Ninth Circuit: Affirms Employer’s Obligation Under the Labor Condition Application
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APPLIES TO All Employers with Employees in AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and the Northern Mariana Islands |
EFFECTIVE August 1, 2023 |
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Discussion
The Ninth Circuit Court of Appeals recently affirmed an employer’s duty to comply with the attestations made under the Labor Condition Application (LCA) to pay its foreign national employees during the period of authorized employment that is outlined within the LCA. An LCA is an application filed with the U.S. Department of Labor (DOL) by a U.S. employer on behalf of a foreign national worker who will apply for non-immigrant work visas in the H-1B, H-1B1, and E-3 statuses.
In Persian Broadcast Service Global, Inc. v. Walsh, a former employee filed an administrative complaint with the DOL’s Wage and Hour Division, arguing that his employer failed to pay him the full amount of his wages as specified in the two LCA’s that the employer had filed in connection with his employment. An LCA binds an employer to pay the required wages for the period of authorized employment, as stated within the LCA. Only two exemptions exist which can eliminate an employer’s legal obligation to do so: (1) when an employee is non-productive for personal reasons; or (2) when there has been a bona fide termination of the employment relationship.
In this case, the employer filed the first LCA requesting one full-time “TV producer and reporter” position with an annual salary of $45,000 per year, for a period of two years. The second LCA sought to extend the employee’s work authorization period by an additional two years, at an annual salary of $60,000 per year. Over the course of the employee’s engagement with the company, the employer paid him irregularly and sporadically in amounts between $300 and $2,300. At various points of his engagement, the company indicated to the employee that they could not afford to pay him. However, the employee argued that at no point did he interpret the employer’s comments to be a notice of termination. In all, the employer paid the employee a total of $20,581 for the entire period of his employment spanning four years. Ultimately, the Ninth Circuit said that the employer was responsible for payment of wages outlined under the LCA attestations.
Action Items
- Pay employees according to the terms of their applicable LCAs.
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