworkers employed by the Defendants between August 29, 2005 and August 16, 2006. The Plaintiffs contend that there are approximately three hundred similarly situated H-2B employees; indeed, to date, the Court has received numerous notices from individuals expressing a desire to join the putative collective action. However, the issue of conditional certification of an FLSA collective action is not presently before the Court.[1]
II. PRESENT MOTIONS
The parties have filed cross motions seeking resolution of a threshold legal issue in this case, namely whether the FLSA applies to non-agricultural guestworkers brought to the United States under the H-2B program. The Plaintiffs contend that the FLSA applies in this case, but go further and ask the Court to find that the Defendants have violated the minimum wage provisions of the FLSA by failing to reimburse the Plaintiffs for visa, travel, and recruitment costs. The Defendants argue that non-agricultural workers employed pursuant to the H-2B program do not enjoy the protections of the FLSA. Alternatively, the Defendants argue that the Plaintiffs are not entitled to 568 reimbursement of the noted costs under the FLSA. *568 The Court has also received an amicus curiae brief supporting the Defendants' motion to dismiss submitted by several employers that utilize guestworker programs. [2]
III. LAW & ANALYSIS
A. Statutory & Regulatory Framework
"[T]hrough the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., Congress has set the basic rules governing whether and under what conditions non-citizens, or `aliens' to use the term of art, may enter and remain within the United States." Daylily Farms, Inc. v. Chao, 357 F.Supp.2d 356, 357 (D.Mass.2005). "United States employers wishing to hire alien workers must navigate a maze of statutory provisions and regulations administered by the Immigration and Naturalization Service and the Department of Labor." Kooritzky v. Reich, 17 F.3d 1509, 1510 (D.C.Cir.1994); see also United States v. Richard Dattner Architects, 972 F.Supp. 738, 741-42 (S.D.N.Y.1997) (discussing the statutory and regulatory framework). The details of this process are not specifically implicated in the instant case, but it will suffice to say that "[a]n alien seeking to emigrate from a foreign country `to the United States may not legally enter without an immigrant visa issued by the United States Consul in his country." Kooritzky, 17 F.3d at 1510.
Non-immigrant aliens temporarily entering the United States to work do so on one of several types of visas, depending on the type of work they will be performing. An alien coming to this country to "perform agricultural labor or services" generally enters on what is known as an H-2A visa, named after the statutory section authorizing such entry. See 8 U.S.C. § 1101(a)(15)(H)(ii)(a). The Plaintiffs in this case entered the country on what is known as an H-2B visa, named after the statutory section which authorizes aliens to come "temporarily to the United States to perform . . . temporary service or labor if unemployed persons capable of performing such services or labor cannot be found in this country." See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). As one court has explained:
The H2A and H2B programs, created by the [Department of Labor] pursuant to the Immigration Reform and Control Act, contain various hiring requirements with which all employers must comply prior to hiring temporary alien laborers. The practical distinction between the two is that H2A prescribes an employer's treatment of agricultural workers, whereas H2B prescribes the treatment for nonagricultural workers.
Chao v. N.C. Growers Ass'n, 280 F.Supp.2d 500, 504 (W.D.N.C.2003).[3]
569

*569 "Before a consular officer may issue an H-2B visa, the employer petitioning for the alien's admission must obtain `certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers.'" United Ass'n of Journeymen v. Barr, 981 F.2d 1269, 1271-72 (D.C.Cir.1992) (quoting 8 C.F.R. § 214.2(h)(6)(iv)(1)). There is no dispute that the Defendants in this case successfully navigated the statutory and regulatory maze, and that the H-2B visas were properly issued to the Plaintiffs.

B. H-2A vs. H-2B

The Plaintiffs principally rely on Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228 (11th Cir.2002), in which the United States Court of Appeals for the Eleventh Circuit held that, under the FLSA, migrant farm workers entering the United States on H-2A visas were entitled to reimbursement of (1) the one-time cost of travel from Mexico to Florida, and (2) the cost associated with obtaining the H-2A visa. The Arriaga court began its analysis by noting that "[t]he protections of the minimum wage provisions of the FLSA indisputably apply to the Farmworkers. See 20 C.F.R. § 655.103(b) (Turing the period for which the temporary alien agricultural labor certification is granted, the employer shall comply with applicable federal, State, and local employment-related laws and regulations . . . `)." Id. at 1235. In light of this clear guidance on the applicability of federal employment law, the court focused its analysis on the provisions of the FLSA and concluded that the plaintiffs were entitled to reimbursement because transportation and visa charges are "an inevitable and inescapable consequence of having foreign H-2A workers employed in the United States." Id. at 1242. In the instant case, the Plaintiffs ask the Court to follow Arriaga and find that non-immigrant aliens employed pursuant to the H-2B program enjoy the same rights under the FLSA as H-2A workers.

The Defendants, however, argue that distinct statutory and regulatory schemes govern the H-2A and H-2B programs, and that Arriaga should not be followed in this case. The Defendants note that there is no counterpart to 20 C.F.R. § 655.103(b) in the H-2B regulations; indeed, the H-2B statutes and regulations do not incorporate other employment-related laws and regulations. Rather, the statutes merely provide that employers who hire H-2B guestworkers must reimburse the reasonable costs of return transportation to aliens who are dismissed before the end of the period of authorized admission. See 8 U.S.C. § 1184(c)(5)(A) ("In the case of an alien who is provided nonimmigrant status under section . . . 1101(a)(15)(H)(ii)(b) of this title and who is dismissed from employment by the employer before the end of the period of authorized admission, the employer shall be liable for the reasonable costs of return transportation of the alien abroad."). A brief history of the guestworker programs will shed some light on this dispute.

C. History of the H-2 Guestworker Programs

The original version of the Immigration and Nationality Act made no distinction between those aliens emigrating to the United States to perform agricultural work and those emigrating to perform non-agricultural work. Instead, a distinction was made based on whether or not the work to be performed was considered exceptional:

The term "immigrant" means every alien except an alien who is within one of the following classes

570

of nonimmigrant *570 aliens . . . (H) an alien having a residence in a foreign country which he has

no intention of abandoning (i) who is of distinguished merit and ability and who is coming

temporarily to the United States to perform temporary services of an exceptional nature requiring

such merit and ability; or (ii) who is coming temporarily to the United States to perform other

temporary services or labor, if unemployed persons capable of performing such service or labor

cannot be found in this country. . . .

Pub.L. No. 82-414, § 101(a)(15)(H), 66 Stat. 162, 168 (1952) (emphasis added).

But in subsequent years, Congress began enacting various protections specifically for agricultural laborers. The Farm Labor Contractor Registration Act of 1963 ("FLCRA"), Pub.L. No. 88-582, 78 Stat. 920 (1964) (codified as amended at 7 U.S.C. § § 2041-2055, repealed in 1983), "was the first major federal effort to improve the conditions for agricultural laborers, who are among the most exploited groups in the American labor force because they suffer chronic low wages, long hours and poor working conditions." Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 1163, 1168 (11th Cir.2003) (citations to legislative history omitted); see also Bracamontes v.

Weyerhaeuser Co., 840 F.2d 271, 272 (5th Cir.1988). In 1983, Congress replaced the FLCRA with the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), Pub.L. No. 97-470, 96 Stat. 2583 (1983) (codified at 29 U.S.C. §§ 1801-1900), "to remove the restraints on commerce caused by activities detrimental to migrant and seasonal agricultural workers . . . and to assure necessary protections for migrant and seasonal agricultural workers, agricultural associations, and agricultural employers," 29 U.S.C. § 1801. "Congress substituted the AWPA for the FLCRA because the FLCRA had failed to aid exploited agricultural laborers, yet was hampering agricultural employers with its onerous registration requirements." Morante-Navarro, 350 F.3d at 1169.
Then, in 1986, Congress amended subsection (H)(ii) of the Immigration and Nationality Act to distinguish those who come to the United States "to perform agricultural labor or services" from those who come "to perform other temporary service or labor." See Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, § 301 (a), 100 Stat. 3359, 3411 (codified at 8 U.S.C. § 1101(a)(15)(H)(ii)); see also AFL-CIO v. Brock, 835 F.2d 912, 913 (D.C.Cir.1987). The IRCA set forth detailed conditions for approval of H-2A petitions. See IRCA § 301(c), 100 571 Stat. at 3411-17 (codified as amended at 8 U.S.C. § 1188).[4] The legislative history accompanying *571 the IRCA provides context for these changes:
The H-2 program, in one form or another, has been an element of U.S. immigration policy since the 1940's. The essential objective of the program, which the bill does not change, is to permit employers to utilize temporary foreign workers if domestic workers cannot be found and if it can be shown that the use of such foreign labor would not adversely affect the wages and working conditions of domestic workers similarly employed. Overall, the program has worked reasonably well with respect to non-agricultural occupations. However, with respect to agriculture, the Committee has identified a number of areas where improvement is needed. Accordingly, the bill creates a separate H-2 program for agricultural occupations and sets forth the basic contours that program is expected to take. The bill makes no changes regarding the non-agricultural H-2 law.
H.R.Rep. No. 99-682, at 50-51, as reprinted in 1986 U.S.C.C.A.N. 5649, 5654 (1986). The report noted that "agricultural employers and employers involved in the hotel and restaurant business" relied on the H-2 program, but expressed the following concerns:
Detailed regulations governing the program have been issued by the Employment and Training Administration in the Department of Labor (See 20 CFR Part 655) and the Immigration and Naturalization Service in the Department of Justice (See 8 CFR 214.2(h)(3)). In the Committee's view, these regulations do not fully meet the need for an efficient, workable, and coherent program that protects the interests of agricultural employers and workers alike. Recognizing the unique needs of growers and the inadequacy of current protections for farmworkers, the bill creates a separate and distinct H-2 program for agriculture, referred to in the bill as the `H-2A' program. Nonagricultural employers wishing to import temporary workers will utilize the H-2B program. The bill makes no changes to the statutory language concerning non-agricultural 2's; instead it divides the program into two parts and sets forth a number of specific requirements regarding the operation of the H-2A program.
Id. at 80, as reprinted in 1986 U.S.C.C.A.N. 5649, 5684.
D. The FLSA Applies to H-2B Guestworkers
While the historical development and fragmentation of the H-2 program clearly demonstrates Congress's special concern for agricultural laborers, it does not suggest that non-agricultural laborers are to be divested of any legal rights they may otherwise enjoy. The fact that the H-2B statutes and regulations do not expressly recognize the applicability of the FLSA is not determinative of the issue before the Court. Indeed, neither Congress nor the relevant federal agencies have ever stated that H-2B guestworkers are not entitled to the protections of the FLSA. Although neither of the parties, nor the Court's own research, have turned up a single case finding that the FLSA applies to H-2B workers, one court may have implicitly resolved this threshold issue by reaching the question of conditional certification in an H-2B case. See Lemus Guerrero v. Brickman Group, LLC, No. 05-357, 2007 WL 922420 (W.D.Mich. Mar. 26, 2007). The only other court to discuss the issue noted in dicta that it had reservations about applying the FLSA in the absence of an "authoritative case extending the Arriaga holding to

H-2B workers;" however, the court did not engage in any significant analysis because it found conditional 572 certification inappropriate for other reasons. See Villanueva-Bazaldua v. *572 TruGreen Ltd. Partners, 479
F.Supp.2d 411, 417-18 (D.Del.2007).
By its own terms, the FLSA applies to all "employees," that is, to "any individual employed by an employer." 29 U.S.C. § 203(e). As the United States Court of Appeals for the Fifth Circuit has held, "it is well established that the protections of the Fair Labor Standards Act are applicable to citizens and aliens alike and whether the alien is documented or undocumented is irrelevant." In re Reyes, 814 F.2d 168, 170 (5th Cir.1987), cert. denied 487 U.S. 1235, 108 S.Ct. 2901, 101 L.Ed.2d 934 (1988); see also Patel v. Quality Inn South, 846 F.2d 700, 702 (11th Cir.1988) ("Congress defined the term `employee' for the purpose of determining who would be covered by the act. It would be difficult to draft a more expansive definition."); Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.Supp.2d 1053, 1056 (N.D.Cal.1998). If undocumented workers are entitled to the protections of the FLSA, the Court sees no rational reason to preclude documented H-2B guestworkers from asserting the same rights under the Act. Indeed, while the FLSA specifically exempts several classes of employees from its coverage, "none of these exemptions concerns immigration status." Patel, 846 F.2d at 702, n. 2. This "specificity in stating exemptions strengthens the implication that employees not thus exempted," such as H-2B guestworkers, "remain within the Act." Powell v. U.S. Cartridge Co., 339 U.S. 497, 517, 70 S.Ct. 755, 94 L.Ed. 1017 (1950). Accordingly, the Court finds that the Plaintiffs in this case are entitled to the protections of the FLSA.[5]
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Defendants' Motion to Dismiss and/or for Summary Judgment (Rec.Doc.51) is DENIED and that the Plaintiffs' Motion for Partial Summary Judgment (Rec.Doc.71) is GRANTED IN PART, insofar as the Court finds that the Plaintiffs are entitled to assert claims under the Fair Labor Standards Act. However, IT IS FURTHER ORDERED that the Plaintiffs' motion is DENIED IN PART to the extent that it requests any further relief.
[1] On December 12, 2006, the Court denied the Plaintiffs' motion for leave to file a Second Amended Complaint, finding that the proposed addition of breach of contract class claims was futile since such claims fell under the scope of the Plaintiffs' putative FLSA collective action. See Rec. Doc. 77.
[2] The amicus brief is submitted by Express Forestry, Inc., Eller and Sons Trees, Inc., and Superior Forestry Service, Inc. These entities are defendants in cases in which similarly situated plaintiffs have made related claims. See, e.g., Rosiles-Perez v. Superior Forestry Serv., Inc., No. 06-0006, 2007 WL 325784 (M.D.Tenn. Jan. 31, 2007); Leon-Granados v. Eller & Sons Trees, Inc., 452 F.Supp.2d 1282 (N.D.Ga.2006); Recinos-Recinos v. Express Forestry, Inc., 233 F.R.D. 472 (E.D.La.2006).
[3] Non-immigrant aliens may also enter on H visas (specialty occupations, Department of Defense projects, and fashion models), H visas (registered nurses), or H-3 visas (trainees and participants in educational exchange programs). See 8 U.S.C. § 1101(a)(15)(H)(i), (iii); 8 C.F.R. § 214.2(h). It has been suggested that the bright-line associations between various visas and types of employment are often blurred in practice. See, e.g., Jacob Wedemeyer, Note, Of Policies, Procedures, and Packing Sheds: Agricultural Incidents of Employer Abuse of the H-2B Non-agricultural Guestworker Visa, 10 J. Gender Race & Just. 143, 159 (2006).
[4] These modifications to the H-2 program were but one part of the IRCA, as explained by the United States Supreme Court:
[The IRCA] constituted a major statutory response to the vast tide of illegal immigration that had produced a `shadow population' of literally millions of undocumented aliens in the United States. On the one hand, Congress sought to stem the tide by making the plight of the undocumented alien even more onerous in the future than it had been in the past; thus, the Reform Act imposed criminal sanctions on employers who hired undocumented workers and made a number of federally funded welfare benefits unavailable to these aliens. On the other hand, in recognition that a large segment of the shadow population played a useful and constructive role in the American economy, but continued to reside in perpetual fear, the Reform Act established two broad amnesty programs to allow existing undocumented aliens to emerge from the shadows.

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 481, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (footnotes omitted).
[5] However, whether or not the Defendants have violated the FLSA is a factual issue that is not appropriate for summary judgment. The Court takes the opportunity, though, to note that in light of its conclusion that the FLSA applies in the H-2B context, Arriaga and its progeny of H-2A cases become extremely persuasive precedent. See Arriaga, 305 F.3d at 1242 (holding that travel and visa costs are incurred by guestworkers "for the primary benefit and convenience of their employer" and thus are not "other facilities" that can be counted as wage credits pursuant to 29 U.S.C. § 203(m)); see also De Luna-Guerrero v. N.C. Grower's Ass'n, 338 F.Supp.2d 649 (E.D.N.C.2004) (following Arriaga). While factual issues exist with respect to (1) the specific amounts paid by the Plaintiffs prior to coming to the United States and (2) the exact wages they ultimately earned working for the Defendants, the legal framework for determining whether the minimum wage provisions of the FLSA have been violated appears to be well-settled.
Save trees - read court opinions online on Google Scholar.

 
 Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12

576 F.3d 274 United States Court of Appeals,
Fifth Circuit.
Daniel CASTELLANOS–CONTRERAS; Oscar Ricardo Deheza–Ortega; Rodolfo Antonio Valdez–Baez, Plaintiffs–Appellees, v.
DECATUR HOTELS, L.L.C.; F. Patrick Quinn, III, Defendants–Appellants.
No. 07–30942. |
July 21, 2009.
Synopsis Background: Guest workers employed by hotel operator brought putative collective action, seeking declaratory judgment that employer had violated Fair Labor Standards Act (FLSA) by failing to reimburse them during first week of employment for costs incurred in traveling to United States and obtaining visas, and for fees paid to recruitment companies. The United States District Court for the Eastern District of Louisiana, Eldon E. Fallon, J., 488 F.Supp.2d 565, granted partial summary judgment for guest workers, ruling that their claims were cognizable under FLSA. Employer sought interlocutory appeal.
Holdings: Deciding matters of first impression, the Court of Appeals, E. Grady Jolly, Circuit Judge, held that:
FLSA provision that allowed employer to credit toward its obligation to pay minimum wage the reasonable cost of furnishing employees with board, lodging or other facilities did not require employer to reimburse guest workers for claimed expenses;
FLSA and its implementing regulations did not require employer to reimburse guest workers for expenses of obtaining visas;
FLSA and its implementing regulations did not require employer to reimburse guest workers for their inbound transportation expenses; and

fees that guest workers had paid to foreign recruitment companies were not “kick-backs” under FLSA implementing regulations.
Reversed and rendered; remanded.
Opinion, 559 F.3d 332, withdrawn and superseded on grant of rehearing.
Procedural Posture(s): Motion for Summary Judgment.
Attorneys and Law Firms
*275 Jennifer Jean Rosenbaum (argued), New Orleans Workers’ Ctr. for Racial Justice, Tracie L. Washington, Louisiana Justice Institute, New Orleans, LA, Mary Bauer, Southern Poverty Law Ctr., Immigrant Justice Project, Atlanta, GA, for Plaintiffs–Appellees.
Leslie Weill Ehret, Ellen Shirer Kovach (argued), Suzanne Marie Risey, Frilot, LLC, New Orleans, LA, for Defendants–Appellants.
Ann Margaret Pointer (argued), John Eugene Thompson, Fisher & Phillips, Atlanta, GA, Keith M. Pyburn, Jr., Timothy Hugh Scott, Fisher & Phillips, New Orleans, *276 LA, for Amici Curiae: Amelia Island Plantation, American Hotel & Lodging Ass’n, Basin Harbor Club, Beaver Run Resort & Conference Ctr., The Broadmoor, Best Western Grand Canyon Squire Inn, Cheyenne Mountain Resort, Florida Fruit & Vegetable Ass’n, Georgia Fruit & Vegetable Ass’n, Homestead Resort, Hyatt Hotels & Resorts, Kiawah Island Golf Resort, Mandoki Hospitality Group, Maryland Nursery & Landscape Ass’n, Mid–Atlantic Solutions, Inc., Nat. Council of Agricultural Employers, Ocean Reef Club, The Sagamore, Stein Erickson Lodge and Virginia Agricultural Employers Ass’n.
Catherine K. Ruckelshaus, Nat. Employment Law Project, New York City, for Interfaith Worker Justice, New Orleans, Workers’ Ctr. for Racial Justice and Nat. Employment Law Project, Amici Curiae.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before JONES, Chief Judge, and JOLLY and HAYNES, Circuit Judges.
Opinion 1

Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12

E. GRADY JOLLY, Circuit Judge:
The petition for panel rehearing is GRANTED. The prior opinion is WITHDRAWN, and the following opinion replaces it.
The aftermath of Hurricane Katrina required New Orleans hotelier Decatur Hotels, L.L.C. (“Decatur”) to look to foreign sources of labor. A group of these employees (collectively, the “guest workers”), who held H–2B visas while working for Decatur, contend that Decatur violated the Fair Labor Standards Act (“FLSA”) by paying them less than minimum wage, free and clear, when Decatur refused to reimburse them for recruitment, transportation, and visa expenses that they incurred before relocating to the United States to work for Decatur.
Decatur filed a motion to dismiss and/or for summary judgment, and the guest workers filed a cross-motion for summary judgment. The district court denied Decatur’s motion, granted the guest workers’ motion in part, and certified its order for interlocutory appeal. A motions panel of this court authorized Decatur to file an interlocutory appeal. In this interlocutory appeal under 28 U.S.C. § 1292(b), Decatur raises three issues of first impression for this court: whether, under the FLSA, an employer must reimburse guest workers for (1) recruitment expenses, (2) transportation expenses, or (3) visa expenses, which the guest workers incurred before relocating to the employer’s location. We conclude that the FLSA does not require an employer to reimburse any of these expenses. We therefore reverse the district court’s order, and we render judgment in favor of Decatur.
I.
Decatur operates luxury hotels in the New Orleans area. Before Hurricane Katrina struck New Orleans, Decatur employed between 600 and 650 workers. After Hurricane Katrina struck New Orleans, the size of Decatur’s staff dropped to between 90 and 110 workers. Decatur attempted to recruit local residents to join its staff, but its efforts were largely unsuccessful. Decatur urgently

needed to hire maintenance, housekeeping, and front-desk employees.
Virginia Pickering, a Baton Rouge businesswoman, read a news article that mentioned Decatur’s staff shortage. Pickering owned and operated Accent Personnel Services, Inc., a company that guided U.S. employers through the process of becoming *277 H–2B visa sponsors.1 As H–2B visa sponsors, the employers legally could hire foreign workers to fill temporary job positions.
Pickering advertised Accent Personnel’s services to Decatur’s chief executive officer, F. Patrick Quinn III. Pickering offered to guide Decatur through the H–2B application process, to oversee the recruitment of H–2B workers, and to coordinate the workers’ arrival times in the United States. If Decatur were to use Pickering’s services, it would need only to supply Pickering with information that she would need to complete Decatur’s H–2B sponsorship application, to pay H–2B sponsorship-application fees, and to meet its new employees when they arrived in New Orleans. Pickering would do everything else necessary to secure the temporary workers for Decatur. For these services, Pickering would charge Decatur $300 per job position filled.
Quinn agreed that Decatur would use Pickering’s services to hire housekeepers, maintenance workers, and front-desk clerks; and Pickering went to work. She identified the wage rate at which Decatur would need to pay the housekeepers, maintenance workers, and front-desk clerks to comply with Department of Labor regulations. She ensured that Decatur recruited U.S. citizens to fill its open job positions before offering the same positions to foreign workers. She prepared Decatur’s application to sponsor H–2B visas. She also prepared, and a Decatur manager signed, a blank job offer for each open job position.
Unbeknownst to Decatur, Pickering also owned and operated a second company: VP Consultants, LLC. Through VP Consultants, Pickering offered a service that connected with her services at Accent Personnel: after identifying U.S. employers (such as Decatur) that were sponsoring H–2B visas, she provided this information, for a fee, to recruitment companies that represented foreign workers seeking temporary U.S. employment. In exchange for $900 per Decatur job position, or “referral,” VP Consultants informed Global Services, Inc., of 70 hotel-clerk positions; EuroUSA, Inc., of 70 housekeeping positions; and International Jobs & Studies S.A.C. of 130
2

Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12

maintenance positions.
Although VP Consultants generated revenue by informing recruitment companies of Decatur’s job positions, Pickering testified that she also had been willing to share information about Decatur’s job positions with foreign workers who contacted VP Consultants directly. However, there is no indication in the record that such contacts occurred or that, given the foreign workers’ circumstances, such contacts were possible. It also is unclear what fee, if any, VP Consultants would have charged the workers to receive information about Decatur’s job positions.
In theory, the guest workers also could have contacted Decatur directly to learn about Decatur’s job positions; Decatur would have referred such inquiries to Pickering. No guest worker contacted Decatur directly, and it is unclear whether such contact would have been feasible.
Nevertheless, each worker hired a recruitment company to locate H–2B job opportunities on his or her behalf, to guide him or her through the H–2B visa application process, and to arrange transportation to the United States. Each recruitment company charged between $1,700 and $2,000 for its services.2 In addition to this *278 fee, each recruitment company required workers to pay their own visa-application fees as well as all transportation expenses necessary to relocate to the United States.3 Altogether, each guest worker paid between approximately $3,000 and approximately $5,000 in recruitment, transportation, and visa expenses before relocating to the United States.
When the guest workers arrived in New Orleans, Decatur conducted a week-long orientation session, for which it paid the workers; and the guest workers began to work. Decatur paid the guest workers whom it hired through Global Services, Inc., $6.09 per hour, the guest workers whom it hired through EuroUSA, Inc., $6.02 per hour, and the guest workers whom it hired through International Jobs & Studies S.A.C. $7.79 per hour. As we have said, Decatur did not reimburse the guest workers for their recruitment, transportation, or visa expenses, all of which they incurred before relocating to the United States.
The guest workers, proceeding under the FLSA, filed a complaint in federal district court seeking to recover these expenses, as well as liquidated damages, costs, and attorney’s fees. Decatur defended on grounds that the FLSA does not obligate it to reimburse the guest workers for their recruitment, transportation, or visa expenses. To this end, Decatur filed a motion to dismiss and/or for

summary judgment; and the guest workers filed a cross-motion for summary judgment. In a single order, the district court denied Decatur’s motion and granted the guest workers’ motion in part, insofar as it allowed them to proceed with their FLSA claim.
Decatur asked the district court to certify its order for interlocutory appeal. The district court granted Decatur’s motion. It identified, as a controlling issue of law as to which there is substantial ground for difference of opinion, the question “whether non-agricultural H–2B guestworkers are entitled to the protections of the FLSA.” A motions panel of this court then permitted Decatur to file this interlocutory appeal under 28 U.S.C. § 1292(b). The district court’s proceedings have not been stayed.
II.
We first must consider our jurisdiction over this interlocutory appeal. The guest workers contend that we lack jurisdiction—or, in the alternative, that our jurisdiction is limited to answering the single question identified by the district court as a controlling issue of law.
A motions panel’s decision to allow an interlocutory appeal is not binding upon the panel that subsequently considers the appeal’s merits; “the merits panel may conclude that the initial decision to hear the appeal was, or was later rendered, improvident. If the merits panel reaches that conclusion, it must vacate the earlier order granting leave to appeal and must remand the case to the district court.” United States v. Bear Marine Servs., 696 F.2d 1117, 1119 (5th Cir.1983). We therefore will review the motions panel’s decision for improvidence.
*279 We initially examine whether our jurisdiction over this appeal, if accepted, is limited to the single question identified by the district court as controlling. The Supreme Court has held quite clearly that it is not; 28 U.S.C. § 1292(b) grants jurisdiction “over any question that is included within the order that contains the controlling question of law identified by the district court.” Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 204, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). Here, the order for which the district court certified interlocutory appeal contains three questions in addition to the question
3

Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12

that the district court identified as controlling: whether the FLSA requires an employer to reimburse guest workers for: (1) their recruitment expenses, (2) their transportation expenses, or (3) their visa expenses. Castellanos–Contreras v. Decatur Hotels, Inc., No. 06–4340, at 2 (E.D.La. July 19, 2007) (order denying motion to alter or amend judgment, granting motion to certify interlocutory appeal, and denying motion to stay pending interlocutory appeal). In the light of Yamaha, we may consider these questions as well as the threshold question whether H–2B guest workers are entitled to the FLSA’s protections.
Whether the FLSA entitles guest workers to reimbursement for their recruitment, transportation, or visa expenses are, as we have noted, questions of first impression for this court. We conclude that these questions are controlling questions of law in this case, as to which there is substantial ground for difference of opinion. The motions panel’s decision to grant interlocutory review was not improvident. We now will consider the questions before us.

“facilities,” such as room and board, which the employer may deduct from an employee’s wages; only here, the guest workers contend that Decatur must reimburse them for expenses that they incurred before their first workweek began.
Section 203(m) defines wages as cash or “the reasonable cost ... to the employer of furnishing [the] employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.” (Emphasis added.) The provision’s plain language thus permits employers flexibility in the method of paying employees. This section of the FLSA, contrary to the guest workers’ suggestion, does not impose liability upon employers for expenses that employees incur. See Donovan v. Miller Props., Inc., 711 F.2d 49, 50 (5th Cir.1983) (per curiam) (“[S]ection 3(m) of the Fair Labor Standards Act, 29 U.S.C. § 203(m), ... allows an employer to credit toward its obligation to pay the minimum wage ‘the reasonable cost ... of *280 furnishing [an] employee with board, lodging, or other facilities’ ....”) (emphasis added). Section 203(m) provides no ground for Decatur to have violated the FLSA by refusing to reimburse the guest workers for recruitment, transportation, and visa expenses that they incurred.

III.
In response to the question identified by the district court, we hold that guest workers are entitled to FLSA protection. See In re Reyes, 814 F.2d 168, 170 (5th Cir.1987) (“[T]he protections of the Fair Labor Standards Act are applicable to citizens and aliens alike and whether the alien is documented or undocumented is irrelevant.”). Whether the FLSA entitles guest workers to reimbursement of recruitment, transportation, or visa expenses merits lengthier discussion.

B.
We thus turn to the argument that Decatur’s failure to pay these pre-employment expenses encumbered the guest workers’ wages, so that Decatur did not pay the wages “finally and unconditionally or ‘free and clear’ ”:

A.
The guest workers contend that they are entitled to reimbursement because, under 29 U.S.C. § 203(m), the expenses they incurred are de facto deductions from cash wages received for their first week of work, leaving a balance owed them by Decatur. In other words, they liken these expenses (in an inverse way) to employer-furnished

Whether in cash or in facilities, “wages” cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or “free and clear.” The wage requirements of the Act will not be met where the employee “kicks-back” directly or indirectly to the employer or to another person for the employer’s benefit
4

Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12

the whole or part of the wage delivered to the employee. This is true whether the “kick-back” is made in cash or in other than cash. For example, if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer’s particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act.
29 C.F.R. § 531.35.
The above-quoted regulation does not define when an employee-incurred expense constitutes a kick-back. Our precedents, however, clarify that an employer-imposed condition of employment is a kick-back if it “tend[s] to shift part of the employer’s business expense to the employees.” Mayhue’s Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1199 (5th Cir.1972).
We now consider whether, under 29 C.F.R. § 531.35, the guest workers are entitled to reimbursement of their recruitment, transportation, or visa expenses.
1.
We begin with the visa expenses. Although § 531.35 does not specifically address employers’ obligation to reimburse guest workers for these expenses, other regulations clarify that employee-paid expenses to obtain H–2B visas more properly belong to the guest worker than to the employer. See 22 C.F.R. §§ 40.1(l)(1) (requiring nonimmigrant visa applicants, such as the guest workers here, to submit processing fees when they apply for visas). The expense of applying to become a sponsoring employer of H–2B employees, by contrast, more properly belongs to the employer. See 8 C.F.R. §§

103.7(a), 103.7(b)(1), 214.2(h)(2)(i)(A) (requiring, collectively, that a U.S. employer submit certain forms and filing fees to become an H–2B visa sponsor). These regulations, which assign H–2B visa processing fees to visa applicants and H–2B sponsorship-application fees to employers, show that requiring the guest workers to bear the visa expenses at issue did not tend to shift part of Decatur’s business expense to the guest workers. We hold that Decatur has no FLSA responsibility to reimburse the guest workers for the visa expenses that the employees incurred.
2.
We next consider the transportation expenses. For many years, the Department of Labor interpreted the FLSA and its implementing regulations as requiring employers to bear guest workers’ *281 inbound transportation expenses. See Wage & Hour Div. Op. Ltr., 1990 DOLWH LEXIS 1, at *3 (June 27, 1990) (“Under the FLSA, it has always been the position of the Department of Labor that no deduction, that cuts into the minimum wage, may be made for transportation of workers from the point of hire and return to that point .... [S]uch transportation costs [are] primarily for the benefit of the employer.”). The agency, however, has called this interpretation into question. See Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H–2B Workers), and Other Technical Changes, 73 Fed.Reg. 78020, 78041 (Dec. 19, 2008) (“[T]he cost[ ] of relocation to the site of the job opportunity generally is not an ‘incident’ of an H–2B worker’s employment within the meaning of 29 CFR 531.32, and is not primarily for the benefit of the H–2B employer.”); Withdrawal of Interpretation of the Fair Labor Standards Act Concerning Relocation Expenses Incurred by H–2A and H–2B Workers, 74 Fed.Reg. 13261, 13262 (Mar. 26, 2009) (“DOL believes that this issue warrants further review. Consequently ... DOL withdraws the [December 19, 2008,] FLSA interpretation ... for further consideration and the interpretation may not be relied upon as a statement of agency policy ....” (footnote omitted)); see also De Luna–Guerrero v. N.C. Grower’s Ass’n, 338 F.Supp.2d 649, 659 (E.D.N.C.2004) (“[T]he issue [of an employer’s liability for transportation expenses] has been under review by the DOL .... DOL’s
5

Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12

policy regarding de facto deductions [of transportation expenses] is anything but clear.”); Rivera v. Brickman Group, Ltd., 2008 WL 81570, **10–11, 2008 U.S. Dist. LEXIS 1167, at *37–39 (E.D.Pa. Jan. 7, 2008) (“The DeLuna–Guerrero court refused to rely on the opinion letters because it believed the Department of Labor’s position to be too unclear. I agree, and in so doing, I note that the Department of Labor’s position is not merely unclear, but untenable. * * * Given the apparent (and now more than thirteen-year-old) incoherence at the Department of Labor with regard to this issue, I am not persuaded that I should accord the older opinion letters any significant weight [under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), or Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)].”).
We agree with the Rivera court that Auer deference to the DOL’s older interpretation seems inappropriate. Furthermore, inasmuch as the DOL never fully explained why it adopted that interpretation in the first place, we agree with the Eleventh Circuit that Skidmore deference seems inappropriate. See Arriaga v. Fla. Pac. Farms, 305 F.3d 1228, 1239 (11th Cir.2002) (“Because of this lack of explanation, it is impossible to weigh the ‘validity of its reasoning’ or the ‘thoroughness [ ] in its consideration.’ ” (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161) (alteration in original)). Relying on case law that defers to the interpretation similarly seems inappropriate, and thus we can accord no weight to the guest workers’ cited authorities such as Marshall v. Glassboro Service Ass’n, 1979 U.S. Dist. LEXIS 9053, at *6 (D.N.J. Oct. 19, 1979); and Torreblanca v. Naas Foods, Inc., 1980 U.S. Dist. LEXIS 13893, at *13 (N.D.Ind. Feb. 25, 1980).
As is the case with visa expenses, the regulation addressing employer kick-backs does not specify whether an H–2B guest worker’s inbound transportation expenses belong more properly to the employer or to the guest worker. Other statutory and regulatory provisions may guide this determination.
*282 Two provisions have some relevance. Under the Immigration and Nationality Act, an H–2B guest worker’s outbound transportation expenses sometimes belong to the employer. See 8 U.S.C. § 1184(c)(5)(A).4 Under U.S. Citizenship and Immigration Service regulations, an H–2A agricultural guest worker’s inbound transportation expenses sometimes belong to the employer. See 20 C.F.R. § 655.102(b)(5)(i). No provision, however, requires an employer to bear an H–2B guest worker’s inbound transportation expenses. We find silence in this

context indicative that Congress most likely did not intend for the employer to bear H–2B guest workers’ inbound transportation expenses.5
The guest workers do cite two cases which, without relying on the DOL’s now-unclear FLSA interpretation, hold that employers must bear guest workers’ inbound transportation expenses. See Arriaga, 305 F.3d at 1244 (11th Cir.2002); Rivera, 2008 WL 81570, **11–12, 2008 U.S. Dist. LEXIS 1167, at *42–44. Arriaga involves H–2A guest workers. It holds that employers must bear guest workers’ inbound transportation expenses because the expenses are “incident of and necessary to” the guest workers’ employment. See 305 F.3d at 1241–44. We find Arriaga distinguishable insofar as its analysis derives from the case’s H–2A, as opposed to H–2B, origins. Arriaga also is distinguishable because its “incident of and necessary to” standard originates from 29 C.F.R. § 531.32 instead of § 531.35. Section 531.32 implements 29 U.S.C. § 203(m); and, as we have said, our Donovan precedent from 1983 informs us that, under Fifth Circuit law, § 203(m) imposes no obligation on employers to bear employee-incurred expenses. We will not follow Arriaga.
Rivera essentially does follow Arriaga, albeit in the H–2B context. Rivera quotes 29 C.F.R. § 531.35 at length, 2008 WL 81570, *10, 2008 U.S. Dist. LEXIS 1167, at *36–37, but ultimately decides the issue of transportation expenses under 29 U.S.C. § 203(m): “point-of-hire transportation is primarily for the employer’s benefit, both because it is dissimilar to lodging and board, and because the expense arises out of Brickman’s decision actively to recruit workers in foreign countries.” Id. at 2008 WL 81570, *12, 2008 U.S. Dist. LEXIS 1167 *43. We do not necessarily agree with Rivera that Arriaga’s reasoning extends so readily from H–2A guest workers to H–2B guest workers. In any event, Donovan forecloses us from following Rivera’s § 203(m)-based analysis. Just as we will not follow Arriaga, we will not follow Rivera.
On the authorities before us, we hold that the FLSA does not obligate Decatur *283 to reimburse its guest workers for their inbound transportation expenses.6
3.
Finally, we consider whether the FLSA obligates
6

Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12

Decatur to reimburse its guest workers for the expenses that they incurred with foreign recruitment companies. The FLSA’s provisions do not require reimbursement of these employee-incurred expenses. See 29 U.S.C. § 201 et seq. Neither do the FLSA’s implementing regulations—unless the expenses were “kick-backs” to Decatur. See 29 C.F.R. § 531.35.
We hold that the recruitment expenses were not kick-backs within the meaning of § 531.35. The expenses differed in all fundamental characteristics from the expenses that our court has labeled kick-backs. See Mayhue’s Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1199 (5th Cir.1972) (deduction from cashiers’ wages to pay for every shortage in employer cash-register accounts, regardless of the reason for the shortage); Brennan v. Veterans Cleaning Serv., Inc., 482 F.2d 1362, 1370 (5th Cir.1973) (employee’s wage deduction in favor of employer to recover the cost of a wrecked company truck). The expenses were not treated as an employer obligation by custom or practice of Decatur’s industry. In sum, there is no basis in custom, practice, or law to include the recruitment expenses as part of Decatur’s business expense.
Our attention, however, has been brought to two relatively new regulations that for the first time address unscrupulous practices in recruiting workers to participate in the H–2B visa program. Effective January 18, 2009, the Department of Labor requires an employer seeking H–2B labor certification to attest that “[t]he employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H–2B workers to seek or receive payments from prospective employees, except as provided for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A).” 20 C.F.R. § 655.22(g)(2). Also effective January 18, 2009, the Department of Homeland Security forbids an employer, employer’s agent, recruiter, or similar employment service from collecting any “job placement fee or other compensation (either direct or indirect)” from a foreign worker as a condition of an H–2B job offer or as a condition of H–2B employment. 8 C.F.R. § 214.2(h)(6)(i)(B).7 These regulations ultimately may influence whether H–2B employers will reimburse the recruitment expenses of future guest workers, but they do not affect Decatur’s obligations here. See, e.g., Sierra Med. Ctr. v. Sullivan, 902 F.2d 388, 392 (5th Cir.1990) (“Generally, courts will not apply regulations retroactively unless their language so requires.”); 20 C.F.R. § 655.5 (indicating, *284 by creating a transition period for implementing the Department of Labor’s

January 2009 changes to 20 C.F.R. part 655, that the changes do not apply retroactively); 73 Fed.Reg. 78103, 78127–30 (Dec. 19, 2008) (giving no indication that the Department of Labor’s January 2009 changes to 8 C.F.R. part 214 apply retroactively). Furthermore, because the regulations for the first time forbid an H–2B employer from permitting guest workers to bear such recruitment expenses, they strongly suggest that the guest workers’ recruitment expenses incurred long before the regulations became effective were not part of Decatur’s business expense.
Finally, our conclusion is not disturbed by the one case that the guest workers cite holding recruitment expenses can be part of an employer’s business expense. See Rivera, 2008 WL 81570, **13–14, 2008 U.S. Dist. LEXIS 1167, at *47–*50. The employer there, Brickman, required guest workers to hire a particular recruitment company, which charged them fees. See id. at 2008 WL 81570, **13–14, 2008 U.S. Dist. LEXIS 1167 *48–*49. Because the employer required the guest workers to use the recruitment company, the court concluded “that fees associated with Brickman-designated workers’ representatives [we]re costs ‘primarily for the benefit of the employer,’ and that Brickman, therefore, was not allowed to pass those costs along [to the guest workers] to the extent that doing so reduced their wages below the FLSA minimum.” Id. at, 2008 WL 81570, *14, 2008 U.S. Dist. LEXIS 1167 *50.
Assuming the correctness and continued validity of that case’s reasoning, the case is distinguishable. Here, there is no evidence that Decatur even knew about the foreign recruitment companies, much less that the companies charged a fee to the guest workers as a condition of receiving an offer of employment. Decatur paid Pickering $300 per job position filled, which itself was in the nature of an employer-paid recruitment fee. Although the record does show that the guest workers knew of no other way to obtain employment with Decatur, the record also shows that Decatur did not require, or approve, any guest worker to pay any sum to anyone as a condition of an H–2B job offer or as a condition of H–2B employment.
For all of the foregoing reasons, we hold that the FLSA does not obligate Decatur to reimburse the guest workers for their recruitment expenses.
7

Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12

IV.
In sum, we hold that Decatur incurred no FLSA liability to reimburse its guest workers for the recruitment fees, transportation costs, or visa fees that they incurred to work in the United States. We REVERSE the summary judgment, RENDER judgment in favor of Decatur, and REMAND for entry of same.

REVERSED and RENDERED; REMANDED for entry of judgment.
All Citations 576 F.3d 274, 15 Wage & Hour Cas.2d (BNA) 12

Footnotes

1

The term “H–2B visa” refers to a visa authorized by 8 U.S.C. § 1101(a)(15)(H)(ii)(b).

2

The parties refer to these fees alternatively as “recruitment expenses” and “hiring expenses.” We will refer to the

fees as “recruitment expenses.”

3

For brevity, we will refer to the transportation expenses necessary to relocate to the United States as

“transportation expenses” or “inbound transportation expenses.” These shorthand references in no way describe

the expenses necessary to travel daily from home to work. Such expenses are not before us in this case.

4

The guest workers contend, under Rivera, that the Immigration and Nationality Act has no bearing on these FLSA

issues. We find Rivera unhelpful for this point. The court there assumed that the FLSA required employers to

reimburse guest workers for inbound transportation expenses. See 2008 WL 81570, *2, 2008 U.S. Dist. LEXIS 1167,

at *8–9. From this assumption, it considered only whether 8 U.S.C. § 1184(c)(5)(A) conflicts with and overrides the

FLSA. See id. at 2008 WL 81570, *2, 2008 U.S. Dist. LEXIS 1167, *9–10. We consider the antecedent question

whether the FLSA requires an employer to reimburse guest workers for inbound transportation expenses. Because

we conclude that it does not, we do not reach Rivera’s question and do not find that case helpful in answering the

question before us.

5

Furthermore, Decatur’s circumstances differ substantially from those triggering an employer’s liability under 8 U.S.C.

§ 1184(c)(5)(A). Section 1184(c)(5)(A) ensures that an early-dismissed guest worker has the means to leave the

United States. Such circumstances are not relevant here.

6

Because we hold that the FLSA does not obligate Decatur to reimburse the guest workers for their transportation

expenses, we do not consider Decatur’s argument in the alternative that, even if the FLSA otherwise purports to

obligate reimbursement, the Portal–to–Portal Act and Immigration and Nationality Act nevertheless bar recovery.

7

This regulation does not prohibit an H–2B visa sponsor from requiring guest workers to pay for transportation and

visa expenses. See 8 C.F.R. § 214.2(h)(6)(i)(B) (excepting from its prohibition of worker-incurred expenses “the lower

of the actual cost or fair market value of transportation to such employment and any government-mandated

passport, visa, or inspection fees, to the extent that the passing of such costs to the beneficiary [guest worker] is not

prohibited by statute, unless the employer, agent, facilitator, recruiter, or similar employment service has agreed

with the beneficiary that it will pay such costs and fees”).

8

Castellanos-Contreras v. Decatur Hotels, LLC, 576 F.3d 274 (2009) 15 Wage & Hour Cas.2d (BNA) 12
9

 
 Castellanos-Contreras v. Decatur Hotels, LLC, 559 F.3d 332 (2009) 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

559 F.3d 332 United States Court of Appeals,
Fifth Circuit.
Daniel CASTELLANOS–CONTRERAS; Oscar Ricardo Deheza–Ortega; Rodolfo Antonio Valdez–Baez, Plaintiffs–Appellees, v.
DECATUR HOTELS, LLC; F. Patrick Quinn, III, Defendants–Appellants.
No. 07–30942. |
Feb. 11, 2009.
Synopsis Background: Guest workers employed by hotel operator brought putative collective action, seeking declaratory judgment that employer had violated Fair Labor Standards Act (FLSA) by failing to reimburse them during first week of employment for costs incurred in traveling to United States and obtaining visas, and for fees paid to recruitment companies. The United States District Court for the Eastern District of Louisiana, Eldon E. Fallon, J., 488 F.Supp.2d 565, granted partial summary judgment for guest workers, ruling that their claims were cognizable under FLSA. Employer sought interlocutory appeal.
Holdings: Deciding matters of first impression, the Court of Appeals, E. Grady Jolly, Circuit Judge, held that:
FLSA provision allowing employer to credit reasonable cost of furnishing employees’ room and board toward its obligation to pay minimum wages could not serve as basis for guest workers’ suit;
transportation expenses did not constitute “kickbacks” that encumbered guest workers’ wages in violation of FLSA;
FLSA did not require employer to reimburse guest workers for expenses of obtaining visas; and
fees that guest workers had paid to recruitment companies did not constitute business expenses of employer required

to be reimbursed under FLSA.
Reversed and remanded.
Procedural Posture(s): Motion for Summary Judgment.
Attorneys and Law Firms
*333 Jennifer Jean Rosenbaum (argued), New Orleans, LA, Tracie L. Washington, Louisiana Justice Institute, New Orleans, LA, Mary Bauer, Southern Poverty Law Center, Immigrant Justice Project, Atlanta, GA, for Plaintiffs-Appellees.
Leslie Weill Ehret, Ellen Shirer Kovach (argued), Suzanne Marie Risey, Frilot LLC, New Orleans, LA, for Defendants-Appellants.
Ann Margaret Pointer (argued), John Eugene Thompson, Fisher & Phillips, Atlanta, GA, Keith M. Pyburn, Jr., Timothy Hugh Scott, Fisher & Phillips, New Orleans, LA, for Amici Curiae.
Catherine K. Ruckelshaus, New York City, for Interfaith Worker Justice, New Orleans Workers’ Center for Racial Justice and National Employment Law Project, Amici Curiae.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before JONES, Chief Judge, and JOLLY and HAYNES, Circuit Judges.
Opinion
E. GRADY JOLLY, Circuit Judge:
The aftermath of Hurricane Katrina required New Orleans hotelier Decatur Hotels, L.L.C. (“Decatur”) to look to foreign sources of labor. A group of these employees (collectively, the “guest workers”), who held H–2B visas while working for Decatur, contend that Decatur violated the Fair Labor Standards Act (“FLSA”) by paying them less than minimum wage, free and clear, when Decatur refused to reimburse *334 them for recruitment, transportation, and visa expenses that they incurred before relocating to the United States to work for Decatur.
1

Castellanos-Contreras v. Decatur Hotels, LLC, 559 F.3d 332 (2009) 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

Decatur filed a motion to dismiss and/or for summary judgment, and the guest workers filed a cross-motion for summary judgment. The district court denied Decatur’s motion, granted the guest workers’ motion in part, and certified its order for interlocutory appeal. A motions panel of this court authorized Decatur to file an interlocutory appeal. In this interlocutory appeal under 28 U.S.C. § 1292(b), Decatur raises three issues of first impression for this court: whether, under the FLSA, an employer must reimburse guest workers for (1) recruitment expenses, (2) transportation expenses, or (3) visa expenses, which the guest workers incurred before relocating to the employer’s location. We conclude that the FLSA does not require an employer to reimburse any of these expenses. We therefore reverse the district court’s order, and we remand the case with instructions that it be dismissed.
I.
Decatur operates luxury hotels in the New Orleans area. Before Hurricane Katrina struck New Orleans, Decatur employed between 600 and 650 workers. After Hurricane Katrina struck New Orleans, the size of Decatur’s staff dropped to between 90 and 110 workers. Decatur attempted to recruit local residents to join its staff, but its efforts were largely unsuccessful. Decatur urgently needed to hire maintenance, housekeeping, and front-desk employees.
Virginia Pickering, a Baton Rouge businesswoman, read a news article that mentioned Decatur’s staff shortage. Pickering owned and operated Accent Personnel Services, Inc., a company that guided U.S. employers through the process of becoming H–2B visa sponsors.1 As H–2B visa sponsors, the employers legally could hire foreign workers to fill temporary job positions.
Pickering advertised Accent Personnel’s services to Decatur’s chief executive officer, F. Patrick Quinn III. Pickering offered to guide Decatur through the H–2B application process, to oversee the recruitment of H–2B workers, and to coordinate the workers’ arrival times in the United States. If Decatur were to use Pickering’s services, it would need only to supply Pickering with information that she would need to complete Decatur’s H–2B sponsorship application, to pay H–2B

sponsorship-application fees, and to meet its new employees when they arrived in New Orleans. Pickering would do everything else necessary to secure the temporary workers for Decatur. For these services, Pickering would charge Decatur $300 per job position filled.
Quinn agreed that Decatur would use Pickering’s services to hire housekeepers, maintenance workers, and front-desk clerks; and Pickering went to work. She identified the wage rate at which Decatur would need to pay the housekeepers, maintenance workers, and front-desk clerks to comply with Department of Labor regulations. She ensured that Decatur recruited U.S. citizens to fill its open job positions before offering the same positions to foreign workers. She prepared Decatur’s application to sponsor H–2B visas. She also prepared, and a Decatur manager signed, a blank job offer for each open job position.
Unbeknownst to Decatur, Pickering also owned and operated a second company: VP Consultants, LLC. Through VP Consultants, *335 Pickering offered a service that connected with her services at Accent Personnel: after identifying U.S. employers (such as Decatur) that were sponsoring H–2B visas, she provided this information, for a fee, to recruitment companies that represented foreign workers seeking temporary U.S. employment. In exchange for $900 per Decatur job position, or “referral,” VP Consultants informed Global Services, Inc., of 70 hotel-clerk positions; EuroUSA, Inc., of 70 housekeeping positions; and International Jobs & Studies S.A.C. of 130 maintenance positions.
Although VP Consultants generated revenue by informing recruitment companies of Decatur’s job positions, Pickering testified that she also had been willing to share information about Decatur’s job positions with foreign workers who contacted VP Consultants directly. However, there is no indication in the record that such contacts occurred or that, given the foreign workers’ circumstances, such contacts were possible. It also is unclear what fee, if any, VP Consultants would have charged the workers to receive information about Decatur’s job positions.
In theory, the guest workers also could have contacted Decatur directly to learn about Decatur’s job positions; Decatur would have referred such inquiries to Pickering. No guest worker contacted Decatur directly, and it is unclear whether such contact would have been feasible.
2

Castellanos-Contreras v. Decatur Hotels, LLC, 559 F.3d 332 (2009) 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

Nevertheless, each worker hired a recruitment company to locate H–2B job opportunities on his or her behalf, to guide him or her through the H–2B visa application process, and to arrange transportation to the United States. Each recruitment company charged between $1,700 and $2,000 for its services.2 In addition to this fee, each recruitment company required workers to pay their own visa-application fees as well as all transportation expenses necessary to relocate to the United States. Altogether, each guest worker paid between approximately $3,000 and approximately $5,000 in recruitment, transportation, and visa expenses before relocating to the United States.
When the guest workers arrived in New Orleans, Decatur conducted a week-long orientation session, for which it paid the workers; and the guest workers began to work. Decatur paid the guest workers whom it hired through Global Services, Inc., $6.09 per hour, the guest workers whom it hired through EuroUSA, Inc., $6.02 per hour, and the guest workers whom it hired through International Jobs & Studies S.A.C. $7.79 per hour. As we have said, Decatur did not reimburse the guest workers for their recruitment, transportation, or visa expenses, all of which they incurred before relocating to the United States.
The guest workers, proceeding under the FLSA, filed a complaint in federal district court seeking to recover these expenses, as well as liquidated damages, costs, and attorney’s fees. Decatur defended on grounds that the FLSA does not obligate it to reimburse the guest workers for their recruitment, transportation, or visa expenses. To this end, Decatur filed a motion to dismiss and/or for summary judgment; and the guest workers filed a cross-motion for summary judgment. In a single order, the district court denied Decatur’s motion and granted the guest workers’ motion in part, insofar as it allowed them to proceed with their FLSA claim.
Decatur asked the district court to certify its order for interlocutory appeal. The *336 district court granted Decatur’s motion. It identified, as a controlling issue of law as to which there is substantial ground for difference of opinion, the question “whether non-agricultural H–2B guestworkers are entitled to the protections of the FLSA.” A motions panel of this court then permitted Decatur to file this interlocutory appeal under 28 U.S.C. § 1292(b). The district court’s proceedings have not been stayed.

