Under terms of a court order, Indianapolis-based Access Therapies Inc. must pay $81,454 in civil money penalties and $39,946 in back wages to six physical therapists for violations of the H-1B provisions of the Immigration and Nationality Act. The H-1B program allows employers to employ foreign workers temporarily in the U.S. on a nonimmigrant basis in specialty occupations. Access Therapies will be debarred from participation in the H-1B program for a one-year period.
“The rules governing the employment of nonimmigrant workers in specialty occupations are specific and must be followed completely. Failing to do so denies qualified workers an opportunity for meaningful employment in the American economy,” said Thomas Gauza, district director for the Wage and Hour Division in Chicago. “This case shows that the department will not hesitate to bring legal action against employers that continue to short their employees and violate the law.”
An investigation by the U.S. Department of Labor’s Wage and Hour Division found, among other issues, that the company misrepresented facts on its application when petitioning for and employing H-1B nonimmigrant workers and, as a result, the division issued the company a determination letter seeking the back wages owed. Access Therapies contested those findings and requested a hearing before an Administrative Law Judge, who issued the order that required the company to pay back wages, civil money penalties and interest, and debarred it from the H-1B program for a one-year period.
The investigation found employees were due back wages because they were not compensated with the required prevailing wages for productive work time or for preassignment and post-assignment time, as required. Access Therapies failed to withhold applicable employment taxes, such as payments to Medicare, FICA and federal and state income tax. The company is required to pay such taxes, plus interest and penalties, to the appropriate taxing authorities.
Under the terms of the order, in addition to paying the back wages and penalties, Access Therapies has agreed to enhanced compliance procedures, including records review by the department for a two-year period, and agrees to comply with provisions of the Immigration and Nationality Act in the future.As a word of caution to prospective H-1B employees, the press release makes no mention of an affiliated company owned by the same two individuals, Prithvi Dhani and Manuel Garcia, and operated by the same employees out of the offices where Access Therapies conducts business. That business is RN Staff, Inc. According to recent H-1B data, both Access Therapies and RN Staff are among the top ten companies in the state of Indiana employing H-1B workers.
I have represented in the past multiple employees who have been sued by Access Therapies and RN Staff, Inc. for allegedly breaching their employment contact with the companies. These companies have filed more than six dozen lawsuits against former employees seeking damages of $20,000 or more, plus attorney's fees, after employees became disillusioned and left their employment, often because they believed that they were not provided a full-time job at the wages they believed they were promised when they entered into a contract with the staffing companies. I have complained endlessly to the U.S. Department of Labor about their slow progress in prosecuting pending cases against Access Therapies. While I'm pleased to see the Department has finally acted, for too many harmed H-1B employees, it's too little too late. The company can simply skirt the one-year bar by using its affiliated company, RN Staff, Inc., to file new H-1B applications, effectively making the one-year bar meaningless. Unfortunately, for dozens of other harmed workers, this order provides no relief.