San Francisco, August 17, 2001--Top Department of Labor (DOL) officials Jan Pack and Thomas Schierling recently lead an overview of the new DOL H-1B regulations, especially the area of Labor Condition Application (LCA) compliance. The presentation falls on the heels of a record incidence of DOL LCA investigations nationwide, with many in the Bay Area. Berry Appleman & Leiden partner David Berry was one of two attorneys who provided counterpoint to the DOL perspective on compliance issues.

According to Mr. Schierling, Team Leader/Supervisory Wage and Hour Compliance Specialist, San Francisco regional DOL houses the busiest regional enforcement office in the nation. Mr. Schierling pointed out that the number of complaints DOL receives is on the rise, with as many complaints filed in the last fiscal year as were filed in the years 1992 to 1995 combined. He also indicated that the majority of complaints arise in the Bay Area, and have come mostly from workers in the computer field. Trailing San Francisco were the New Jersey, Detroit, Boston and mid-Florida regions.

Mr. Schierling advised that the number one cause of complaint was the failure to pay the promised wage, and that a good 40 to 50% of recent complaints had to do with "benching" - the nonpayment of H-1B workers due to lack of work assignments, or other employer driven decisions. . Mr. Schierling reviewed statistics that show two thirds of the total complaints generally trigger a DOL LCA investigation, and that since 1992 DOL has assessed over $5 million in back wages to employees, $1.6 million for the last fiscal year alone. A few egregious cases resulted in the employer being "debarred," meaning a complete moratorium on filing any immigrant or nonimmigrant visa petitions for H, L, O or P classifications for one to three years.

Jan Pack, from DOL's Counsel for Employment Standards, also one of the chief architects of DOL's recently published new H-1B regulations (for article, click here), stressed the importance of proper LCA public access file maintenance to avoid penalties, indicating that companies with properly documented public access files greatly reduce the risk of penalties, even if complaints are filed. On the subject of layoffs, Ms. Pack clarified that for an employer to counter a charge of benching, DOL would expect the employer to have, at minimum, a contemporaneous letter of termination on file to prove notification to the employee. Ms. Pack was also very candid about how difficult DOL expects it to be for H-1B dependent employers (employers with significant numbers of H-1B workers - to view dependency worksheet, click here) to comply with the special LCA dependency attestations. Ms. Pack noted that their San Francisco stop concluded a series of national training seminars for regional DOL investigators in the new H-1B regulations.

Berry Appleman & Leiden will be hosting three I-9 compliance seminars for clients and interested parties. Additional compliance seminars are planned to further address LCA compliance issues, and will be announced shortly. The first will be held at the firm's Northern Virginia office on September 11, followed by two Northern California locations - October 3 at the Park Hyatt Hotel in San Francisco and on October 10 in Santa Clara at the Westin Hotel. These breakfast seminars are approximately two hours in length and MCLE credit is available for attorneys. Reservations are required and can be made by sending e-mail to BerryApplemanLeiden@usabal.com indicating the name, title and company of the attendee and which date and location they prefer. There is no charge for the seminar.

--Larry Drumm, San Francisco Office