II.
We first must consider our jurisdiction over this interlocutory appeal. The guest workers contend that we lack jurisdiction—or, in the alternative, that our jurisdiction is limited to answering the single question identified by the district court as a controlling issue of law.
A motions panel’s decision to allow an interlocutory appeal is not binding upon the panel that subsequently considers the appeal’s merits; “the merits panel may conclude that the initial decision to hear the appeal was, or was later rendered, improvident. If the merits panel reaches that conclusion, it must vacate the earlier order granting leave to appeal and remand the case to the district court.” United States v. Bear Marine Services, 696 F.2d 1117, at 1119, 1120 n. 6 (5th Cir.1983). We therefore will review the motions panel’s decision for improvidence.
We initially examine whether our jurisdiction over this appeal, if accepted, is limited to the single question identified by the district court as controlling. The Supreme Court has held quite clearly that it is not; 28 U.S.C. § 1292(b) grants jurisdiction “over any question that is included within the order that contains the controlling question of law identified by the district court.” Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 204, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). Here, the order for which the district court certified interlocutory appeal contains three questions in addition to the question that the district court identified as controlling: whether the FLSA requires an employer to reimburse guest workers for: (1) their recruitment expenses, (2) their transportation expenses, or (3) their visa expenses. Castellanos–Contreras v. Decatur Hotels, Inc., No. 06–4340, at 2 (E.D.La. July 19, 2007) (order denying motion to alter or amend judgment, granting motion to certify interlocutory appeal, and denying motion to stay pending interlocutory appeal). In the light of Yamaha, we may consider these questions as well as the threshold question whether H–2B guest workers are entitled to the FLSA’s protections.
Whether the FLSA entitles guest workers to reimbursement for their recruitment, transportation, or visa expenses are, as we have noted, questions of first impression for this court. We therefore conclude these questions are controlling questions of law in this case, and as to which there is substantial ground for difference of opinion. The motions panel’s decision to grant
3

Castellanos-Contreras v. Decatur Hotels, LLC, 559 F.3d 332 (2009) 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

interlocutory review was not improvident. We now will consider the questions before us.
III.
In response to the question identified by the district court, guest workers are entitled to FLSA protection. See In re Reyes, 814 F.2d 168, 170 (5th Cir.1987) (“[T]he protections of the Fair Labor Standards Act are applicable to citizens and aliens alike and whether the alien is documented or undocumented is irrelevant.”). Whether the FLSA entitles guest workers to reimbursement of recruitment, transportation, or visa expenses merits lengthier discussion.
*337 A.
The guest workers contend that they are entitled to reimbursement because, under 29 U.S.C. § 203(m), the expenses they incurred are de facto deductions from cash wages received for their first week of work, leaving a balance owed them by Decatur. In other words, they liken the expenses (in an inverse way) to employer-furnished “facilities,” such as room and board, which the employer may deduct from an employee’s wages. As the Department of Labor has decided, however, this argument just does not work when the employer has neither furnished nor paid for anything. Indeed, the agency—which administers the FLSA—interprets § 203(m) as being inapposite to whether an employer must reimburse expenditures incurred by employees. See 73 Fed.Reg. 78020, 78040 (“[W]here an employer has paid for a particular item or service, under certain circumstances it may, pursuant to 29 U.S.C. 203(m), count that payment as wages paid to the employee. On the other hand, when an employee has paid for such an item or service, an analysis under 29 CFR 531.35 is required....”).
When confronted with an agency’s interpretation of a statute that the agency administers, “we first determine ‘whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is

the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’ ” Martinez v. Mukasey, 519 F.3d 532, 543 (5th Cir.2008) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). “In determining whether Congressional intent is clear ... we, of course, look first and foremost to the language of the statute.” Id.
When we look to the statute, we find that § 203(m) defines wages as cash or “the reasonable cost ... to the employer of furnishing [the] employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.” (Emphasis added). The provision’s plain language thus permits employers flexibility in the method of paying employees; this section of the FLSA does not, contrary to the guest workers’ suggestion, impose liability upon employers for expenses that employees incur. See Donovan v. Miller Props., Inc., 711 F.2d 49, 50 (5th Cir.1983) (per curiam) (“[S]ection 3(m) of the Fair Labor Standards Act, 29 U.S.C. § 203(m), ... allows an employer to credit toward its obligation to pay the minimum wage ‘the reasonable cost ... of furnishing [an] employee with board, lodging, or other facilities’ ....”) (emphasis added). Section 203(m) provides no ground for Decatur to have violated the FLSA by refusing to reimburse the guest workers for recruitment, transportation, and visa expenses that they incurred.
B.
We thus turn to the argument that Decatur’s failure to pay these pre-employment expenses encumbered the guest workers’ wages, so that Decatur did not pay the wages “finally and unconditionally or ‘free and clear’ ”:
Whether in cash or in facilities, “wages” cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or “free and clear.” The wage requirements of the Act will not be met where the employee
4

Castellanos-Contreras v. Decatur Hotels, LLC, 559 F.3d 332 (2009) 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

“kicks-back” directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee. *338 This is true whether the “kick-back” is made in cash or in other than cash. For example, if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer’s particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act.
29 C.F.R. § 531.35; see 73 Fed.Reg. 78020, 78040.
The Department of Labor states that “[i]t is a necessary condition to be considered a ‘kick-back’ that an employee-paid expense be primarily for the benefit of the employer.” 73 Fed.Reg. 78020, 78040. We defer to an agency’s formal interpretation of the agency’s regulation unless the interpretation is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).
Section 531.35 provides illustrations of “kick-backs” but does not set out a standard for determining whether an expense is a “kick-back.” The Department of Labor’s interpretation fills this gap, explaining that a necessary—but not necessarily sufficient—condition for an employee-paid expense to be a “kick-back” is that the expense must be primarily for the employer’s benefit. As the Department of Labor further explains, an employee-paid expense is primarily to the employer’s benefit if it is an incident of and necessary to the employment, or, stated differently, if it shifts an employer’s business expense to the employee. See 73 Fed.Reg. 78020, 78038, 78041. The agency’s explanation of its ambiguous regulation is neither plainly erroneous nor inconsistent with the regulation. This circuit’s precedents also are in accord. See Mayhue’s Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1199 (5th Cir.1972) (holding that an employer violated 29 C.F.R. §

531.35 when it imposed a condition of employment on employees that “tended to shift part of the employer’s business expense to the employees”).
We now consider whether the guest workers are entitled to reimbursement of their recruitment, transportation, or visa expenses.
1.
We begin with the transportation expenses. The Department of Labor’s December 2008 interpretation of the FLSA discusses specifically whether transportation expenses that guest workers incur to relocate from foreign countries to the United States are primarily for the benefit of the employer. See 73 Fed.Reg. 78020, 78040–41. It considers a series of arguments, including every argument that the parties have raised in this case, and concludes that “The Department does not believe that an H–2B worker’s payment of his or her own relocation expenses constitutes a ‘kick-back’ to the H–2B employer within the meaning of 29 CFR 531.35.” 73 Fed.Reg. 78020, 78040; accord. id. at 78041.
This interpretation is neither plainly erroneous nor inconsistent with 29 C.F.R. § 531.35, which does not address the specific issue of guest workers’ transportation expenses.3 With deference to the Department *339 of Labor’s interpretation of its own regulation, we hold that the FLSA does not obligate Decatur to reimburse the guest workers for their transportation expenses.4
2.
In the same interpretation of the FLSA and its implementing regulations, the Department of Labor classifies visa expenses as “worker expenses” for which reimbursement is not required. See 73 Fed.Reg. 78020, 78039 (“The Department will continue to permit employers, consistent with the Fair Labor Standards Act (FLSA), to make deductions from a worker’s pay for the reasonable cost of furnishing housing and transportation, as well as worker expenses such as passport and visa
5

Castellanos-Contreras v. Decatur Hotels, LLC, 559 F.3d 332 (2009) 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

fees....”).
That 29 C.F.R. § 531.35 does not require employers to reimburse visa expenses that guest workers incurred is neither plainly erroneous nor inconsistent with the regulation. Although the regulation does not address employers’ obligation to reimburse guest workers these expenses, other regulations clarify that employee-paid expenses to obtain H–2B visas are worker expenses not primarily to the employer’s benefit. See 22 C.F.R. §§ 40.1(l) (1) (requiring nonimmigrant visa applicants, such as the guest workers here, to submit processing fees when they apply for visas). The expense of applying to become a sponsoring employer of H–2B employees, by contrast, is primarily to the employer’s benefit. See 8 C.F.R. §§ 103.7(a), 103.7(b)(1), 214.2(h)(2)(i)(A) (requiring, collectively, that a U.S. employer submit certain forms and filing fees to become an H–2B visa sponsor). These regulations, which assign H–2B visa processing fees to visa applicants and H–2B sponsorship-application fees to employers, show that the visa expenses at issue here were not primarily for Decatur’s benefit. We defer to the Department of Labor’s interpretation of its own regulation, and we hold that Decatur has no FLSA responsibility to reimburse the guest workers for the visa expenses that they incurred.
3.
Finally, we consider whether the FLSA obligates Decatur to reimburse its guest workers for the expenses that they incurred with foreign recruitment companies. The FLSA’s provisions do not require reimbursement of the employee-incurred expenses. See 29 U.S.C. § 201 et seq. Neither do the FLSA’s implementing regulations—unless the expenses were “kick-backs” to Decatur. See 29 C.F.R. § 531.35. As discussed above, the expenses were not kick-backs unless they were primarily to Decatur’s benefit—or, stated differently, unless they were Decatur’s business expenses that could not be shifted to the guest workers.
Our examination and assessment of this question lead us to conclude that recruitment expenses were not part of Decatur’s business expense: During the time period relevant to this case, no statute or regulation *340 required H–2B employers to reimburse such expenses.

The expenses differed in all fundamental characteristics from the expenses that our court has labeled “kick-backs.” See Mayhue’s Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1199 (5th Cir.1972) (deduction from cashiers’ wages to pay for every shortage in employer cash-register accounts, regardless of the reason for the shortage); Brennan v. Veterans Cleaning Serv., Inc., 482 F.2d 1362, 1370 (5th Cir.1973) (employee’s wage deduction in favor of employer to recover the cost of a wrecked company truck).5 Furthermore, the expenses were not business expenses of Decatur’s by custom or practice of Decatur’s industry. In sum, there is no basis in custom, practice, or law to include the recruitment expenses as part of Decatur’s business expense, and Decatur had no FLSA obligation to reimburse the guest workers for them.
This understanding of Decatur’s obligations at the relevant time of this lawsuit is reflected by two new regulations that, for the first time, address foreign recruitment companies’ unscrupulous practices in recruiting workers to participate in the H–2B visa program. Effective January 18, 2009, the Department of Labor requires an employer seeking H–2B labor certification to attest that “[t]he employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H–2B workers to seek or receive payments from prospective employees, except as provided for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A).” 20 C.F.R. § 655.22(g)(2). Also effective January 18, 2009, the Department of Homeland Security forbids an employer, employer’s agent, recruiter, or similar employment service from collecting any “job placement fee or other compensation (either direct or indirect)” from a foreign worker as a condition of an H–2B job offer or as a condition of H–2B employment. 8 C.F.R. § 214.2(h)(6)(i)(B).6 These regulations may well influence whether H–2B employers must reimburse the recruitment expenses of future guest workers, but they do not apply retroactively to the expenses of the guest workers here. Furthermore, because the regulations for the first time forbid an H–2B employer from permitting guest workers to bear such recruitment expenses, they demonstrate that the guest workers’ recruitment expenses incurred long before the regulations became effective were not part of Decatur’s business expense.
Finally, our conclusion is not disturbed by the one case that the guest workers cite holding recruitment expenses can be part of an employer’s business expense. See *341 Rivera v. Brickman Group, 2008 WL 81570, at *12–*14, 2008 U.S. Dist. LEXIS 1167, at *47–*50 (E.D.Pa. Jan. 7,
6

Castellanos-Contreras v. Decatur Hotels, LLC, 559 F.3d 332 (2009) 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

2008). The employer there, Brickman, required guest workers to hire a particular recruitment company, which charged them fees. See id. at *12–*14, 2008 U.S. Dist. LEXIS 1167, at *48–*49. Because the employer required the guest workers to use the recruitment company, the court concluded “that fees associated with Brickman-designated workers’ representatives [we]re costs ‘primarily for the benefit of the employer,’ and that Brickman, therefore, was not allowed to pass those costs along [to the guest workers] to the extent that doing so reduced their wages below the FLSA minimum.” Id. at *14, 2008 U.S. Dist. LEXIS 1167, at *50.
Assuming the correctness and continued validity of that case’s reasoning, the case is distinguishable. Here, there is no evidence that Decatur even knew about the foreign recruitment companies, much less that the companies charged a fee to the guest workers as a condition of receiving an offer of employment. Decatur paid Pickering $300 per job position filled, which was itself in the nature of an employer-paid recruitment fee. The record does show that the guest workers knew of no way to obtain employment with Decatur other than to go through the recruitment companies; and circumventing the companies and their fees might have been a factual impossibility. But the record also shows that Decatur did not require, or approve, any guest worker to pay any sum to anyone as a condition of an H–2B job offer or as a condition of H–2B employment.

For all of these reasons, we hold that the FLSA does not obligate Decatur to reimburse the guest workers for their recruitment expenses.
IV. In sum, we hold that Decatur incurred no FLSA liability to reimburse its guest workers for the recruitment fees, transportation costs, or visa fees that they incurred before relocating to the United States. We therefore REVERSE the district court’s order that denied Decatur’s motion to dismiss and/or for summary judgment and that granted in part the guest workers’ motion for summary judgment. We REMAND the case with instructions that it be dismissed.
REVERSED and REMANDED.
All Citations 559 F.3d 332, 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

Footnotes

1

The term “H–2B visa” refers to a visa authorized by 8 U.S.C. § 1101(a)(15)(H)(ii)(b).

2

The parties refer to these fees alternatively as “recruitment expenses” and “hiring expenses.” We will refer to the

fees as “recruitment expenses.”

3

Consequently, we cannot accept the holding of Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228 (11th Cir.2002).

In Arriaga, the U.S. Court of Appeals for the Eleventh Circuit held that an H–2A employer must reimburse H–2A

workers for their transportation expenses. District courts later extended Arriaga to the H–2B context, but the

Department of Labor’s December 2008 interpretation of its FLSA regulations rejects the entire line of cases. See 73

Fed.Reg. 78020, 78040 (“Arriaga and the district courts that followed its reasoning in the H–2B context

misconstrued the Department’s regulations and are wrongly decided.”).

4

Because we hold that the FLSA does not obligate Decatur to reimburse the guest workers for their transportation

expenses, we do not consider Decatur’s argument in the alternative that, even if the FLSA otherwise purports to

obligate reimbursement, the Portal–to–Portal Act and Immigration and Nationality Act nevertheless bar recovery.

7

Castellanos-Contreras v. Decatur Hotels, LLC, 559 F.3d 332 (2009) 157 Lab.Cas. P 35,539, 158 Lab.Cas. P 35,612, 14 Wage & Hour Cas.2d (BNA) 897

5

The recruitment expenses here were incurred by the guest workers without Decatur’s knowledge or approval. They

were incurred often, if not always, before the guest workers learned of Decatur. Furthermore, the guest workers

enjoyed the benefit of the recruitment companies’ guidance in applying for H–2B visas and in arranging

transportation to the United States. Unlike Mayhue’s and Veterans Cleaning Service, Decatur was simply not shifting

an expense that was for the primary, if not sole, benefit of the employer to the employees.

6

This regulation does not prohibit an H–2B visa sponsor from requiring guest workers to pay for transportation and

visa expenses. See 8 C.F.R. § 214.2(h)(6)(i)(B) (excepting from its prohibition of worker-incurred expenses “the lower

of the actual cost or fair market value of transportation to such employment and any government-mandated

passport, visa, or inspection fees, to the extent that the passing of such costs to the beneficiary [guest worker] is not

prohibited by statute, unless the employer, agent, facilitator, recruiter, or similar employment service has agreed

with the beneficiary that it will pay such costs and fees”).

8

 
 I'C)RM NLRIJ-SOI (11 •. &S)

UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD
CHARGE AGAINSt EMl'LOYEU.

E

FORM EXEMPT UNDER 44 U.S.C. 351:4

ll NOT WRITE IN THIS SPACE

Case

Date filed

lI'JSTRlICTIONS:
!,'ilc lin original and 4 copics of this charjilC with NLkB .R.c~iuDld Director for the region in which the alleged l:nfllir Illbor pnlcticc occurred ur is occurring.

a. Name of Employer

1. BMPLOYl?R ACAINST WHOM Cl-lAl~O[J IS BROUOH1

Decatur IloteJs, U,.C & Joint Employer Mr, F, Patrick Quinn, III

b. Number ofworket's employed 25+

c, Address (Street, City; State, and Zip Code)

Employer Rcprescntitivc

c. Telcphone No.

317 Magazine Street, New Orleans, LA 70130

Michael I., Fantaci. Bsq,

504-828-1 01 0

r. Type of Establishment (factory, mine. wholesaler, etc.)

g. Identify principal prodtct or service

Fax 504-828-1079

LuxUry Hotel Chain

Hotel Accomodations

h. The above-named employer has engaged in and is engaging in unfair labor practices within the nlc:an ing of section. 8(a), subsections (}) and (Il~'1

subsections)

3

Enlcticl;s arc unfair Eracticcs afi'ectins commerce wi~hin t\1e meanins of the Act.

ofthe Nation !I Labor Relations Act, t~nr.l these unfair labor

2. 13asis of the Charge (.fet forth a clear and concise statement ofthe facts cohstituting the alleged 1m/a ir labor practices)

or On about August 8, 2006, the Employer through its officers, agents and/or representatives issued a written warning to its
employee Daniel Castelianos"Contreras in retaliation for his engagement in protected Clmcerted activity,

On or about August 18, 2006, the Employer through its officers, agents, and/or represelltatives terminated its employee Daniel Castellanos-Contreras in retaliation for his engagement in protected concerted a':tivity.

