It's not uncommon for employers to employ workers on various non-immigrant visas. Recently, a high profile case finally settled but it cost the former McDonald's franchisee a hefty sum as well as a lot of bad publicity. After years, the DOL's Wage and Hour Division reached a settlement with the former McDonald's franchisee for back pay, damages as well as a civil penalty for violating the FLSA's minimum wage and overtime provisions when it underpaid foreign student workers. The settlement is nearly $211,000.
The student workers were working in the US under the J-1 visa program. The Exchange Visitor (J) non-immigrant visa category is for individuals approved to participate in work-and study-based exchange visitor programs. Visas under the J-1 program are available to post-secondary students enrolled full time and pursuing studies at post-secondary accredited academic institutions who come to the U.S. to work and travel during their summer vacation. Many employers employ individuals on a J-1 visa for a variety of reasons including being able to transform their business with international talent or to train individuals to start branches overseas.
The DOL found that the employer violated two main parts of the FLSA: (1) it made improper deductions from employee paychecks, which brought the rate of pay for some employees below the federal minimum wage of $7.25 per hour, and (2) some employees did not receive the required overtime premium.
Employers should be mindful of the FLSA's requirements when they are employing individuals on any type of visa.
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