Our law offices commonly receive phone calls from H-1B workers who: (1) have unpaid wages; (2) filed a Department of Labor (DOL) wage complaint; (3) and THEN called our law offices. At this point, they often ask us whether we can provide legal advice for their DOL matter, or whether they can pursue different matters.
If you want to learn more about a DOL complaint, learn before you file it, if possible.
A legal complaint involves a process. Much like piloting an airplane is a process. Would you jump in the cockpit of a plane and try to fly it before you learned anything about how the plane functioned? Without knowing how to anticipate, analyze and adapt to the weather conditions? Without knowing- most importantly- where you are trying to go, and the routes to get there?
Fortunately, a DOL complaint is not nearly as complex as piloting an airplane, and DOL offers helpful information (although not legal advice) to help H-1B workers with the process. But H-1B workers who file a DOL complaint before learning what the process involves often find themselves with several unknowns and in a more difficult situation, and needing more assistance, than they expected. Sometimes an H-1B worker will find, after filing the DOL complaint, that better options existed and could have been pursued along with (or in some cases, instead of) the DOL complaint.
Further, H-1B workers who file a DOL complaint often do so without thinking about their goals. Often, they don’t consider whether a DOL complaint- as compared to a pre-litigation settlement, or as compared to federal court litigation, for example- is the best way to achieve those goals.
Before you file a DOL complaint, there are several questions you should consider.
What is the deadline, and am I past it?
It is very important you immediately learn what legal statutes of limitations (deadlines) apply to your matters. In most circumstances, an H-1B worker has 1 year from their last H-1B work date to file a wage complaint called a WH4 complaint with DOL. If you are beyond the DOL deadline, your cannot file a complaint with DOL. However, there may be other types of legal actions with longer deadline periods which you may still be within. An H-1B rights attorney could help analyze all the potential legal claims and deadlines.
What are my goals?
Obviously, one goal is probably to get your unpaid wages, as well as recover any money the H-1B employer unlawfully made you pay, e.g. H-1B filing fees.
Here are some other goals H-1B workers may consider before filing a DOL complaint:
- the timing of payment- for example, if you were now paid a settlement worth $5,000 less than your full unpaid wages’ value, is that better than being paid your full wages (i.e. being paid $5,000 more) many months or years from now, after a legal decision?
- are there other legal damages/monies, in addition to wages, that are available through other legal claims? For example, an H-1B worker could pursue a federal court claim for civil RICO violations against an H-1B employer, and try to recover triple the value of wages.
- how much risk are you comfortable with? If you file a DOL complaint, a federal court complaint, or any other type of legal complaint, there is necessarily risk involved. In litigation, each party faces risk (high, low, or somewhere in between) that the party will lose. How much risk depends on the circumstances. If the parties reach settlement, they can avoid a good deal of risk because they know what is being paid, and what the terms of settlement are: they don’t have to take the risks involved with a third-party legal decision-maker making the decisions about who wins, and who wins what.
- are you vulnerable and want to protect yourself from retaliation by the H-1B employer?
- is your immigration status a concern?
Your goals can make a big difference in deciding whether you should file a DOL complaint, and when you should file a DOL complaint.
What is the H-1B Employer’s Financial Situation?
You should consider researching the employer’s financial situation before filing a DOL complaint, time permitting. If the H-1B employer’s financial situation is poor- if, for example, the employer is on the verge of bankruptcy, and racked with tax problems- the employer is at risk of not paying the monies it owes you if it loses a legal decision.
How long will the DOL process take?
It can take many months, even years, for a given DOL complaint to reach a final legal resolution. Before filing a DOL complaint, you can contact your local DOL office (anonymously, if you wish) and ask them the average length of time it takes for a WH4 complaint to be resolved in that district.
What options do I have other than a DOL complaint, and are any of those options good for my goals and circumstances?
An H-1B worker who has the option of filing a DOL complaint often has other options as well, such as: (1) filing a federal court complaint; or (2) trying to reach a settlement with the employer without any legal complaint being filed.
Should I Talk to an H-1B Rights Attorney?
Yes. An attorney who is experienced with H-1B wage matters and related issues (e.g. benching, fraud, immigration status issues) can listen to your specific situation and suggest specific options that address your personal goals.
In many instances, an attorney will advise a DOL complaint be filed: often, a DOL complaint turns out to be a very effective means to pursue and recover unpaid wages. In other instances, an attorney may feel other options are better. If you file the DOL complaint before you talk to an attorney and learn about other options, you may be hurting or even eliminating some of those other options.
A DOL complaint is one option amongst several: if you have interest in talking to an attorney about all your options, you should have that discussion before you take action on any of those options.
To learn more about H-1B rights and options, please see these posts:
- Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things
- 5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee
- H-1B Workers’ Fears vs. Fighting for Your Rights
- FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.
For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.
This blog is authored by Employee and H-1B Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.
DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.