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DOL can pursue visa pay violations even without a complaint

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Here’s a word of warning to employers that hire workers from overseas to fill critical jobs: A federal court has ruled that the U.S. Department of Labor (DOL) can investigate alleged violations of the H-1A visa program’s equal-pay requirements, even if no particular employee has complained. It can act on another agency’s referral or on its own. This is a major victory for the DOL, which enforces the nation’s visa laws.

The ruling may mean more employers will find DOL investigators on their doorsteps, looking for evidence that the organizations violated their legal responsibilities to pay visa holders the same as those they work alongside.

Recent case: Alden Management Services, which operates seven nursing homes, applied for special foreign nurse visas with the U.S. Department of State. Alden certified that it could not find enough qualified nurses in the United States and needed to hire from the Philippines. The State Department approved the application, and the company was allowed to bring the nurses to the United States under the H-1A visa program. That program required Alden to pay the Filipino nurses the same amount it paid U.S.-based nurses doing the same jobs.

But the State Department learned that the foreign nurses were earning less, and notified the DOL, urging an investigation. The DOL investigated, concluded the foreign nurses were paid less and ordered Alden to pay them back pay.

Alden Management tried to have the case dismissed. It argued that the law seemed to require an individual to make a complaint—that is, one of the foreign nurses had to file a complaint.

The 7th Circuit Court of Appeals disagreed. It said no individual complaint was required. (Alden Management Services v. Chao, No. 07-3828, 7th Cir., 2008)

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