Court Renders Recent Decision Involving H1B Back Pay Award

The US Department of Labor Office of Administrative Law Judges (OALJ) issued a recent court decision dated January 18, 2013 that illustrates legal issues regarding H1B wages and when employers must pay non-productive employees. This case, Administrator, Wage and Hour Division, United States Department of Labor (USDOL) v. North Shore School for The Arts (NSSA), involves an H-1B worker piano teacher, Ms. Natsuko Imai who filed a USDOL complaint against former employer NSSA and demanded payment of back wages for her nonproductive time. The USDOL originally determined that NSSA owed back wages for nonproductive time, and NSSA filed the appeal to OALJ in this case.

When Must the Employer Pay Wages for Non-Productive Time?

Immigration law provides that employers are required to pay wages to their H-1B employees even during non-productive time in which the employees did not work, provided certain circumstances exist. The H-1B worker is entitled to wages during non-productive time when the worker is ready, willing, and able to work. Wages must be paid if the non-productive status results from the employer’s decision or action, not from that of the employee. Subsequently, the employer must pay the worker for at least the amount of hours listed on the I-129 petition and the LCA form.

When is the Employer not Required to Pay Wages for Non-Productive Time?

The employer is not required to pay wages to the H-1B worker for non-productive time when this condition is a result of conditions not related to the employer, but is a result of the worker’s voluntary request and convenience. In this case, Ms. Imai, was asked by her employer NSSA to do certain tasks in addition to her piano teaching duties designed to bring more students to the school. These tasks included answering the telephone, involvement in an outreach program to the Japanese community, and performance at a Buddhist and temple. Ms. Imai refused to perform these tasks. In addition, although she spent several hours at the school, the majority of her time was spent practicing for her own benefit rather than focusing on teaching duties. The OALJ determined that in this case, Ms. Imai was not entitled to back wages because it concluded that her nonproductive time was a result of her actions, not those of her employer.

Employer is Required to pay H1B Attorney Fees and Filing Fees

Immigration law provides that attorney fees and filing fees for the H-1B petition must be paid by the employer. In this case, NSSA paid the attorney fees and filing fees, but then sought reimbursement from Ms. Imai by withholding these funds from her wages. This was pursuant to an agreement between NSSA and Ms. Imai. However, the OALJ determined that such agreement is not permitted, and it ordered NSSA to pay Ms. Imai back for that amount of her withheld wages. The USDOL had originally determined that NSSA owed $16,800 to Ms. Imai in back wages. In this case, the OALJ reduced that amount to $2,980, which was the amount withheld to pay for the H-1B filing.