Employee Protections Extend to VA Physicians in DOL Investigations19 Sep 2008
Immigration laws contain protections against employer retaliation and termination in situations where an employee has disclosed violations of the labor condition application (LCA) requirements or cooperated with the U.S. Department of Labor (DOL) in investigations of such violations. The LCA is part of the H1B process, and relates to wage and other employer obligations. Employers are prohibited from intimidating, threatening, restraining, coercing, blacklisting, discharging, or otherwise discriminating against employees (or former employees) who disclose LCA violations and/or cooperate in DOL investigations or other proceedings related to the LCA violations. This issue was explored recently by the Administrative Review Board (ARB) of the DOL in connection with a case involving the Veterans Administration Medical Center (VAMC) in Fargo, North Dakota. The case went in favor of the terminated employee.
Violations Found : Reinstatement and Back Pay Ordered
The ARB found that the VAMC violated the employee protection provisions by terminating the employment of two doctors for their cooperation with a DOL investigation into allegations of H1B/LCA violations. One doctor settled the claim. For the other doctor, the ARB ordered reinstatement of employment and back pay, as well as other remedies, including relocation expenses.
Employer Barred from Nonimmigrant Approvals for at Least Two Years
When a violation of the anti-retaliation provisions has occurred, there is a mandatory disqualification period of at least two years. During that period, the employer is disqualified from obtaining approvals of certain nonimmigrant petitions, including H1Bs and Os. Thus, this is a serious penalty, with consequences for the employer that are well beyond monetary penalties.
The VAMC employed the two physicians at issue in Fargo, North Dakota. Both physicians were active in a union that represented VAMC physicians. They spearheaded a physician pay study and cooperated in a DOL investigation prompted by a complaint by another physician. One of the physicians had, during the course of his work, earned favorable reviews, which led to a two-step pay increase and special pay dispensation.
The DOL investigation led to findings of violations and an order to pay back wages in excess of $200,000. This, in turn, led to unfavorable media attention. Thereafter, both doctors were subjected to a hostile work environment. Within approximately eight weeks of the publication of the WHD findings, retaliatory steps were taken, including withdrawal of the two-step pay increase, hostilities during meetings, open publication of disagreements, and, ultimately, termination.
The union president filed a complaint with the DOL on the doctors’ behalf. The final outcome is the confirmation of the findings in the initial hearing, and the penalties against VAMC, discussed above.
VA Physicians in H1B Status Entitled to Protections
One of the issues in this case was whether the employee protection provisions, discussed above, apply to the VA physicians. The VAMC argued that the immigration protections provisions did not cover the physicians’ employment. The VAMC argued that the physician was a federal employee under certain provisions that are exempt from any “civil service or classification laws, rules, or regulations.” The VAMC tried to argue, without any authority, that the immigration protections are a civil service law and, thus, not applicable to this type of employment.
The ARB found the VAMC’s argument unpersuasive. Immigration laws protect all employees who are classified as H1B, regardless of the type of employer. This is similar to a previous VA case reported in our August 15, 2008 MurthyBulletin article, ARB: VA Hospitals Not Governmental Research Organization for Prevailing Wage Purposes. VA Hospitals, similar to other private H1B employers, are required to comply with the H1B statute and regulations, including employee protection provisions.
Conduct Found to be Retaliatory
The VAMC also argued that its termination of the physician was not retaliatory, as there was a two-year period between the employee’s cooperation with the DOL investigation and the termination. They claimed the termination was due to budgetary difficulties. A careful review of the timeline, however, revealed that the employment environment became hostile after completion of the DOL investigation, and that this was followed by a reduction in pay and a subsequent termination two months thereafter. Based on this timeline, the ARB found that the facts supported a conclusion that retaliation motivated the decision, and that the budgetary difficulty claims were unsupported. The ARB seriously questioned the validity of the claims of budgetary difficulties. They noted that the VAMC had a year-end budget surplus, did not otherwise reduce its workforce or take any other cost-cutting measures, and hired new physicians during the same fiscal year.
The decision establishes that the VAMC’s H1B employees, including physicians working at a VA facility, are protected by the employee protection provisions under law. MurthyDotCom and MurthyBulletin readers, employees and employers alike, should be aware of these provisions. Employees often feel powerless when their employers are not complying with the law. This example shows that, in the H1B context, there are remedies for violations. This case also shows that employers should be careful about H1B compliance. The penalties allowed extend beyond the possible financial penalties, and include provisions that prevent approval of additional H1B petitions in future years.