By the above and other acts, the Hbove-namcd employer has interfered with, restrained, and coerced employees in the exercise of the rights Il:unrllnteed in Section 7 of tile Act.

3, full name of party filing charge (if labor organization, give full name. including local name and number)

----

Andrew H. Turner, Esq.

4a. Address (street and number, city. state, and ZIP code::) clo S~)uthern Poverty Law Center, ImI):1igrant Justice Project, 400 Washington Avenue, Montgomt:l)', AL 36104

4b. Telephone No.. 334-956-8328

Pax - 334-956-848}

3,

Full name ofnationai or international labor organization of which it is an affiliatf;: or constituent unit (to be/lIled in when charge is filed by a tabor

organization.)

~ ~

. ______

.'

;#Y~ ~ 1 de r - at vc r .' the abov a e and 6th. aDt EthCeLsAtaRteAmTeIOntNs are true to the best of my knowledge and bldief.

By -J...

_____

~ignature oj'reptr.sentative orpsorY'fnaking charge)

Andrew H. Turner

.

Attorney

(title ifany)

Address Same as 4a.

,

Same as 4b above JI'elephone No.)

AUQust 25, 2006
(date)

*'WILL.FUL FALSE STATI!:MENTS ON nils CliARG£ CAN BE rlJNISHED JJY FINE AND IMPRISOI ~MENT (U. S. CODE. TITLE 18. SECnON 1001)

 
 Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 1 of 20
CLASS_REQUESTED,CLOSED,PROTO
U. S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:06−cv−04340−EEF−SS

Castellanos−Contreras et al v. Decatur Hotels, L.L.C. et al Assigned to: Judge Eldon E. Fallon Referred to: Magistrate Judge Sally Shushan Case in other court: 5th Circuit, 07−30942 Cause: 28:1331 Fed. Question: Fair Labor Standards
Plaintiff

Date Filed: 08/16/2006 Date Terminated: 10/28/2010 Jury Demand: None Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question

Daniel Castellanos−Contreras

represented by Tracie L. Washington The Louisiana Justice Institute 1631 Elysian Fields Ave. New Orleans, LA 70117 504−872−9134 Fax: 504−872−9878 Email: tlwesq@cox.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Turner Southern Poverty Law Center Immigrant Justice Project 233 Peachtree Street NE Suite 2150 Atlanta, GA 30303 404−521−6700 Email: aturner@splcenter.org

Jennifer Jean Rosenbaum New Orleans Workers' Center for Racial Justice 217 N. Prieur St. New Orleans, LA 70112 504−309−5165 Email: jjrosenbaum@nowcrj.org ATTORNEY TO BE NOTICED

Mary C. Bauer Southern Poverty Law Center Immigrant Justice Project 233 Peachtree Street NE Suite 2150 Atlanta, GA 30303 404−521−6700 Email: mbauer@splcenter.org ATTORNEY TO BE NOTICED

Melissa Crow National Immigration Law Center (Washington) 1101 14th Street, N.W. Suite 410 Washington, DC 20005 202−216−0261 TERMINATED: 12/20/2007

Monica T. Guizar National Immigration Law Center (Los Angeles) 3435 Wilshire Blvd.

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 2 of 20

Suite 2850 Los Angeles, CA 90010 Email: guizar@nilc.org ATTORNEY TO BE NOTICED

Plaintiff Oscar Ricardo Deheza−Ortega

represented by Tracie L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Turner (See above for address)

Jennifer Jean Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Mary C. Bauer (See above for address) ATTORNEY TO BE NOTICED

Melissa Crow (See above for address) TERMINATED: 12/20/2007

Monica T. Guizar (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rodolfo Antonio Valdez−Baez

represented by Tracie L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Turner (See above for address)

Jennifer Jean Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Mary C. Bauer (See above for address) ATTORNEY TO BE NOTICED

Melissa Crow (See above for address) TERMINATED: 12/20/2007

Monica T. Guizar (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Decatur Hotels, L.L.C.

represented by Leslie Weill Ehret Frilot L.L.C. Energy Centre 1100 Poydras St.

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 3 of 20

Suite 3700 New Orleans, LA 70163−3700 (504) 599−8203 Fax: 504−599−8263 Email: lehret@frilot.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen Shirer Kovach Frilot L.L.C. Energy Centre 1100 Poydras St. Suite 3700 New Orleans, LA 70163−3700 (504) 599−8000 Email: ekovach@frilot.com

James Larry Stine Wimberly, Lawson, Steckel &Schneider, P.C. 3400 Peachtree Rd., N.E. Suite 400 Atlanta, GA 30326 404−365−0900 Email: jls@wimlaw.com ATTORNEY TO BE NOTICED

Michael L. Fantaci LeBlanc Butler, LLC 3421 N. Causeway Blvd. Suite 301 Metairie, LA 70002 504−828−1010 Email: mfantaci@leblancbutler.com ATTORNEY TO BE NOTICED

Defendant F Patrick Quinn, III

represented by Leslie Weill Ehret (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen Shirer Kovach (See above for address)

Michael L. Fantaci (See above for address) ATTORNEY TO BE NOTICED

Amicus Express Forestry, Inc.

represented by James Larry Stine Wimberly, Lawson, Steckel &Schneider, P.C. Lenox Towers 3400 Peachtree Rd., N.E. Suite 400 Atlanta, GA 30326 404−365−0900 Email: jls@wimlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 4 of 20

Eller &Sons Trees, Inc.

represented by James Larry Stine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Superior Forestry Service, Inc.

represented by James Larry Stine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/16/2006 08/16/2006 08/16/2006 08/16/2006 08/16/2006 08/16/2006 08/16/2006 08/18/2006 08/18/2006 08/18/2006 08/18/2006 08/24/2006

# Docket Text
1 COMPLAINT against Decatur Hotels, L.L.C., F Patrick Quinn, III (Filing fee $ 350.) filed by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Civil Cover Sheet)(dno, ) (Entered: 08/18/2006)
2 Summons Issued as to Decatur Hotels, L.L.C., F Patrick Quinn, III. (dno, ) (Entered: 08/18/2006)
3 NOTICE of Filing Consents to join FSLA Collective Action. (dno, ) (Entered: 08/18/2006)
4 EXPARTE/CONSENT MOTION by Mary Bauer to Appear Pro Hac Vice (Filing fee $5) as to Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (dno, ) Additional attachment(s) added on 8/23/2006 (dno, ). (Entered: 08/23/2006)
5 EXPARTE/CONSENT MOTION by Jennifer Rosenbaum to Appear Pro Hac Vice (Filing fee $5) as to Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Exhibit)(dno, ) (Entered: 08/23/2006)
6 EXPARTE/CONSENT MOTION by Andrew H. Turner to Appear Pro Hac Vice (Filing fee $5) as to Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Exhibit)(dno, ) (Entered: 08/23/2006)
10 EXPARTE/CONSENT MOTION by Melissa Crow to Appear Pro Hac Vice (Filing fee $5) as to Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 declaration)(dno, ) (Entered: 08/24/2006)
7 ORDER granting 4 Motion by Mary Bauer to Appear Pro Hac Vice as to Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Signed by Judge Eldon E. Fallon on 8/17/06. (dno, ) (Entered: 08/23/2006)
8 ORDER granting 5 MOTION by Jennifer Rosenbaum to Appear Pro Hac Vice as to Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Signed by Judge Eldon E. Fallon on 8/17/06. (dno, ) (Entered: 08/23/2006)
9 ORDER granting 6 MOTION by Andrew H. Turner to Appear Pro Hac Vice as to Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Signed by Judge Eldon E. Fallon on 8/17/06. (dno, ) (Entered: 08/23/2006)
11 ORDER granting 10 MOTION by Melissa Crow to Appear Pro Hac Vice as to Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Signed by Judge Eldon E. Fallon on 8/17/06. (dno, ) (Entered: 08/24/2006)
12 DEFICIENT NOTICE by all plaintiffs of First Amended Complaint. (Attachments: # 1 First Amended Complaint)(Rosenbaum, Jennifer) Modified on 8/25/2006 (dno,

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 5 of 20

08/24/2006 08/24/2006 08/25/2006
08/25/2006 08/28/2006 09/06/2006 09/08/2006 09/19/2006 09/19/2006 10/02/2006 10/03/2006 10/03/2006 10/04/2006 10/05/2006 10/19/2006 10/25/2006

). (Entered: 08/24/2006)
13 SUMMONS Returned Executed; Decatur Hotels, L.L.C. served on 8/22/2006, answer due 9/11/2006. (dno, ) (Entered: 08/24/2006)
14 SUMMONS Returned Executed; F Patrick Quinn, III served on 8/23/2006, answer due 9/12/2006. (dno, ) (Entered: 08/24/2006)
15 NOTICE OF DEFICIENT DOCUMENT: re 12 NOTICE by all plaintiffs of First Amended Complaint. (Attachments: # 1 First Amended Complaint)(Rosenbaum, Jennifer). Reason(s) of deficiency: Two or more documents filed as one. For corrective information, see section(s) D04 on http://www.laed.uscourts.gov/cmecf/Deficiency/deficiency.htm Attention: Document must be refiled in its entirety within five (5) working days. Otherwise, it may be stricken by the court without further notice. Deficiency remedy due by 9/1/2006. NOTICE OF FILING OF AMENDED COMPLAINT IS NOT NECESSARY, NO RESPONSIVE PLEADINGS HAVE YET BEEN FILED BY DEFENDANTS, THEREFORE THE AMENDED COMPLAINT IS FILED AS A DOCUMENT ITSELF AND SHOULD NOT HAVE BEEN ATTACHED TO A NOTICE. Also, the attorney who signed the pleading must be the attorney who files the pleading. This pleading was filed electronically by one attorney, signed electronically by the "s/ signature" by another attorney and the certificate of service was electronically signed by a third attorney, and all three must match. (dno, ) (Entered: 08/25/2006)
16 First AMENDED COMPLAINT against all defendants filed by all plaintiffs.(Rosenbaum, Jennifer) (Entered: 08/25/2006)
17 NOTICE by all plaintiffs Withdrawal of FLSA Opt−ins. (Rosenbaum, Jennifer) (Entered: 08/28/2006)
18 EXPARTE/CONSENT MOTION for Extension of Time to Answer re 1 Complaint by Decatur Hotels, L.L.C., F Patrick Quinn, III. (dno, ) (Entered: 09/11/2006)
19 ORDER granting 18 Motion for Extension of Time to Answer re 1 Complaint as to Decatur Hotels, L.L.C. and F Patrick Quinn, III; answers due 10/2/2006. Signed by Judge Eldon E. Fallon on 9/6/06. (dno, ) (Entered: 09/11/2006)
20 NOTICE by Daniel Castellanos−Contreras Opt In Notice. (Attachments: # 1 FLSA consent forms)(Rosenbaum, Jennifer) (Entered: 09/19/2006)
21 NOTICE by all plaintiffs of withdrawl of FLSA opt ins. (Rosenbaum, Jennifer) (Entered: 09/19/2006)
24 ANSWER to Original Complaint and ANSWER to Amended Complaint by Defendants Decatur Hotels, L.L.C., F Patrick Quinn, III.(dno, ) (Entered: 10/03/2006)
22 NOTICE by all plaintiffs of Withdrawl of FLSA Opt−Ins. (Rosenbaum, Jennifer) Corrected image attached on 10/4/2006 (gec, ). Modified on 10/4/2006 (gec, ). (Entered: 10/03/2006)
23 NOTICE by all plaintiffs of FLSA Opt−In. (Attachments: # 1 Exhibit FLSA consent form)(Rosenbaum, Jennifer) Corrected image attached on 10/4/2006 (gec, ). Modified on 10/4/2006 (gec, ). (Entered: 10/03/2006)
25 Correction of Docket Entry by Clerk re 23 Notice, 22 Notice; District Judge and Magistrate Judge not on document. (gec, ) (Entered: 10/04/2006)
26 ORDERED that a Status Conference is set for 10/26/2006 01:30 PM before Judge Eldon E. Fallon. Signed by Judge Eldon E. Fallon on 10/5/06.(dno, ) (Entered: 10/05/2006)
27 NOTICE by all plaintiffs of withdrawal of FLSA opt ins. (Rosenbaum, Jennifer) Modified on 10/20/2006 (dno, ). (Entered: 10/19/2006)
28 NOTICE by all plaintiffs withdrawl of FLSA opt ins. (Rosenbaum, Jennifer) (Entered: 10/25/2006)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 6 of 20

10/26/2006 10/27/2006 10/27/2006 11/03/2006 11/06/2006 11/13/2006
11/13/2006
11/13/2006 11/13/2006 11/13/2006 11/13/2006 11/14/2006
11/14/2006
11/14/2006 11/14/2006 11/14/2006 11/14/2006

31 Minute Entry for proceedings held before Judge Eldon E. Fallon : Status Conference held on 10/26/2006. (dno, ) (Entered: 10/30/2006)
29 NOTICE by all plaintiffs of withdrawal of FLSA opt in. (Rosenbaum, Jennifer) (Entered: 10/27/2006)
30 NOTICE by all plaintiffs of filing consents to join FLSA Collective action. (Attachments: # 1 FLSA opt in form)(Rosenbaum, Jennifer) (Entered: 10/27/2006)
32 NOTICE by all plaintiffs of filing consents to join FLSA collective action. (Attachments: # 1 Exhibit FLSA consent form)(Rosenbaum, Jennifer) (Entered: 11/03/2006)
33 NOTICE by all plaintiffs of filing consents to join FLSA collective action. (Attachments: # 1 Exhibit FLSA opt in form)(Rosenbaum, Jennifer) Modified on 11/7/2006 (dno, ). (Entered: 11/06/2006)
34 EXPARTE/CONSENT First MOTION to Dismiss D. Castellanos−Contreras' Retaliation Claims by all plaintiffs. (Attachments: # 1 Exhibit Agreement# 2 Proposed Order)(Rosenbaum, Jennifer) Modified on 11/14/2006 (dno, ). (Entered: 11/13/2006)
35 Response/Reply by all plaintiffs to Expedited Motion to Quash (not yet shown on court docket). (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit # 19 Exhibit # 20 Exhibit # 21 Exhibit # 22 Exhibit # 23 Exhibit # 24 Exhibit)(Rosenbaum, Jennifer) (Entered: 11/13/2006)
36 EXPARTE/CONSENT Expedited MOTION to Quash by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Memorandum in Support # 2 L.R. 37.1 certif # 3 Exhibit A−C # 4 Proposed Order)(car, ) (Entered: 11/14/2006)
37 ORDER re 36 Expedited MOTION to Quash filed by F Patrick Quinn, III, Decatur Hotels, L.L.C. − see order dated 11/13/06. Signed by Judge Sally Shushan.(car, ) (Entered: 11/14/2006)
38 ORDER granting in part and denying in part 36 Expedited Motion to Quash . Signed by Judge Sally Shushan. (car, ) (Entered: 11/14/2006)
46 EXPARTE/CONSENT MOTION for Leave to File a reply to plaintiffs' opposition to defendants' expedited motion to quash 30(b)(6) deposition by Decatur Hotels, L.L.C., F Patrick Quinn, III. (dno, ) (Entered: 11/16/2006)
39 Correction of Docket Entry by Clerk re 34 First MOTION to Dismiss D. Castellanos−Contreras' Retaliation Claims; the Exhibit Order attachment was incorrectly described, it should have been described as a Proposed Order. (dno, ) (Entered: 11/14/2006)
40 EX PARTE/CONSENT First MOTION to Amend/Correct Complaint by all plaintiffs. Motion Hearing set for 12/6/2006 09:00 AM before Magistrate Judge Sally Shushan. (Attachments: # 1 Memorandum in Support # 2 Proposed Pleading # 3 Proposed Order)(Rosenbaum, Jennifer) Modified on 11/15/2006 (dno, ). Modified on 11/20/2006 (gec, ). (Entered: 11/14/2006)
41 NOTICE by all plaintiffs of filing consents to joint FLSA collective action. (Attachments: # 1 Exhibit FLSA opt in form)(Rosenbaum, Jennifer) (Entered: 11/14/2006)
43 Minute Entry for proceedings held before Judge Sally Shushan : Telephone Discovery Conference held on 11/14/2006. (dmg, ) (Entered: 11/16/2006)
47 ORDER granting 46 MOTION for Leave to File a reply to plaintiffs' opposition to defendants' expedited motion to quash 30(b)(6) deposition. Signed by Judge Sally Shushan on 11/14/06. (dno, ) (Entered: 11/16/2006)
48 REPLY to Response to Motion filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 36 MOTION to Expedite MOTION to Quash. (dno, ) (Entered: 11/16/2006)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 7 of 20

11/15/2006 11/15/2006 11/16/2006 11/16/2006
11/16/2006
11/17/2006 11/20/2006 11/20/2006 11/20/2006
11/20/2006 11/27/2006 12/01/2006 12/04/2006 12/04/2006 12/04/2006

