The ongoing COVID-19 pandemic continues to complicate how employers approach temporary layoffs and furloughs spawned by lost revenues and reduced demands for their services. As if navigating the employment-based immigration laws weren’t complicated enough, now employers must balance implementing cost-saving measures with their federal obligations to employer-sponsored migrant workers.
Riding the Bench
Let me explain: As a cost-saving measure, a company advises its employees that each employee is required to take a certain number of unpaid hours or days off, every week or every month, through the end of the year. If it employs H-1B workers, this measure potentially runs afoul of the federal laws governing their conditions for employment. In the immigration world, this is referred to as “benching.”
The prohibition on benching is hardly a novel concept. The prolonged pandemic, however, brings the antibenching regulations into focus as employers grapple with cost-saving measures. The Labor Conditions Application (LCA) prescribes the H-1B employee’s wages, payment frequency, and employment status and certifies the employer will pay the employee for “nonproductive time.” The regulations define “nonproductive time” as time an employee isn’t performing work and is in a nonproductive status “due to a decision by the employer.”
Examples of “nonproductive status” include lack of assigned work and lack of permit or license. If the employee is in a nonproductive status unrelated to her employment, however (e.g., vacation, family medical leave, or conditions that render her temporarily incapacitated), you aren’t obligated to pay her for the nonproductive time if you don’t provide the benefit to the other employees.
Enforcement and Oversight
The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) is tasked with enforcement and oversight of the H-1B program. The WHD ensures H-1B employees are compensated as certified on the LCA and that they are working in the occupations and at the locations specified.
The looming question: Will the WHD attribute temporary layoffs and furloughs due to the pandemic or governmental decrees affecting workflow as a “decision by the employer” or a condition unrelated to employment?
Bottom Line
In implementing cost-saving measures, you must be mindful of your federal obligations. A material and substantive change to the H-1B employee’s employment conditions may cost you thousands in civil money penalties, back wages, and temporary suspension from the H-1B visa program. You have several options to implement your cost-saving measures legally as it relates to H-1B employees. To fully understand your obligations and ensure your actions conform to the laws, contact your immigration or labor and employment lawyer.
A final note: The H-1B visa is an effective vehicle to recruit talented foreign nationals and, with the employer’s assistance, paves the way to permanently retain talented individuals in the United States.
Kate N. Dodoo is an immigration attorney in the Oklahoma City office of McAfee & Taft. Previously, she served as an assistant chief counsel with the Office of the Principal Legal Advisor, U.S. Immigration Customs and Enforcement. She may be reached at kate.dodoo@mcafeetaft.com.