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Employer Who Fired H-1B Employee for Filing DOL Complaint Faces Backpay and Penalties

An H-1B visa holder that was benched and ultimately fired for filing a complaint with the U.S. Department of Labor was awarded damages for retaliation against the employer. The matter arose from the enforcement action by the Administrator of the Wage and Hour Division of the United States Department of Labor on the basis of a Labor Condition Application submitted by the employer in connection with the H-1B visa application for the employee.

The employee had been benched for a period of time shortly after he began employment. The employee filed a complaint with the U.S. Department of Labor. Within days of the filing, the employer sent a letter to the USCIS seeking to withdraw his H-1B visa status. With respect to his termination, the employer contended that he had been terminated significantly earlier and was not entitled to back damages. However, the evidence showed that the employee was not in fact terminated but was permitted to work when the employer had projects. He was benched instead of a complete termination, especially given that the employer continued to market his resume even after the date of the claimed termination.

The H-1B employer was found in violation and ordered to pay the employee the following: backpay for the time that he was benched and for the full term of his H-1B visa; compensation for monthly health, dental, and vision insurance and 401K contributions for the period, litigation travel costs along with accrued interest. [Review the Entire Order Awarding Pay to H-1B Visa Holder].

 

Employers Must Use New Form I-9 Employment Eligibility Verification-April 3, 2009

Effective April 3, 2009, all U.S. Employers are required to use the Revised Form I-9 for verifying the immigration status and employment eligibility of their workers and job applicants. The revised Form I-9 changes the list of acceptable documents that show employment eligibility. The Handbook for employers has also been amended to reflect the requirements of the revised I-9 Forms. 

The USCIS also issued a memorandum providing commonly asked questions and answers about the revised Form I-9 Employment Eligibility Verification Form.
pdf  [Read The USCIS Questions and Answers on the New I-9 Form...]

 

USCIS Issues Reminder on The Revised Form I-9 Employee Eligibility Verification

April 3, 2009 -USCIS has issued a memorandum reminding all United States employers about the new I-9 Form that is now required for employment verification for all employees. The revised Form I-9 went into effect April 3, 2009. The new I-9 Form revises and clarifies the documents that are acceptable for verifying the immigration status and an employee’s eligibility to work in the United States.

The announcement also provides information about how to obtain the revised I-9 employee Eligibility Verification Form as well as the instructions for the I-9 Form.
pdf  [Read The New I-9 Form Reminder....]

 

Illinois - Employer Strictly Liable For Sex Harassment by Supervisory Employee

The Illinois Supreme Court on April 16, 2009 issued a ruling that an employer is strictly liable for damages resulting from sexual harassment by its supervisory employee on a subordinate employee. This holding which obtains under the Illinois Human Rights Act, reaffirms the law that Illinois employers whose supervisory employees engage in sexual harassment of subordinate employees are automatically liable for damages resulting from the harassment.

In reaching this conclusion, the Court rejected the employer’s contention that it would end up with liability for harassment actions committed by low-level supervisors. So long as the employee is a supervisory employee over the sexual harassment victim’s chain of command, the employer will be liable regardless of any remedial actions taken or employer’s prior knowledge of the alleged harassing conduct. Under the holding also, the employer is also liable whether or not the employee-victim complained about the sexually harassing conduct. 

The Illinois Supreme Court ruling which establishes the law for Illinois employers differs from federal law which is governed by Title VII of the Civil Rights Act of 1964, as amended. Under the Federal law, employers may avoid liability for supervisor harassment by claiming a defense that it had a reporting policy which the employee-victim unreasonably failed to follow to bring the harassment to the attention of the employer.
pdf [Read The Illinois Supreme Court Holding On Sexual Harassment Liability....]

 

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