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Does Your H-1B Wage Loss Situation Have the Makings of a Class Action?

If you are an H-1B worker who has been underpaid or otherwise mistreated by an H-1B employer, you may be able bring your claims not only on your own behalf, but also on behalf of a class of similarly situated individuals. The attorney-authors of this blog, along with our attorney colleagues at the excellent class-action law firm Kotchen & Low, have litigated proposed class-action cases (as well as single-worker actions), in a variety of legal forums. When H-1B workers' situations do in fact support class-action treatment of their claims, their lawsuit can be very strong.

This article describes various factors that support class treatment of H-1B workers' claims, the nature of such class claims and forums they can be brought in. If you are an H-1B worker who is curious whether your situation could support a class-action case, this article will give some general educational information and food for thought.

Please note that only a competent attorney can adequately evaluate whether a valid class action would exist for your situation or should be pursued. So if you want legal advice about whether your own situation can be pursued as a class action, please consult with a competent attorney (if you'd like, you can have a free initial consultation with us, or with another attorney of your choice).

This article will first discuss some factors that could potentially support an H-1B class action.

Factors That Potentially Support an H-1B Class Action

The following factors, generally speaking, make a class action more supportable. While these factors do not give a bright-line standard for what situation makes for a good class action, we can say that the more of these factors that are present, the more likely you will have a viable class action case.

  • Factor #1: The H-1B employer's actions or schemes are systemic, and have harmed you and other workers (e.g. underpaid your wages) in the same or similar ways.

If an H-1B employer is underpaying or mistreating many H-1B workers in the same, systemic way- for example, not paying required wages to H-1B workers (you and others) for benched time, or underpaying you all for project work, and/or requiring that you all pay certain visa-related fees at thousands of dollars each (despite law requiring the employer to pay) -- then any such systemic type of mistreatment,where many H-1B workers are subject to the same scheme or schemes of misconduct, is more likely to support a class action.

  • Factor #2: The H-1B employer is medium- to large -sized, with large numbers of H-1B workers.

The larger the size of the H-1B employer, and the scope of its systemic mistreatment of workers, the greater the potential for maintaining a class action. If you work for a smaller H-1B employer that mistreats you, it is very possible you have individual (non-class) legal claims, but the smaller the employer the less likely class-action claims could be supported.

  • Factor #3: The H-1B employer's pattern of misconduct involves repeated violations of the same law or laws, such as repeated breaches of employee contracts, repeated violations of wage laws, or repeatedly falsifying immigration-related documentation.

For example, if a given H-1B employer over the course of years has submitted numerous Labor Condition Applications (LCAs) to the U.S. government for H-1B worker applicants, if that employer has thus repeatedly attested (as LCAs require) that the employer will pay H-1B workers their prevailing wages during nonproductive/benched time, and the employer has thereafter failed to pay those workers wages during benched time, then this same scenario, year after year, creates repeated and systemic violations of the same series of laws. These types of systemic violations of the same laws give rise to potential class-action claims.

  • Factor #4: The H-1B employer's pattern of conduct involves knowing or willful violations of laws.

If an H-1B employer's systemic wrongs are done with knowledge that they are violating the law, then you may have strong potential class-action claims that involve willful misconduct, such as civil RICO or forced-labor statute claims.

  • Factor #5: There is at least one H-1B worker willing to participate as a named plaintiff (party filing a legal complaint) in a class action.

Last but not least, at least one H-1B worker in the potential class -- e.g. at least one in a group of unhappy benched/unpaid H-1B workers- must be willing to file a legal complaint. As long as one such worker (named plaintiff) files a proposed class-action complaint, then other similarly mistreated workers could potentially benefit from the class action lawsuit even if they are not named plaintiffs. Often, wage-related employee class actions are brought by former employees, as they can pursue unpaid wages a former employer owes without being concerned about suing their current employer. We have, however, also represented named plaintiffs who have sued their current employer. Whether you are a former or current employee, you may be able to pursue an employer who violated the law.

Potential Legal Forums for an H-1B Class Action

Many H-1B workers are familiar with a type of legal complaint for unpaid H-1B wages, the WH-4 complaint, that can be filed at the U.S. Department of Labor (DOL). A DOL complaint can lead to effective relief for some H-1B workers. Of note, a worker cannot file a class-action complaint (nor many of the class-action claims described in this article) at DOL.

Class-action lawsuits must be filed in a State or Federal court, usually the latter, as Federal-Court claims are often the primary claims at issue in H-1B class actions. Because court litigation is required for such class actions, it is wise to have a litigation attorney (whether via contacting this blog's authors or otherwise) evaluate the potential class action claims, even if you are not sure you want to end up pursuing them. Attorneys familiar with H-1B class-action court litigation can better advise you whether that type of litigation would be worthwhile than can an attorney (however generally competent) who does not do that type of work.

Potential Legal Claims in an H-1B Class Action

The attorney-authors have exhaustively researched and pursued class-action legal claims for wrongful H-1B employment situations, including but not limited to: (1) civil RICO claims; (2) federal statutory claims relating to forced labor, trafficking, and/or misuse of immigration-related documentation by the employer; (3) breach of contract claims; (4) unpaid wage claims per State and/or Federal wage statutes; and (5) other fraud- and contract- like claims under applicable laws.

These claims, if available and successful for a given H-1B worker-litigant, can be very strong, and can provide remedies that go above and beyond the value of unpaid wages that may be at issue. For example, depending on the circumstances, civil RICO could potentially provide an H-1B worker with damages for triple the value of his unpaid wages. This type of remedy is not available for a DOL complaint.

Conclusion

We hope this article provides some useful background information about potential class-action claims for underpaid or mistreated H-1B workers.

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