Monthly Archives: May 2016

Successful DOL Decision for H-1B Worker/Surgeon With Complaint Against Southern Illinois University School of Medicine

An H-1B worker represented by the attorney-author and his co-counsel was awarded $223,884.27 in unpaid wages, in the decision and order below, by the Office of Administrative Law Judges (OALJ) of the U.S. Department of Labor (DOL).

Our client is a surgeon who formerly worked as an H-1B employee for the Southern Illinois University School of Medicine (SIU School of Medicine), in the job position of Assistant Professor in the Department and Division of General Surgery.

OALJ’s order found that SIU SM underpaid the H-1B worker, and failed to pay her the required actual wage, as compared to wages that SIU SM paid other surgeons in the same department and division who had the same Assistant Professor position.

SIU School of Medicine has refused to pay the unpaid wages, and has appealed the order. The H-1B worker has appealed one issue in the order, and will argue on appeal that she is owed over $200,000 in additional unpaid wages related to “clinical” compensation paid pursuant to compensation terms of SIU School of Medicine and its affiliate SIU Physicians & Surgeons, aka SIU Healthcare. She will present legal arguments that per the employer’s terms and arrangements, the “clinical” compensation was not assured (e.g. sometimes it was not paid or was subject to retroactive deductions, etc.) and it did not fulfill H-1B regulatory criteria necessary for the compensation to count toward required wages.

The attorney-author is actively investigating SIU School of Medicine’s wage practices, not only with regard to their employees who worked as H-1B workers, but also with regard to female workers employed by SIU School of Medicine, regardless whether such female workers were employed as US citizens, as H-1B workers or otherwise. 

I would be interested in hearing from physicians or other medical workers who have been employed by SIU School of Medicine anytime during the last seven years and: (1) have been employed as an H-1B worker; or (2) have been a female physician or medical worker of any citizenship or visa status while employed by SIU School of Medicine.

If you wish to discuss any of these matters, please contact attorney Michael Brown at 920-757-2488 or mbrown@dvglawpartner.com.

The referenced DOL decision is below:

 

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Finding an Attorney and the Difference Between an “Employee Rights Attorney”, “Employment Attorney” and “Labor Attorney”

Many workers, understandably (as non-lawyers), misunderstand and misuse the terms “Employee Rights Attorney”, “Employment Attorney” and “Labor Attorney”.

Sometimes, a worker’s misunderstanding doesn’t make a difference. For example, if a worker calls me up and asks if I’m a “Labor Attorney”, then I am able to talk through what his understanding of that term is, see if he is correct, learn about his circumstances and then tell him if I can assist him or, if not, refer him elsewhere. No harm done with such exchanges.

However, sometimes workers block themselves out of good options, attorney-wise, by their misunderstandings of the above terminology, which affects who they seek out (or don’t) in the first place. And not all attorneys will explain key differences between attorney types, or make referrals– heck, sometimes I don’t, e.g. due to time constraints if someone calls me on a hectic day.

So I’ll describe here the differences between the above terms concerning work laws and lawyers.

In the big picture, workers’ and  employers’ legal rights are covered by the global category “Employment and Labor Law” or similar phrases that include both “employment” and “labor”.

“Labor Law”, or a “Labor Attorney”, deal with work laws involving unions. The vast majority of workers in the U.S. are not in a union and as such do not need a labor attorney.  Yet many workers hold the belief (understandably, based on the practical similarity between “labor” and “employment”) that a “labor lawyer” and “employment lawyer” are the same thing. They are not.

Bottom line thus far: if you want legal help with a work situation and you are not a union worker, then you should avoid searching Google for, or contacting, a “labor lawyer”. You may head down the wrong path, needlessly limit your options, or get feedback from an attorney who specializes in work disputes of a different kind than yours.

Workers who are not in a union (i.e. most of you) should seek out an “Employee Rights Attorney” as a starting point for help with your work disputes. Lawyers who refer to themselves as “employee rights” attorneys generally focus most or all their legal practice on representing workers (not employers) and generally are able to help non-union workers (i.e. most workers) with most types of work disputes.

Nearly all employee rights attorneys I know actively represent a broad range of workers, spanning from entry-level workers to top-level workers in large organizations. I personally have handled minimum-wage cases representing entry-level hourly workers, and complex litigation representing top-level executives, physicians and so on. So the “employee” in employee-rights is itself a broad term. But it does not involve a focus on representing employers. Unfortunately, many of the attorneys who focus on representing employers are not identified (in ads, bios, etc.) with titles like “Employer Defense Attorney”, “Employer Compliance Attorney,” and such. More often, I see employer-side-attorneys labeled with broader and vaguer terminology like “Employment Attorney”.

The term “Employment Attorney”– should you see it on a Google search, in the Yellow Pages, an attorney’s bio, etc.– could encompass employer-representation and/or employee-rights representation. It’s really not telling you specifically which “side” of employment disputes, i.e. employer or employee side, that the attorney typically represents. It’s true that a given attorney who identifies as an “Employment Attorney” is likely knowledgeable about a broad range of non-union work laws and disputes.

However, in my observation, most attorneys identified as “employment attorneys” spend all or the vast majority of their practices representing employers, and at most dabble here and there representing employees as a minority of their caseloads. “Employee-rights attorneys”, in contrast, spend all or most of their employment law practice representing employees.

So, why should you care? Employment law is employment law, right?  Yes, but there are two “sides” in an employment law dispute, and which side an attorney focuses on assisting– and has experience and successes with– can make a big difference if you are a worker seeking help with your interests.

There are different skill sets involved in employer-representation and employee-rights representation. A typical attorney who self-identifies as an “employee rights” attorney will usually have much more experience (as compared to the typical attorney identified as an “employment attorney” or an “employer defense” attorney) with : (1) representing workers on a contingency-fee basis (where no fee is paid unless the case wins or settles) and offering risk-sharing fee arrangements generally; (2) playing offense, so to speak– analyzing, identifying and prosecuting specific legal violations (whereas employer-side attorneys tend to have more experience in broader-stroke compliance/ employer-training matters, and reactive work in litigation that responds to claims they are presented); and (3) identifying with the “little guy” who has been harmed by a larger opponent, often having well-tested strategies that have worked while representing individuals against large organizations and wind up with good case results. These are all reasons a given “employee rights” attorney is typically better-suited to represent workers than an attorney who self-identifies differently.

In conclusion, if you are seeking legal representation for an employment dispute– and you are doing so in your individual (non-organization) capacity — I recommend you start you search by seeking an “employee rights attorney”.  And no, it doesn’t have to be me:) Whatever employee rights attorneys you identify, you can then of course review their websites, biographies, etc. to get a stronger sense of their typical legal work areas and results. Also, you can see if a given attorney has received ratings or reviews from clients, or from colleague attorneys, on sites like Avvo.com or SuperLawyers.com. If you take this approach, the odds are much better the first (or second) attorney you contact will be well-suited to help you.

I hope this information is of help and clarifies any confusion based on attorney labels you encounter when trying to find help for your concerns.

 

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