USDOL/OALJ Reporter: ARB Decision Caselist - January 2014

The ARB granted the Respondent's motion to withdraw its appeal of an ALJ's decision under the child labor provisions of the Fair Labor Standard Act. The Respondent averred that it paid the balance of the civil money penalty to the Wage and Hour Division.

SCOPE OF INVESTIGATION INITIATED BY SINGLE AGGRIEVED PARTY COMPLAINT; TIME LIMITATIONS ON SCOPE OF INVESTIGATION; ADMISSIBILITY OF EVIDENCE (HEARSAY; POST-DISCOVERY); PRE- AND POST-JUDGMENT INTEREST AWARD

In Administrator, Wage and Hour Div. v. Greater Missouri Medical Pro-Care Providers, Inc. , ARB No. 12-015, ALJ No. 2008-LCA-26 (ARB Jan. 29, 2014), an H-1B worker filed a complaint with the Wage and Hour Division (WHD) alleging that the Respondent failed to pay her wages required by the labor condition application (LCA) for time off due to a decision by the employer, illegally made deductions from her wages, and required her to pay an illegal penalty for ceasing employment with the Respondent prior to the agreed date. The WHD found after an investigation that the Respondent had committed numerous LCA violations relating not only to the complainant, but also dozens of other H-1B workers. In a hearing, the ALJ upheld most of the WHD's determinations. The Respondent appealed to the ARB.

WHD's authority to expand scope of investigation beyond four corners of original complaint

The Respondent's first contention on appeal was that the matter began with a single aggrieved-party complaint, and no statutory or regulatory authority extends the WHD's authority to investigate the matter beyond the specific violations alleged in that complaint. The ARB found, however, that the Administrator acts squarely within her authority to determine the scope of the H-1B investigation upon finding reasonable cause to pursue such an investigation. The ARB looked to the language of the INA and the implementing regulations and concluded:

   A broad variety of parties have standing to file an "aggrieved party" complaint. The pivotal statutory requirement for initiating an investigation, however, is a finding of reasonable cause by the Secretary. Once reasonable cause has been established, the statutory requirements for initiating an investigation have been met and the scope of that investigation may be conducted "as deemed necessary by the Administrator to determine compliance ...." 20 C.F.R. § 655.800(b) (italics added).

Slip op. at 9. The ARB further reviewed the statutory and regulatory history and found that in legislating the H-1B program, Congress balanced the competing interests of organized labor and the business community, and focused the DOL's resources on the back-end enforcement of the LCA process through "aggrieved party" complaints rather than the front end screening of an employer's attestations. The ARB found that the scope of the investigation in the present matter was consistent with Congress intent to streamline the H-1B approval process, while concentrating resources on post-admission enforcement. The Administrator's discretion to expand an investigation beyond the four corners of a complaint does nothing to hinder efficient H-1B admissions, but instead bolsters the Secretary of Labor's ability to detect INA violations and ultimately serves the Congressional goal of protecting domestic and foreign labor. Further reviewing the regulatory history, the ARB concluded:

The plain language of these enforcement provisions, in effect to this day, reflects evolving Congressional intent to delegate broad authority to the Secretary to enforce the H-1 B program based upon information from a variety of sources (aggrieved and otherwise) but only when such information provides reasonable cause to investigate. The Department's investigation in the case before us, based as it was on reliable information from an H-1 B employee, was entirely consistent with the statute, the Congressional approaches behind it, and the Department's regulations.

Slip op. at 13. Finally, the Board found that its precedent decisions had affirmed a number of multiple employee awards arising out a single aggrieved-party complaint.

One member of the ARB dissented on the ground that the WHD had not complied with the provisions of 8 U.S.C. § 1182(n)(G)(ii)-(viii) and 20 C.F.R. § 655.807 (notice and opportunity to respond; the Secretary's personal certification of reasonable cause and authorization to investigate), when its expanded investigation led to reasonable cause to believe that H-1B violations may have affected H-1B employees other than the original complainant.

