How Much Money Can an Employer Demand from a H1B Employee Who Resigns

[h1bfriend]

My question involves labor and employment law for the state of: New Jersey

I am on h1b. I joined my employer around 4 months and working in client site. Now got a full time job and would like to switch. However somehow my employer got to know that I may transfer and holding my Pay Stub. And they are threatening that they are going to sue me. In my contract agreement, its mentioned that they have right to claim "any liquidated damages but not penalty". And there is no where they mentioned about the amount that they would be claiming. My question is usually in this type case, how much do they claim in case ifI end in transferring the H!B? The contract is about 2 years.

[flyingron]

It's illegal to "penalize" you for leaving (not that apparently your company cares anything about the law, H1B is not to be used as you currently are using it). They can sue you for the actual costs that getting your status cost them that they didn't recover. It can be a few thousand. Frankly, I'd file a wage claim, they're not allowed (no matter what the contract) to withhold the "liquidated damages" from your pay. They'd have to sue you.

[Mr. Knowitall]

A liquidated damages clause must, by definition, state the amount to be claimed as liquidated damages or provide a formula that allows for the calculation of a specific figure.

In general, damages are unliquidated "where they are an uncertain quantity, depending on no fixed standard, referred to the wise discretion of a jury, and can never be made certain except by accord or verdict." 25 C.J.S. Damages § 2 (1966). On the other hand, "liquidated damages are those the amount whereof has been ascertained by judgment or by the specific agreement of the parties, or which are susceptible of being made certain by mathematical calculation from known factors." Ibid.

If they failed to meet that requirement, they would have to prove actual damages and the amount of those damages in any effort to recover compensation through a court. Whether or not an incomplete clause claiming a right to liquidated damages would allow a claim for actual damages is not something that can be addressed without reviewing the language of the contract. In the absence of an enforceable contract provision allowing them to recover damages, they cannot recover money based upon an employee's resignation.