Full opinion text
HAYNES, Circuit Judge, joined by EDITH H. JONES, Chief Judge, and E. GRADY JOLLY, JERRY E. SMITH, EMILIO M. GARZA, BENAVIDES, OWEN and LESLIE H. SOUTHWICK, Circuit Judges, in full; joined by KING, W. EUGENE DAVIS, CARL E. STEWART and PRADO, Circuit Judges, as to Section III.A. only: A group of hotel workers present in this country under H-2B visas (“the Workers”) sued Decatur Hotels and Patrick Quinn (collectively “Decatur”) alleging violations of the Fair Labor Standards Act (“FLSA”). Decatur moved to 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 See Castellanos-Contreras v. Decatur Hotels LLC, 559 F.3d 332 (5th Cir.), withdrawn and replaced by 576 F.3d 274 (5th Cir.2009).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 banc review was granted, thus vacating the panel opinion. Castellanos-Contreras v. Decatur Hotels 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 American 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 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 to pay (1) 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 them 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 finding 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 banc court agree that the FLSA applies to the Workers in the situation before the court. However, the parties disagree on the 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 banc rehearing and following reargument of the case, we now issue this opinion, again finding jurisdiction and reversing the district court on the merits. II. 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. Tanks v. Lockheed Martin Corp., 417 F.3d 456, 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, 836-37 (5th Cir.2009), but review only extends to controlling questions of law, Tanks, 417 F.3d at 461. Further, the court’s inquiry “is limited to the summary judgment record before the trial court.” Martco 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. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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. Civ. 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. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Discussion A. Jurisdiction The jurisdiction question presented to the en banc court breaks down into two parts: (1) is there appellate jurisdiction 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. 1. Appellate Jurisdiction The Workers contend that the district court only certified the question of whether the FLSA generally applies to the Workers, ie., 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 of the “merits” question of whether the disputed expenses are ever chargeable against wages paid. We agree with Decatur. 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 matters to be “factual issues,” ie., 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 of law, 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. v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996); see Melder v. 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 (11th 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). If the 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 Halter 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 question’ provide grounds for reversal of the 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 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 identified controlling question.’” (quoting Yamaha, 516 U.S. at 205, 116 S.Ct. 619)); Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 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, 109 S.Ct. 196, 102 L.Ed.2d 166 (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. 11 (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 of the “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. 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. But 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 banc 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. 1. 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 (ie., return) must be paid for H-2B workers under certain circumstances and that inbound expenses for H-2A workers require reimbursement, but no statute or regulation expressly requires reimbursement for inbound travel for H-2B workers. See 8 U.S.C. § 1184(c)(5)(A) (requiring payment of outbound transportation costs in certain circumstances for H-2B workers); 20 C.F.R. § 655.102(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. § 40.1(l)(1) (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), 103.7(b)(1), 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 of the trade” pursuant to 29 C.F.R. § 531.35 (2010), such that their payment of these expenses are “de facto deductions” from their 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 Serv., 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). 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. 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 in 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, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Thus, even “ ‘congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.’ ” Landgraf v. USI Film Prods., 511 U.S. 244, 272, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (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 retroactively. 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. Significantly, the Department did not address the issue of reimbursing relocation expenses until 1994. At that point, the Department announced it would analyze the issue of reimbursement and adopted a position of non-enforcement during its deliberations. The first time the Department specifically spoke to reimbursement in the context of alleged “kickbacks” like those at issue here was its announcement in 2008 that it would not require reimbursement. The Department then reversed itself 98 days later to assert for the first time that reimbursement was required. Carefully read, the Department of Labor 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 clear, unequivocal stance that employee-incurred relocation costs constitute a kickback. Thus, this inconsistency and ambiguity— 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 F.3d 1228 (11th Cir.2002), to support their position. Am aga, however, dealt with H-2A workers, not H-2B workers. Id. at 1232-33. Historically, H-2A and H-2B workers have been treated differently. Compare 20 C.F.R. §§ 655.90-113 (2007) (broadly setting out a distinct regulatory regime for the management of the H-2A program) with 20 C.F.R. §§ 655.1-.4 (providing the regulatory regime for H-2B workers) (2007); see also Sweet Life v. Dole, 876 F.2d 402, 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 reimbursable, and the district court erred in denying Decatur’s motions on these points. 2. Recruitment Expenses The Workers raise some of the same arguments regarding the recruitment expenses, and we will not repeat our analysis of those arguments. 