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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7319
Experience:  Significant experience in all areas of employment law.
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I Signed a contract with a small company (Which directs for

Customer Question

I Signed a contract with a small company (Which directs for work to it's clients) of 50 employees saying I will be employer for 6 months and return back $2400 legal fees If I quit before 6 months of start date.

I have a great offer now and I quit, is it mandatory to return back their H1 B fees, also they have kept my last 2 weeks of wage?Can company recover by stating liquidating damages

I joined on Nov9 and last date was Dec 3 also I gave a notice of 1 week
Submitted: 2 years ago via EmployeeIssues.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

Liquidated damages will only be enforceable if they represent "a reasonable attempt to anticipate the losses to be suffered." However, if the sole purpose of a liquidated damages clause is to coerce compliance with the contract and not to compensate the non-breaching party for damages, the provision is a penalty and unenforceable. If short, if the damages reasonably reflect the actual damages suffered by the company as a result of your premature departure, the employer would be permitted to collect those damages.

An employer MUST pay you all wages due and outstanding immediately upon your termination, assuming you gave at least 72 hours notice, which it appears you did. (Labor Code 201) Failure to timely pay wages upon termination may result in penalties being imposed against the employer pursuant to Labor Code section 203. An employer CANNOT deduct from your outstanding wages any amount that it believes it is owed in the form of damages. The employer must pay you and request that money from you separately.To file a wage claim with California's Department of Labor Standards Enforcement, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Finally, the Department of Labor has indicated that it is the employer's responsibility to pay for the preparation and filing of an H-1B petition. Specifically, the DOL states: "Your employer may not require you to pay, either directly or indirectly, any part of the petition filing fee; or to pay a financial penalty for leaving employment before a date set in the employment contract; or to pay employer business expenses (such as attorneys fees for preparation and filing of the H-1B Labor Condition Application)." See this link for the reference: http://www.dol.gov/wecanhelp/h1bworkers.htm

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.

Patrick, Esq., Lawyer
Satisfied Customers: 7319
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Expert:  Patrick, Esq. replied 2 years ago.
There was a formatting error in my response in which part of one paragraph appeared out of place. Sorry about that. I have edited my response and it now appears correctly ordered. Sorry if it caused confusion. I do hope that you found my answer helpful.
Customer: replied 2 years ago.
To be more clear In the contract this has been written:
"Employee acknowldges the effort and time and money X Inc have been invested in obtaining a project and hence agrees to not withdraw or re negotiate offer made in this letter upon signing the offer letter.

Employee agrees to submit the neccesary documents to spectracore technologies Inc to facilitate H1 B processing.In the event the employee fails to join company X on the specified joining date after processing of H1B Visa/H1B transfer;Employee agrees to compensate company X with $2400 toward INS and other legal fees.Employee agrees that he will repay company X the legal fees of $2400 if he leaves the employment before 6months of his start date "

Please specifically advise whether can I be in trouble...
Customer: replied 2 years ago.
Also The Company X Did not spend anything on me except on my H1 B Visa Transfer...are they still eligible for liquidated damages
Expert:  Patrick, Esq. replied 2 years ago.
I think that the Department of Labor is pretty clear on this issue: "an employer may not require you to pay, either directly or indirectly, any part of the petition filing fee" It would appear that your employment contract is not compliant with the above-stated law.

Further, the DOL would regard such a deduction as a deduction from your wages. Give the short period of time that you were employed, the deduction of these costs from your wages would leave you with net pay that likely would not equal minimum wage, if anything at all. This would be illegal.

If your employer attempts to deduct these costs from your outstanding wages, it would generally be wise to file a complaint with the Department of Labor Standards Enforcement at the link I gave to you above. That link is: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Your company may still be able to collect damages from you for the cost that they incur in having to hire another employee, since you guaranteed them 6 months of your service. Bear in mind again, however, that they would have to recover this money through a SEPARATE legal action against you, they cannot simply deduct it from your outstanding wages, as that would be illegal.

I wish you the best of luck. Please again remember that the above does not constitute legal advise nor is any attorney client relationship formed between us.
Customer: replied 2 years ago.
Thanks for your reply, as you said
Your company may still be able to collect damages from you for the cost that they incur in having to hire another employee, since you guaranteed them 6 months of your service.

But the contract which was employment at will so will it still affect...
Expert:  Patrick, Esq. replied 2 years ago.
Your employer will likely argue that the language of your contract (at least as you've described it to me) creates an obligation for you to remain employed with them for 6 months. If such obligation exists, they would be able to collect for you the reasonable damages that they incur in filling your position. This would not likely be a significant amount of money.
Customer: replied 2 years ago.
To Correct there is no term atleast in the contract.
So Will this be still applicable
Expert:  Patrick, Esq. replied 2 years ago.
I see what you are saying. I think you could make a strong argument that they are not entitled to recover any costs they incur to obtain a replacement because there was no clause expressly requiring your employment for a specified period of time. I can't predict what arguments they would try to make in response to this (perhaps something about how a fixed term of employment for 6 months was implied), but it seems that they would have little to go on.

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