As a recent decision by the Department of Labor’s Wage and Hour Division illustrates, employers of H-1B nonimmigrant workers continue to face intense scrutiny from government agencies.
Under the H-1B program, employers may temporarily hire foreign workers in professional occupations if certain conditions are met, including paying H-1B workers the same wages as U.S. workers for the same job, or the prevailing wage for the position in the area of intended employment, whichever is higher. The Department of Labor’s Wage and Hour Division is responsible for enforcing the H-1B worker protections, as well as other labor laws including minimum wage, overtime pay, recordkeeping, child labor, family and medical leave, and migrant workers.
In Case No. 2010-LCA-00010, the Wage and Hour Division found that a New Jersey employer had taken advantage of H-1B workers by failing to compensate them properly. In addition, the employer failed to post notices that H-1B workers were being hired, thus preventing U.S. workers who might have been qualified for the jobs from applying for them because they were unaware the opportunities existed. The employer agreed to pay $638,449 in back wages and interest to 67 workers, as well as $126,778 in civil money penalties and interest for failing to provide proper notice and for filing lawsuits against H-1B workers who quit their jobs, which also is prohibited by the H-1B regulations. The employer also was barred from participating in the H-1B program for a period of one year.
In commenting on the case, the Wage and Hour Division stated that since 2005 its investigations have resulted in the payment of more than $5.6 million in back wages and $300,000 in civil money penalties in New Jersey alone. It cited the most common employer violations as failing to post the required notice at every worksite where an H-1B employee may work and failing to pay the required wage.