Shucker for a day Reporter learns how guest workers earn a living on Mississippi coast

Documented H-2B workers shuck oysters at Crystal Seas Seafood in Pass Christian Thursday, February 18, 2016. The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. (David Grunfeld/NOLA.com)

A two-year-old legal dispute involving pay for Mexican guest workers at a coastal Alabama oyster processor has ended with an $86,500 settlement approved this week in district court.

Via a statement released late Thursday, the company, R&A Oysters, said it was "pleased this matter is settled and will no longer be a distraction for the growing family business." The company statement also said that "R&A has never sought to take advantage of its labor force, whether U.S. citizens of H-2B visa workers, and has always paid highly competitive wages."

The class-action complaint supported by the Southern Poverty Law Center was filed against R&A in December 2014, according to court documents made available by the SPLC. It alleged that from 2008 onward, R&A employed more than 100 migrant workers using H-2B temporary visas "because of an apparent shortage of U.S. workers."

More than 50 of the workers, employed primarily to shuck and process oysters, were represented in the suit. A major portion of the complaint was that because the workers had to pay various fees and travel expenses, and because R&A deducted tool and equipment costs from their pay, their pay effectively fell below minimum wage at times. About half the settlement amount, however, related to a claim that the company had retaliated or threatened to retaliate against some of the plaintiffs by withdrawing offers of employment.

R&A's statement attributed the pay issue to uncertainty over laws at the time, saying, "It is important to note the lawsuit was very limited in its scope, with the H-2B visa workers claiming they were underpaid only in the first week they worked in each season as a result of R&A's failure to reimburse the workers for visa and travel expenses incurred in reaching R&A's plant in Mobile. There were no ongoing daily, monthly, or weekly underpayments. To clarify, R&A did not refuse to reimburse the H-2B visa workers' expenses; the H-2B workers never asked to be reimbursed. At the time R&A was uncertain of its legal obligation to reimburse the H-2B workers for their travel expenses. While it is now clear in the Eleventh Circuit (which includes Alabama) that companies employing H-2B visa workers are obligated to reimburse such expenses, the courts and the U.S. Department of Labor were often divided on this obligation during the time period covered by the lawsuit, 2008 to 2015."

In his preliminary approval of the settlement, District Judge William H. Steele wrote that most plaintiffs would receive about half the money they had sought. "Given the uncertainties raised by the defendants' arguments ... as well as the vagaries of the trial process, the Court preliminarily finds this to be a fair and reasonable settlement percentage," Steele wrote.

Of the overall settlement "pot" of $86,500, $42,654.86 was allocated to settle contract claims and the remaining $43,845.14 was earmarked to settle retaliation claims.

"The proposed settlement, reached after almost two years of energetic litigation and after extensive mediation, appears on its face to be the result of good faith negotiations, and the Court detects no obvious fatal deficiencies," Steele wrote.

"We are glad that this case has been resolved," SPLC staff attorney Meredith Stewart said in a release announcing the settlement. "Wage theft and retaliation are unfortunately common in guest worker programs. Guest workers make important contributions to our economy, and we must ensure they are treated fairly and with the respect they deserve."

On the issue of retaliation, the R&A statement released Thursday said, "In addition, R&A notes that the Court dismissed the workers' claims for purported violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), retaliation under the AWPA, and those claims brought under a third party beneficiary contract theory. Further, is was R&A who initiated the settlement of the Fair Labor Standards Act (FLSA) claim in March 2016 for strategic reasons. Once the Court approved settlement of the FLSA claim, the only remaining claims of the H-2B workers were for breach of contract and retaliation under the FLSA, which was brought by only seven (7) of approximately fifty-one (51) H-2B visa workers involved in the lawsuit. While R&A was confident in its chances had this case gone to trial, it made sense from a business perspective to settle the case."

The R&A statement said that the company looked forard to being able to "focus on its continued growth in Mobile County."

According to the R&A Oysters website, the operation is a family-owned company in business for more than 30 years. The company boasts selling more than half a million oysters a week.

In October, Rodney Fox was highlighted as the Oyster Processor of the Month by Alabama Gulf Seafood. In an interview posted at www.eatalabamaseafood.com, Fox said that after Hurricane Katrina washed away his oyster processing plant in Louisiana, he moved to Bayou La Batre. There he leased a plant that he later bought and expanded.

"A new modern, automated plant was just built and we have been busy moving into it," Fox said. "We start our day around 6 a.m. and go to each plant and process oysters. My sons also work with me now, so it has been nice to turn it into a family business."

In the interview, Fox says that his combination of Louisiana connections and an Alabama location helps give the company a strong position in the Gulf Coast seafood industry. He says that "We are also farmers with our own boats and land that allows us to get our own product" and that the company has its own trucking system as well.

Note: This story as updated at 4:45 p.m. Thursday, Dec. 8, to include information from a statement released by R&A Oysters.