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Handling Workplace Harassment of an H-1B Employee

Bridge Team Member

Harassment and unfair treatment in the workplace are always important matters, whether concerning a United States employee, a foreign worker, or the employer themselves. Hiring an H-1B worker comes with strict rules and regulations, and both employer and employee need to be aware of their rights and duties, even before employment begins.

In this article we take a closer look at the most important rights of H-1B employees, how violations should be handled and reported, and how the Human Resources department should handle any scenarios connected to the harassment or unfair treatment of an H-1B worker.

H-1B Employee Wages and Benefits

As an H-1B employee, you are entitled to be paid at least the prevailing wage in the area of your employment. This is specified on the Labor Certification Application (LCA), and each H-1B employee must be provided with a signed copy by their employer once they start their job in the U.S.

Furthermore, every H-1B worker needs to be paid directly and on time by the employer, and a foreign worker's salary cannot be benched or delayed at any time. If the employer decided to reduce an H-1B worker's pay, the only right way to do so is to file an amendment of the H-1B visa wit the appropriate authorities, which the H-1B worker has to agree to before filing.

Any H-1B employee has a right to receive the same benefits as any U.S. worker employed by the same company.

 

Working Conditions & Workplace Harassment

Just as they are qualified for employee benefits, H-1B workers are entitled to the same working conditions, such as sick leave, vacation, overtime-pay, and work hours, as any U.S. worker employed in a similar position.

If an H-1B worker complains about any violations related to workplace harassment or unfair treatment, or if a U.S. employee discloses any H-1B violations committed by the employer to the appropriate authorities, the employer is never allowed to threaten the H-1B employee or their employment in any way.

How to Report Violations and Unfair Treatment

As an H-1B employee, any harassment of unfair treatment should be addressed immediately. Discrepancies regarding wages or benefits should be brought up to a supervisor or HR as soon as they occur. Make sure you know your own rights, and make sure that your employer knows and obeys all rules and regulations of the H-1B visa.

If the problems are not taken care of by the employer, an official complaint should be the next step. Both H-1B workers and U.S. workers are able to report suspected fraud and abuse of the H-1B program. At this time, complaints can be emailed directly to ReportH1BAbuse@uscis.dhs.gov, or the form WH-4 can be filed with the Department of Labor (DOL).

Many H-1B employees are hesitant to submit an official complaint regarding unfair treatment for harassment, as they fear the consequences it may have on their legal status in the U.S. While there are multiple scenarios that protect H-1B workers after submitting a complaint, working together with an immigration attorney is almost always advised.

Responsibilities of HR Departments

If your company employs H-1B workers, make sure all documents are in place even before the employee starts their new position with your company. All H-1B petitions should be double checked, and the department should always make sure all documentation, such as the public access file and LCA, have been forwarded by the immigration council and are accessible to the H-1B worker.

As part of the onboarding process, make sure to educate the H-1B worker about his rights, as well as the employers rights and responsibilities, and how to handle any discrepancies that might occur during the H-1B employment. This will show the H-1B worker that your company is on top of the responsibilities and regulations that come with the H-1B visa, and will enable a positive work environment for both foreign and U.S. workers. 

If your company employs a large number of foreign workers, also educate your U.S. workers about the process of hiring an H-1B employee, and how the company complies with the specific laws and regulations.

Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.legal.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.

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