Salvadoran H-2A Workers Sue Alleging Unpaid Wages, Unreimbursed Expenses, Unauthorized Deductions, and Retaliation

MOORHEAD, MINNESOTA – Two Salvadoran individuals admitted to the U.S. as H-2A agricultural workers filed a lawsuit against their former employer alleging that they were not paid minimum wages, were unlawfully deducted transportation costs, and were fired in retaliation for speaking up regarding these contract violations.

On June 17, 2024, two former employees of Kusmenko Kustom Farming (“Kusmenko”) filed a lawsuit in the U.S. District Court for the District of North Dakota against the company and its owner, Jason Kusmenko. The former employees seek to recover wages and unlawful deductions related to their 2022 employment contract.

The workers were recruited through the H-2A program, which allows U.S. employers to bring in foreign workers to help fill short-term agricultural labor shortages. The workers, referred to as “H-2A workers,” were hired under contracts that guaranteed payment of federally established wage rates and the timely payment of these wages. Employers using the H-2A program must agree to comply with the U.S. Department of Labor’s (USDOL) H-2A regulations. These include an agreement to reimburse the worker for the reasonable cost of his inbound and outbound transportation, and to not retaliate against or otherwise act adversely against workers who act to enforce their rights under the H-2A program.

The workers contend that they were not paid on a timely basis, nor were reimbursed for the travel costs they each incurred primarily for the benefit of Kusmenko to travel between their hometowns in El Salvador and Kusmenko’s worksite. The unpaid wages and unreimbursed expenses lowered the workers' true hourly rate below the federal minimum wage in violation with federal law.

According to the workers, Kusmenko retaliated against them by terminating their employment in response to their demands for their unpaid wages. The workers lost the opportunity to work with Kusmenko through the conclusion date of their employment contract.

The USDOL published a final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” in April 2024. The extensive rule will go into effect on June 28, 2024.

The workers are represented by Griselt Andrade of the Agricultural Worker Project (“AWP”). The AWP is a project of the nonprofit legal aid firm Southern Minnesota Regional Legal Services (“SMRLS”) and is funded by the Legal Services Corporation.

Agricultural workers, including H-2A workers, can contact the AWP (1-800-652-9733) with questions or concerns about their employment rights in North Dakota or Minnesota.

Contact: Elise Sporre, AWP Project Manager & Outreach Coordinator, elise.sporre@smrls.org