Monthly Archives: November 2008

Will I Be Deported If I Complain Against My H-1B Employer?

You know your employer is violating the law. Perhaps, he has benched you with no pay; is paying you less than the required wage; has you sending out resumes instead of writing a computer program.

So why do H-1B employees put up with this situation?

One of the main reasons an H-1B employee tolerates exploitation rather than filing a complaint against the employer is fear of being deported.

This fear is understandable, but protections do exist. Specifically, regulations prohibit the employer from threatening you and retaliating against you if you complain about his violations of the law. 20 CFR 655.801.

Read the full article on the blog H1BLegalRights.com.

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Filed under Employee Tip - H-1B

5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee

 

 

If your H-1B employer (or former H-1B employer) underpaid your wages, you may be interested in complaining to the employer or pursuing legal action, but worried about what may happen to you. You may be worried that, if you complain about unpaid wages, you may lose your H-1B status, and be subject to deportation.

These are realistic concerns. Pursuing your legal rights indeed is a serious and delicate matter. You should thoroughly educate yourself on your legal rights and options before you take action or assume risks.

However, you should know that an underpaying H-1B employer has its own risks to worry about. The legal and financial consequences that an employer faces if found to have underpaid an H-1B employee’s wages could drive the employer out of business.

Rather than face the risks that result from a worker filing a legal complaint, fraudulent H-1B employers will often prefer to reach a settlement with an underpaid H-1B worker.

Fraudulent H-1B employers may well agree to a settlement that: (a) pays you your unpaid wages (and possibly more, given the possibility of legal penalty monies in addition to wages); (b) fixes any immigration-status problems (e.g. makes sure you receive valid payments and paystubs needed for H-1B transfer); and (c) agrees not to retaliate against you.

Below are 5 reasons why an underpaying H-1B employer should agree to such a settlement.

(Please note: This article is NOT advising you to demand settlement from your employer, to threaten your employer with legal action, or to take legal action. Before trying to negotiate a settlement or filing a legal complaint on your own, it is strongly advised that you talk to an attorney, such as an H-1B rights attorney and immigration attorney, about your own specific circumstances and legal options).

 

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H-1B Workers’ Fears vs. Fighting for Your Rights

Fear is the biggest factor that holds many H-1B workers back from approaching their employer (or former employer), and asking for their underpaid wages, or from taking legal action.

H-1B workers do in fact have several options and legal rights. Some of those rights are very powerful.

However, those rights will not do you any good unless you are willing to pursue them. To fight to enforce your rights. To make educated and bold decisions, and stick to them. To know that, in order to achieve what you want to, you will have to take on some risks.

A fraudulent H-1B employer has many more risks than an underpaid H-1B worker does. Many H-1B employers would be willing to discuss an amicable settlement with an underpaid H-1B worker rather than deal with a legal action, and face the potentially severe liabilities. Yet the employers don’t seem to worry nearly as much as do the H-1B employees.

If you are an H-1B worker, and are too fearful to talk to your employer about unpaid wages, I can understand where you’re coming from, and I could never judge you for feeling that way.

However, I do ask that you not contact me, asking me to spend hours of time discussing legal rights that you know you’d never pursue anyway, because of your fears. Only if it’s possible you could commit to assuming some risks and pursuing your rights could an attorney possibly help you.

If you don’t take action, you may well face risks (e.g. an employer’s underpayments could be hurting your immigration status). If you do take action, you may well face risks (e.g. the employer may threaten deportation). You’ve got to deal with your situation.

In dealing with your situation: (1) don’t let fear control you; (2) know the risks are there, and that you must deal with them; (3) educate yourself about your legal rights and options; (4) learn what options present the lowest risks and highest potential benefits; (5) make an educated decision; and (6) don’t second-guess yourself. Only if you are willing to overcome your fear and accept risks would you have any chance to obtain what you’re owed, and to improve your immigration status and options.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

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Filed under Employee Tip - Considering a Legal Action, Employee Tip - H-1B, Employee Tips - Unpaid Wages

Does Your Employer’s Termination Decision “Radiate” Bad Faith?

Employees who are fired are often frustrated that employers’ stated reasons for firing the employees are not the real reasons.

“We all know you fired me because I had surgery last month, not because you really believe my form work error was an ‘intentional falsification.’ If that were the case, you would have fired the other two people who made the same error.”

When you sense you were treated unfairly, there is an immense frustration that goes along with that.

Perhaps more frustrating is the fact that it’s often hard to prove you were mistreated, and to disprove the employer’s false statements.

“Judge, the employer fired me right after my surgery. They don’t really believe I ‘intentionally falsified’ documents. Two other employees, Joe Smith and Sally Jones, made the same error and they weren’t fired…. No, I don’t have any documentation showing Joe and Sally’s errors- the employer keeps that, and they say they don’t have it…. No, Joe and Sally won’t testify on my behalf- they still work for the employer, and are scared they will lose their jobs…”

Such are the real world obstacles of pursuing employment litigation against an employer. It’s often hard to prove things. But it’s not impossible… if you stay at it. In fact, if you are in the right, it is inevitable you will find proof if you stay at it.

If you are willing to talk to all the possible witnesses out there, read all the documentation out there (sometimes thousands of pages), and work hard at working around the employer’s misstatements and barriers, you should find strong proof of the type you are looking for.

If the employer is truly acting in bad faith, they will have slipped up. Somehow, somewhere. Typically, in many places and instances.

An employer can cover-up that which is easy to be covered (e.g. discard documentation showing others’ form work errors), but an employer cannot cover up its character, or the long-term record and impressions that its values imprint on its environment over time.

If it is part of an employer’s values to treat people with medical problems unfairly, then those values will inevitably manifest themselves in many places and in many ways. More ways than can be covered or bottled up.

Initially after you are fired, you may not have much proof to go on- not much more than the strong impression that the employer is acting in bad faith.

This brings to mind a quote from William George Jordan:

Into the hands of every individual is given a marvelous power for good or evil-the silent, unconscious, unseen influence of his life. This is simply the constant radiation of what man really is, not what he pretends to be.

At the beginning of your employment dispute, you may not be aware of much, other than the strong sense that the employer “radiates” bad faith.

But if that radiation is disconcerting, you may choose to investigate further. And if you work at it hard enough, what you find may help you in litigation. Help you repair old harms, or prevent new ones.

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Filed under Philosophy - Employee Rights