Staffing and other companies that hire nonimmigrant workers through the H-1B program must remember to pay its nonimmigrant employees the required wage rate throughout their employment, even during breaks between staffing assignments. Failure to do so may result in significant back pay awards, as described in a recent Department of Labor press release.
As summarized in the press release, the H-1B program authorizes employers that cannot obtain needed business skills and abilities from the US workforce to hire qualified nonimmigrant workers who are not otherwise authorized to work in the United States. Before authorization is granted, however, employers must attest to the DOL that they will pay wages to the H-1B workers that are at least equal to the greater of the wages paid by the employer to other workers with similar experience and qualifications or the prevailing wage for the occupation in the area of intended employment.
According to the DOL, a Florida-based health care staffing agency failed to pay physical and occupational therapists the required wage rate for the period of time between arrival from their home country, the Philippines, and reporting to their assigned work sites. Under the H-1B program, workers must be paid for all nonproductive time caused by their employers, including the time leading up to or between staffing assignments. As a result of the DOL Wage & Hour investigation, the staffing agency paid $134,073 in back wages to 40 nonimmigrant employees working in fifteen states.