42 Correction of Docket Entry by Clerk re 40 First MOTION to Amend/Correct Complaint; The Proposed Order and the Proposed Amended Complaint were not properly described, these documents are not Exhibits. (dno, ) (Entered: 11/15/2006)
44 Minute Entry for proceedings held before Judge Sally Shushan : TelephoneDiscovery Conference held on 11/15/2006. (car, ) (Entered: 11/16/2006)
45 ORDER granting 34 First MOTION to Dismiss D. Castellanos−Contreras' Retaliation Claims by all plaintiffs. Signed by Judge Eldon E. Fallon on 11/15/06. (dno, ) (Entered: 11/16/2006)
49 ERROR: MOTION WITH MULTIPLE RELIEFS FILED AS ONE RELIEF − First MOTION to Dismiss and/or for Summary Judgment by all defendants. (Attachments: # 1 Memorandum in Support # 2 Statement of Contested/Uncontested Facts # 3 Notice of Hearing)(Ehret, Leslie) Modified on 11/17/2006 (dno, ). (Entered: 11/16/2006)
51 MOTION to Dismiss and/or MOTION for Summary Judgment by Decatur Hotels, L.L.C., F Patrick Quinn, III. Motion Hearing set for 12/15/2006 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 Statement of Contested/Uncontested Facts # 3 Notice of Hearing)(dno, ) (Entered: 11/17/2006)
50 Correction of Docket Entry by Clerk re 49 First MOTION to Dismiss and/or for Summary Judgment; Multiple relief document filed as one relief; Document re−docketed by Clerk. (dno, ) (Entered: 11/17/2006)
52 **DEFICIENT** NOTICE of Hearing on Motion filed by all plaintiffs re 40 First MOTION to Amend/Correct Complaint. Motion Hearing set for 12/6/2006 09:00 AM before Magistrate Judge Sally Shushan. (Rosenbaum, Jennifer) Modified on 11/20/2006 (gec, ). (Entered: 11/20/2006)
53 Correction of Docket Entry by Clerk re 40 First MOTION to Amend/Correct Complaint; Incorrect Judge entered. Hearing is now set for 12/6/2006 09:00 AM before Magistrate Judge Sally Shushan. (gec, ) (Entered: 11/20/2006)
54 NOTICE OF DEFICIENT DOCUMENT: re 52 Notice of Hearing on Motion. Reason(s) of deficiency: Incorrect, illegible or incomplete document or improper formatting of PDF. NOTICE OF HEARING SHOULD ONLY BE FILED AS AN ATTACHMENT. DEFICIENCY TERMINATED; NO FURTHER ACTION IS NECESSARY. For corrective information, see section(s) D01 on http://www.laed.uscourts.gov/cmecf/Deficiency/deficiency.htm (gec, ) (Entered: 11/20/2006)
55 RESPONSE/MEMORANDUM in Opposition filed by all defendants re 40 First MOTION to Amend/Correct Complaint. (Ehret, Leslie) (Entered: 11/20/2006)
56 NOTICE by all plaintiffs of FLSA opt in. (Attachments: # 1 Exhibit)(Rosenbaum, Jennifer) (Entered: 11/27/2006)
57 MOTION for Leave to File Pls.' Reply to Defs.' Mem. in Opp. to Pls.' Mot. for Leave to File Second Am. Compl. by all plaintiffs. Motion(s) referred to Sally Shushan. (Attachments: # 1 Exhibit A., Reply# 2 Exhibit B., unpublished case# 3 Proposed Order)(Rosenbaum, Jennifer) (Entered: 12/01/2006)
58 ORDER granting 57 Motion for Leave to File reply re mtn for leave to file 2nd amd cmp. Signed by Judge Sally Shushan. (car, ) (Entered: 12/04/2006)
59 REPLY to Response to Motion filed by all plaintiffs re 40 MOTION to Amend/Correct Complaint. (Attachments: # 1 Exhibit B)(car, ) (Entered: 12/04/2006)
60 EXPARTE/CONSENT MOTION for Leave to File Sur−Reply to Plaintiffs' Motion for Leave to File Second Amended Complaint by all defendants. Motion(s) referred to Sally Shushan. (Attachments: # 1 Proposed Order # 2 Proposed Pleading Sur−Reply to Plaintiffs' Motion for Leave to File Second Amended Complaint)(Ehret, Leslie) (Entered: 12/04/2006)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 8 of 20

12/06/2006 12/06/2006 12/07/2006
12/07/2006 12/08/2006 12/08/2006
12/08/2006 12/12/2006 12/12/2006 12/12/2006 12/12/2006

61 ORDER granting 60 Motion for Leave to File sur−reply. Signed by Judge Sally Shushan. (car, ) (Entered: 12/07/2006)
62 Sur−Reply in opp filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re plas' 40 First MOTION to Amend/Correct Complaint. (car, ) (Entered: 12/07/2006)
63 DEFICIENT MOTION for Summary Judgment Against Defendant Decatur Hotels LLC by all plaintiffs. (Attachments: # 1 Memorandum in Support Mem. in Supp. of Pls.' Sum. J. Mot. and in Opp. to Defs. M. to Dismiss# 2 Statement of Contested/Uncontested Facts Pls.' Statement of Disputed Facts# 3 Statement of Contested/Uncontested Facts Pls. Statement of Undisputed Facts# 4 Exhibit 4A, 30(b)(6) Dep.# 5 Exhibit 4B, 30(b)(6) Dep.# 6 Exhibit 4C, 30(b)(6) Dep.# 7 Exhibit 5A, 30(b)(6) Dep.# 8 Exhibit 5(b), 30(b)(6) Dep.# 9 Exhibit 6A, Pickering Dep.# 10 Exhibit 6B, Pickering Dep.# 11 Exhibit 6C, Pickering Dep.# 12 Exhibit 6D, Pickering Dep.# 13 Unpublished Case# 14 Unpublished Case# 15 Unpublished Case# 16 Unpublished Case# 17 Exhibit Translated# 18 Affidavit # 19 Affidavit # 20 Affidavit # 21 Affidavit Affidavit# 22 unpublished case# 23 Unpublished Case# 24 Unpublished Case# 25 Unpublished Case# 26 Unpublished Case# 27 USDOL Opinion Letter# 28 USDOL opinion letter# 29 Exhibit)(Rosenbaum, Jennifer) Modified on 12/8/2006 (dno, ). (Entered: 12/07/2006)
64 DEFICIENT MOTION for Leave to File Excess Pages on Conslidated Brief in Support of Pls.' Mot. for Sum. J. and in Opp. to Defs.' Mot. to Dismiss by all plaintiffs. (Attachments: # 1 Proposed Order)(Rosenbaum, Jennifer) Modified on 12/11/2006 (dno, ). (Entered: 12/08/2006)
65 NOTICE by all plaintiffs re 63 MOTION for Summary Judgment Against Defendant Decatur Hotels LLC Notice of Filing in Compliance with Oct. 27, Scheduling Order. (Rosenbaum, Jennifer) (Entered: 12/08/2006)
66 MOTION for Leave to File Excess Pages by all plaintiffs. (Attachments: # 1 Proposed Pleading Proposed Order on Motion to Exceed Page Limit# 2 Pls. Mot. for Part. S.J.# 3 Pls. Mem. in Supp. of Pls. Mot. for Sum. J. (28 pages)# 4 Statement of Contested/Uncontested Facts # 5 Notice of Hearing # 6 30(b)(6) Dep. part 1# 7 Exhibit 30(b)(6) Dep. part 2# 8 Exhibit 30(b)(6) Dep. part 3# 9 Exhibit 30(b)(6) Dep. part 4# 10 30(b)(6) Dep. part 5# 11 Exhibit Pickering Dep., part 1# 12 Exhibit Pickering Dep., part 2# 13 Exhibit Pickering Dep., part 3# 14 Exhibit Pickering Dep., part 4# 15 Exhibit Unpublished Case# 16 Exhibit Unpublished Case# 17 Exhibit Unpublished Case# 18 Exhibit Unpublished Case# 19 Exhibit Unpublished Case# 20 Affidavit # 21 Affidavit # 22 Affidavit # 23 Affidavit # 24 Exhibit Unpublished Case# 25 Exhibit Unpublished Case# 26 Exhibit Unpublished Case# 27 Exhibit Unpublished Case# 28 Exhibit Unpublished Case# 29 Exhibit USDOL Opinion Letter# 30 Exhibit USDOL Opinion Letter# 31 Exhibit)(Rosenbaum, Jennifer) (Entered: 12/08/2006)
67 RESPONSE/MEMORANDUM in Opposition filed by all plaintiffs re 51 MOTION to Dismiss MOTION for Summary Judgment. (Attachments: # 1 Statement of Contested/Uncontested Facts)(Rosenbaum, Jennifer) (Entered: 12/08/2006)
68 DEFICIENT MOTION for Leave to File Brief As Amicus Curiae by Decatur Hotels, L.L.C.. (Stine, James) Modified on 12/13/2006 (dno, ). (Entered: 12/12/2006)
69 ORDER granting 66 Motion for Leave to File Excess Pages. Signed by Judge Eldon E. Fallon on 12/12/06. (dno, ) (Entered: 12/12/2006)
70 NOTICE by all plaintiffs of FLSA opt in. (Attachments: # 1 Consent Form)(Rosenbaum, Jennifer) Modified on 12/13/2006 (dno, ). (Entered: 12/12/2006)
71 MOTION for Partial Summary Judgment against Decatur Hotels LLC by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion Hearing set for 12/14/2006 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 Statement of Contested/Uncontested Facts # 3 Exhibit 1# 4 Exhibit 2# 5 Errata 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Errata 9# 12 Exhibit 10# 13 Exhibit 11# 14 Exhibit 12# 15 Exhibit 13# 16 Exhibit 14# 17 Exhibit 15# 18

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 9 of 20

12/12/2006 12/12/2006
12/12/2006 12/12/2006 12/13/2006 12/13/2006 12/13/2006
12/13/2006
12/14/2006 12/14/2006 12/14/2006 12/14/2006

Exhibit 16# 19 Exhibit 17# 20 Exhibit 18# 21 Exhibit 19# 22 Exhibit 20# 23 Exhibit 21# 24 Exhibit # 25 Affidavit 1# 26 Affidavit 2# 27 Affidavit 3# 28 Affidavit 4# 29 Notice of Hearing)(dno, ) (Entered: 12/12/2006)
72 DEFICIENT Memorandum by Express Forestry Inc, Eller &Sons Trees, Inc, Superior Forestry Service, Inc. Brief of Amicus Curiae of Express Forestry, Inc. Eller &Sons Trees, Superior Forestry Service, Inc.. (Attachments: # 1 Exhibit Unpublished Decision (Attachment A))(Stine, James) Modified on 12/13/2006 (dno, ). (Entered: 12/12/2006)
73 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Excess Pages by all defendants. (Attachments: # 1 Proposed Order # 2 Proposed Pleading Reply Memorandum in Support of Defendants' Motion to Dismiss and/or for Summary Judgment# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17)(Ehret, Leslie) Additional attachment(s) added on 12/13/2006 (dno, ). (Entered: 12/12/2006)
74 ERROR: DOCKETED AS SEPARATE DOCUMENT − Amendment/Supplement to Document by all defendants re 73 MOTION for Leave to File Reply Memorandum in Excess Pages Exhibit 5. (Ehret, Leslie) Modified on 12/13/2006 (dno, ). Additional attachment(s) added on 12/13/2006 (dno, ). Additional attachment(s) added on 12/13/2006 (dno, ). (Entered: 12/12/2006)
77 ORDER denying 40 Motion to Amend/Correct Complaint. Signed by Judge Sally Shushan on 12/12/06. (gec, ) (Entered: 12/13/2006)
75 Correction of Docket Entry by Clerk re 74 Amendment/Supplement to Document; Exhibit 5 to the Proposed Reply Memorandum attached to the Motion for leave to file Excess Pages was filed as a separate document; Exhibit 5 is now attached to the appropriate document, Motion for Leave to File Excess Pages, Document Number 73. (dno, ) (Entered: 12/13/2006)
76 Correction of Docket Entry by Clerk re 70 Notice (Other); Attachment Number 1, Consent Form was not described, please enter a description for all attachments. (dno, ) (Entered: 12/13/2006)
78 MOTION for Leave to File Brief as Amicus Curiae by Express Forestry Inc, Eller &Sons Trees, Inc, Superior Forestry Service, Inc.. Motion(s) referred to Sally Shushan. Motion Hearing set for 1/10/2007 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 Proposed Order # 3 Amicus Brief)(Stine, James) Additional attachment(s) added on 12/14/2006 (dno, ). (Entered: 12/13/2006)
79 ERROR: DOCKETED AS SEPARATE DOCUMENT − NOTICE of Hearing on Motion filed by Express Forestry Inc, Eller &Sons Trees, Inc, Superior Forestry Service, Inc. re 78 MOTION for Leave to File Brief as Amicus Curiae. Motion Hearing set for 1/10/2007 09:00 AM before Judge Eldon E. Fallon. (Stine, James) Additional attachment(s) added on 12/14/2006 (dno, ). Modified on 12/14/2006 (dno, ). (Entered: 12/13/2006)
80 Correction of Docket Entry by Clerk re 79 Notice of Hearing on Motion; filed as a separate document; Notice of Hearing is now attached to the motion for leave to file, document number 78. (dno, ) (Entered: 12/14/2006)
81 OBJECTIONS by all plaintiffs re 73 MOTION for Leave to File Reply Memorandum in Excess Pages to Defs.' Mischaracterization of Undisputed Facts in Defs.' Reply Mem.. (Rosenbaum, Jennifer) (Entered: 12/14/2006)
82 EXPARTE/CONSENT MOTION for Leave to File Defendants' Response to Plaintiffs' Objection by Decatur Hotels, L.L.C.. (Attachments: # 1 Proposed Order # 2 Proposed Pleading Defendants' Response to Plaintiffs' Objection)(Ehret, Leslie) (Entered: 12/14/2006)
84 Brief of Amicus Curiae entered by Express Forestry Inc, Eller &Sons Trees, Inc, Superior Forestry Service, Inc.. (gec, ) (Entered: 12/15/2006)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 10 of 20

12/15/2006 12/15/2006 12/15/2006 12/15/2006
12/18/2006
12/19/2006
12/19/2006 12/19/2006 01/03/2007 01/03/2007 05/16/2007 05/29/2007
05/29/2007 05/30/2007
06/25/2007

83 ORDER granting 78 Motion for Leave to File a Brief as Amicus Curiae. Signed by Judge Eldon E. Fallon on 12/14/06. (gec, ) (Entered: 12/15/2006)
85 ORDER granting 73 Motion for Leave to File Reply Memorandum. Signed by Judge Eldon E. Fallon on 12/13/06. (gec, ) (Entered: 12/15/2006)
86 REPLY to Response to Motion filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 51 MOTION to Dismiss and/or MOTION for Summary Judgment. (gec, ) (Entered: 12/15/2006)
87 Minute Entry for proceedings held before Judge Eldon E. Fallon : Motion Hearing held on 12/15/2006 re 51 MOTION to Dismiss and/or MOTION for Summary Judgment filed by F Patrick Quinn, III, Decatur Hotels, L.L.C., 71 MOTION for Partial Summary Judgment filed by Rodolfo Antonio Valdez−Baez, Oscar Ricardo Deheza−Ortega, Daniel Castellanos−Contreras. Motions taken under submission (Court Reporter Cathy Pepper.) (gec, ) (Entered: 12/15/2006)
88 EX PARTE/CONSENT MOTION for Leave to File Pls.' Reply to Defs.' Reply to Pls.' Resp. to Defs.' Mot. to Dismiss and/or for Summary Judgment by Daniel Castellanos−Contreras. (Attachments: # 1 Proposed Order # 2 Notice of Hearing # 3 Exhibit A, Plaintiffs' Reply Brief# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D)(Rosenbaum, Jennifer) Modified on 12/19/2006 (dno, ). (Entered: 12/18/2006)
89 Correction of Docket Entry by Clerk re 88 MOTION for Leave to File Pls.' Reply to Defs.' Reply to Pls.' Resp. to Defs.' Mot. to Dismiss and/or for Summary Judgment Motion should not have been set for hearing, hearing date of 1/3/06 has been terminated. Also, filer did not select Ex Parte/Consent, which the motion for leave to file is, that correction has been made also. (dno, ) (Entered: 12/19/2006)
90 ORDER granting 82 MOTION for Leave to File Defendants' Response to Plaintiffs' Objection by Decatur Hotels, L.L.C. Signed by Judge Eldon E. Fallon on 12/15/06. (dno, ) (Entered: 12/19/2006)
91 Response by Decatur Hotels, L.L.C., F Patrick Quinn, III to 81 Plaintiffs' Objections. (dno, ) (Entered: 12/19/2006)
92 ORDER granting 88 Motion for Leave to File Plaintiffs' Reply to Defendants' Reply to Plaintiffs' Response to Defendants' Motion to Dismiss and/or for Summary Judgment. Signed by Judge Eldon E. Fallon on 12/22/06. (dno, ) (Entered: 01/03/2007)
93 REPLY to Defendants' Reply to Plaintiffs' Response to Motion filed by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez re 51 MOTION to Dismiss and/or MOTION for Summary Judgment. (dno, ) (Entered: 01/03/2007)
94 ORDER &REASONS that the Defendants' 51 Motion to Dismiss and/or for Summary Judgment is DENIED and that the Plaintiffs' 71 Motion for Partial Summary Judgment is GRANTED IN PART AND DENIED IN PART. Signed by Judge Eldon E. Fallon on 5/15/07. (dno, ) (Entered: 05/16/2007)
95 MOTION to Alter Judgment 94 Order on Motion to Dismiss,, Order on Motion for Summary Judgment,, Order on Motion for Partial Summary Judgment, by Decatur Hotels, L.L.C.. Motion Hearing set for 7/11/2007 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 Notice of Hearing)(Kovach, Ellen) (Entered: 05/29/2007)
96 EXPARTE/CONSENT MOTION to Expedite by Decatur Hotels, L.L.C.. (Attachments: # 1 Proposed Order)(Kovach, Ellen) (Entered: 05/29/2007)
97 Minute Entry for proceedings held before Judge Eldon E. Fallon: Status Conference was held on 5/30/2007. ORDERED that the Ex Parte 96 MOTION to Expedite filed by Decatur Hotels, L.L.C. is DENIED. FURTHER ORDERED that another Status Conference shall be held in Chambers on 6/28/2007 at 09:00 AM before Judge Eldon E. Fallon. (dno, ) (Entered: 05/31/2007)
98 MOTION to Certify Class for FLSA Collective Action by Daniel Castellanos−Contreras. Motion Hearing set for 7/18/2007 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 Exhibit 2,

