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Archived News Release — Caution: Information may be out of date.
U.S. DEPARTMENT OF LABOREMPLOYMENT STANDARDS ADMINISTRATION
COMPUTER SERVICES FIRM SUBJECT TO DEBARMENT, ASSESSED $117,000 IN FINES AND BACK WAGES AS A RESULT OF IMMIGRATION LAW VIOLATIONS; ALJ UPHOLDS LABOR DEPARTMENT RULING ON ANOTHER COMPUTER FIRMWed., April 12, 1995
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In separate cases involving Michigan computer firms, the U.S. Labor Department fined and is seeking to debar one firm for violations of the Immigration and Nationality Act (INA), and an administrative law judge upheld the department's ruling on another firm concerning interpretation of the act.
The department has assessed Syntel, Inc., of Troy, $77,702 in back wages and a separate $40,000 civil money penalty for alleged nonimmigrant foreign worker violations. In addition, citing willful violations, the department is seeking to debar Syntel from participating in a variety of immigration programs for one year.
Syntel supplies computer programmers and analysts to customer firms throughout the United States. Some of its employees are foreign workers admitted under the H-1B visa program established in 1990.
The back wages and civil money penalty were assessed by Labor's Wage and Hour Division after its investigation disclosed willful violations of provisions of the Immigration and Nation- ality Act governing the admission of nonimmigrant foreign workers for temporary employment in "specialty occupations" under H-1B visas. These provisions are enforced by the department.
"The Labor Department has the responsibility under the immigration law to facilitate U.S. employers' needed access to international labor markets and, at the same time, protect the interests of U.S. workers and businesses from unfair competition based on sub-standard wages and working conditions," said Bernard Anderson, assistant secretary of labor for the Employment Standards Administration (ESA). "We have recently revised the regulations governing the H-1B program to strengthen the protections for U.S. workers and businesses in order to prevent the practices cited in this case and maintain a level competitive playing field." ESA oversees the Wage Hour Division.
The H-1B visa program allows for temporary (up to six years) admission into the U.S. of up to 65,000 foreign workers each year in certain "specialty occupations" such as engineers, teachers, computer programmers, medical doctors and physical therapists. Employers wishing to gain admission of such H-1B workers must certify, among other things, that they will pay their foreign workers at least the same wage rate that is paid to other workers already performing that job in the area where the work will be performed.
Labor Department investigators examined Syntel's operations in New Jersey and found that Syntel willfully paid about 40 of its H-1B computer programmers less than the locally prevailing wage.
Maria Echaveste, head of the Wage and Hour Division, said, "We intend to enforce this law vigorously to ensure that no employer of H-1B workers will gain any unfair economic advantage by paying temporary foreign workers less than would be paid to U.S. workers in the same occupation in the area of employment. This law provides significant penalties which we are going to use wisely and, where appropriate, to the fullest as part of our commitment to deter violations."
The case was investigated under the authority of the Michigan district director of the department's Wage and Hour Division, which has jurisdiction over Syntel's headquarters.
ANALYTICAL TECHNOLOGIES, INC. (ANATEC)
In a separate matter relating to administration of the H-1B program, Administrative Law Judge Daniel J. Rokentenetz issued a decision and order supporting department rules dealing with the employment of nonimmigrant H-1B workers. The judge's order became the final decision of the department when Labor Secretary Robert B. Reich issued a March 29 notice declining to review the judge's order.
Under the nonimmigrant foreign worker (H-1B) program, a company wishing to employ such a worker must attest that it has notified other workers in the same occupation of its intention to hire temporary foreign workers, including information about the intended wages to be paid to H-1B workers. This notification requirement helps to insure that all persons who might be adversely affected by the employment of the foreign workers have knowledge of the terms and conditions under which they are to be employed, including how and where to file complaints of violations.
In his ruling, Rokentenetz upheld the decision of the Wage and Hour Administrator in the case of Analytical Technologies, Inc. (Anatec), Southfield, Mich.
Anatec is a computer consulting company that provides software and consulting services to business and government. It has its main office in Southfield, and branch offices in Houston, Indianapolis, and Bloomington, Minn.
An investigation conducted by Wage and Hour in 1994 disclosed that Anatec failed to post notices of its intent to assign H-1B workers at the site where they would be employed. Anatec also failed to give notice of intended pay rates for the foreign workers and information about how to file complaints. Wage and Hour directed Anatec to post the required notices at each job site where H-1B workers were currently employed.
Anatec appealed the order to the department's chief administrative law judge. It argued it could not be required to post notices at worksites owned by its customers and should only have to post notices in its own branch offices, even though neither the H-1B foreign employees nor U.S. workers doing the same jobs actually worked in Anatec's offices since they worked at the customers' office. Anatec also argued that posting its pay rates for H-1B foreign workers would cause unrest among employees at the worksites of its customers.
Rokentenetz rejected these arguments. "While unfortunate from a business standpoint, Congress undoubtedly considered such consequences in crafting the complaint-driven system by which employers' compliance ... is monitored. Effective notice to similarly situated employees is critical to such a system," he said.
Echaveste said, "We applaud this decision confirming our long-held interpretation of this aspect of the law. The issues involved in this case are of special importance for employers in the computer and health care industries who assign H-1B employees to work at establishments operated by other firms.
"This law is designed to meet the legitimate needs of America's employers while at the same time effectively protecting the wages and working conditions of U.S. workers. The notifi- cation requirements in the law are an important part of the overall system intended to ensure the protection of U.S. workers, and we will enforce these requirements whenever we investigate employers of temporary H-1B foreign workers."
Archived News Release — Caution: Information may be out of date.