IV. B-1 WORKERS’ RIGHTS

There are no regulations setting out protections for workers who are present in the United States with a B-1 visa.  This makes sense because that the B-1 visa is not supposed to be for work.  However, given that B-1 domestic workers, by definition, are working, there are at least some protections outlined in the U.S. State Department’s Foreign Affairs Manual (FAM).102 The FAM requires individuals applying for a B-1 visa to work in the U.S. as a domestic worker to already have a signed employment contract with their employer; this is a prerequisite for the visa.103 The required employment contract terms depend on the immigration status of the B-1 domestic worker’s employer and his or her expected duration of stay in the United States.104 Nevertheless, in all cases, the B-1 domestic worker’s contract must specify that the wage paid will be the higher of the minimum or the prevailing wage.105 The consular officer reviewing the domestic worker’s B-1 visa application is the only government official in the position to make sure that the contract exists and complies with the FAM’s requirements. While the FAM itself is not enforceable in court, the B-1 domestic worker may bring a legal action in court to enforce the employment contract’s terms if the employer does not comply with them. There are no protections in the FAM for either trainees and high-skilled workers who have a B-1 visa in lieu of H designation.  
 
As with any workers in the United States, individuals with a B-1 visa have rights under any federal and state employment statutes and common laws that may apply, including the Fair Labor Standards Act, the Age Discrimination Employment Act, the Civil Rights Act, the Trafficking Victims Protection Act, the Racketeer Influenced Corrupt Organizations Act, and state wage and hour and discrimination laws.  Whether certain laws apply to specific nonimmigrant workers will depend on the facts of each particular situation.106
 
 
A. Special Protections For B-1 Domestic Workers 
In order to qualify for a B-1 domestic worker visa, the applicant must possess an employment contract dated and signed by both the employer and the worker.107  The rules about what terms must be included vary slightly depending on whether the employer is a U.S. citizen or a nonimmigrant.  U.S. citizen employers who are going to be stationed in the United States for a temporary work assignment, perhaps for a longer term, have extra requirements. 
 
 
1. U.S. Citizen employers
The required employment contract must guarantee that the employer will pay either the minimum or prevailing wage, whichever is greater, for an eight hour work-day.108 Moreover, the employment contract must include any other benefits “normally required for U.S. domestic workers in the area of employment.”109  Furthermore, the employer must provide at least two weeks’ notice before ending the work contract.  However, the worker is not required to provide such notice of intent to leave the employment.
 
a) USC employers who are on temporary assignment in the United States have added requirements
U.S. citizen employers who are on a temporary work assignment in the United States – rather than merely visiting the U.S. for pleasure - have two additional requirements.110  Their domestic workers’ employment contracts must specify that the employer will provide free room and board and free round trip airfare.111  Also, the contract must state that the worker will only work for that employer.112
 
2. Nonimmigrant employers
When the B-1 domestic worker’s employer is a nonimmigrant, their contract must guarantee payment of the greater of the applicable minimum or prevailing wage.113  The employer must provide free room and board and pay for the worker’s initial travel expenses to the United States, and subsequently to the employer’s onward assignment, or to the worker’s country of normal residence at the end of the assignment.114 The contract must state that the worker will only work for that employer.115
 
 
 
 
3. Domestic Workers and the Fair Labor Standards Act
All domestic workers are generally entitled to an hourly minimum wage and protection from retaliation under the Fair Labor Standards Act (FLSA).116  However, the federal wage law’s overtime provisions do not apply to domestic workers who live in the employer’s household.117
 
a) Counting the hours worked
Employers do not have to keep track of the number of actual hours worked by live-in domestic workers.118 Rather, the employer must maintain a copy of any agreement or employment contract and indicate that the actual work time generally coincides with it.119  FLSA regulations do require employers to keep a separate record with the actual hours worked by in-home employees when there is a “significant deviation from the initial agreement.”120
 
The amount of sleeping time, mealtime and other periods of complete freedom from all work tasks is generally not included as time worked.  Employers do not have to pay for the domestic worker’s free time when it is sufficiently long enough for the worker to make effective personal use of the time.  However, if such time is spent on-call and subject to interruptions for work, employers must pay for the entire time.121
 
 
 
 
B. B-1 Trainees and the Fair Labor Standards Act 
The fact that an individual in the United States as a B-1 trainee does not preclude treatment as an employee under the Fair Labor Standards Act (FLSA).126  Internships and training programs in the for-profit private sector almost always amount to employment under the FLSA and therefore must be paid according to its minimum wage and overtime provisions.  Under the FLSA, an “employee” is “any individual employed by an employer.”127  “Employ” means “suffer or permit to work.”128  Therefore, all individuals who are “suffered or permitted” to work must be compensated for the services they provide for their employer.  This definition is very broad.  
 
 
 
 
  • 102. The Foreign Affairs Manual is the organizational directive for the U.S. State Department. Chapter 9, entitled Visas provides guidance to consular officials who issue the visas but is not binding or enforceable in and of itself. See U.S. State Department, Foreign Affairs Manual, available at http://www.state.gov/m/a/dir/regs/fam/index.htm (last visited November 2013).
  • 103. 9 FAM 41.31 N9.3.
  • 104. Id.
  • 105. Id.
  • 106. The relevancy of a plaintiff’s immigration status to remedies available under substantive employment laws is nuanced and has been widely discussed elsewhere. See, eg., Kati L. Griffith, Undocumented Workers: Crossing the Borders of Immigration and Workplace Law, 21 CORNELL J.L. & PUBL. POL’Y 611, 615-26 (2012) (comprehensively outlining the “pressing need for a more integrated understanding of the sometimes complementary, sometimes conflict prone, relationship between immigration law and employment policies”); and Kati L. Griffith, U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law, 31 COMP. LAB. L. & POL’Y J 125, 141-155 (2009) (providing background on the intersection of immigration and employment law as they pertain to migrant workers’ rights and specifically the effect of immigration status on what claims and remedies are available).
  • 107. 9 FAM 41.31 N9.3-1 a.(5).
  • 108. 9 FAM 41.31 N9.3-1 b; N9.3-2 b.
  • 109. Id. The FAM does not specify the manner of determining other benefits that are normally required. However, the U.S. Department of Labor would be a source for that information.
  • 110. 9 FAM 41.31 N9.3-2
  • 111. 9 FAM 41.31 N9.3-2 b.
  • 112. Id.
  • 113. 9 FAM 41.31 N9.3-3 a.(4).
  • 114. 9 FAM 41.31 N9.3-3 a.(5).
  • 115. Id.
  • 116. 29 C.F.R. § 552.102(a); see also 29 U.S.C. § 215(a)(3)(protection from retaliation).
  • 117. 29 U.S.C. § 213(b)(21).
  • 118. 29 C.F.R. § 552.102(b).
  • 119. Id.
  • 120. Id.
  • 121. 29 C.F.R. § 785.23.
  • 126. See, e.g., Chellen v. John Pickle Co., Inc., 344 F.Supp. 2d 1278 (N.D. Okla 2004).
  • 127. 29 U.S.C. § 203(e)(1).
  • 128. 29 U.S.C. § 203(g).

© 2012 | Global Workers Justice Alliance | 789 Washington Ave. Brooklyn, NY 11238 | info@globalworkers.org | (646)351-1160