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 are presented as to the nature of the 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 use 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. 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 of using 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 raised on this point. Newly enacted Department of Labor regulations (promulgated after the time in question) actually support the conclusion that recruitment expenses were not 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. Accordingly, we REVERSE the district court’s judgment and REMAND for entry of judgment in favor of appellants. REVERSED and REMANDED for entry of judgment. . The term "H-2B visa” refers to a visa authorized by 8 U.S.C. § 1101(a)(15)(H)(ii)(b). . 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 participate in the lawsuit. . Moreover, the Workers conceded at oral argument that the jurisdictional question that remains before the court is purely prudential. . As defined by 8 U.S.C. § 1101(a)(15)(H)(ii)(a), "H-2A” workers include only those individuals temporarily relocating to the United States to perform "agricultural labor and services." Conversely, "H-2B” workers include only those individuals temporarily relocating to the United States to perform other non-agricultural labor or services. . The Workers also contend that wages must be paid “free and clear” and that the singular exception contained in 29 U.S.C. § 203(m) supports their position. See 29 U.S.C. § 203(m) (permitting an employer to deduct from wages the cost of furnishing meals and lodging). Section 203(m) does not directly impose liability 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 question of whether these are expenses that the employer is legally required 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 in 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 alien's stay in the United States.” 8 C.F.R. § 214.2(h)(2)(i)(D) (2010). In other words, the employee does not have to return to his or her home country and start from the beginning in order to change employers once in the United States. It 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 Hurricane Katrina. . Notably, the Workers make no effort to rely upon the Department's recently revised "interpretations” 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 issue — should not inform the court's understanding of the statute. . We acknowledge that the regulatory landscape is now very different than it was just a 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 dissenting opinion suggests, claim that the Secretary’s amicus briefing is entitled to no deference because the Bulletin and briefing were filed after the events giving rise to this suit. Rather, the Secretary contends, paradoxically, that the position of the Department has remained the same for fifty years save a 98-day period but also concedes that the Department publicly informed employers it would suspend the enforcement of FLSA standards relating to reimbursement issues from 1994 until 2008— when it concluded that reimbursement was not necessary. In short, we decline to engage in the ex post imposition of new duties that did not clearly exist at the time of the events giving rise to this suit under the guise of Auer deference. . The dissenting opinion argues that a 1986 Department letter produced in response to an employer’s effort to settle its outstanding liability constitutes an earlier pronouncement of the Department’s position. Properly read in context, it is not. The correspondence answers a specific question: whether the Department persisted in its belief that employers could not make transportation deductions that cut into the minimum wage, or, as the employer contended, it had recently adopted that position. The dissenting opinion's quoted language is nothing more than the administrator suggesting that reimbursement likely could be required under the facts of that case. Importantly, the decisions of the district court in the underlying case reveal: (1) the letter addressed agricultural workers(now properly categorized as H-2A workers); (2) the case involved direct payments by the workers to the employer for transportation expenses; and (3) the letter was issued 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 liability existed. Thus, the 1986 letter is exactly the sort of post hoc rationalization in the context of active litigation that the Supreme Court warned will undercut the authority of such agency pronouncements. Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Moreover, as a litigation 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 "interpretation.” While not dispositive, it is noteworthy that the dissenting opinion would hold an employer liable under such a piece of random, litigation-specific correspondence where the affidavits of the very workers at issue in this case do not state that the Workers ever requested or expected reimbursement prior to this litigation. Even now, after all these years, if Decatur 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 within one week of the Workers starting their 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. . The regulations cited have undergone substantial revision in recent years. The 2007 edition of the Code of Federal Regulations is cited because it was that version that the district court considered when it concluded that H-2A and H-2B workers were not sufficiently distinguishable to prevent Arriaga from applying to the instant case. . Because we hold that the FLSA does not obligate Decatur to reimburse the 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 nevertheless bars recovery. . It is noteworthy, however, that even Arriaga did not require reimbursement of the recruitment expenses. . The Workers' suggestion that unresolved fact disputes prevent this court from considering this point is belied by the record. The affidavits submitted by some of the Workers indeed talk about going to foreign recruiters and being 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.” The only tie between the 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 like me ....” The affiant’s "understanding,” without any stated basis for such "understanding” is no evidence of agency tying the foreign recruiter (such as UniverJobs) to Decatur. See Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir.1992) (holding that affidavits offered to support or oppose summary judgment must be based on personal knowledge to create a genuine issue of material fact); see also Fed. R. Civ. P. 56(e)(1). Nor is there any evidence of a contract between UniverJobs or the other foreign recruiters and Decatur. Thus, even if we were to follow Rivera’s reasoning, it would not apply here. . 20 C.F.R. § 655.22(g)(2) (2010) and 8 C.F.R. § 214.2(h)(6)(i)(B) (2010).
