DOL Awards Back Wages for Benched H-1B Worker
By sponsoring a foreign national employee for H-1B, H-1B1, or E-3 status, the employer attests that for the period of authorized employment, it will pay the employee the required wage rate as listed on the Labor Condition Application. The wage obligation is present even when the worker is in a period of nonproductive status for reasons related to the employment, such as a lack of assigned work. If an employer fails to pay the worker the required wage rate, the employer may owe the worker back wages.
This scenario recently occurred and can be seen as a cautionary tale for employers. In May 2016, the Department of Labor awarded a former H-1B employee over $55,000 for wages the employee was owed between February and October 2010. The employer, a medical staffing firm, sponsored the employee for H-1B status in a Nurse Manager position, which was approved on January 28, 2010. The employer subsequently set up several interviews for the employee at health care facilities. However, the employee only worked a total of four (4) days and was only paid for those days. Thus, the employee was “benched” for all but four (4) days of his employment with the employer.
The employer refused to pay the employee for the remainder of the unproductive period and argued that the period of unproductivity was due to conditions caused by the employee, which were unrelated to the employment. It argued that none of the health care facility clients wanted to utilize the employee’s services because of the employee’s lack of experience and uncooperative attitude. Additionally, the employer set up several interviews to which the employee failed to appear without explanation.
The employee argued that the interviews were for positions unrelated to his H-1B position, and he had trouble attending the interviews due to his limited resources for transportation and clothing. Ultimately, the DOL was unconvinced by the employer’s assertions. It held that the employer did not meet its burden of proving that the employee refused to work for reasons unrelated to employment, and under the Regulations, the employer is obligated to pay the employee while he was waiting for assignments and interviews.
Bottom Line: Employers should consult with experienced immigration counsel regarding their obligations to pay H-1B, H-1B1, and E-3 workers, even during periods of unproductivity.
Please contact Kristin Kelley, Jenifer M. Brown, Christl P. Glier or any member of Ice Miller’s Immigration group for more information.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.