05.14.09

H-1B Employee and Benching claim

Posted in Recent Decision, statements at 5:42 pm by Lalita Haran

An H-1b employee must be paid the LCA wages from the start of employment whether or not offered any work. Often employers ignore this obligation and pay lower than the required rate when the h-1b employee is placed in non productive period aka impermissible benching.

The worker could raise the back wages claim with the Department and the agency’s wage and hour division is authorized to investigate the complaints. If the DOL agrees to investigate the claim, the employer must cooperate with the investigator and furnish the needed information and records or face penalties. Although, the employer could question levy of improper penalty amount.

An H-1b worker must be paid the required wage rate i.e. higher of the prevailing wage and the actual wage. Wages should be paid if the reason for non productive benching is employment related i.e. the employee did not have work because the employer could not provide the person with work. Reasons may vary from lack of work to lack of permit, license or social security number. Liability does not attach to the employer if there is bonafide termination of employment or if the non productive time is due to reasons not related to employment.

As is evident, it is the employer’s effort to assert that benching was non employment related reason or that the employee was terminated while the employee would say otherwise. In order to avoid the “he said” “she said” situation it is nice to be able to build a well documented case but not always possible. Every case rests on its own facts and success of the case often depends upon how educated the client is and whether took timely steps to protect its interests right from the beginning.

In a recent decision, the Adiministrative Law Judge from New Jersey, decides that employer’s refusal to offer work because employee did not have a social security number on the first day he reported and thereafter did not report to office until after acquiring the social security number is not a good reason to withhold payment of LCA wages.

Also, the employer could not offset the losses it claims to have incurred because the employee violated contract terms. The decision reasons that a breach of contract action is beyond DOL’s authority and thereofre it could not allow such an offset against the obligation to pay the required wages. This decision just reiterates that the obligation to pay LCA wages is foremost to the Department and if the employer had any contractual claims against the employee, however valid, it may not assert the claim before the Department to offset its obligations to pay the LCA wages.