有關雇主對H-1B雇員薪金支付的須知

By Jan Krasny 對於H-1B雇員，勞工部規定雇主必須對這些雇員支付相等或高於Prevailing wage 的薪水。如果雇主支付的薪水達不到 Prevailing wage 的要求，其可能會被勞工部處以一定的罰款以及被要求重新調整其支付的薪水以達到 Prevailing wage。以下為有關H-1B雇主在支付薪金時的一些須知： As an employer of H-1B status workers there are many obligations to consider. One of the biggest obligations is the duty to pay the employee a required wage, which is the higher of either the prevailing wage or the actual wage for the position. Employers that do not pay the required wage are subject to back pay liability to the H-1B employee as well as Department of Labor (DOL) penalties. The biggest culprit in a well-intentioned company’s failure to pay the required wage is often deductions from an employee’s regular wages. The DOL pays close attention to deductions where the employee appears to be absorbing an employer’s expense, because such deductions are viewed as a back-door attempt to unload business expenses on the employee and sometimes forces the employee’s wage below the required wage levels. There are only three categories of wage deductions: 1. Deductions required by law; 2. Reasonable and customary deductions in the occupation; and 3. Voluntary deductions. Deductions required by law are not a violation of the employer’s wage obligations, and so the employer is not penalized for making income tax, FICA and other mandatory deductions. The other two categories are a little more complex and require additional analysis. Reasonable and Customary Deductions This includes deductions such as: union dues, health insurance premiums, and retirement fund contributions. They must also satisfy the following four requirements: 1. Employer may not deduct sums to recoup a business expense 2. Worker must have been informed of the deduction prior to beginning the employment 3. If the deduction is a condition of employment, it must be clearly identified as such 4. Deduction must be made against the wages of U.S. workers as well as the wages of H-1B immigrants The H-1B employer needs to plan ahead by providing the employee with a list of the planned deductions before the commencement of the employment. Furthermore, the employer should document the fact that the deductions are customary to the occupation or the area. Voluntary Deductions To qualify as voluntary, the deduction must meet all of the following criteria: 1. Must have a written authorization by the employee 2. Must be principally for the employee’s benefit 3. Cannot simply recoup an employer business expense 1. Ex. Attorney fees and other required costs associated with performance of the employer H-1B program functions (e.g. preparation and filing of the LCA and H-1B petition). 4. Cannot exceed fair market value or the actual cost of the matter covered 5. Cannot exceed 25% of an employee’s disposable earnings (wages after legally mandatory deductions) 6. Deductions cannot be made as a penalty for ceasing employment In conclusion, as an H-1B employer you must proceed very carefully when fashioning wage deductions for H-1B workers. These deductions should be carefully planned to make sure that they meet all of the requirements set out by the DOL and it may be wise to consult an attorney to avoid any potential liability. Please stay tuned, tomorrow we will discuss in more detail financial responsibilities of the employee and the employer during the H-1B application process. 本文由範毅禹律師事務所提供 本律師事務所精辦各類勞工應聘及專業移民申請 (包括H-1，L-1，EB-1，EB-2，NIW，勞工卡，綠卡等申請)。所有申請由多位美籍律師及擁有15年經驗的範毅禹律師親自處理，我所並特設中英移民網站。內有最新移民新聞資訊及由律師主持的移民問答集，歡迎讀者流覽查詢。 www.fan-law.com (Chinese) www.fanuslaw.com (English) CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]