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 11 of 20

06/26/2007
06/27/2007 07/02/2007
07/03/2007
07/05/2007 07/05/2007 07/06/2007
07/16/2007 07/16/2007 07/19/2007 07/19/2007 07/19/2007 07/24/2007

unpublished cases# 3 Exhibit 3, unpublished cases# 4 Exhibit 4, unpublished cases# 5 Exhibit 5, unpublished cases# 6 Exhibit Proposed Notice to Class Members# 7 Notice of Hearing)(Rosenbaum, Jennifer) (Entered: 06/25/2007)
99 Correction of Docket Entry by Clerk re 98 MOTION to Certify Class for FLSA Collective Action − Name of attorney who electronically filed this document does not match name of signatory attorney on pleading. The user log−in and password serve as the required signature for purposes of Rule 11 of the FRCP. No further action is necessary. (dno, ) (Entered: 06/26/2007)
100 ORDER that the status conference scheduled for Thursday, June 28, 2007 at 9:00 a.m. is CANCELLED. Signed by Judge Eldon E. Fallon on 6/26/07.(ala, ) (Entered: 06/27/2007)
101 EXPARTE/CONSENT MOTION to Continue Hearing on Plaintiffs' Motion for Certification of a Collective Action and for Disclosure of the Names, Addresses and Telephone Numbers of Potential Opt−In Plaintiffs by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Proposed Order)(Ehret, Leslie) (Entered: 07/02/2007)
102 RESPONSE/MEMORANDUM in Opposition filed by all plaintiffs re 95 MOTION to Alter Judgment re 94 Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment.(Attachments: # 1 unpublished case# 2 unpublished case# 3 unpublished case# 4 unpublished case# 5 unpublished case# 6 unpublished case# 7 unpublished case# 8 unpublished case# 9 unpublished case # 10 unpublished case# 11 unpublished case)(Rosenbaum, Jennifer) Modified on 7/5/2007 (ala, ). (Entered: 07/03/2007)
103 Correction of Docket Entry by Clerk re 102 Response/Memorandum in Opposition to Motion; Attachment NUMBER NINE was not described. Filing attorney must select either a category or enter a description when attaching documents to the main document. Clerk took corrective action. (ala, ) (Entered: 07/05/2007)
104 ORDER granting 101 Motion to Continue hearing on motion for Certification of a Collective Action and for Disclosure of the Names, Addresses and Telephone Numbers of Potential Opt−In Plaintiffs. Motion is reset for hearing on 8/1/07 at 9:00am. Signed by Judge Eldon E. Fallon on 7/5/07. (dno, ) (Entered: 07/06/2007)
105 EXPARTE/CONSENT MOTION for Leave to File Excess Pages by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Proposed Order # 2 Proposed Pleading Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion to Alter or Amend, or to Certify Interlocutory Appeal and Stay Proceeding)(Ehret, Leslie) (Entered: 07/06/2007)
106 ORDER granting 105 Motion for Leave to File Reply Memorandum in Excess Pages. Signed by Judge Eldon E. Fallon on 7/13/07. (dno, ) (Entered: 07/16/2007)
107 REPLY to Response to Motion filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 95 MOTION to Alter Judgment 94 Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment. (dno, ) (Entered: 07/16/2007)
108 ORDER &REASONS that the Defendants' 95 Motion to Alter Order &Reasons dated 5/15/07 is GRANTED IN PART AND DENIED IN PART. Signed by Judge Eldon E. Fallon on 7/19/07. (ala, ) (Entered: 07/19/2007)
109 Statement Concerning Discovery and Conditional Certification by Decatur Hotels, L.L.C., F Patrick Quinn, III. (ala, ) (Entered: 07/20/2007)
110 Statement Concearning Discovery and Conditional Certification Pursuant to May 30, 2007 Order by all plaintiffs. (Attachments: # 1 Exhibit # 2 Exhibit)(ala, ) (Entered: 07/20/2007)
111 RESPONSE/MEMORANDUM in Opposition filed by all defendants re 98 MOTION to Certify Class for FLSA Collective Action. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Kovach, Ellen) (Entered: 07/24/2007)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 12 of 20

07/26/2007 07/26/2007 07/27/2007 07/31/2007
08/10/2007 08/10/2007 08/10/2007
08/10/2007 08/10/2007 08/10/2007
08/10/2007 08/10/2007

112 Request/Statement of Oral Argument by all defendants regarding 98 MOTION to Certify Class for FLSA Collective Action. (Kovach, Ellen) (Entered: 07/26/2007)
113 NOTICE by all plaintiffs Filing FLSA Consent to Sue. (Attachments: # 1 Exhibit A, FLSA Consent Form)(Rosenbaum, Jennifer) (Entered: 07/26/2007)
114 EXPARTE/CONSENT MOTION for Extension of Deadlines to Set Pls.' Motion for Collective Action Certification for August 15, 2007 by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Proposed Order)(Rosenbaum, Jennifer) (Entered: 07/27/2007)
115 ORDER granting 114 MOTION for Extension of Deadlines to Set Pls.' Motion for Collective Action Certification for August 15, 2007 filed by Rodolfo Antonio Valdez−Baez, Oscar Ricardo Deheza−Ortega, Daniel Castellanos−Contreras. Order Resetting Hearing on 98 MOTION to Certify Class for FLSA Collective Action : Motion Hearing set for 8/15/2007 09:00 AM before Judge Eldon E. Fallon. Signed by Judge Eldon E. Fallon on 7/30/07.(ala, ) (Entered: 07/31/2007)
116 EXPARTE/CONSENT MOTION for Leave to File Pls.' Reply to Defs.' Opp. to Pls.' Mot. for Collective Action Certification by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Proposed Pleading # 2 Exhibit Unpublished cases# 3 Proposed Order)(Rosenbaum, Jennifer) (Entered: 08/10/2007)
117 EXPARTE/CONSENT MOTION for Hearing re 115 Order Setting/Resetting Hearing on Motion,, Terminate Motions, Reset Hearing on Pls.' Mot. for Collective Action Certification by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Proposed Order)(Rosenbaum, Jennifer) (Entered: 08/10/2007)
118 MOTION to Strike 111 Response/Memorandum in Opposition to Motion, Ex. 7 to Defs.' Opp. to Pls.' Mot. for Collective Action Certification by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion Hearing set for 8/29/2007 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 Affidavit Jorge Munoz# 3 Affidavit Pedro Cuadros# 4 Affidavit Francis Santos# 5 Affidavit Victor Bonilla# 6 Affidavit Victor Bonilla# 7 Affidavit Jose Urcia# 8 Exhibit English Translations of Defs.' Ex. 7 to Opp. to Pls. Mot. for Coll. Act. Cert.# 9 Exhibit Unpublished Cases# 10 Exhibit Unpublished cases# 11 Exhibit Relevant Correspondence# 12 Notice of Hearing)(Rosenbaum, Jennifer) (Entered: 08/10/2007)
119 Request/Statement of Oral Argument by all plaintiffs regarding 118 MOTION to Strike 111 Response/Memorandum in Opposition to Motion, Ex. 7 to Defs.' Opp. to Pls.' Mot. for Collective Action Certification . (Rosenbaum, Jennifer) Modified on 8/13/2007 (ala, ). (Entered: 08/10/2007)
120 NOTICE by all plaintiffs filing Consent to Join FLSA Collective Action. (Rosenbaum, Jennifer) (Entered: 08/10/2007)
121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion(s) referred to Sally Shushan. Motion Hearing set for 8/29/2007 09:00 AM before Magistrate Judge Sally Shushan. (Attachments: # 1 Memorandum in Support # 2 Certificate of Conference# 3 Exhibit # 4 Exhibit Defs. Notices of Dep.# 5 Exhibit Unpublished Cases# 6 Notice of Hearing)(Rosenbaum, Jennifer) (Entered: 08/10/2007)
122 Request/Statement of Oral Argument by all plaintiffs regarding 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect. (Rosenbaum, Jennifer) (Entered: 08/10/2007)
123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion(s) referred to Sally Shushan. Motion Hearing set for 8/29/2007 09:00 AM before Magistrate Judge Sally Shushan. (Attachments: # 1 Memorandum in Support # 2 Certificate of Conference# 3 Notice of Hearing)(Rosenbaum, Jennifer) (Entered: 08/10/2007)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 13 of 20

08/10/2007 08/13/2007 08/13/2007
08/14/2007 08/14/2007
08/16/2007
08/17/2007
08/22/2007 08/27/2007 08/28/2007 08/30/2007 08/30/2007 08/30/2007 08/30/2007

124 Request/Statement of Oral Argument by all plaintiffs regarding 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members. (Rosenbaum, Jennifer) (Entered: 08/10/2007)
125 ORDER granting 116 Motion for Leave to File Reply. Signed by Judge Eldon E. Fallon on 8/13/07. (ala, ) (Entered: 08/14/2007)
127 ORDER Granting 117 MOTION for Hearing; ORDER Resetting Hearing on 118 MOTION to Strike 111 Response/Memorandum in Opposition to Motion and 98 MOTION to Certify Class for FLSA Collective Action : Motion Hearing re−set for 9/12/2007 09:00 AM before Judge Eldon E. Fallon. Signed by Judge Eldon E. Fallon on 8/13/07.(ala, ) (Entered: 08/14/2007)
126 REPLY to Response to Motion filed by all plaintiffs re 98 MOTION to Certify Class for FLSA Collective Action. (Attachments: # 1 Exhibit)(ala, ) (Entered: 08/14/2007)
128 ORDER Setting/Resetting Hearing on 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect, 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members : Motion Hearing set for 8/29/2007 w/no oral argument. Signed by Judge Sally Shushan on 8/13/07.(car, ) (Entered: 08/14/2007)
129 EXPARTE/CONSENT MOTION to Continue Hearing on Plaintiffs' Motion for Protective Order Limiting Inquiries with In Terorrem Effect and Plaintiffs' Motion for Protective Order Limiting Discovery from Absent Opt−In Class Members by Decatur Hotels, L.L.C., F Patrick Quinn, III. Motion(s) referred to Sally Shushan. (Attachments: # 1 Proposed Order)(Ehret, Leslie) (Entered: 08/16/2007)
130 ORDER granting 129 MOTION to Continue Hearing on 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect, 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members. Motion Hearing (no oral argument) set for 9/5/2007 on briefs. Signed by Judge Sally Shushan on 8/17/07.(gec, ) (Entered: 08/17/2007)
131 EXPARTE/CONSENT MOTION to Withdraw Document Exhibit 7 to Defendants' Opposition to Plaintiffs' Motion for Certification of a Collective Action ( Rec. Doc.111) by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Proposed Order)(Ehret, Leslie) (Entered: 08/22/2007)
132 ORDER granting 131 Motion to Withdraw Exhibit 7. Signed by Judge Eldon E. Fallon on 8/24/07. (ala, ) (Entered: 08/27/2007)
133 ORDER Setting/Resetting Hearing on 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect, 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members : Motion Hearing set for 9/19/2007 w/no oral argument. Signed by Judge Sally Shushan.(car, ) (Entered: 08/28/2007)
134 MOTION For Recertification of Interlocutory Appeal by Decatur Hotels, L.L.C., F Patrick Quinn, III. Motion Hearing set for 9/26/2007 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 Notice of Hearing)(Ehret, Leslie) (Entered: 08/30/2007)
135 EXPARTE/CONSENT MOTION to Expedite Hearing on Defendants' Motion for Recertification of Interlocutory Appeal by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Proposed Order)(Ehret, Leslie) (Entered: 08/30/2007)
136 RESPONSE/MEMORANDUM in Opposition filed by all plaintiffs re 135 MOTION to Expedite Hearing on Defendants' Motion for Recertification of Interlocutory Appeal. (Rosenbaum, Jennifer) (Entered: 08/30/2007)
137 MOTION to Compel Fed. R. Civ. P. 26(a) Initial Disclosures by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion(s) referred to Sally Shushan. Motion Hearing set for 9/19/2007 09:00 AM before Magistrate Judge Sally Shushan. (Attachments: # 1 Memorandum in Support # 2 Exhibit Relevant Correspondence# 3 Exhibit Pls.' Fed. R. Civ. P. 26(a) initial disclosures# 4 Proposed Order # 5 Notice of Hearing)(Rosenbaum, Jennifer) (Entered: 08/30/2007)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 14 of 20

08/30/2007 09/04/2007
09/05/2007
09/05/2007
09/07/2007 09/07/2007 09/10/2007 09/10/2007
09/10/2007 09/11/2007 09/11/2007 09/11/2007

138 EXPARTE/CONSENT Amended MOTION to Expedite Hearing on Defendants' Motion for Recertification of Interlocutory Appeal by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Proposed Order)(Ehret, Leslie) (Entered: 08/30/2007)
139 RESPONSE/MEMORANDUM in Opposition filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 118 MOTION to Strike 111 Response/Memorandum in Opposition to Motion, Ex. 7 to Defs.' Opp. to Pls.' Mot. for Collective Action Certification (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Ehret, Leslie) Modified on 9/5/2007 (dno, ). (Entered: 09/04/2007)
140 ORDERED that the 135 Motion to Expedite and Amended 138 Motion to Expedite are GRANTED. FURTHER ORDERED that Defendants' 134 Motion for recertification of Interloctutory Appeal is GRANTED such that the Court hereby RE−CERTIFIES its Order &Reasons dated May 15, 2007 (Rec. Doc. 94) for an interlocutory appeal, for the reasons previously stated on July 19, 2007 (Rec. Doc. 108) and which continue to justify certification under 28 U.S.C. § 1292(b). Signed by Judge Eldon E. Fallon on 9/5/07. (dno, ) (Entered: 09/05/2007)
141 EXPARTE/CONSENT MOTION to Withdraw Document re 137 MOTION to Compel Fed. R. Civ. P. 26(a) Initial Disclosures MOTION to Compel Fed. R. Civ. P. 26(a) Initial Disclosures by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion(s) referred to Sally Shushan. (Attachments: # 1 Proposed Order)(Rosenbaum, Jennifer) (Entered: 09/05/2007)
142 ORDER granting 141 Motion to Withdraw 137 Motion to Compel, which is dismissed as moot. Signed by Judge Sally Shushan on 9/6/07. (car, ) (Entered: 09/07/2007)
143 EXPARTE/CONSENT MOTION for Leave to File Sur Reply in Opposition to Plaintiffs' Motion for Conditional Certification by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Proposed Order # 2 Proposed Pleading Sur Reply in Opposition to Plaintiffs' Motion for Conditional Certification# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3)(Kovach, Ellen) (Entered: 09/07/2007)
144 EXPARTE/CONSENT MOTION for Leave to File Pls.' Reply to Defs.' Opp. to Pls.' Mot. to Strike by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Proposed Order # 2 Proposed Pleading Pls.' Reply to Defs.' Opp. to Pls.' Mot. to Strike)(Rosenbaum, Jennifer) (Entered: 09/10/2007)
145 EXPARTE/CONSENT MOTION for Leave to File Pls.' Reply to Defs.' Reply in Opp. to Pls.' Mot. for Certification of Collective Action by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Proposed Order # 2 Proposed Pleading Pls.' Reply to Defs.' Reply in Opp. to Pls.' Motion for Certification of Collective Action)(Rosenbaum, Jennifer) (Entered: 09/10/2007)
146 ORDER granting 143 Motion for Leave to File Sur Reply in Opposition. Signed by Judge Eldon E. Fallon on 9/10/07. (ala, ) (Entered: 09/11/2007)
147 RESPONSE/MEMORANDUM in Opposition filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 98 MOTION to Certify Class for FLSA Collective Action. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(ala, ) (Entered: 09/11/2007)
148 RESPONSE/MEMORANDUM in Opposition filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Kovach, Ellen) (Entered: 09/11/2007)
149 RESPONSE/MEMORANDUM in Opposition filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Kovach, Ellen) (Entered: 09/11/2007)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 15 of 20

09/11/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007 09/12/2007 09/12/2007
09/12/2007
09/18/2007
09/18/2007
09/19/2007 09/19/2007

