Category Archives: Employee Tip – H-1B

“Salaried” Workers With Hours Docked May Be Overtime-Eligible

paycheck

If you are a worker paid a salary, then you may be ineligible for overtime pay, assuming other circumstances exist as well. (Being paid a salary is one of multiple criteria that must be met before an employer can consider you overtime-exempt).

However, some workers who are called “salaried” workers by their employers are not paid on a “salaried basis” as defined by overtime law, and are in fact eligible for overtime because of their non-salaried status under the law.

If an employer docks wages from a “salaried worker,” this can be a major no-no that can change the worker from “salaried” to hourly (overtime-eligible) status under the law.

For example, if on a given day a salaried worker leaves work four (4) hours early for personal reasons, an employer cannot dock the worker 4 hours wages for the missing work time.  As another example, an employer cannot dock a salaried worker an 8 hour day if the employer did not have work available, but the worker was able and willing to work the 8 hour day.

There are some exceptions, and circumstances where an employer can dock pay without affecting a worker’s salaried basis status.

The U.S. Department of Labor (DOL) has a Fact Sheet describing the salaried basis test, and how an employer’s docking of a worker’s wages can mean a worker– despite being called “salaried”– is not salaried for overtime law purposes.

If you have been docked hours and wages, despite being told you are paid by salary, you may want to review DOL’s Fact Sheet above in detail, and other information about salaried basis pay and overtime laws, to clarify whether the employer should be paying you overtime wages.

Enhanced by Zemanta

Leave a comment

Filed under Employee Tip - H-1B, Employee Tips - Unpaid Wages

Wage Issues? Tip #10: Avoid Signing Documents You Disagree With

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #10 is this: Don’t Sign Documents the Employer Presents That You Disagree With, or Believe to Be False.

If you have unpaid wages, and an employer approaches you with a document to sign relating to the unpaid wages, chances are that document benefits the employer.

I am aware of employers who asked workers to sign off on:

  • Timecards or payroll documents with underreported wages. For example, some employers make automatic1/2-hour pay deductions for a lunch period everyday, despite the worker having to work through the lunch period many days. Such documentation should reflect your actual hours and pay before you should be made to sign off on it.
  • Settlement agreements that pay significantly less wages than the law requires.  Some employers, to their credit, self-identify wage underpayments and approach workers with settlement agreements in which the employers agree to pay the workers if the workers agree to waive potential legal claims. However, employers’ initial settlement offers (especially if the employees do not have attorneys) usually offer significantly less than the legally-required wages and/or damages. If it’s possible to have an attorney review and advise about a proposed settlement before applicable deadlines, this can be of assistance in potentially negotiating or winning a larger payment and avoiding potential pitfalls.
  • An arbitration agreement.  These agreements (if signed by the employee) take away the employee’s right to go to court for an employment dispute, and in some instances take away the right to participate in a class action lawsuit. The employee must participate in arbitration, a process which lacks the full rights available in court, and often involves an arbitrator hand-selected by the employer, who has routinely dealt with the employer’s matters. Employers’ ability to impose one-sided arbitration agreements became even more severe due to the Supreme Court’s AT&T Mobility v. Concepcion decision, which allows arbitration agreements to (1) limit employment disputes to an arbitration forum (and prohibit court as a forum); AND (2) take away an employee’s right to participate in a class action, whether in court or in arbitration.
  • False documentation, such as false work-leave forms, that serve the employer’s benefit.  This type of issue is common with H-1B workers, where some H-1B employers will try to get H-1B workers to sign forms indicating the workers took leaves of absence they did not in fact take. The H-1B employers who do this are often trying to cover up their “benching” of the workers and failure to pay the required wage.  If you are an H-1B worker (or employee of any kind) whose employer is confronting you with a false form, you should not sign the form and seek legal counsel before considering signature of something you know to be false and against your interests.

Please give careful time and thought to such documents before you sign them. If an employer is rushing or pressuring you to sign such documents, that is an even worse sign that the employer wants to act against your interests and not allow you a fair opportunity.

Leave a comment

Filed under Employee Tip - H-1B, Employee Tips - Unpaid Wages

Wage Issues? Tip #7: Use a Date Calculator to Help With Calculations of Deadlines and/or Unpaid Wages

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #7 is this: use a date calculator to help with calculations of deadlines and/or unpaid wages.

For years, I have used a website date calculator, like this one, to help me calculate legal deadlines (statutes of limitations) and/or unpaid wages.

Continue reading

Leave a comment

Filed under Employee Tip - H-1B, Employee Tips - Unpaid Wages

Wage Issues? Tip #6: When Finding a Wage Attorney, Think National, Ask the Important Questions Upfront, and Other Things to Consider

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #6 is this: When Finding a Wage Attorney, Think National, Ask the Important Questions Upfront, and Other Things to Consider.

Here’s an (obvious) disclosure upfront: I am a wage attorney, so it benefits me to talk to workers about the best ways to find a wage attorney.

So, while you should consider the source, so to speak, you should also consider the logic of what I’m about to say, to see if it makes sense and is worth taking into consideration.

Continue reading

Leave a comment

Filed under Employee Tip - H-1B, Employee Tips - Unpaid Wages

Employees Among Those Charged in Recent H-1B and Green Card Fraud Bust

While the recent H-1B and green card fraud bust has been applauded for focusing attention on abusive and exploitative H-1B employers and “bodyshops,” short shrift has been given to the fact that several H-1B employees were also indicted for their alleged participation in the scheme.

Of the 11 people arrested last week, eight were employees. The employees were indicted as co-conspirators based on their alleged role in obtaining H-1B visas and seeking permanent residency by fraud, according to redacted indictments filed in U.S. District Court of the Southern District of Iowa.

Read more at the blog h1blegalrights.com.

Leave a comment

Filed under Employee Tip - H-1B, H-1B

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.

2 Comments

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).

 

Continue reading

Leave a comment

Filed under Employee Tip - H-1B

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.

1 Comment

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

FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.

If you were underpaid as an H-1B, and are now outside the U.S., below are some frequently asked questions and answers.

Continue reading

4 Comments

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

Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things

If you are an H-1B professional worker who is being underpaid wages, please know that you have legal rights. The information below describes your rights as an H-1B professional, and factors and options you should consider before taking legal action or pursuing your wages.

Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your matter, please contact them here:

Continue reading

1 Comment

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