January 13, 2012 - In a recent case, the Department of Labor's Administrative Review Board (ARB) found that the time period it took for the employee to obtain a social security card, which the employee's employer required for their payroll system, was "nonproductive status."  The employer was therefore required to pay wages for the two-week period that it took for the employee to obtain the social security card.

However, the ARB found that the employer did not owe back wages to the H-1B worker for the period between her arrival in the U.S. and the date she contacted her employer to inform them that she was in the U.S.  The ARB also found that the employer was not required to pay wages to the H-1B worker for the time period in which she was unavailable for work as a result of personal matters such as opening a bank account, obtaining a car lease, securing a driver's license, and securing schooling and day care for her children.  These were periods in which the H-1B worker was in voluntary nonproductive status.  See Administrator, Wage and Hour Div., USDOL v. University of Miami, Miller School of Medicine,  ARB Nos. 10-090 and -093, ALJ No. 2009-LCA-26 (ARB Dec. 20, 2011).

BAL Comment:  Employers should be aware of the obligation to pay H-1B wages for nonproductive periods due to a decision by the employer (i.e., lack of work, license, or social security card).  An exception exists when the H-1B worker is nonproductive for non-work related factors such as voluntary leave or for personal matters rendering the person unable to work.

- Berry Appleman & Leiden LLP