Class Action Lawsuit – Parity of Wages and Benefits for H-1B and U.S. Workers

A recent class action lawsuit serves as a reminder that employment policies for H-1B workers must comply not only with Federal immigration laws, but also state and local labor rules. On November 9, 2015, Accenture PLC, a global professional services company, became the defendant in a class action lawsuit filed in New York State. The plaintiffs are immigrant software engineers who accuse Accenture of discrimination by paying foreign workers lower salaries and offering them inferior benefits packages.

The lawsuit is based on the state and local laws that prohibit employer discrimination against current and potential employees based on their national origin and race, among other protected characteristics. The laws forbid discrimination in compensation and other terms of employment. The plaintiffs allege that their employer violated the laws by offering higher wages and superior benefits to its U.S. workers, as compared to the terms immigrant employees received.

To remain in compliance with all relevant laws, employers of H-1B workers need to look further than the U.S. Department of Labor (“DOL”) wage regulations when assessing compensation for H-1B employees. Even if compliant with DOL’s rules, employers need to make sure H-1B workers receive wages and benefits that are reasonably comparable to those received by U.S. workers for similar work at the same location. In case of discrepancies between the employment terms, employers must document justifications for those differences and be prepared to defend them when challenged. Sample grounds for wage and benefit discrepancies include differences in education, experience, seniority, and supervisory duties.

For H-1B workers, those justifications must be documented in an “Actual Wage Memorandum” (“AWM”) and included in the H-1B worker’s Public Access File. A proper AWM is worksite specific and includes the number of employees performing similar job duties, as well as information about experience and education of those employees. AWM should also include a summary of the benefits the employer offers to all of its workers. The files also need to include an explanation for any wage and benefit discrepancies demonstrating that the H-1B employee’s terms are reasonably comparable to those offered to other employees. To assure compliance, it is advisable that employers include similar documentation for all workers (regardless of immigration status), as proof that the employment terms for all workers comply with all relevant labor laws.

How Can We Help

Capitol Immigration Law Group can provide various levels of internal compliance audits and on-site employee training, as well as training materials and guidance for performing regular audits and training, meeting an employer’s specific needs. We encourage all employers to be mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments.