Mark A Ivener, A Law Corporation

No Wages Due If H-1B Employee Is Voluntarily Nonproductive, ALJ Finds

The Department of Labor’s Office of Administrative Law Judges recently found that North Shore School for the Arts (NSSA) did not owe an H-1B nonimmigrant employee back pay for voluntarily nonproductive “work” time. NSSA had employed Natsuko Imai as a piano/music teacher for 20 hours per week at a wage rate of $40 per hour.

Among other things, an NSSA representative stated that Ms. Imai took some students into her own private studio rather than continuing to work with them as NSSA students, which was against NSSA policy. The representative also stated that Ms. Imai was uncooperative in working to get more students. The representative made suggestions for doing so that Ms. Imai rejected. Despite claims to the contrary, Ms. Imai was trying to get into graduate school and spent much of her time practicing piano rather than teaching or performing related outreach duties.

Administrative Law Judge (ALJ) Stephen M. Reilly noted that wages are to be paid for nonproductive time if the employee is “ready, willing, and able” to work and the nonproductive time resulted from a decision of the employer. He found Ms. Imai’s testimony “rife with evasiveness, equivocation and forgetfulness.” He said that her demeanor during testimony “raised questions regarding her truthfulness.” He also found her disregard of the law “troubling” because she admitted to working while on an F-1 student visa and also to working outside NSSA while she was in H-1B status, which are violations. She further admitted that she did not report income for tax purposes. She said she knew these actions were against the law when she did them.

ALJ Reilly gave her testimony “little weight” because of these factors and her evasive answers. For example, the ALJ noted that she said that obtaining a doctoral degree was not her plan, but acknowledged that she had applied to doctoral programs and sought and obtained several recommendations for that purpose. ALJ Reilly also noted that although Ms. Imai spent long hours at the school, her focus was on practicing the piano, not teaching or performing her job duties. He found that Ms. Imai did not make herself available to perform her job duties and thus was not ready, willing, and able to work. The ALJ did not hold the NSSA’s representative blameless either, stating that she was “blinded to reality.” ALJ Reilly found the employer responsible for back pay for work performed (74.5 hours plus interest, for a total of $2,980), but not for the hours in dispute during which Ms. Imai was not performing work.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.