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My employer is asking for liquidated damages when i quit my…

Customer Question
My employer is asking for...
My employer is asking for liquidated damages when i quit my job in 2 months, Is it legally acceptable to ask for the amount?
I am working in california bay area, and i am on H1B.
Submitted: 9 months ago.Category: Legal
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Answered in 4 minutes by:
9/15/2017
Lawyer: Leena Kamat,
 replied 9 months ago
Leena Kamat
Category: Legal
Satisfied Customers: 102
Experience: Managing Attorney at Kamat Law Corporation
Verified

The employer would technically be allowed to recover liquidated damages if it is specified in your employment agreement, but the amount has to be a reasonable one that is broken down for specific costs. They cannot recover the costs of filing the H-1B petition for you, but they may be able to recover certain training costs. If they have some flat amount like $10K or $20K without explanation of how they arrived at that figure, it is probably not enforceable. That is not to say that they would not still try to pursue it to inconvenience you, so if they continue with their threats, I would suggest that you have a lawyer write back to them.

Please let me know if you need any clarifications, and please provide a positive rating so I can receive credit for assisting you!

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Customer reply replied 9 months ago
they are asking for 7500$
and in the document they have mentioned that the cost is for :Liquidated Damages to Employer. If Employee should not report for work with Employer, or
if Employee shall report to work but Employee or Employer terminates employment prior to the
full-time employment of Employee in H-1B status, for a period of at least one (1) year, for whatever
reason or cause, then in either event, Employee agrees to immediately upon demand pay Employer
bona fide liquidated damages in the amount of $7,500.00 plus attorney's fees if required for
collecting these liquidated damages. The liquidated damages include all fees permissible under
applicable Department of Labor and USCIS H-1B regulations including but not limited to 20
CFR655.731[c] [9] and [10] and 8 CFR Sec. 214.2(h). Such liquidated damages, which specifically
exclude employer mandated filing fees, and which shall fully satisfy the express requirements of 20
CFR655.731[c] [9][iii], include Employer's reasonable approximations of the actual damages caused
to Employer by such breach of the contract by Employee. The liquidated damages do not include
any expense or fee required to be paid by the Employer under the American Competitiveness and
Workforce Improvement Act or under the Fraud Detection and National Security Act. The unpaid
balance of the liquidated damages shall accrue interest at the rate of 15% per annum beginning 30
days from the date Employee fails to report to work, terminates his/her employment or otherwise
breaches this agreement. This liquidated damages agreement is made voluntarily and is authorized
by both parties in accordance with and under the following standards (20 C.F.R.§ 655.731(c)(9)(iii)):DocuSign Envelope ID: 28C4F609-5950-4F19-A487-2A64CD7425DB• It is a voluntary, written authorization by the employee;
• For an amount that does not exceed the fair market value or the actual cost (whichever is lower) of
the matter covered; and
• The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act
• The stipulated damages are a reasonable measure of the actual damages likely to be sustained in the
event of breach.
Customer reply replied 9 months ago
is this all legal?
Customer reply replied 9 months ago
when i signed the contract i didnt see this specific document , it was hidden somewhere
Lawyer: Leena Kamat,
 replied 9 months ago

It looks like they have worded it carefully enough that if you did sign it and you left before completing one year, it might be enforceable, perhaps in part. You should still ask them to itemize what they are collecting for - the costs would have to be bona fide expenses that were incurred for your benefit, e.g. if they provided food or housing allowances in a manner that was not for their own benefit. If it escalates to where you have to hire a lawyer to try and settle it for you, that could potentially cost you $250+/hour, so you would have to do a cost-benefit analysis to see if it is worth it.

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Lawyer: Leena Kamat,
 replied 9 months ago

Hi, please let me know if you need any clarifications - otherwise please provide a positive rating so I can receive credit for assisting you.

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