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I-9 E-Verify Immigration Compliance

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

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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).


 

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