Legal Question in Employment Law in California

Re: Unlawful Visa Sponsorship / false declarations / unethical business conduct.

A claim for unpaid compensation can be made to the Labor Commissioner, or you can file suit for the same. If successful, you might get an award based upon the compensation specified in the H1B, plus interest and penalties and attorney fees. There are no guarantees of success, since you agreed to the equity grant and independent contractor status, but you have a shot at it. It may be possible to negotiate a resolution of this problem without suit, since it would be costly for the company to fight this. Contact me if interested in doing so. I have done many of these cases.

Re: Unlawful Visa Sponsorship / false declarations / unethical business conduct.

Employers cannot avoid the wage laws by claiming they had an "agreement" to pay by some other method (especially when the H1B rules require the employer to pay what was promised in the LCA) Employers are required to pay you at least minimum wage, and to comply with all overtime requirements -- if you've worked more than 8 hours in a day or over 40 in a week, you may be entitled to 1.5 times your hourly rate of pay. (Overtime rules in CA favor the employee -- and just because a position is classified as "salaried" does not mean an employer can escape overtime obligations.) The employer has violated various laws -- state and federal wage laws, as well as the laws regulating the H1B relationship; the employer has also acted fraudulently. An employer who violates the H1B provisions can be "debarred" from using H1B employees in the future, and can face other penalties from the Dept of Labor. You can file a claim with the US Dept. of Labor over the H1B issue, and you can file a claim with the state Labor Commissioner, but you are best off threatening the employer with a lawsuit in state court, and attempting settlement via that route -- an employer who retaliates you (e.g. fires you,) for asserting your rights to pay can also be sued for that -- however, in some ways, you are very much at the employer's mercy, because of your H1B status. If the employer decides to end your job, the employer is required to immediately report the job loss -- and you will have a short amount of time to leave the country, or you'll be out of status with your visa. The best time to pursue this type of claim against the employer is after you have left the job (either transferred to another H1B job, other visa classification, or left the country.) You have, in California, four years to sue for the wage violations -- you want to count from the first day you began work. . . If you have any further questions, feel free to call. I handled one of these claims, and had a successful result -- my client had already returned to her home country.