Time bar on scope of investigation

The Respondent argued that the INA limits the scope of an investigation and any resultant liability to adverse actions that occurred during the 12-month period immediately preceding the aggrieved party's complaint (i.e., that any violations occurring before this time period are time barred). The ARB agreed, finding that the plain language of the statute, 8 U.S.C. §§ 1182(n)(2)(A), 1182(n)(2)(G)(ii) and (vi), and the regulations, 20 C.F.R. § 655.806(a)(5), "dictate a finding that any LCA violations which occurred more than a year before [the H-1B worker] filed her complaint are not actionable." Slip op. at 15. Reviewing its caselaw, the ARB found that "the scope of a remedy for a timely filed claim is not limited by the one-year limitation period. However, each discrete violation must be timely filed on its own to be actionable; if the violation underlying the claim occurred more than 12 months before a complaint is filed, any remedies for that violation are barred under the statute." Slip op. at 16 (footnote omitted). The ARB thus reviewed the ALJ's decision to determine which violations had been timely.

In a footnote, the ARB cautioned that the 12 month limitations period applies only to aggrieved party or "credible source" investigations, and that under section 1182(n)(2)(F), the Secretary may conduct random investigations, without a limitations period, for up to five years after a final ruling.

Evidentiary issues and burden shifting

   - Burden of proof; Mt. Clemens burden-shifting principles

After the Respondent brought non-immigration workers to the U.S. under the H-1B program to work as occupational and physical therapists, the workers were first required to pass an examination and obtain a state therapy license before they received the salary listed on the LCA. The regulation at 20 C.F.R. § 655.731(c)(6), requires an employer to pay the wage listed on the LCA on the date the employee "enters into employment" with the employer. Under 20 C.F.R. § 655.731(c)(6)(i), an H-1B employee "enters into employment" when he/she first makes him/herself available for work or otherwise comes under the control of the employer. Moreover, an employer is obligated to pay the LCA wages even if it "benches" the H-1B employee by placing him in non-productive status. 20 C.F.R. § 655.731(c)(7)(i). See also 8 U.S.C. § 1182(n)(2)(C)(vii)(1). Thus, the ARB stated, "if an employee reports as available to work, whether it is for orientation, training, or to study for a licensing examination, the employer violates the Act if it does not pay the H-1B employee his LCA-specified wages." Slip op. at 5.

The Respondent argued that the ALJ improperly shifted the burden of proof to it to disprove the Administrator's determination of the relevant dates as to when employees reported to work. The ARB, noted that the Respondent had not submitted any evidence of when the employees in question became available for work, and that the ALJ had relied on the Supreme Court decision in Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680 (1946), for the proposition that when an employer fails to provide adequate records, the prosecuting party meets its initial burden of proof if it proves that an employee in fact performed work for which that employee was improperly compensated, and if it presents sufficient evidence to show the amount and extent of that work "as a matter of just and reasonable inference." Slip op. at 22, quoting ALJ D & O, citing Mt. Clemens at 687. The ARB approved of the ALJ's invocation of Mt. Clemens , noting that it had applied the Mt. Clemens burden shifting principles to other labor statutes requiring payment of specified wages.

   - Sufficiency of evidence; hearsay; evidence submitted and admitted after close of discovery

The Respondent argued that the ALJ erred by relying on hearsay reflected in the Administrator's evidence. The ARB noted that hearsay is generally admissible in administrative proceedings and that the H-1B regulations provide that the Federal Rules of Evidence and the general OALJ rules on evidence (29 C.F.R. Part 18, Subpart B) shall not apply. In addition, the ARB stated that it has explicitly held that "the testimony of an investigator summarizing employee interview statements is admissible and may support back pay awards to non-testifying employees." Slip op. at 23 (footnote omitted). Thus, the ALJ did not abuse her discretion by admitting DOL investigator and/or employees' testimony and statements over the Respondent's hearsay objections.

The Respondent argued that the ALJ erred by admitting evidence the Administrator provided a year and one-half after the close of discovery. Although the Respondent did not identify the evidence in question, the ARB determined that it was apparently an Intake Form that was produced during discovery, but which the Administrator had presented in a less-redacted form in opposition to the Respondent's motion for summary decision. The ARB agreed with the ALJ that the Respondent was not prejudiced by admission of this document. The less-redacted document had been produced well over a year prior to the hearing, there was nothing in the record indicating that the ALJ had relied on this document when determining benching periods, and the Respondent had not produced any evidence to rebut the ALJ's reasonable inferences.

