H-1BS and Forced Shut Downs-The No Benching Rule Applies
June 1st, 2009 by Brian D. Zuccaro
Our office has received inquiries about the affect of temporary shut downs and furloughs on H-1B applicants and the requirement to continue to pay their wages. The INA and the Department of Labor (DOL) regulations require that the normal wages must be paid to H-1B workers even if the H-1B worker is not performing work and is not in productive status due to a decision by the employer.
Background on No Benching Rule
The American Competitiveness and Workforce Improvement Act of 1998 amended section 212(n)(2) of the INA and changed the rules on “benching”. The amendment outlines wage attestation requirements and the prohibition for an employer to fail to pay the wage for nonproductive status due to a decision by the employer. DOL regulations found at 20 CFR 655.731(c)(7)(i) and (ii) also outline the prohibition against “benching” in the H-1B context.
The end result is that employers are not relieved from paying H-1B workers in cases of annual plant shutdowns or furloughs. This is true even if the US worker is not paid.
The only exceptions are when the non-work period is due to reasons unrelated to employment and at the request of the employee. The employer is not required to pay if the nonproductive period is due to “conditions unrelated to employment” at the employee’s “voluntary request and convenience” or due to circumstances such as a maternity leave or other medical leave that renders the employee unable to work. (You must also look at applicable state laws to see if compensation durng that period is required)
For the DOL regulation see 20 CFR 655.731(c)(7)(i) and (ii):
