In summary, the answer is: yes, the agricultural workers with H-2A visa They can file or join a class-action lawsuit after leaving the United States, as they retain their legal rights once they return to their countries of origin.
In fact, according to Carol Brooke, a lawyer for NC Justice CenterMost commonly, lawsuits are filed after workers have finished their employment. contract and returned home.
“Almost always, the lawsuits are filed after the workers have already left,” Brooke explained to Enlace Latino NC.
This is because, at the federal level, labor lawsuits do not require the physical presence of the plaintiff, and the entire process is conducted through lawyers in the United States.
Lawsuits after leaving the country: a common decision
Brooke pointed out that there are several reasons why many workers decide to file lawsuits once they have already left the United States.
One of the main reasons, he said, is the fear of possible retaliation while continuing to work for the same employer.
“It is very difficult for a worker to take this type of legal action while still working for their employer, as they could face retaliation,” Brooke explained.
“But it’s also because the process of initiating a lawsuit can take a long time, so generally speaking, it doesn’t usually happen before the workers have returned to their homes,” he added.
Most common labor violations in North Carolina
Among the most frequent claims in North Carolina are violations related to wages, illegal deductions, and labor expenses that employers do not reimburse. H-2A workers are reimbursed.
According to Brooke, some workers receive production payments without reaching the hourly wage required by lawIn other cases, employers do not fully reimburse expenses related to visastransportation or other labor costs during the first week of work.
Brooke added that they have also identified situations where workers are charged contracting fees, an illegal practice under the H-2A program.
He added that he has recently observed cases where employers withhold or confiscate workers' passports upon arrival in the United States.
Under federal labor laws, workers can claim all these types of violations (minimum wage, overtime, breach of contract, among others) even after they have returned to their countries of origin.
You might be interested in: How can I protect myself if my employer retaliates against me for claiming what I am entitled to?
Two types of collective labor lawsuits
One of the main legal tools that allows this type of claim is the Fair Labor Standards Act (FLSA), specifically section 29 USC § 216(b), which authorizes workers to file lawsuits “on their own behalf and on behalf of other similarly situated workers.”
This mechanism is known as “collective action”, or opt-in collective action.
“A class action is a type of lawsuit filed under a specific law: the Fair Labor Standards Act, which regulates minimum wage and overtime pay,” Brooke explained. “This law requires that workers who wish to file a claim affirmatively join the lawsuit by signing a document. Otherwise, they will not be included.”
On the other hand, so-called "class action lawsuits", or traditional collective lawsuits, work differently.
In a “class action lawsuit”, if the court certifies the case as a class, the workers included automatically become part of the lawsuit, unless they choose to opt out.
“They have the option to opt out of the lawsuit and decide not to participate; however, if they do not exercise that option, they will be included,” he added.
None of these mechanisms, however, require that workers remain physically in the United States or continue to be employed by the same employer in order to participate in the lawsuit.
How does the legal process work in collective labor lawsuits?
Brooke commented that most of the judicial process takes place outside the courtroom; therefore, all aspects that occur before and during the trial can be carried out remotely, while maintaining good communication with the lawyer.
“Sometimes a dispute arises as to whether it is acceptable for workers to testify remotely; however, as a general rule, the courts allow it and the process can continue,” Brooke said.
However, if the case goes to trial, in some cases the workers may need to travel to the United States, which could involve manage temporary visas or coincide with their return to the country under a new employment contract.
“The only unknown arises if the case goes to trial. In those cases, the workers might need to be present, although it is not always strictly necessary,” he added.
This is how the legal process for H-2A workers typically unfolds:
| Stage | What's going on? | Is the worker's presence in the U.S. required? |
| Presentation of the claim | The lawyer files the lawsuit in court and the employer responds. | No |
| Information exchange (discovery) | The parties exchange documents and answer questions under oath. | No |
| Bowel movements | Testimonies are taken under oath before a stenographer. | No, they can usually be done via Zoom. |
| Conciliation / Mediation | The case is usually resolved by agreement between the parties, with or without a mediator. | No |
| Trial (if it occurs) | If there is no agreement, the case goes to trial. | Sometimes it may require the physical presence of the worker. |
Are there deadlines for filing a collective labor lawsuit?
Are there deadlines for filing a class action lawsuit?
| Type of claim | Approximate timeframe for filing the lawsuit |
| Claims related to wages, pay for hours worked, or workers' compensation | Generally between 1 and 3 years |
| Other labor claims | The timeframe may vary; in some cases it may be longer or shorter, although it is generally longer. |
“They shouldn’t wait too long to consult with someone about a possible claim,” Brooke said.
How long does this process take?
It usually depends on the type of claims the person has and how complex they are. Brooke notes that, generally, in cases of class action lawsuits filed in federal court, the process typically takes about three years.
“It’s a long process, unless the employer is highly motivated to resolve the matter early and is willing to engage in the relevant discussions,” he added.
Related: What are the consequences of overstaying your H-2A work visa?
Other Recommendations
- Keep copies or photographs of important documents (for example: pay stubs, contracts that were given to you, or any type of document that you are asked to sign while you are working).
- Maintain detailed records of hours worked and number of pieces collected each day (especially in cases of "over-the-clock work" or piece-rate pay).
- Take photographs of your workplace that include: timestamp and GPS location. (This can help the lawyer determine exactly where the workers perform their duties.)
According to Brooke, these steps are not mandatory, but they can be very helpful. The lawyer also mentioned that, in addition to the NC Justice Center, the Farmworker Unit of Legal Aid of North Carolina It also handles a large amount of litigation on behalf of workers, and they often work together.
“They are another excellent resource for those workers who are in Mexico and want to talk to someone about their legal claims,” Brooke said.
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After the storm
A year ago, Hurricane Helene struck western North Carolina. The Latino community responded with something stronger than the storm: solidarity.
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