Pre- and post-judgment interest

The Respondent objected to the ALJ's award of pre- and post-judgment interest because of delay in the proceedings before the Administrator and the ALJ, and because of a lack of a basis for such an award in law or fact. The ARB affirmed the ALJ's award. The ARB conceded that the INA and the regulations do not specifically provide for an award of interest, but found that such awards are routine in H-1B cases as in cases arising under other remedial employee protection statutes administered by DOL. Thus, based on Board precedent and the remedial policies underlying the H-1B statutes and regulations, the ARB found that the H-1B workers in this case were entitled to pre- and post-judgment interest. The ARB also found that any delay was not due solely to the Administrator, much less the aggrieved employees, and thus declined to reduce the interest award due to delay.

FRSA ELECTION OF REMEDIES PROVISION DOES NOT BAR AN EMPLOYEE FROM CHALLEGING DISCIPLINE UNDER BOTH ARBITRATION AND FRSA RETALIATION PROCEEDINGS

In Kruse v. Norfolk Southern Railway Co. , ARB Nos. 12-081, -106, ALJ No. 2011-FRS-22 (ARB Jan. 28, 2014), the Complainant alleged that the Respondent violated the FRSA when it suspended him in retaliation for an injury he reported to a supervisor. The Respondent appealed the ALJ's Decision and Order in favor of the Complainant, arguing that the Federal Rail Safety Act's "election of remedies" provision, 49 U.S.C. § 20109(f) barred the Complainant, who had challenged his discipline in Railway Labor Act arbitration, from challenging the same discipline in a FRSA retaliation proceeding. The ARB rejected the Respondent's argument, finding that the ARB's interpretation of Section 20109(f) in Mercier v. Union Pacific R.R. Co. , ARB Nos. 09-101 and 121, ALJ Nos. 2008-FRS-3 and 4 (ARB Sept. 29, 2011), that Section 20109(f) does not encompass grievances filed pursuant to a CBA, had been agreed with by other courts, such as the 7th Circuit in Reed v. Norfolk Southern Ry. Co. , __ F.3d __, 2014 WL 117479 at * 4 (7th Cir. 2014), and several district courts. See Ray v. Union Pacific Ry. Co. , __ F. Supp. 2d __, 2013 WL 529172, *8 (S.D. Iowa 2013); Ratledge v . Norfolk Southern Ry. Co. , 2013 WL 3872793, *12-*17 (E.D. Tenn. 2013); Battenfield v. BNSF Ry. Co. , 2013 WL 1309439 (N.D. Okla. 2013).

[Nuclear and Environment Digest IX D 3]
MOTION FOR RECONSIDERATION DENIED WHERE IT MERELY REITERATED ARGUMENTS ALREADY CONSIDERED BY THE ARB IN ITS ORIGINAL DECISION

In Friedman v. Columbia University , ARB No. 12-089, ALJ No. 2012-ERA-8 (ARB Jan. 22, 2014), where the Complainant merely reiterated arguments in a motion for reconsideration that had already been considered in the ARB's original decision, the ARB declined to address them again on reconsideration, and therefore denied the Complainant's motion for reconsideration.

LEGAL FEES UNDER EQUAL ACCESS TO JUSTICE ACT ARE NOT AVAILABLE IN ALJ HEARING CONCERNING H-2A TEMPORARY LABOR CERTIFICATION

In U.S. Dept. of Labor, Employment and Training Administration, Div. of Foreign Labor Certification v. Barry's Ground Cover , ARB No. 12-079, ALJ No. 2012-TLC-11 (ARB Jan. 16, 2014), the ALJ had awarded the Respondents legal fees under the Equal Access to Justice Act after having reversed an Employment and Training Administration, Division of Foreign Labor Certification denial of Respondent's applications for temporary alien labor certification to hire H-2A workers. Following briefing and oral argument, the ARB vacated the ALJ's EAJA award, finding that the EAJA does not apply to H-2A denial-of-labor-certification proceedings before a USDOL Administrative Law Judge. The EAJA authorizes the award of legal fees to a prevailing party (other than the United States) in connection with an "adversary adjudication." 5 U.S.C. § 504(a)(1). "Adversary adjudication" is defined under the EAJA as "an adjudication under section 554 of [the Administrative Procedure Act] in which the position of the United States is represented by counsel or otherwise, but excludes an adjudication ? for the purposes of granting or renewing a license." 5 U.S.C. § 504(b)(1)(C)(i); see also 29 C.F.R. § 16.102(b).

