A Filipino nurse was recently awarded back wages for the period that he was not performing work due to lack of assigned work.
Vicente de Dios was petitioned by Medical Dynamic Systems, Inc., a health staffing company, to work as a fulltime nurse manager at a salary of $37.06 per hour. He contended that his H-1B status began on January 28, 2010 but he only worked for 24 hours in March 2010. On May 21, 2010, he was asked by the Marketing Director of Medical Dynamic to look for another sponsor since the company was unable to provide him a job placement. He was offered a plane ticket to go back home. However, after that, it kept communicating with him asking him to attend a few job interviews.
De Dios claimed that Medical Dynamic put him in a non-productive status and failed to perform its obligation under the H-1B petition. He was willing and able to perform his job as a nurse manager but Medical Dynamic attempted to employ him in positions other than what was in the petition. He also claimed that he paid the H-1B filing fees and attorney’s fees to process his application, in violation of H-1B regulations.
According to the decision of the Administrative Law Judge (ALJ), the employer must pay the required wage even if the H-1B worker was in non-productive status. If the non-immigrant worker was unable to perform work due to a decision by the employer like lack of assigned work, the worker was deemed to be “benched”. “Benching” is the nonproductive time that can occur when a company brings H-1B workers to the US and contract them out to other entities instead of use them in their own business. By law, the employer is still required to pay the said worker his required wage rate.
The only time that employers need not pay is if the nonproductive status happened because of circumstances that are attributed to the worker himself and unrelated to his employment like touring the US, caring for ill relative, maternity leave, among others.
The ALJ highlighted that an employer’s obligation to pay the H-1B worker’s back wages extends from the date the worker makes himself/herself available for work or comes under the control of the employer until the time that a bona fide termination of employment relationship was undertaken.
The ALJ ordered Medical Dynamic to pay De Dios for the period starting February 15, 2010, the date when De Dios made himself “available for work” or came “under the control of the employer” up through October 27, 2010, the date when the company made a bona fide termination of employment. It was liable to pay $55,587.20 in back wages for 37 weeks and two days at a rate of $37.06/hour, at 40 hours per week. It was also made liable to pay compound interest for the back wage assessment.
Furthermore, it was also held that the company violated the H-1B regulations when it made the worker pay for his H-1B filing fees and attorney’s fees, therefore reducing his pay. When a worker is asked to pay for the expenses in the filing of his H-1B petition, the ALJ said that it is in effect a wage deduction which would reduce his salary below that required in the petition. In the said case, De Dios paid $3,600 for his H-1B processing, which, according to the decision, was clearly in violation of the regulation. Medical Dynamic was then asked to remit the said amount to De Dios.