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A “Benched” H-1B Employee Must Still Be Paid the Required Wage Rate

Posted on Tuesday, March 15, 2011

Previously, we explained that an H-1B employee must be paid the required wage rate, which is the greater of the local prevailing wage or the actual wage for the H-1B employee’s position. Moreover, an H-1B employee must be paid for any time spent in nonproductive status. Nonproductive status refers to time spent by the H-1B employee not performing work due to a decision by the employer. It does not include time spent not performing work due to conditions unrelated to the employment.

A full-time salaried H-1B employee in nonproductive status must be paid the full amount of his/her weekly salary, whereas a full-time hourly wage H-1B employee in nonproductive status must be paid for 40 hours work per week (or such other number of hours that the employer considers full-time). A part-time H-1B employee in nonproductive status must be paid for at least the number of hours indicated on the H-1B petition filed by the employer. Where the H-1B employee’s hours were listed as a range on the H-1B petition, the nonproductive H-1B employee must be paid for at least the average number of hours normally worked provided that this number is within the range indicated.

For example, suppose a Software Developer in H-1B status at an information technology company normally works 25 hours per week. Suppose further that the Software Developer’s hours were listed on the H-1B petition as 20-30 hours per week and that the offered hourly wage rate was listed as $29.55. Now suppose the H-1B employee requested and took one week off (over and above his/her paid vacation) in order to tour the U.S. Under these circumstances, the H-1B employer is not required to pay the H-1B employee for that week given that this was time spent not performing work due to conditions unrelated to the employment.

By contrast, suppose the H-1B employee was not assigned any work i.e. was “benched” for one week. Under these circumstances, the H-1B employer is required to pay the H-1B employee $29.55 per hour for 25 hours on the basis that the time spent in nonproductive status was due to a decision by the employer.

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