Staffing and other companies that hire nonimmigrant
workers through the H-1B program must remember to pay its nonimmigrant employees
the required wage rate throughout their employment, even during breaks between
staffing assignments. Failure to do so may result in significant back pay
awards, as described in a recent Department of Labor press
As summarized in the press release, the H-1B program
authorizes employers that cannot obtain needed business skills and abilities
from the US workforce to hire qualified nonimmigrant workers who are not
otherwise authorized to work in the United States. Before authorization
is granted, however, employers must attest to the DOL that they will pay wages
to the H-1B workers that are at least equal to the greater of the wages paid by
the employer to other workers with similar experience and qualifications or the
prevailing wage for the occupation in the area of intended employment.
According to the DOL, a Florida-based health care
staffing agency failed to pay physical and occupational therapists the required
wage rate for the period of time between arrival from their home country, the
Philippines, and reporting to their assigned work sites. Under the H-1B
program, workers must be paid for all nonproductive time caused by their
employers, including the time leading up to or between staffing
assignments. As a result of the DOL Wage & Hour investigation, the
staffing agency paid $134,073 in back wages to 40 nonimmigrant employees working
in fifteen states.
Visit Employment Matters
for additional insights from Martha J. Zackin of Mintz Levin's Boston office.
For more information about LexisNexis
products and solutions connect with us through our corporate site.