URGENT!! Working for free without employment authorization

lisam

Help! Can employees work for free (basically volunteering) if their work authorizations expire as a way to hold their position open while waiting for work authorization? As an HR professional, my reaction was of course not. However, the employees immigration attorney says that is perfectly legal. The company is sponsoring the employee for a permanent residence application and just filed the labor certification form. What kind of liability does the employer face? Where can I find any info on this?

Thanks for any help!

NaeNae55

I am not an expert, but my first response is that an immigration attorney concentrates on immigration and not the FSLA (if he/she really did say that). If you cannot have an employee who works for you volunteer extra hours and not get paid overtime, how can you have one just work for you for free, even if you are sponsoring them? I am sure this is an FSLA violation. I would not take a chance. My take would be: if the employee's attorney is so sure, he should be the one to point to the regs where it is ok. Otherwise, the employee can't work. I would be willing to hold the job open for a certain period of time, but then we would replace the employee.

I hope someone more knowledgeable than me can help you out here. Forumites?


Good luck!

Nae

stilldazed

I'm no expert either, but I would say that it may be legal from an immigration standpoint and illegal from an FLSA standpoint. If you are using volunteer work to offset a paid position, you are working an employee for free as far as FLSA is concerned. Free is way below minimum wage. I'd stop that one right away.

We had a similar issue several months ago, and I don't have the documents in front of me, but I did find that we (as an employer) had a responsibility to let the worker go (which we did) until the immigration issue was sorted. We let the worker know, discharged her (it was a her in our case), and offered her the chance to reapply and be rehired without penalty once she was again authorized to work in the US. The process for her was about 6 months. Once she was again authorized, we hired her back into the same kind of job.

Without knowing all of your details, it sure sounds like (on the face) that you are offering work tasks to someone who is willing to work for no wages while you may be paying someone else to complete similar job duties. My take on FLSA is that you either have a job or you don't, and if someone performs the activities of what you call "a job," that person is technically your employee. You are therefore obligated to pay for that person's services.

I'm interested to hear other input. We happen to have a lot of volunteers in my organization, and we are very careful to keep the tasks they perform separate from anything that we offer for pay.

best wishes.

System

Humm.... We sponsored an employee for permanent residency and INS required us to pay a minimum salary for his position (which met FLSA requirements and in line with our compensation program). This is the first time we'd sponsored anyone and to learn more about this proces and compliance, I was in constant communication with the Immigration Services Office. You can find a phone number and useful information for employers at [url]www.uscis.gov/portal/site/uscis[/url]. Their customer service is great. You can also subscribe to their newsletter and updates notifications.

stilldazed

By the way, the situation I referenced (about discharging the worker) was not a sponsorship. It was simply a situation of a work visa that had expired. My findings is that employers are not allowed to work employees who are not authorized to work, so we discharged based on expiration of the citizenship authorization. To bypass Civil Rights restrictions on discrimination, we were clear in correspondence that the issue was simply the authorization to work in the US and the worker was invited to apply for re-employment as soon as the authorization issue was resolved.

We have another situation involving and H1B visa, and we did have some pay requirements during the early "sponsorship" phase. We were required to pay a salary (it is a salaried position) and were unable to get any services out of the person. The credential is MD, so we used the time to acclimate the physician to potential clients and the rest of the organization as well as work on licensure issues with Florida and insurance companies.

best wishes,

HRQ

I agree with Nae and stilldazed. Regardless of their legal status, if person performs the same tasks as a paid employee, they must also be paid. They can't "sign away" their rights to minimum wage.

Explain that once they are able to provide current documentation, they can apply for rehire and if a position is open, you'd love to have them back.

Holding their position for any amount of time will set a precedent that you may or may not want to honor in the future. If you are comfortable holding the position open for them, I would set a very conservative time limit, and reevaluate when the time's up.

allsteaks

Although it has been several years, the then INS, now ICE, would give immigrants a temporary work permit which basically said they could work or continue to work while their paperwork was being processed. We (a previous employer) were contacted by immigration attorneys many times on this and often they were able to get their client the temporary authorization. There is no known legal way to work someone without compensating them at or above minimum wage. I believe that happened when slavery was outlawed.