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Employer Must Pay “Benched” H-1B Employee - Department of Labor, Wage & Hour

May 6, 2009-A Decision and Order by the U.S. Department of Labor has ruled that an employer is responsible for wage payment to a benched H-1B worker during the period that the worker is on the bench (not working). In reaching this conclusion, the DOL stated that an H-1B employer is required to pay H-1B employees for both productive and unproductive time, except unproductive time that results from conditions unrelated to employment or which renders the employee unable to work. Furthermore, an employer is not required to pay an H-1B holder if it has effected a “bonafide termination” of the employment relationship.

However, where the employee is simply benched for lack of work or other reasons, an employer is required to continued paying that H-1B worker the required prevailing wage for the duration of his H-1B visa status. Failure to do so will result in backpay liabilities as well as penalties/fines.pdf[Review the Order on Benched Employee Liability and Fines...]