The Department of Labor (DOL) memo sent out on March 15, 2019 details the operations in order to bring transparency to companies that seek to employ H-1B visa holders and place them at end-Client sites. The memo on “Compliance with the H-1B Notice Requirement by Electronic Posting” requires companies that employ H-1B professionals, particularly businesses in the information technology (IT) services and contingent workforce industry to provide documented notice to affected US workers.
H-1B rules require sponsoring employers to provide the affected US workers and collective bargaining representatives with notice that it will employ H-1B workers. The notice should include information about prevailing wages, specialty occupation, and the location of the Labor Condition Application (LCA). Employers must file this notice with information about how to inspect or lodge H-1B-related complaints with DOL.
While the onus is on the employer, it would be good practice for any H1-B employee about to accept an IT Contract position to verify that your employer has complied with the Notice requirement. As per the DOL, regulations employer must be providing a “notice” to the collective bargaining representative or, if the job is not unionized, then employers may either post paper notices at the workplace or may provide notice electronically.
The provision regarding electronic notice was published by DOL in 1998 and makes no reference to internet sites, neither mandating nor prohibiting their use. The transparency within the workflow will minimize the errors and lead to IT contractor workforce compliance.
When the DOL determines, after investigation and the completion of any appellate process, that the employer has engaged in a “substantial failure” to comply with the Notice requirement, then the law forces the government to debar or disqualify the employer from sponsoring any foreign nationals for employment in the United States for at least one year.
For employers who rely on overseas professionals to supplement their U.S. workforce, debarment can be devastating to their U.S. business, while dealing a severe blow to the H-1B employees. Hence, it would be a good practice to ensure that the employer is always in compliance with the notice requirements.
The new memo sent out on March 15, 2019, provides insight into how The Department of Labor now interprets the electronic Notice regulation. Subsequently, employers who provide notice electronically should examine and, ensure that the electronic notice must be “readily available” and that employees at the worksite should have “direct access” to the notice.
The new memo clarifies that these mandatory regulations mean that affected workers in the same occupation and location as the H-1B worker must be capable of accessing the electronic notice and should have knowledge of the electronic resource where the notice is posted.
The memo makes a key point pertaining to the electronic notification on their public websites where the H-1B workers employed at customer or third-party sites. DOL explains that “H-1B petitioners could give electronic notification on their public websites, as long as the affected workers at the third-party worksite are aware of the notice and able to determine which notice is applicable to their workplace.”
Further, DOL’s position states that H-1B employers must take the additional steps 1) to inform affected workers that they may review the H-1B employer’s website to read the regulatory notices, and 2) And ensure that it is apparent to the affected workers which website notices apply to their worksite. Therefore, ensuring transparency for the companies and affected U.S workers.
Department of Labor position places an extra burden on certain employers that are not explicitly required by the regulations. To limit the risk that DOL would identify a violation of the Notice requirement during an enforcement action, the employers that place H-1B workers at customer sites should create a reasonable network between the worksite and the notice on the employer’s website.
For example, the Department of Labor memo suggests that the employer may accomplish this by posting a hard-copy message in a conspicuous location at the worksite and point interested parties to the position of the notice on the employer’s website. The hard-copy at the workplace need not repeat the content of the notice but could simply provide enough information to identify the employer and location of the notice, such as a URL. Employers should tag notices on their website by occupation and location to avoid potential major problems during a Department of Labor investigation.
All the companies should review their practices/procedures when they provide notice electronically. The companies that employ H-1B workers at third-party sites most likely will need to make adjustments.
Most companies that hire H-1B workers at third-party sites post notices either on their website or a physical copy on the customer site. However, due to lack of centralized systems, they don’t often keep a track of such postings and the follow up of what happened to the LCA related posts. This poses the biggest challenge to employers and employees alike as they deal with a flurry of notices from various agencies.
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