Employment Agreement - Liquidated Damages

[Dawnz]

Any clue if I would be paying 8325 USD dollars to the company, If I am on bench in October and the company refuses to pay me my salary, and eventually withdraws my H1B?

 

I am being asked to sign the below. I am scared! Lol! I want to be with the company for more than a year, however, I am skeptical, if I am on bench and the company withdraw my H1B; will I be forced to pay 8325 USD because they have to let me go?

Cyndi Hanoe

 

LIQUIDATED DAMAGES:
Liquidated Damages due to early termination of employment: In order to recruit, interview, hire, and train a new employee, JBSAC incurs specific expenses, exclusive of the business expenses related to (i) H-1B sponsorship including USCIS Fees and Attorney Fees. Furthermore, a voluntary and premature termination of employment by you results in a specific loss of revenues to JBSAC due to disruption of on-going projects and the consequential inability to meet deadlines and deliverables. Hence, should you voluntarily terminate employment with JBSAC prior to twelve (12) months of billable period from your date of employment, you shall be liable to pay JBSAC, specific liquidated damages(*), as detailed in this agreement. These liquidated damages are not meant to: (i) penalize you, or (ii) recover H-1B related USCIS fees, or (iii) recover H-1B Attorney Fees from you consistent with 20 C.F.R. 655.731 © 12, or (iv) dissuade you from terminating this employment, which remains, employment at will. (*)The liquidated damages are $8325 (Eight thousand, three hundred twenty five U.S. Dollars)

[jairichi]

 

Any clue if I would be paying 8325 USD dollars to the company, If I am on bench in October and the company refuses to pay me my salary, and eventually withdraws my H1B?

 

I am being asked to sign the below. I am scared! Lol! I want to be with the company for more than a year, however, I am skeptical, if I am on bench and the company withdraw my H1B; will I be forced to pay 8325 USD because they have to let me go?

Cyndi Hanoe

 

LIQUIDATED DAMAGES:

Liquidated Damages due to early termination of employment: In order to recruit, interview, hire, and train a new employee, JBSAC incurs specific expenses, exclusive of the business expenses related to (i) H-1B sponsorship including USCIS Fees and Attorney Fees. Furthermore, a voluntary and premature termination of employment by you results in a specific loss of revenues to JBSAC due to disruption of on-going projects and the consequential inability to meet deadlines and deliverables. Hence, should you voluntarily terminate employment with JBSAC prior to twelve (12) months of billable period from your date of employment, you shall be liable to pay JBSAC, specific liquidated damages(*), as detailed in this agreement. These liquidated damages are not meant to: (i) penalize you, or (ii) recover H-1B related USCIS fees, or (iii) recover H-1B Attorney Fees from you consistent with 20 C.F.R. 655.731 © 12, or (iv) dissuade you from terminating this employment, which remains, employment at will. (*)The liquidated damages are $8325 (Eight thousand, three hundred twenty five U.S. Dollars)

 

If you are not paid on bench you can complain against employer to DOL.

If employer revokes H1B petition you do not have to pay anything. Employer has to get a one way return ticket to home country.

[t75]

Contact a US licensed attorney. Where are you located - US or elsewhere. That will let us give better advice.

 

You are smart to worry about what you are signing before doing so.

[JoeF]

You have to get paid on bench. That's the LAW!

And liquidated damages are not a fixed amount. The amount gets lower the longer you work there, since the employer recoups part of the investment into you.

What you quote states that it only applies if you quit, not if the company lays you off.

[asha2020]

File complaint to department of labor. You must get paid even thou you are on bench the complete salary mentioned on the LCA.

With DOL complaint you will be able to transfer your H1b.Find another employer in USA or from your home country.

DOL complaint proof will help you in H1b stamping, H1b transfer and getting paid for all the period. Fill Wh4 form and submit it with all the supporting documents to respective DOL office-Wadge and hour division.

 

http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62I.pdf

 

www.dol.gov/compliance/guide/h1b.htm

 

Regarding Liquidation damage-

You may have to pay some amount.I am not sure.

Usually courts decide how much damage your company had.

You can find attorney if employer is forcing you to pay.

 

All the best!

[rahul412]

In US employment is at your will. So if you sign this agreement then you will be in trouble if you break the agreement.

I say find another  employer. That employer is just a consulting firm, find real employer.

[Dawnz]

Thank you  for your inputs. I will also seek the advice of a employment attorney in coming days. If the firm must file my H1B, I am asked to sign some documents including above by  afternoon today.

 

I am in US on H4. 

 

Infact, even though the employer mentions '  In order to recruit, interview, hire, and train a new employee, JBSAC incurs specific expenses' ,   there is  no training as such, and I went through a round of Tech interview at their office. 

 

Along with the employment agreement, offer letter and  discussed terms was also provided to me yesterday and these guys need them by today to go ahead with LCA filing etc

 

I did hear from one of its employee that she was in bench briefly without pay. If that happens to me, I am not willing to be part of anything illegal, but was wondering if the employer can force me to pay liquidated damages if I am out of work.

 

As I gather from your comments, Paying the employee and employing employee's service is the  responsibility of the employer. So they shouldn't be able to enforce 'Liquidated damages' if I am out of work or not able to find a project. That is the responsibility of the employer. 

 

Is my understanding right?

[rahul412]

That's correct. It's employer's responsibility to put you on project. And you need to get paid even when you are on bench.

 

That's why I said, find another employer. This employer is just an consulting firm, find real one with real projects.

[jairichi]

Thank you  for your inputs. I will also seek the advice of a employment attorney in coming days. If the firm must file my H1B, I am asked to sign some documents including above by  afternoon today.

 

I am in US on H4. 

 

Infact, even though the employer mentions '  In order to recruit, interview, hire, and train a new employee, JBSAC incurs specific expenses' ,   there is  no training as such, and I went through a round of Tech interview at their office. 

 

Along with the employment agreement, offer letter and  discussed terms was also provided to me yesterday and these guys need them by today to go ahead with LCA filing etc

 

I did hear from one of its employee that she was in bench briefly without pay. If that happens to me, I am not willing to be part of anything illegal, but was wondering if the employer can force me to pay liquidated damages if I am out of work.

 

As I gather from your comments, Paying the employee and employing employee's service is the  responsibility of the employer. So they shouldn't be able to enforce 'Liquidated damages' if I am out of work or not able to find a project. That is the responsibility of the employer. 

 

Is my understanding right?

If there is no work and you are not paid just file a complaint with DOL and move to a new employer. No need to pay liquidated damages in this case. As everyone suggested ask these questions to a labor attorney.

[Dawnz]

Thank you jairichi, rahul412, asha2020, joef, t75

 

for your time and suggestions. You are advice is the right one.

 

:)

 

Consulted a attorney just now. He says, if the employer fails to pay , the liquidated damages agreement  is inapplicable, and the employer can be subject to a law suit for failure to pay

[asha2020]

Just a doubt-

How can you be on H4 after H1b petition got approved?

Were you able to file H1b to H4 Change of status without pay stubs?

H1b to H4 COS is needs to be filed otherwise you are out of status.

[Dawnz]

Just a doubt-

How can you be on H4 after H1b petition got approved?

Were you able to file H1b to H4 Change of status without pay stubs?

H1b to H4 COS is needs to be filed otherwise you are out of status.

Hi asha2020,

 

I am presently on H4. Company is filing for my new H1B this april. My question was hypothetical as I had the agreement to sign before My H1B is filed. I was calculating all possibilities.

Thanks