The ARB held that although ALJ H-2A labor certification hearings are an "adjudication" within the meaning of the Administrative Procedure Act, they are not "adversarial adjudications" for EAJA purposes because such hearings are conducted as part of the H-2A licensing process, and are therefore within the APA's definition of a "license" proceeding. See 5 U.S.C. § 551 ("license" defined as including the "whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission"). The ARB found that DOL's H-2A certification process "is part of, and indeed an integral pre-condition to, the approval by another federal agency of an employer's request �to bring non-immigrant workers to the U.S. to perform agricultural work.' 20 C.F.R. § 655.103(a)." Slip op. at 6.

BACK PAY FOR VIOLATION OF SCA; ALJ MAY CREDIT CALCULATIONS OF WAGE AND HOUR DIVISION INVESTIGATOR WHERE RESPONDENT FAILED TO PRODUCE ACCURATE AND COMPLETE PAYROLL RECORDS

In Administrator, Wage and Hour Div. v. Chae S. McFarland d/b/a SK Gateway Cleaners , ARB No. 12-046, ALJ No. 2010-SCA-23 (ARB Jan. 15, 2014), the ARB found that the ALJ properly credited the Wage and Hour investigator's calculations of back wages owed under the Service Contract Act based on the investigator's testimony and the records presented by the investigator, and the Respondent's failure to offer probative evidence to rebut the reasonableness of the investigator's calculations. The Defendant had failed to maintain accurate and complete records. See Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680 (1946) (evidentiary principles when employer's records are inaccurate or inadequate). The ARB also affirmed the ALJ's debarment order where the Respondent failed to show unusual circumstances that would relieve her company from debarment. The Respondent's owner's own testimony indicated that she had only paid the minimum wage and no fringe benefits, admitted that her payroll records were incomplete, and that she never agreed to pay any back wages owed.

INTERLOCUTORY APPEAL; WHERE ALJ HAD ISSUED A DECISION AND ORDER SUBSTANTIALLY AFFIRMING THE WAGE AND HOUR DIVISION'S H-2A CIVIL MONEY PENALTIES, BUT REMANDED FOR THE WHD TO RECONSIDER ONE ASPECT OF THE CASE, THE ALJ'S ORDER WAS NOT FINAL, AND THE RESPONDENTS WITHDREW THEIR PROTECTIVE INTERLOCUTORY APPEAL

In John Peroulis & Sons Sheep, Inc. , ARB No. 14-012, ALJ No. 2012-TAE-4 (ARB Jan. 15, 2014), the ALJ issued a Decision and Order substantially affirming the Wage and Hour Division's factual allegations giving rise to civil money penalties under the H-2A provisions of the Immigration and Nationality Act. The ALJ, however, also remanded the case to the WHD for reconsideration of CMPs relating to range housing violations. The Respondents filed an interlocutory appeal. Because the ALJ had not certified the matter for interlocutory review, the ARB issued an order to show cause why the Board should not dismiss the appeal. The Respondents replied that they had only filed the interlocutory appeal as a protective appeal in an abundance of caution to preserve their rights in case the ARB considered the ALJ's decision to be final. Because the ARB had determined that the ALJ's order was not final, the Respondents stated that there was no reason for the appeal to proceed at this time. The ARB therefore dismissed the interlocutory appeal.

ARB CLOSES APPEAL WHERE RESPONDENT FAILED TO FILE PETITION FOR REVIEW AFTER HAVING BEEN GRANTED AN EXTENSION OF TIME TO DO SO

In U.S. Dept. of Labor, Employment and Training Administration, Div. of Foreign Labor Certification v. Peter's Fine Greek Foods, Inc. , ARB No. 14-004, ALJ Nos. 2011-TNE-2, 2012-PED-1 (ARB Jan. 15, 2014), the ARB had granted the Respondent an extension of time to file a petition for review of an ALJ's decision under the H-2B provision of the Immigration and Nationality Act. When the Respondent did not timely file the petition after the extension, the ARB issued an order to show cause why the matter should not be closed. The Respondent did not respond, and the ARB therefore closed the case.