H-1B Employees and Benching
Workers who are not entitled to immigration status in the U.S.A. still have certain rights and some protection is offered under regulations administered by the Department of Labor (DOL) and immigration laws. Non-immigrant workers who have been given H-1B status should know about benching. Benching sometimes takes place when the H-1B visa worker’s employer ceases to pay their wages. Sponsoring employers have to pay H-1B employees throughout any time when they are not productive, with limited exception. Benching takes place when an employer decides to temporarily place an H-1B visa status employee on non productive status because of insufficient work being able or the employee not having a license or permit to complete a job task.
By law, employers can only stop paying out wages to H-1B employees if their job status has been terminated, or certain other narrow circumstances. See 20 CFR 655.731.
How should H-1B employees be treated by their employers?
An employer is expected to follow certain requirements in relation to their H-1B visa status employees which are as outlined below:
If an annual plant shutdown or compulsory holidays takes place which has an effect on both the U.S. and the H-1B workers, the H-1B employees have to be paid the appropriate wage even when the U.S. worker is unpaid. If the employer fails to follow this directive then the DOL may conduct an investigation which could result in monetary compensation being awarded to the employee.
There are good reasons for monitoring benching. There is a concern that employers may regularly not pay the expected wage or bench overseas workers so that costs can be cut. The DOL wants to make sure that job opportunities for U.S. workers and wages are protected. If employers think they can get away with paying their H-1B workers below the prevailing wage for a specific job, it could be to the detriment of the U.S. employees’ job market in that particular field of work.
The employer is not held responsible for lost wages if the lack of payment was because of a voluntary request by the worker which includes taking leave during normal working hours. An example is when the employer has failed to pay wages to an H-1B employee if he or she takes additional time off apart from the agreed maternity leave.
Return to "The H-1B Visa" to learn more.