New York City: Unpaid Furloughs Forbidden for H-1B Visa Workers

Must My Employer Pay Me Throughout My Furlough?

Unlike other employees, upon hiring you to work as an H-1B Visa Worker, your employer filed paperwork with both the U. S. Department of Labor and with the U.S. Citizenship and Immigration Services in which representations were made about your wages and where you would work. In particular, your employer filed a certified Labor Condition Application (“LCA”).[1] With the LCA, the employer promises to pay you, as an H-1B Visa Worker, the higher of the “actual wage” paid by the employer to similarly situated employees and the “prevailing wage” within the relevant geographic area—called the “required wage.”[2] Because of these documents, the employer can only stop paying you if you are terminated from employment.[3]

Since a furlough is not a termination, you must be paid your required wage during your furlough. In addition, you cannot be switched to part-time work without your employer filing the relevant paperwork.

Can My Employer Classify My Furlough As “Non-Productive Time” And Fail to Pay Me On That Basis?

No.

Only non-productive time that is due to reasons not related to employment—reasons which are for an employee’s benefit—including a worker’s voluntary absence from work or a hospitalization, can be unpaid.[4] As a general matter, H-1B Visa Workers must be paid the required wage rate for all non-productive time that is the result of conditions related to employment and/or created by the employer, including lack of assigned work, lack of a permit, or studying for a licensing exam.[5]

Would My Employer Need to Pay Me If I Ask For Time Off To Care for A Sick Relative?

Although this would fall into the category of non-productive time for an H-1B Visa Worker which is potentially unpaid, if another policy of the employer or applicable law entitled you to pay, you would need to be paid. For example, if the employer’s leave policies entitled you to pay for caring for a sick relative, you would still be eligible for that pay. Also, under New York’s Paid Family Leave Act, caring for a sick relative is one of the bases to exercise Paid Family Leave and receive a portion of your wages.[6]

There are many variations and additional details applicable to the basic principles described above. If you would like to discuss your situation with us, please feel free to call or e-mail us at any time. You will be on the phone with an attorney within 24 hours.