Posted in Considering Legal Action on Jul 22nd, 2010
Many underpaid H-1B workers make assumptions about their situation that (while understandable) are incorrect.
Below are several assumptions we have heard from H-1B employees that are wrong. If you have been making the assumptions below, you may be stopping yourself from improving your situation.
Wrong Assumption #1: “I can’t do anything to improve my situation.”
This helplessness is exactly how an abusive H-1B employer wants you to feel. Your employer knows that if you believe you can’t do anything to improve your situation, then you won’t try. H-1B employers who violate the law don’t want you to try to do anything about it. To make you believe action is futile, they may spread misinformation or threats.
In truth, many H-1B workers (perhaps including you) do have options to improve their situation. Most of the H-1B workers this blog’s attorney authors have represented have significantly improved their situation by consulting with us and taking action. Some H-1B workers have had dramatic, night-and-day improvements in their situation, starting benched and broke, and winding up with payment of money owed and a lawful change to a better H-1B employer. We can’t guarantee great results for every H-1B worker. But we can say this: you won’t be one of those H-1B workers who get a great (or good) result if you believe you can’t and if you don’t take any action.
Wrong Assumption #2: “I can’t afford to pay an attorney, so I won’t contact one.”
It’s true that some (ok, many) attorneys out there are expensive. But a lot of attorneys are also affordable. In some cases, attorneys (including this blog’s authors) will work on a contingency basis where they do not require any payment of fees from the H-1B worker. On a contingency basis, no attorney fees are owed unless the case wins or settles, in which case a percentage of the money won is then paid as attorney fees (via a check from the employer).
Before hiring an attorney, ask the attorney, in advance, about whether out-of-pocket attorneys fees will be required, and what the terms of attorneys’ fees are.
But if you assume you can’t afford an attorney, and you don’t even check what the options are based on that incorrect assumption, then you may be depriving yourself of a chance for legal representation that you could in fact afford.
Wrong Assumption #3: “I can handle this myself.”
Sometimes this assumption is true, but often it is not. The attorney authors sometimes encounter H-1B workers who are on the fence when they contact us. They have already tried many times to get their employer to pay their underpaid wages, with no progress. Yet while these workers know they are not getting anywhere with their underpaying H-1B employer and think they may need an attorney, they are still not sure, holding out hope they can still work things out on their own.
They may think to themselves:
“If I talk to the employer just a few more times about my unpaid wages– maybe threaten them that I’ll get an attorney and take legal action, or maybe try to cut a deal on my own– they will see the light.”
Chances are, if you have already made efforts on your own and you are not making progress, then you do need help from someone else: from the Department of Labor (DOL), from an attorney, and/or from a new H-1B employer who is willing to offer you a transfer and new job on fair terms.
If your own efforts are getting you nowhere, chances are you need to explore potential help from others.
Wrong Assumption #4: “I need to sue my employer to get my unpaid wages, and I don’t want to get caught up in litigation for years, so I won’t bother.”
Yes, sometimes it takes a lawsuit and years of litigation before an H-1B employer is held responsible and finally pays an H-1B worker what is owed.
More commonly, however, a lawsuit is not required because many situations are resolved by settlements before litigation is necessary. Many H-1B employers and their attorneys recognize the potential legal liability and are willing to discuss settlement before the employers are actually sued. If you are represented by attorneys with litigation experience, the employer will feel increased pressure about its unlawful failure to pay you and will know you are prepared to litigate your matter to completion if the matter does not settle. It is often in the employer’s best interest to settle early when they are confronted with solid proof, from you and/or your attorney, that they violated the law.
Wrong Assumption #5: ”If I sue the employer and lose, I would have to pay the employer’s attorney fees. I can’t afford to take that chance.”
America’s justice system is not a “loser pays” justice system like some other countries have. While it is true that for some types of claims a loser must pay the winner’s attorneys fees, that is not the case for most H-1B workers’ legal claims. For example, unpaid wage statutes often require that an employer (if it loses) pay the employee-winner’s attorneys fees, but not vice versa.
Bottom line is that you should not assume there would be big liabilities (or any liabilities) to you if you lost a legal case. You should talk to a competent attorney to evaluate whether there would be any significant risk to you if you lost. For many employees’ legal claims, the answer is no, there is no significant risk.
Wrong Assumption #6: “I should do what this person on the message board says to do– he seems to know what he’s talking about.”
Message board advice is often authored by intelligent people, but most of those people can only offer a very limited perspective: their own situation and/or limited second-hand information (often unsubstantiated) that they’ve heard from others.
The best sources of advice are persons who have repeat, comprehensive experience with H-1B employment disputes, such as H-1B employee rights attorneys and DOL personnel. These persons are in a position to see many H-1B disputes, analyze laws and trends, and give well-informed feedback. Someone on a message board may have had success in his or her own matter, or may have intelligent input on an issue, but the reality is that most message board participants (no matter how well-intentioned or smart) do not have the range of expertise and experience necessary to give informed legal advice that is appropriate for your specific H-1B employment matter.
Wrong Assumption #7: “I should file a DOL complaint or other legal complaint on my own– that will make the employer pay up.”
Sometimes filing a complaint yourself is the best option for an H-1B worker and the most likely route to successfully recovering wages. In many instances, however, other options besides a DOL complaint exist, such as a pre-litigation settlement, filing a court complaint, etc. You can best help yourself by becoming educated about the pros and cons of those options before you move forward with any particular action (including a DOL complaint).
Here is a post about things to consider before filing a DOL complaint.
Here are links to posts with more information of use to H-1B workers:
- Keeping Your Nose Clean: Refuse Your H-1B Employer’s Requests to Break the Law
- My H-1B Employer Is Asking Me to Take a Vacation… Last Year
- 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
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.