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  • Blogging: DOL finds Employee Engaged in Non-Productive Time; thus, owed Little Back Pay; by Bruce E. Buchanan

    Bloggings on I-9 E-Verify Immigration Compliance

    Bruce Buchanan

    DOL finds Employee Engaged in Non-Productive Time; thus, owed Little Back Pay; by Bruce E. Buchanan, Siskind Susser

    In Administrator, Wage & Hour Division v. North Shore School for the Arts (NSSA), 2012-LCA-00039, an Admininistrative Law Judge (ALJ) found an H-1B piano teacher was primarily engaged in non-productive time and, thus,  was owed only $2,980 rather than $16,800.

    Natsuko Imai, a Japanese citizen, was educated in the United States receiving her Bachelors of Music from Mannes College of Music and a Masters of Music from DePaul University.  After each degree, she worked a year of OPT. Afterwards, she sought a certificate from Roosevelt University. During these 10 years, Ms. Imai was on a F-1 visa. Despite the prohibition against working outside of campus, she regularly gave paid piano lessons, some of which were through NSSA, and did not claim the income on tax returns.

    After Ms. Imai dropped out of Roosevelt University and lost her F-1 status, she sought a way to remain in the United States.  NSSA agreed to sponsor her for a H-1B visa as a piano teacher. She returned to Japan and re-entered the U.S. as a tourist although she worked at NSSA, contrary to the law. After NSSA's H-1B visa was approved in September 2010, Ms. Imai began employment under the H-1B visa on November 2, 2010, a month after NSSA wanted Ms. Imai to start work.

    The issue in the case was whether Ms. Imai was "ready, able and willing to work.' Ms. Imai's job as a piano teacher did not involve a set schedule; rather, it depended on the number of students she taught. The evidence showed Ms. Imai made little effort to recruit students and engaged in little marketing/outreach work to seek more students, even though that was part of the job description. Instead, she spent about 50 hours a week practicing piano in preparation for competitions. However, Ms. Imai said she was available to give lessons if she had any students desiring a lesson.  Several times Ms. Imai provided private lessons away from NSSA.

    Eventually, on March 28, 2011, NSSA terminated Ms. Imai. Thereafter, she claimed she was due $1600 a week ($40/hour x 40 hours) for 21 weeks even though she only taught piano for 74.5 hours during the 21 weeks or an average of 3.5 hours a week.

    After finding Ms. Imai violated the terms of her F-1 visa and the tax code and was not a credible witness, the ALJ also found Ms. Isai was not ready, able and willing to work; rather, she just wanted to practice for competitions and auditions. As such, Ms. Isai was not entitled to wages except for the 74.5 hours she gave piano lessons. Thus, the ALJ awarded Ms. Imai $2980 ($40/hour x 74.5 hours).

     


    About The Author

    Bruce E. Buchanan is an attorney at the at Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on immigration compliance for employers, and employment/labor law. Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982 and a B.S. degree from Florida State University, where he graduated magna cum laude. Mr. Buchanan has been in private practice since 2003. Beforehand, he served as Senior Trial Specialist for the National Labor Relations Board for 20 years. He also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law, where he taught courses in Labor Law and Employment Law. Mr. Buchanan was chair of the Tennessee Bar Association's Immigration Law Section from 2011 to 2012 and has been the editor of the TBA's Immigration Law Section Newsletter and the TBA's Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan is a frequent writer and speaker on immigration compliance as well as labor law, wage & hour law and proposed federal legislation. He is a member of American Immigration Lawyers Association (AILA) and serves as the Advocacy Liaison of the Mid-South Chapter of AILA. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors.

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