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].

The USCIS issued a February 24, 2009 memorandum expanding the I-140 premium processing program for employment-based permanent residency applications. This expansion benefits those H-1B visa holders who are reaching the 6-year limit on their H-1B visa stay and permits them to extend their H-1B visas beyond the 6-year maximum.

Under this expanded I-140 premium processing program, applicants may submit I-907 premium processing requests along with their employment-based permanent residency petition starting March 2, 2009. Under this program, approvals, denials or requests for additional evidence are issued by the USCIS within 15 days of receiving the application.  [Read the I-140 Premium processing update and fact sheet...]

U.S. Immigration and Customs Enforcement (ICE) reports that a former owner of an Asian buffet restaurant in Vacaville, California, has been sentenced to eight months of home confinement and three years probation, February 9, 2009.

The case came after an ICE raid that resulted in the arrest of 21 illegal alien workers. The judge noted that the defendant conspired with an employment agency to hire aliens, who, due to their illegal status, were vulnerable to exploitation. The defendant had benefitted financially by not paying taxes, fees and proper salaries for the illegal employees. The employer admitted that from June 2006 until September 2008, he hired and assisted in the hiring of employees he knew were illegal aliens. The business hired at least 13 undocumented workers during that time.
 [Review The ICE Memorandum About the Employer Sentence].

Victims of Sexual Harassment and Hostile Environment are now able to file sexual harassment lawsuits in Illinois State Courts effective January 1, 2009. Such cases can be filed in the various states courts in Chicago, Chicago Suburbs and Downstate Illinois.

In the past, employees with charges of sexual harassment charges before the EEOC and Illinois Department of Human Rights only had two forums where they could bring a lawsuit – Federal Court or the Illinois Human Rights Commission. Now, individuals who have filed a charge of discrimination at the Illinois Department of Human Rights (IDHR) also have the option of filing a lawsuit in Illinois State Court. This will affect those filing lawsuits of racial harassment, age discrimination as well as other forms of discrimination and harassment.

Who Can File State Court Lawsuit of Sexual Harassment

To be eligible to file a sexual harassment case in Illinois State Courts, a charge of discrimination or harassment must have been filed with the Illinois Department of Human Rights (IDHR) after January 1, 2008. One can then elect to file a complaint in State Court under the following circumstances:

• The Illinois Department of Human Rights issues a finding of substantial evidence and one elects not to have the Department file a complaint with the Human Rights Commission.
• The Illinois Department of Human Rights issues a finding of lack of substantial evidence.
• The Illinois Department of Human Rights fails to issue a finding within 365 days of the charge being filed (or longer if an extension was signed by both parties).

Differences Between State Courts And Human Rights Commission

Unlike the Illinois Human Rights Commission, State Court allows a case to be heard and decided by a jury of your peers. At the Human Rights Commission it is up to an Administrative Law Judge to determine the outcome of particular case, including, the amount of damages that should be awarded. In State Court, however, this role may be undertaken by a Jury. This creates the possibility of larger awards in State Court than the Human Rights Commission. However, the discovery process is more extensive in State Court and the cost of prosecuting a claim in State Court may be higher than proceeding at the Human Rights Commission.

Employees who witnessed sexual harassment can sue for sexual harassment retaliation if their employers mistreats them as a result of their participation in the investigation, according to the U.S. Supreme Court ruling on January 26, 2009. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595.

This supreme court ruling is designed to encourage employees to speak out when they are witnesses to sexual harassment without fear of reprisal. It also serves to encourage employers to conduct fair, complete and thorough investigations of allegations of sexual harassment. With this ruling, employees are protected from retaliation which assures both employers and employees that information provided by employee witnesses are accurate and truthful.  [Review the entire Supreme Court Ruling on Sexual Harassment Retaliation].