DENNIS, Circuit Judge, dissenting, joined fully by JENNIFER WALKER ELROD, Circuit Judge; and joined in Sections I and II only by KING, W. EUGENE DAVIS, CARL E. STEWART, and PRADO, Circuit Judges. The majority opinion (1) 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, contrary 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, transportation 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 are 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 within 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 of its regulations. In its erroneous ruling, the majority opinion creates a split between us and the Eleventh Circuit and establishes a circuit precedent that permits employers to 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. § 1292(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”). 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 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 dismiss 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 it 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 court 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 of the Hotel Workers, it does not heed the Supreme Court’s decisions that require federal courts to give deference to the DOL’s reasonable interpretation of its valid regulations under the FLSA. The majority does not attempt to reconcile its 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 eongressionally 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 of visas, 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)(1) (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, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished 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. v. Coke, 551 U.S. 158, 165, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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, 104 S.Ct. 2778; United States v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 150 L.Ed.2d 292 (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, 127 S.Ct. 2339 (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), in turn quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), in turn quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (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 opinion letter, 1994 Handbook, and amicus brief .... ”); see also IntraComm, Inc. v. Bajaj, 492 F.3d 285, 293 (4th Cir.2007) (noting that “the Secretary[ of Labor]’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 interpretation of its own regulations through, for example, Opinion Letters.”). 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 minimum 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, 127 S.Ct. 2339. 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, 127 S.Ct. 2339. 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 clear.’ ” 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-baek” 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 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. See also in this connection § 531.32(c). Id. § 531.35. 29 C.F.R. § 531.32(c), the provision cross-referenced in § 531.35, 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 “[sjafety 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.” Id. § 531.32(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 deducted from his or her minimum wage despite reducing it below the statutory minimum. Id. § 531.32(a). Such expenses, the regulation explains, “must be something like board or lodging.” Id. By contrast, it continues, they cannot include transportation costs where those costs are “incident of and necessary to the employment.” Id. The majority opinion does 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 at Home, 551 U.S. at 171, 127 S.Ct. 2339 (citing Auer, 519 U.S. at 461, 117 S.Ct. 905). 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 minimum in the first pay period. Because the majority opinion contends incorrectly that the DOL did not interpret its regulations to require reimbursement of employees for any such costs prior to 1994, a detailed examination of the agency’s interpretations is necessary. Starting on May 11, 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 of wages.” Wage-Hour Opinion Letter, dated May 11, 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 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 work-site.”). Thus, contrary to the majority’s assertion, a careful reading of the DOL’s prior interpretations reveals that (1) 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 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. In its Bulletin’s interpretation, the DOL reads the pertinent regulations, 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. The Bulletin explains that this has always been the DOL’s interpretation of the relevant regulations, except for a short-lived interpretation by the DOL issued in December 2008. That single inconsistent interpretation was issued on December 19, 2008, but was withdrawn 98 days later, on March 26, 2009. 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, 78039-78041 (Dec. 19, 2008) (containing the 2008 interpretation); Withdrawal of Interpretation of the Fair Labor Standards Act Concerning Relocation Expenses Incurred 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 floor. 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 of its longstanding interpretation of the FLSA in the particular H-2B context, is entitled to substantial deference. The Secretary states that the DOL does not have sufficient facts in this ease to express a view regarding whether Decatur ultimately must reimburse the Hotel Workers for their outlay of recruitment 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 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.” Finally, the Secretary concludes that “an employer would be responsible for paying for ‘de facto recruitment fees charged for access to the H-2A program,’ ” and that “[similarly, 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 recruiter.” 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 462, 117 S.Ct. 905. See also Long Island Care at Home, 551 U.S. at 171, 127 S.Ct. 2339 (“Where, as. here, an agency’s course of action indicates that the interpretation 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 rationalization]’ advanced by an agency seeking to defend past agency action against attack.” Auer, 519 U.S. at 462, 117 S.Ct. 905 (alteration in original) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (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.” Id. 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.” Id. at 462-63, 117 S.Ct. 905. 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 of the 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 first pay period caused it to pay the Hotel Workers sub-minimum 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 of its regulations, they were not the primary beneficiaries of Decatur’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 its own erroneous view of the DOL’s regulations rather than the Secretary’s or the DOL’s interpretations of them, 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 of law. The Secretary stated in her amicus brief that under these regulations there 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 of their employment by Decatur. See Declaration of Rodolfo Antonio Valdez-Baez (Recruiters provided Valdez-Baez a contract to work for Decatur, presigned 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