The U.S. Department of Labor's (DOL) Administrative Review Board (ARB)
assessed over $250,000 in back wages and a $40,000 civil fine against
a computer consulting company, on June 30, 2005, that had unlawfully
benched H1B foreign national employees. The ARB awarded substantial
back wages to both the employer's current and former employees, even
though the employer attempted to argue that the employees had been
laid off or otherwise terminated.
It is important for employers and employees to understand that there
are legal consequences that will likely follow if there is a breach of
obligations under immigration law. It is important to follow steps to
avoid these adverse consequences.
The common thread for all of the employees who were granted back wages
was that the consulting company had never notified the U.S.
Citizenship and Immigration Services (USCIS) (or its predecessor, the
Legacy INS), that it terminated the employment of any of the
employees. The company asserted that the USCIS has the authority to
determine when termination has occurred. The ARB disagreed with the
employer, since it asserted that the DOL's wage and hour division has
the authority to decide what wages are due to an employee.
The company argued that some employees were never authorized to enter
the U.S. H1B visas were granted to these employees, however, because
the company had filed H1B petitions and sent assertions to the
consulates that the employees were needed. The employees worked in-
house for the company and/or visited or called the headquarters
routinely to inquire about work. They were not paid while working at
the company's headquarters. Neither were they paid when they were not
working, but awaiting projects. The ARB agreed with prior findings
that these employees were also entitled to back wages.
Some employees worked on projects intermittently. These employees were
not paid during the periods when they were not working on projects.
The employer claimed that these periods were leave-without-pay or
should be considered as terminations. The ARB rejected the employer's
arguments, holding that the employer is responsible for paying for
involuntary leaves of absence until there is a proper termination of
employment.
The ARB indicated that the DOL's Wage and Hour Division Administrator
had proven a pattern and practice of failure to pay back wages through
persons who testified against the employer. Therefore, the ARB found
that persons who did not testify, but fell under the same pattern,
were also entitled to back wages.
http://www.greencardapply.com/news/news08/news08_0326.htm |
248765. Consulting Company Assessed H-1B Back Wages and Penalties
248765. Consulting Company Assessed H-1B Back Wages and Penalties
248765. Consulting Company Assessed H-1B Back Wages and Penalties
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