Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Knibb v. New Jersey Transit Rail Operations, Inc., ARB No. 2023-0011, ALJ No. 2020-FRS-00078 (ARB Feb. 3, 2023) (Order of Dismissal)

ORDER OF DISMISSAL; COMPLAINANT FIALED TO FILE AN OPENING BRIEF AND RESPONSE TO AN ORDER TO SHOW CAUSE

In Knibb v. New Jersey Transit Rail Operations, Inc., ARB No. 2023-0011, ALJ No. 2020-FRS-00078 (ARB Feb. 3, 2023), the ARB dismissed Complainant's petition for review for failing to timely file an opening brief and for failing to file a response to the Board's Order to Show Cause.

Raziano v. Albertsons, LLC, ARB No. 2023-0010, ALJ Nos. 2020-STA-00084 through -00086, -00088 (ARB Feb. 16, 2023) (Decision and Order Approving Settlement and Dismissing Appeal)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In Raziano v. Albertsons, LLC, ARB No. 2023-0010, ALJ Nos. 2020-STA-00084 through -00086, -00088 (ARB Feb. 16, 2023) (Decision and Order Approving Settlement and Dismissing Appeal), Respondent filed an unopposed Motion for Voluntary Dismissal of Appeal because the issues presented in the petition for review had been resolved, and there was no need to pursue the appeal further. The Board ordered Respondent to file a copy of any settlement for consideration by the Board. Subsequently, Respondent filed a Certification of Satisfaction Agreement with a settlement agreement attached. The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. The Board dismissed Respondent's appeal.

Administrator, Wage and Hour Div., USDOL v. Macks USA, Inc., ARB No. 2022-0038, ALJ No. 2017-LCA-00013 (ARB Feb. 21, 2023) (Decision and Order)

STATUTE OF LIMITATIONS; AVAILABILITY AND WILLINGNESS TO WORK; PIERCING THE CORPORATE VEIL AND INDIVIDUAL LIABILITY

In Administrator, Wage and Hour Div., USDOL v. Macks USA, Inc., ARB No. 2022-0038, ALJ No. 2017-LCA-00013 (ARB Feb. 21, 2023), the ALJ determined that Macks USA, Inc. (Macks) and Mujeeb Rahman (Rahman) (collectively, Respondents) willfully violated the H-1B provisions of the Immigration and Nationality Act by benching an H-1B nonimmigrant worker without pay for over two years. The ALJ ordered back wages and civil money penalties and held Rahman individually liable. On appeal, the ARB affirmed.

STATUTE OF LIMITATIONS; BENCHING CONSTITUTES A CONTINUING VIOLATION FOR PURPOSES OF THE STATUTE OF LIMITATIONS; CIRCUMSTANCES PRESENTED DID NOT END RESPONDENTS' OBLIGATION TO PAY H-1B NONIMMIGRANT WORKER

On appeal to the ARB, Respondents first contended that the ALJ's award of back wages was time-barred by 20 C.F.R. § 655.806(A)(5) and 8 U.S.C. § 1182(n)(2)A), which require that complaints be investigated within one year from the latest date on which an alleged violation occurred. The violations at issue in this case involved benching—the H-1B nonimmigrant worker was not paid during nonproductive time due to a decision by the employer. The ARB stated that it has consistently held benching violations to constitute continuing violations which "remain[ ] actionable for the duration of the employment relationship as stipulated in the LCA." The ARB determined that the claim in this case was timely, because it was initiated within one year of the last alleged instance of the H-1B nonimmigrant worker being benched.

In an attempt to avoid the applicable limitations period, Respondents also asserted that the H-1B nonimmigrant worker left a job for personal reasons, which caused an intervening act that broke the continuing violation. Although evidence reflected that the worker left the job, in part, for personal reasons, the evidence reflected that the worker also left the job due to conditions related to his employment. Thus, the ARB determined this circumstance did not interrupt the continuing violation.

The ARB also rejected Respondents' argument that payments Respondents made to the H-1B worker did not constitute "cash wages paid" for purposes of satisfying the H-1B required wage, and therefore did not constitute an "intervening event" to interrupt the continuing violation. Respondents did not make the appropriate tax withholdings or report the payments to the Internal Revenue Service. Thus, the ARB concluded that the Administrator had jurisdiction to award back wages for the entire benching period as a single continuing violation.

AVAILABILITY AND WILLINGNESS TO WORK; RECORD DEMONSTRATED THAT H-1B NONIMMIGRANT WORKER WAS AVAILABLE AND WILLING TO WORK

Respondents also contended that they did not have to pay the H-1B nonimmigrant worker the required wages because he was unavailable and unwilling to work. The ARB rejected Respondents' arguments.

First, Respondents reiterated their argument that the H-1B worker quit his job because of a personal reason. As the ARB had already found, however, although the H-1B worker quit his job in part because of a personal reason, he also quit in part for reasons related to his employment. Thus, the ARB determined that his quitting his job did not satisfy the unavailable exception to wage liability.

Respondents next contended that the H-1B worker was unwilling to relocate to New York City for work. The ARB found that the H-1B worker was willing to relocate, based on the fact that he had relocated for two previous jobs.  

Finally, Respondents asserted that the H-1B worker refused a work opportunity. The ARB found that the H-1B worker did not receive a job offer. Rather, he was merely given an opportunity to work with a consultant company that would have marketed his resume if he completed a training course. The H-1B worker made several good faith attempts to complete the training, but was unable to complete the course. The H-1B worker also never received any offers for work on any of the consultant company's client projects, nor was he ever assigned any work duties. The ARB also found that it was notable that Respondents never terminated the H-1B worker's employment despite his alleged refusal to take jobs. Thus, the ARB concluded that the H-1B worker was available and willing to work, but that Respondents did not provide him work or pay the prevailing wage while he was benched.

PIERCING THE CORPORATE VEIL AND INDIVIDUAL LIABILITY; H-1B EMPLOYER'S SOLE OWNER HELD INDIVIDUALLY LIABLE FOR VIOLATIONS OF THE H-1B PROGRAM

Lastly, the ARB determined that it was necessary to pierce the corporate veil and hold Rahman individually liable. As this case arose in New York state, the Board applied the New York test for piercing the corporate veil. The New York test requires the party seeking to pierce the corporate veil to show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or a wrong against the plaintiff which resulted in plaintiff's injury. Respondents did not challenge the ALJ's finding that Rahman exerted complete domination over Macks; instead, Respondents only challenged the second prong.

Respondents asserted that Macks was "primarily used to provide the services it promised" in obtaining visas and that there was neither a fraudulent nor wrongful scheme to injure the H-1B worker. The ARB stated that under the New York test, "the party seeking to pierce the corporate veil must establish that the owners, through their domination, abused the privilege of doing business in the corporate form to perpetuate a wrong or injustice against that party such that a court in equity will intervene." Under this standard, the ARB stated that actual or common law fraud need not be proved. Rather, the evidence must show that the fraud or other wrong resulted in "unjust loss or injury."

The ARB found that the Rahman willfully violated the INA by benching the H-1B worker without pay for over two years and prevented him from finding another employer as he lacked the three months of paystubs necessary to change employers. The ARB  found that this is a serious wrong that resulted in an unjust injury. Thus, the ARB affirmed the ALJ's determination to pierce the corporate veil and hold Rahman individually liable for all back wages and civil money penalties owed.