150 Request/Statement of Oral Argument by Decatur Hotels, L.L.C., F Patrick Quinn, III regarding 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members. (Kovach, Ellen) Modified on 9/12/2007 (dno, ). (Entered: 09/11/2007)
151 ORDER granting 144 Motion for Leave to File a reply to opposition to motion to strike. Signed by Judge Eldon E. Fallon on 9/11/07. (dno, ) (Entered: 09/11/2007)
152 REPLY to Response to Motion filed by all plaintiffs re 118 MOTION to Strike 111 Response/Memorandum in Opposition to Motion, Ex. 7 to Defs.' Opp. to Pls.' Mot. for Collective Action Certification. (dno, ) (Entered: 09/11/2007)
153 ORDER granting 145 Motion for Leave to File sur−reply to opposition to motion for certification as a collective action. Signed by Judge Eldon E. Fallon on 9/11/07. (dno, ) (Entered: 09/11/2007)
154 REPLY to Sure−Reply in Opposition to Motion filed by all plaintiffs re 98 MOTION to Certify Class for FLSA Collective Action. (dno, ) (Entered: 09/11/2007)
155 NOTICE by all plaintiffs Consent to Join FLSA Collective Action. (Attachments: # 1 Exhibit Exhibit A)(Rosenbaum, Jennifer) (Entered: 09/11/2007)
156 Correction of Docket Entry by Clerk re 150 Request/Statement of Oral Argument − Filing attorney incorrectly linked document to documents 148 and 149. Clerk properly linked document to documents 121 and 123. No further action is necessary. (dno, ) (Entered: 09/12/2007)
157 Minute Entry for proceedings held before Judge Eldon E. Fallon: Motion Hearing held on 9/12/2007 re 98 MOTION to Certify Class for FLSA Collective Action filed by Daniel Castellanos−Contreras and 118 MOTION to Strike 111 Response/Memorandum in Opposition to Motion, Ex. 7 to Defs.' Opp. to Pls.' Mot. for Collective Action Certification filed by Rodolfo Antonio Valdez−Baez, Oscar Ricardo Deheza−Ortega, Daniel Castellanos−Contreras. After argument, Motion to Certify TAKEN UNDER SUBMISSION and Motion to strike is MOOT. The request for sanctions is DENIED. (Court Reporter Pinkey Ferdinand.) (dno, ) (Entered: 09/12/2007)
158 ORDER denying 150 Request/Statement of Oral Argument, filed by F Patrick Quinn, III, Decatur Hotels, L.L.C. re 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect filed by Rodolfo Antonio Valdez−Baez, Oscar Ricardo Deheza−Ortega, Daniel Castellanos−Contreras, 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members filed by Rodolfo Antonio Valdez−Baez, Oscar Ricardo Deheza−Ortega, Daniel Castellanos−Contreras, mtn set for 9/19/07, no oral argument, on briefs. Signed by Judge Sally Shushan.(car, ) (Entered: 09/13/2007)
159 EXPARTE/CONSENT MOTION for Leave to File Sur−Reply to Defs.' Opp. to Pls.' Mot. for Prot. Order to Limit Discovery from Opt−in Class Members by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion(s) referred to Sally Shushan. (Attachments: # 1 Proposed Order # 2 Proposed Pleading # 3 Exhibit Unpublished cases)(Rosenbaum, Jennifer) (Entered: 09/18/2007)
160 EXPARTE/CONSENT MOTION for Leave to File Pls.' Sur Reply to Defs.' Opp. to Pls.' Mot. for Protective Order Limiting Inquiries with In Terrorem Effect, MOTION for Leave to File Excess Pages by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion(s) referred to Sally Shushan. (Attachments: # 1 Proposed Order # 2 Proposed Pleading # 3 Exhibit unpublished cases# 4 Exhibit Deposition Excerpts)(Rosenbaum, Jennifer) (Entered: 09/18/2007)
161 ORDER granting 160 Motion for Leave to File Sur−Reply. Signed by Judge Sally Shushan. (car, ) (Entered: 09/19/2007)
162 REPLY to Response to Motion filed by all plaintiffs re 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect. (Attachments: # 1

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 16 of 20

09/19/2007 09/19/2007 09/20/2007
09/20/2007 09/21/2007
09/21/2007 09/21/2007
09/24/2007 09/24/2007 09/25/2007 09/25/2007 09/26/2007 09/27/2007 10/01/2007

Exhibit 1# 2 Exhibit 2)(car, ) (Entered: 09/19/2007)
163 ORDER granting 159 Motion for Leave to File Sur−Reply. Signed by Judge Sally Shushan. (car, ) (Entered: 09/19/2007)
164 REPLY to Response to Motion filed by all plaintiffs re 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members. (Attachments: # 1 Exhibit 1)(car, ) (Entered: 09/19/2007)
165 EXPARTE/CONSENT MOTION for Leave to File Sur−Reply to Plaintiffs' Motion for Protective Order Limiting Discovery from Opt−In Class Members by Decatur Hotels, L.L.C., F Patrick Quinn, III. Motion(s) referred to Sally Shushan. (Attachments: # 1 Proposed Order # 2 Proposed Pleading # 3 Exhibit 1 Part 1# 4 Exhibit 1 Part 2)(Ehret, Leslie) (Entered: 09/20/2007)
166 EXPARTE/CONSENT MOTION for Leave to File Sur−Reply to Plaintiffs' Motion for Protective Order Limiting Inquiries with In Terrorem Effect by Decatur Hotels, L.L.C., F Patrick Quinn, III. Motion(s) referred to Sally Shushan. (Attachments: # 1 Proposed Order # 2 Proposed Pleading)(Kovach, Ellen) (Entered: 09/20/2007)
167 ORDER granting 165 MOTION for Leave to File Sur−Reply to Plaintiffs' Motion for Protective Order Limiting Discovery from Opt−In Class Members filed by F Patrick Quinn, III, Decatur Hotels, L.L.C., 166 MOTION for Leave to File Sur−Reply to Plaintiffs' Motion for Protective Order Limiting Inquiries with In Terrorem Effect filed by F Patrick Quinn, III, Decatur Hotels, L.L.C.. The 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect, 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members are reset for 9/26/2007 w/o oral argument as stated herein. Signed by Judge Sally Shushan.(car, ) (Entered: 09/21/2007)
168 Sur−Reply filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members. (Attachments: # 1 Exhibit 1, part 1# 2 Exhibit 1, part 2)(car, ) (Entered: 09/21/2007)
169 EXPARTE/CONSENT MOTION for Leave to File Amended Sur−Reply to Plaintiffs' Motion for Protective Order Limiting Inquiries with In Terrorem Effect by Decatur Hotels, L.L.C., F Patrick Quinn, III. Motion(s) referred to Sally Shushan. (Attachments: # 1 Proposed Order # 2 Proposed Pleading)(Kovach, Ellen) (Entered: 09/21/2007)
170 ORDER granting 169 Motion for Leave to File amd sur−reply. Signed by Judge Sally Shushan. (car, ) (Entered: 09/24/2007)
171 Amd Sur−REPLY to Motion filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect. (car, ) (Entered: 09/24/2007)
172 REPLY to Response to Motion filed by all plaintiffs re 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect. (Attachments: # 1 Exhibit unpublished cases# 2 Exhibit unpublished cases)(Rosenbaum, Jennifer) (Entered: 09/25/2007)
173 REPLY to Response to Motion filed by all plaintiffs re 123 MOTION for Protective Order Limiting Discovery from Absent Opt−in Class Members. (Rosenbaum, Jennifer) (Entered: 09/25/2007)
174 Supplemental Authority by all plaintiffs re 121 MOTION for Protective Order Limiting Inquiries with In Terrorem Effect Notice of Supplemental Authority. (Attachments: # 1 Exhibit)(Rosenbaum, Jennifer) (Entered: 09/26/2007)
175 Notice of Supplemental Authority by all plaintiffs re 98 MOTION to Certify Class for FLSA Collective Action . (Attachments: # 1 Exhibit)(Rosenbaum, Jennifer) (Entered: 09/27/2007)
176 Response/Reply by Decatur Hotels, L.L.C., F Patrick Quinn, III to 175 Notice (Other) by Plaintiffs of Supplemental Authority for Plaintiffs' Motion for Conditional Certification of Collective Action. (Kovach, Ellen) (Entered:

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 17 of 20

10/15/2007
10/18/2007 10/19/2007 10/22/2007 10/24/2007 10/24/2007 10/28/2007
10/30/2007 10/31/2007 11/05/2007
11/05/2007
11/06/2007
11/13/2007 11/19/2007

10/01/2007)
177 ORDER of USCA − Leave to appeal from the interlocutory order of the District Court is GRANTED. FURTHER ORDERED that petitioners' motion to expedite ruling on petition for permission to appeal is DENIED as unnecessary. FURTHER ORDERED that petitioners' motion to expedite appeal if permission to appeal is granted is DENIED. HIGGINGOTHAM, STEWART &OWEN (dno, ) (Entered: 10/16/2007)
Pro Hac Vice fee received from Decatur Hotels, L.L.C., F Patrick Quinn, III: $ 5 (ala, ) (Entered: 10/22/2007)
178 APPEAL TRANSCRIPT REQUEST by Decatur Hotels, L.L.C., F Patrick Quinn, III (Kovach, Ellen) (Entered: 10/19/2007)
179 ORDER granting 121 Motion for Protective Order; granting in part and denying in part 123 Motion for Protective Order. Signed by Judge Sally Shushan. (car, ) (Entered: 10/23/2007)
Appeal Filing fee received from Decatur Hotels, L.L.C., F Patrick Quinn, III: $ 450 (ala, ) (Entered: 10/24/2007)
186 Certified and Transmitted Record on Appeal to US Court of Appeals re 177 Notice of Interlocutory Appeal. USCA Case Number 07−30942. (dno, ) (Entered: 11/14/2007)
180 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice (Filing fee $5 PAID) by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Affidavit # 2 Exhibit Certificate of Good Standing# 3 Proposed Order)(Rosenbaum, Jennifer) Modified on 10/29/2007 (dno, ). Modified on 11/1/2007 (dno, ). (Entered: 10/28/2007)
181 ORDER granting 180 Motion for Monica T. Guizarto to Appear Pro Hac Vice on behalf of plaintiffs. Signed by Judge Eldon E. Fallon on 10/29/07. (dno, ) (Entered: 11/01/2007)
Pro Hac Vice Filing fee received from all plaintiffs: $ 5.00 (dno, ) (Entered: 11/01/2007)
182 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Protective Order, by Decatur Hotels, L.L.C., F Patrick Quinn, III. Motion Hearing set for 11/21/2007 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 US House of Representatives attachment# 3 Notice of Hearing)(Kovach, Ellen) (Entered: 11/05/2007)
183 Motion for Clarification of Magistrate Judge's Order re 179 Order on Motion for Protective Order, by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. Motion Hearing set for 11/21/2007 09:00 AM before Judge Eldon E. Fallon. (Attachments: # 1 Memorandum in Support # 2 Notice of Hearing)(Rosenbaum, Jennifer) Modified on 11/6/2007 (ala, ). (Entered: 11/05/2007)
184 Correction of Docket Entry by Clerk re 183 MOTION for Clarification of Magistrate Judge's Order ; Filing attorney selected incorrect event. Clerk took corrective action by either changing the event to Motion for Miscellanous Relief, pleading was not a true objection to report and recommendation. (ala, ) (Entered: 11/06/2007)
185 RESPONSE/MEMORANDUM in Opposition filed by all plaintiffs re 182 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Protective Order. (Rosenbaum, Jennifer) (Entered: 11/13/2007)
187 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Excess Pages by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Proposed Order # 2 Proposed Pleading Defendants' Reply to Plaintiffs' Opposition To Defendants' Appeal, Motion for Review, and Written Objections to Magistrate

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 18 of 20

11/20/2007 11/20/2007 11/27/2007 12/19/2007 12/20/2007 01/11/2008 01/15/2008 01/18/2008
01/22/2008 01/23/2008
01/24/2008 01/24/2008 01/28/2008 01/30/2008

Judge's Order)(Kovach, Ellen) (Entered: 11/19/2007)
188 ORDER granting 187 Motion for Leave to File reply in excess of the page limitation. Signed by Judge Eldon E. Fallon on 11/20/07. (dno, ) (Entered: 11/20/2007)
189 REPLY to Response to Motion filed by Decatur Hotels, L.L.C., F Patrick Quinn, III re 182 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Protective Order. (dno, ) (Entered: 11/20/2007)
190 NOTICE of filing consent to join FSLA Collective Action by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) (Entered: 11/27/2007)
191 EXPARTE/CONSENT MOTION to Withdraw Melissa Crow as Attorney by Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez. (Attachments: # 1 Proposed Order)(Rosenbaum, Jennifer) (Entered: 12/19/2007)
192 ORDER granting 191 Motion to Withdraw as Attorney. Attorney Melissa Crow terminated. Signed by Judge Eldon E. Fallon on 12/20/07. (ala, ) (Entered: 12/21/2007)
193 NOTICE of Supplemental Authority by all plaintiffs re 98 MOTION to Certify Class for FLSA Collective Action, 185 Response/Memorandum in Opposition to Motion (Attachments: # 1 Exhibit)(Rosenbaum, Jennifer) (Entered: 01/11/2008)
194 NOTICE by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) (Entered: 01/15/2008)
195 DEFICIENT DOCUMENT − NOTICE by all plaintiffs re 182 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Protective Order, MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Protective Order,, 98 MOTION to Certify Class for FLSA Collective Action of Supplemental Authority. (Attachments: # 1 Exhibit)(Rosenbaum, Jennifer) Modified on 1/22/2008 (dno, ). (Entered: 01/18/2008)
196 EX PARTE/CONSENT MOTION for Leave to File by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit Notice of Supplemental Authority# 2 Exhibit A # 3 Proposed Order # 4 Notice of Hearing)(Rosenbaum, Jennifer) Modified on 1/23/2008 (dno, ). (Entered: 01/22/2008)
197 Correction of Docket Entry by Clerk re 196 MOTION for Leave to File − Filing attorney should have changed 'N' to 'Y' at the question 'Is this an Exparte/Consent Motion Y/N?' before clicking the Next button. Clerk modified docket text to reflect 'Exparte'. There was no need to set this motion for hearing, therefore the hearing date of 2/13/08 has been canceled. No further action is necessary. (dno, ) (Entered: 01/23/2008)
198 ORDER granting 196 Motion for Leave to File Notice of Supplemental Authority. Signed by Judge Eldon E. Fallon on 1/23/08. (dno, ) (Entered: 01/24/2008)
199 Supplemental Authority in Support filed by all plaintiffs re 98 MOTION to Certify Class for FLSA Collective Action. (Attachments: # 1 Exhibit)(dno, ) (Entered: 01/24/2008)
200 DEFICIENT DOCUMENT − Response/Reply by Decatur Hotels, L.L.C., F Patrick Quinn, III to 199 Response/Memorandum in Support of Motion, Notice (Other) to Plaintiffs' Submission of Supplemental Authority. (Kovach, Ellen) Modified on 1/29/2008 (dno, ). (Entered: 01/28/2008)
201 EXPARTE/CONSENT MOTION for Leave to File Response to Plaintiffs' Submissions of Supplemental Authority by Decatur Hotels, L.L.C., F Patrick Quinn, III. (Attachments: # 1 Proposed Order # 2 Proposed Pleading)(Kovach, Ellen) (Entered: 01/30/2008)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 19 of 20

01/31/2008 01/31/2008 02/04/2008 02/12/2008 02/20/2008
02/21/2008
02/21/2008 02/21/2008 03/17/2008 03/18/2008 03/20/2008 03/24/2008 03/26/2008 10/07/2008 03/20/2009
08/04/2009 10/25/2010

202 ORDER granting 201 Motion for Leave to File Submissions of Supplemental Authority. Signed by Judge Eldon E. Fallon on 1/31/08. (ala, ) (Entered: 01/31/2008)
203 Response/Reply by Decatur Hotels, L.L.C., F Patrick Quinn, III to 199 Response/Memorandum in Support of Motion. (ala, ) (Entered: 01/31/2008)
204 NOTICE by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) (Entered: 02/04/2008)
205 NOTICE by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) (Entered: 02/12/2008)
206 Exparte/Consent MOTION for Leave to File by Daniel Castellanos−Contreras. (Attachments: # 1 Proposed Order # 2 Notice of Supplemental Authority# 3 Exhibit)(Rosenbaum, Jennifer) Modified on 2/21/2008 (ala, ). (Entered: 02/20/2008)
207 Correction of Docket Entry by Clerk re 206 Exparte/Consent MOTION for Leave to File ;Filing attorney should have changed 'N' to 'Y' at the question 'Is this an Exparte/Consent Motion Y/N?' before clicking the Next button. Clerk modified docket text to reflect 'Exparte'. No further action needed. (ala, ) (Entered: 02/21/2008)
208 ORDER granting 206 Motion for Leave to File Notice of Supplemental Authority. Signed by Judge Eldon E. Fallon on 2/21/08. (ala, ) (Entered: 02/21/2008)
209 Supplemental Authority in Support of Plaintiff's Motion fro Certification by all plaintiffs. (Attachments: # 1 Exhibit)(ala, ) (Entered: 02/21/2008)
211 NOTICE of filing consent to join FSLA Collective Action by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) (Entered: 03/17/2008)
212 NOTICE of Filing Consent to join FLSA Collective Action by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) Modified on 3/19/2008 (ala, ). (Entered: 03/18/2008)
213 NOTICE by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) (Entered: 03/20/2008)
214 NOTICE of Filing Consent to Join FLSA Collective Action by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) Modified on 3/25/2008 (ala, ). (Entered: 03/24/2008)
215 NOTICE of Filing Consent to Join FLSA Collective Action by all plaintiffs . (Attachments: # 1 Exhibit)(Rosenbaum, Jennifer) Modified on 3/27/2008 (ala, ). (Entered: 03/26/2008)
216 NOTICE by Daniel Castellanos−Contreras. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) (Entered: 10/07/2008)
217 ORDER DISMISSING AS MOOT: 98 Plas' Motion to Certify Class; 182 Dfts' Motion for Appeal of Magistrate Judge Decision; 183 Motion for Clarification of Magistrate Judge's Order. Signed by Judge Eldon E. Fallon on 3/20/09. (rll, ) (Entered: 03/24/2009)
218 ORDER of USCA − 5th Circuit has granted appellees' motion for extension of time for filing a petition for rehearing. by Clerk, 5th Circuit (dno, ) (Entered: 08/05/2009)
219 USCA JUDGMENT issued as mandate on 10/25/10 as to 177 Notice of Interlocutory Appeal,. USCA judge name: Jones, King, Jolly, Davis, Smith, Garza, Benavides, Stewart, Dennis, Prado, Owen, Elrod, Southwick, and Haynes. It is ordered and adjudged that the judgment of the District Court is Reversed and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this court. It is Further Ordered that Plaintiffs−Appellees pay to Defendants−Appellants the costs on appeal to be taxed by the Clerk of this Court. (ala, ) Modified on 11/2/2010 (ala, ). (Entered: 10/26/2010)

Case: 2:06-cv-04340-EEF-SS As of: 07/19/2012 03:04 PM CDT 20 of 20

10/25/2010 10/28/2010

220 Appeal Record Returned (original exhibits and/or non−electronic documents) from U.S. Court of Appeals: 177 Notice of Interlocutory Appeal.The electronic copy of the record has been recycled. (ala, ) (Entered: 10/26/2010)
221 JUDGMENT entered in favor of Defendants Decatur Hotels, L.L.C., F Patrick Quinn, III and against Plaintiffs Daniel Castellanos−Contreras, Oscar Ricardo Deheza−Ortega, Rodolfo Antonio Valdez−Baez, dismissing said plaintiffs' claims with prejudice and costs. Signed by Judge Eldon E. Fallon on 10/28/10.(dno, ) (Entered: 10/28/2010)