Administrative Review Board - April 2022

La Grande v. Owens Corning, ARB No. 2022-0025, ALJ No. 2022-WPC-00001 (ARB Apr. 12, 2022) (per curiam) (Order Dismissing Complaint)

WITHDRAWAL OF OBJECTIONS; ALJ NOT REQUIRED TO REVIEW SETTLEMENT AGREEMENT IN WITHDRAWAL OF OBJECTIONS IN FWPC AND SWDA MATTERS 

REQUEST TO VACATE ORDER; GROUNDS FOR GRANTING REQUESTS TO VACATE VOLUNTARY DISMISSAL ARE EXTREMELY LIMITED; ALJ PROPERLY DENIED COMPLAINANT'S REQUEST TO VACATE ORDER APPROVING WITHDRAWAL OF OBJECTIONS WHERE COMPLAINANT MERELY WANTED TO RENEGOTIATE THE SETTLEMENT AGREEMENT AND DID NOT PUT FORTH ADDITIONAL GROUNDS

In La Grande v. Owens Corning, ARB No. 2022-0025, ALJ No. 2022-WPC-00001 (ARB Apr. 12, 2022) (per curiam), the ARB affirmed the ALJ's order approving the complainant's withdrawal of objections as well as the ALJ's subsequent order denying the complainant's request to vacate the order approving the withdrawal of objections.  The ALJ had dismissed the case, granting the complainant's request to withdraw his request for hearing on claims arising under the Solid Waste Disposal Act (SWDA) and the Federal Water Pollution Control Act (FWPCA) because the parties had reached a mutual settlement agreement.  The complainant subsequently requested that the ALJ vacate the order. Id. at 2.  The ALJ denied the request, noting that limited grounds are available to justify relief from a final order, and finding none of them present.  Id. at 4. 

The ARB first analyzed the ALJ's order granting the complainant's request to withdraw his objections.  The ARB concluded that the ALJ acted within his authority under 29 C.F.R. 24.111(c) and found that "the ALJ did not have to approve the settlement agreement before granting the Complainant's request to withdraw his objections to the OSHA ruling."  Id. at 4.  The ARB explained that the settlement must be submitted for approval only if the settlement is under the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, or the Toxic Substances Control Act."  Id. at 4.

The ARB next turned to the ALJ's denial of the complainant's request to vacate the order approving withdrawal of the complainant's objections.  The Board noted that "[i]t appears Complainant would like to proceed with his original case because he is dissatisfied with the settlement agreement reached between the parties."  Id. at 3.  The ARB observed that "[l]imited grounds are available to justify relief of a voluntary dismissal."  Id. at 5.  Explaining that "[i]t is insufficient for Complainant to justify relief from voluntary dismissal on the grounds that Complainant has changed his mind and wants to continue pursuing his claims," the ARB affirmed the ALJ's denial.  Id. at 5-6.    

La Grande v. Owens Corning, ARB No. 2022-0025, ALJ No. 2022-WPC-00001 (ARB Apr. 20, 2022) (per curiam) (Order Denying Motion for Reconsideration)

Gross v. Saint-Gobain Corp. et al., ARB No. 2022-0005, ALJ No. 2021-SDW-00001 (ARB Apr. 18, 2022) (per curiam) (Decision and Order of Remand)

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; THIRD CIRCUIT PRECEDENT ALLOWS AN ALJ TO CONSIDER AN UNDISPUTEDLY AUTHENTIC DOCUMENT THAT A RESPONDENT ATTACHES AS AN EXHIBIT TO A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM IF THE COMPLAINANT’S CLAIMS ARE BASED ON THE DOCUMENT, WITHOUT CONVERTING THE MOTION TO DISMISS TO A MOTION FOR SUMMARY DECISION

ADVERSE ACTION; THIRD CIRCUIT PRECEDENT PROVIDES THAT WHEN THERE IS A DISPARITY BETWEEN A WRITTEN INSTRUMENT ANNEXED TO A PLEADING AND AN ALLEGATION BASED THEREON, THE WRITTEN INSTRUMENT CONTROLS; THE TEXT OF AN EMAIL CONTROLS OVER A COMPLAINANT'S CHARACTERIZATION OF THAT EMAIL

ADVERSE ACTION; DEPENDING UPON THE IMPACT OF THE RELEASE, A PRESS STATEMENT MAY CONSTITUTE ADVERSE ACTION

In Gross v. Saint-Gobain Corp. et al., ARB No. 2022-0005, ALJ No. 2021-SDW-00001 (ARB Apr. 18, 2022) (per curiam), the ARB addressed three main issues in a case arising under the Safe Drinking Water Act (SDWA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  First, the complainant challenged the ALJ’s consideration of evidence outside of the complaint in his consideration of the respondent’s motion to dismiss for failure to state a claim upon which relief can be granted.  Second, the complainant challenged the ALJ’s finding that an email sent by the respondent did not constitute an adverse action.  Finally, the complainant contended that the ALJ incorrectly found, as a matter of law, that a press release issued by the respondent did not constitute an adverse action.  

