Posted in Considering Legal Action on Mar 10th, 2012
As attorneys who help benched and underpaid H-1B workers, we routinely encounter H-B workers whose employers had made threats against the workers to try to silence them and prevent them from asserting their rights. What threatened H-1B workers often don’t know is that in many situations they have powerful legal rights and leverage to turn the tables against employers making such threats.
Common threats by underpaying H-1B employers include:
- Threatening visa status; for example, by the employer threatening to terminate the H-1B worker and report to USCIS if the worker complains about underpaid wages.
- Threatening legal action based on liquidated damages provisions in employment contracts (e.g. a clause saying the worker owes $10,000 if s/he leaves employment under two years).
- Threatening it will sue the worker for phony “expenses” the employer says are owed.
- Bringing the worker’s relatives into the situation by pressuring them or the worker to take actions that are unfair to the H-1B employee and help the H-1B employer.
These threats can be scary– and, at times, are very effective. Especially if an H-1B worker, because of the threats, fails to take action (e.g. fails to complain about underpaid wages or fails to apply for new jobs elsewhere).
But if an H-1B worker who is threatened by an underpaying employer consults with an attorney who is well-versed in H-1B and employment rights, the worker may learn of ways to turn the tables against the employer. He may learn that the employer– despite making threats– is in fact in a position of legal weakness, and faces potential problems and risks that are far worse than those threatened against the worker.
In the blog authors’ legal practices, we have seen scenario after scenario where an H-1B worker (1) was underpaid, (2) was threatened by the employer, (3) contacted an attorney (this is a key part– whether it means contacting us, or another competent attorney!), (4) learned of legal options and ways to deal with the threats, (5) once educated about options, took appropriate legal action, and (6) obtained a result in which the employer paid substantial money for unpaid wages, and dropped the threats– a 180-degree turn from where things were before the H-1B worker sough legal advice.
An attorney who is competent in H-1B rights matters can assess a threatened H-1B worker’s situation, and make him or her aware of leverage and opportunities that the threatened worker never knew to exist. The key is that workers make contact with an attorney, and educate themselves about legal rights and options, before trying to handle matters on their own. If an H-1B worker fails to take any action because he fears the threats, or takes the wrong actions because he does not understand the appropriate laws, rights or options, then the threatening H-1B employer is more likely to get away with its conduct.