ELLENTON — The U.S. Department of Labor is assessing an Ellenton farm more than $1.3 million in back wages for foreign labor, but the farm’s owners argue that the wages are for time the laborers weren’t working.

Following an investigation, the Department of Labor’s Wage and Hour Division is assessing J&R Baker Farms LLC $1,311,644 in back wages it says  is owed to 244 workers and $136,500 in fines for violating provisions of the H-2A temporary agricultural worker program.

The department’s Office of the Solicitor has filed a request with the department’s Office of Administrative Law Judges to hold a hearing to enforce the department’s findings against the agricultural employer.

“Low-wage workers in every industry, including agriculture, deserve no less than to receive all the wages they have earned,” said Secretary of Labor Hilda L. Solis. “The Labor Department is committed to protecting the rights of all workers, including those under the H-2A temporary employment program who are working in our country.”

Agricultural employers who bring temporary, non-immigrant workers into the U.S. to perform agricultural labor or services of a temporary or seasonal    nature must meet requirements of the Immigration and Nationality Act with respect to pay, hours of work and other conditions of employment, the Department of Labor said in a press release. Both temporary, non-immigrant farm workers and U.S. workers doing corresponding work are protected under Section 218 of the act.

The Wage and Hour Division found that the vegetable farm allegedly failed to provide at least 75 percent of the hours promised in the work contract. The solicitor is asking that an administrative law judge order the farm to pay $1,311,644 in back wages to 148 U.S. workers and 96 H-2A workers plus pay a fine of $122,000.

But Jerod and Rodney Baker argue that’s a stiff penalty for what amounts to a reporting error.

The Bakers said the laborers in question worked at the farm in spring of 2008 as part of a 10-month contract. They picked the spring crop, but after that J&R Farms had no more work for them to do. Jerod Baker said some wanted to go home to their families. They promised to be back for the fall crop, so the farm didn’t report them to the Labor Department as they were supposed to do. The workers didn’t come back, he said.

“These people left and we were supposed to report them within two days, and we didn’t,” Baker said.

The $1.3 million is “what they’re wanting us to pay for the time they didn’t work,” Rodney Baker added.

Jerod Baker said the farm had hired a lawyer to fight the Department of Labor ruling, but so far a hearing has not been scheduled.

The Department of Labor said its investigation also discovered that the farm failed to provide a copy of the H-2A work contract at the time of recruitment to 29 U.S. workers who performed the same type of work as the H-2A workers. The department is recommending a fine of $14,500 for that offense.

Baker said he believes all workers received the contract.

The whole episode prompted J&R Farms to leave the H2A program in spring of this year, Baker said, but its attempt to rely on a domestic work force turned out even worse.

“We lost maybe a million and a half dollars by trying to depend on somebody who said they’d work and didn’t,” he said.

They returned to H2A for temporary labor for the fall crop.

The Wage and Hour Division enforces worker protection laws that include the Fair Labor Standards Act, the Migrant and Seasonal Worker Protection Act, the Occupational Safety and Health Act’s field sanitation and temporary labor camp provisions, and protections for guest workers with H-2A visas provided by the Immigration and Naturalization Act.

This case was investigated by the division’s Atlanta Regional Office.

Information on federal laws concerning minimum wage, overtime, and migrant and seasonal agricultural workers is available by calling the division’s toll-free helpline at 866-4US-WAGE (487-9243) or on the Internet at http://www.dol.gov/whd.