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].