By: Ryan M. Helgeson, Esq.
Enforcement of the government's employment visa programs has steadily increased over the last several years. These investigations and enforcement actions fall under the auspices of the U.S. Department of Labor's (USDOL) Wage and Hour Division (WHD). Employer anxiety about these audits is also increasing, unfortunately because of the negative decisions of administrative law judges (resulting in large awards of back wages and even debarment of employers from U.S. immigration programs).
Best Practices to Avoid WHD Investigations
Many immigration-related WHD investigations begin with complaint filed by a current or former employee. Many complaints, especially those from H-1B workers, relate to compensation issues. Further, members of the public can file complaints against an employer if they are denied access to the required "Public Access File."
To avoid a referral to WHD for an investigation, employers must take care to enact and follow a comprehensive immigration compliance program that fully abides by the governing federal regulations. To reduce the risk of complaints from the general public, employers should maintain a Public Access File for the relevant non-immigrant employees.
Employers who are subject to WHD investigations need to prepare in advance, as no subpoena is required and WHD may initiate random investigations. Employers will need to cooperate with USDOL investigators and produce documents in very short timeframes, generally as little at 3 days. Thus, employers need to have all documents required by DOL investigators close at hand, including payroll for the three previous years.
Employers should develop and implement an action plan well before WHD visits or issues a notice of investigation. The employer should be prepared to provide the USDOL investigator the name and contact information for their attorney and ask that all communications go through counsel. Employers that choose to defend themselves do so at their own risk, as their statements constitute evidence that may be used as admissions of wrongdoing by USDOL investigators.
Employer preparedness, developed in consultation with expert counsel, can help employers comply with regulations and limit liability in the event of a WHD investigation.
If you have questions regarding responding to a Wage and Hour audit or other business immigration compliance, Attorney Ryan Helgeson is happy to help you. Please contact Ryan at (630) 377-1554 or at firstname.lastname@example.org.