The U.S. Department of Labor ordered a U.S. employer and its owner and president to pay two employees over $291,000 in back pay, return of application fees, plus pre-and post-judgment interests.
Both employees were sponsored for H-1B visas by the employer. When they made themselves available to the employer, they were not employed and never received payment. The Administrative Judge found that the two employees were “benched” and ordered the employer and its owner/president to pay their wages for the duration of the respective validity of their H-1B visas, in addition to the return of the immigration fees paid to the employer by each employee. The judge tacked on the post-and pre-judgment interests on the penalty.
Employers are reminded that “benching” H-1B employees is strictly prohibited. An employer cannot fail to pay an H-1B employee because of insufficient work or lack of a license or permit. Employers should distinguish this impermissible activity from voluntary requests for leave by H-1B workers that are unrelated to employment, such as caring for a sick family member, which is permissible activity.