DOL regulations enumerate the following specific violations
Violation | Provision of Law |
|---|---|
Filing an LCA which misrepresents a material fact | 20 CFR 655.805(a)(1). Federal fraud statutes also apply. |
Failing to pay wages as required under § 655.731 including failure to pay wages for certain nonproductive time | 20 CFR 655.805(a)(2) |
Failing to provide the working conditions as required under § 655.732 | 20 CFR 655.805(a)(3) |
Filing an LCA during a strike or lockout in the occupational classification at the place of employment | 20 CFR 655.805(a)(4) |
Failing to provide notice of the filing of the LCA as required under § 655.734 | 20 CFR 655.805(a)(5) |
Failing to accurately specify on the LCA the number of workers sought, the occupational classification or the wage rate and working conditions | 20 655.805(a)(6) |
If employer is H-1B dependent or a willful violator failing to comply with its additional requirements relating to displacement secondary displacement or recruitment & hiring of U.S. workers | 20 CFR 655.805(a)(7)-(10) |
Requiring, receiving, or attempting to recoup from the H-1B nonimmigrant the H-1B training fee required to be paid by an employer | 20 CFR 655.805(a)(11) |
Requiring an H-1B worker to pay a penalty for ceasing employment early, unless such payment constitutes liquidated damages permissible under State lawRequiring an H-1B worker to pay a penalty for ceasing employment early, unless such payment constitutes liquidated damages permissible under State law | 20 CFR 655.805(a)(12) |
"Whistleblower" protection: it is a violation for an employer who has filed an LCA to in any manner discriminate or retaliate against an employee a former employee or applicant for employment because the employee has disclosed information or cooperated in an investigation regarding what the employee reasonably believes is a violation of the LCA rules | 20 CFR 655.805(a)(13) |
Failing to make documents available for public inspection | 20 CFR 655.805(a)(14) |
Failing to maintain required documentation | 20 CFR 655.805(a)(15) |
Otherwise failing to comply in any other manner with any other LCA requirement under the regulations | 20 CFR 655.805(a)(16) |
Penalties for LCA violations
There are three levels of penalties for LCA violations:
Basic violations of LCA provisions or non-willful failure to accurately present material facts
- Possible penalties: Civil monetary penalty of up to $ 2,072 per infraction; payment of back wages if violation is wage-related; and one-year bar on employer filing H and permanent residence petitions;Willful* violations of LCA provisions, misrepresentation of material facts or violation of whistle blower protections
- Possible penalties: Up to $ 8,433 civil monetary penalty; payment of back wages if violation is wage-related; and 2-year bar on employer filing H and permanent residence petitionWillful* violations resulting in displacement of U.S. worker(s)
- Possible penalties: Up to $ 59,028 civil monetary penalty; payment of back wages; and at least a 3-year bar on employer filing H and permanent residence petitions
* "Willful failure" means either a knowing failure or a reckless disregard of whether the conduct was contrary to law.
In addition, the Wage and Hour Division has the authority to "impose such other administrative remedy(ies)...as the Administrator deems appropriate." This could include, for example, subjecting the employer to the additional attestations required of willful violators of the terms of the LCA.
Federal criminal statutes may also apply if a violation involves a knowing and willful submission of false statements to the Federal Government. These statutes provide penalties of up to $10,000 and/or imprisonment of up to 5 years.
During an investigation, DOL will generate a prevailing wage determination using the OES wage survey to determine if the employer is complying with the required rate of pay. If the employer pays less than the required rate, the employee will be owed back wages.
The LCA complaint and review process
Any "aggrieved party" party can file a complaint with the DOL Wage and Hour Office having jurisdiction over the place of employment, alleging violations of the terms of the LCA. The complaint must be filed with DOL no later than 12 months from the date of the alleged violation(s), and it must provide enough information for DOL to determine whether or not an investigation is warranted. DOL has 10 days to make this determination. Thereafter, DOL has 30 days to launch an investigation and issue a determination (if DOL must request a prevailing wage determination (PWD) as part of this process, the 30-day period is suspended while the PWD is being processed). While no particular form is required, DOL's Wage and Hour Division (WHD) makes available Form WH-4, "H-1B Nonimmigrant Information Form," to assist those who wish to file complaints.