Not paying on bench is illegal- DOL CAses

[StopH1bAbuse]

Friends,

Be aware of your rights. Charging for H1B processing is illegal. Charging for any training is ILLEGAL. NOT PAYING ON BENCH IS ILLEGAL. To make things simple for you I am listing all the lawsuits from the following site and summarizing the findings. Dept of Labor has it very clear. Not paying on becnh is illegal. A person is considered on bench if the employment is not properly terminated.

Look at all these cases

http://www.oalj.dol.gov/PUBLIC/INA/REFERENCES/CASELISTS/LCA_DECISIONS.HTM

Charging for H1B processing is illegal. Charging for any training is ILLEGAL. NOT PAYING ON BENCH IS ILLEGAL
2003-LCA-12 Neerja Rajan vs International Business Solutions
2006-LCA-29 USDOL Vs Avenue Dental

You must complain to DOL if you feel you have been wronged. There is no time limit for complaining. You can complain even if you had to leave USA. You can complain from India. The judge will listen to your case on phone. You DON’T NEED A LAWYER. THE DOL WILL FIGHT THE CASE ON YOUR BEHALF. YOU JUST NEED TO MAKE A COMPLAIN TO DOL
2004-LCA-6 Amtel vs Yongmahakapakorn ( Rung)

Employee need not ask for bench pay. Employer must give even without asking
2005-LCA-36 Zhaolin Mao vs George Nasser

Employment is not terminated unless employer does the three things –
1) Give employee notification of termination
2) Inform INS
3) Offer return ticket
2005-LCA-36 Zhaolin Mao vs George Nasser

Employer cannot retaliate against employee( if employee complains to DOL) by cancelling his/her visa. This is because complaining to DOL is protected activity.
2006-LCA-9 USDOL vs Clean Air Technologies
2004-LCA-6 Amtel vs Yongmahakapakorn ( Rung)

Employer needs to pay employee what amount is mentioned in LCA even though employe may be making extra money through other sources
2004-LCA-21 USDOL vs Pegasus Consulting
2006-LCA-29 USDOL Vs Avenue Dental

Employer must pay even though employee has lied in resume
2003-LCA-12 Neerja Rajan vs International Business Solutions

Your LCA doesn’t stop even if you convert to another visa. The employer has to pay you till end of LCA unless there was bonafide termination of employment i.e. notification to INS etc
2004-LCA-21 USDOL vs Pegasus Consulting
2005-LCA-36 Zhaolin Mao vs George Nasser

Interest must be paid on backwages
2006-LCA-9 USDOL vs Clean Air Technologies
2005-LCA-36 Zhaolin Mao vs George Nasser

Employer is personally responsible for the LCA violations. The DOL can make the employer pay from his own pocket by piercing the corporate veil. Company formation doesn’t remove liability of employer as an individual. The bodyshopper cannot declare bankruptcy to run away from his obligations
2001- LCA-10 USDOL vs Mohan Kutty
2004-LCA-40 USDOL vs Home mortgage
2006-LCA-29 USDOL Vs Avenue Dental
2005-LCA-42 USDOL Vs Priority one software

In case employer fails to affect a bonafide termination then backwages need to be paid till end of visa period.
2004-LCA-6 Amtel vs Yongmahakapakorn ( Rung)

Courts will impose additional fines and penalties on employer.
2004-LCA-6 Amtel vs Yongmahakapakorn ( Rung)

Employer cannot mask bench time by deception by making you sign leave of absence letter
2003-LCA-22, USDOL vs Synergy Systems
2002 – LCA-22 USDOL Vs Novinvest

Employer is required to keep LCA ( all immigration papers) for Public examination and give you your visa papers. If employer doesn’t give immigration papers then he cannot terminate you. That means you must be paid as there has been no bonafide termination. The employer is required to keep LCA papers near the *******/coffee room.
2001- LCA-10 USDOL vs Mohan Kutty
2003-LCA-15 USDOL vs Ken technologies
2006-LCA-29 USDOL Vs Avenue Dental

Employer cannot park visa by taking calculated risk
2004-LCA-21 USDOL vs Pegasus Consulting

Courts understand that employee is desperate to maintain his/her visa status and sometimes is late for filing complaint
2003-LCA-12 Neerja Rajan vs International Business Solutions



Most bodyshoppers are willful violators. Civil penalties will be imposed on them
2004-LCA-40 USDOL vs Home mortgage
2006-LCA-26 USDOL Vs API Accounting
2003-LCA-22, USDOL vs Synergy Systems
2001- LCA-10 USDOL vs Mohan Kutty
2006-LCA-29 USDOL Vs Avenue Dental
2006-LCA-26 USDOL Vs API Accounting

[txh1b]

one more significant backwage payment case.

http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/07_008.LCAP.PDF

[madhav_s]

Thanks for such a good set of information.
You'll find that atleast 70% of the H1B employers violate the rules in the US.
They do not give salary on bench, they do not pay salary on time, they threaten the employees who want to leave them and join someother employer etc.

Does this threat also account for a possible legal action by an employee against an employer ?

[txh1b]

This is an opportunity for all those H1b holders that have been taking crap from their employers about bench pay, payment for H1bs etc. The recent enforcement from ICE will make them **** in their pants.

Stand up for your rights and take the steps to maintain legal status and get paid what you are supposed to.

If your employer is holding your immigration papers, not paying you bench pay, paying low wages, threatening you over some crazy half baked agreement, tell them you are not going to take their crap anymore.

Tell them you will complain to DOL on a WH4 form and inform ICE. For all the crap you have been putting up with them, send them this link

http://www.ice.gov/pi/nr/0902/090212desmoines.htm

and ask these greedy blood suckers to decide if they want to drive that Hummer / Cadillac Escalade using your hard earned money or if they want to spend the rest of their lives in a 4 x 6 cell of a federal prison. The choice is theirs. Follow the law and pay the required wages.

If you still want to be oppressed and want to take the abuse from your employers, no one can help you as you are the one that is willing to take crap.

[txh1b]

Here is a link for the lazy to the WH4 form.

https://www.immihelp.com/h1b-visa-em...int-procedure/

[sumangal]

Does complaining to DOL really work ?
I heard of cases where it went in the favour of the employer.

[txh1b]

If your complaint has substance to back it up, it works like a charm. I have never seen an agency as efficient as DOL with regards to complaints. As soon as they get the complaint, they assign an investigation officer that gives you their contact phone number at the local office. They do regular follow ups and inform you about what they are doing with your case. Stop listening to people that just pass on rumors.

[tbc7]

Employers always have option of "Employment at will"

Hi what we can do if the employer threatening you that they will terminate as per the termination policy we signed..we need to listen to them only or is there any way?as they can use that option always....

[txh1b]

Retaliation against a DOL complain with termination is also illegal. That can be brought to DOLs attention again.

[sharkterritory]

Thank you for detailed information

Thank you all for detailed information. I am currently in a similar situation and these references will help me in getting my rightful salary.