Motion to Dismiss

The complainant argued that the ALJ improperly considered evidence outside of the complaint without converting the respondents’ motion to dismiss for failure to state a claim upon which relief can be granted to a motion for summary judgment.  Id. at 5.  In granting the motion to dismiss, the ALJ considered an email from respondent dated March 8, 2021 that the complainant contended constituted adverse employment action.  The ALJ had not converted the motion to dismiss to a motion for summary decision. 

First, the ARB explained that it uses a “fair notice” standard to decide motions to dismiss a complaint for failure to state a claim upon which relief can be granted:

• A sufficient statement of the claims need only provide (1) some facts about the protected activity, showing some “relatedness” to the laws and regulations of one of the statutes in our jurisdiction, (2) some facts about the adverse action, (3) a general assertion of causation, and (4) a description of the relief that is sought.

The Board then explained that, “generally, in reviewing whether to dismiss a complaint for failure to state a claim, the ALJ should not consider new evidence submitted by the moving party . . . unless he or she converts the motion to one for summary decision and allows the non-movant an opportunity to respond.”  Id. at 5-6.  The Board continued:

• However, the Third Circuit, in whose jurisdiction this case arises, has held that “a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.  Otherwise, “a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied.”

Id. at 6 (footnotes omitted).  Finding that “[t]he March 8, 2021 email is central to Complainant’s claim and he expressly relies on it when asserting it constitutes an adverse employment action,” the ARB concluded that “the ALJ properly considered the March 8, 2021 email, and was not required to convert Respondents’ motion to dismiss into a motion for summary judgment.”  Id. at 6.

Adverse Actions

The ARB next affirmed the ALJ’s finding that the March 8, 2021 email did not constitute an adverse employment action.  Id. at 6.  The ARB observed:

• There is a significant disparity between Complainant’s argument that the email was threatening and what the email states.  The Third Circuit has held that “[w]here there is a disparity between a written instrument annexed to a pleading and an allegation based thereon, the written instrument will control.”  Thus, here, the email controls. 

Id. at 7.

Finally, the ARB turned to the ALJ’s finding that a press release issued by the respondent did not constitute an adverse action.  Id. at 8.  The following statements were included in the release to the media:

• Mr. Complainant was separated from the company following an investigation for violating company policies, including our harassment prevention policy, among others.
•  
• Despite access to multiple ethics hotlines and numerous opportunities to raise concerns directly to incoming CEO Mark Rayfield and other senior leaders, Mr. Complainant did not do so.

The ARB concluded that “Complainant should have been given the opportunity to submit testimony, depositions, or other evidence to establish that the media statements could have an adverse impact on his career and his ability to find future work.”  Id. at 10.  The ARB explained:

• [I]f in fact Complainant could show that the contents of the press release were intentionally shaped in such a way to punish him for his claimed protected conduct, that a plausible claim may arise.  In this regard, we note that the Respondent is a large company with an undoubtedly sophisticated HR staff which would likely have understood the connotations of the word “harassment” in today’s working environment and how that could impact an employee’s job candidacy when posted on the Internet.  Of course, had Complainant in fact been guilty of harassment, as either normally defined or is legally defined, the company would have an explanation for its use of that term. 

Id. at 10.  The ARB remanded for further proceedings to reexamine the impact of the language in the press release and its possible motivation.  Id. at 11.

Judge Burrell dissented from the majority’s position that the media statement requires remand and discovery, stating that the complainant “has not pled any action on the part of Saint-Gobain that materially affects his terms, conditions, or privileges or employment.  His complaint does not identify threatening or retaliatory conduct rising to the level of material required by Burlington Northern and ARB precedent.”  Id. at 15.

Administrator, Wage and Hour Div., USDOL v. C.S. Lawn & Landscape, Inc., ARB No. 2020-0005, ALJ No. 2018-TNE-00023 (ARB Apr. 4, 2022) (per curiam) (Decision and Order)

ARB AFFIRMS FINDING THAT RESPONDENT PAID HIGHER WAGES THAN LISTED ON APPLICATION, IN VIOLATION OF 20 C.F.R. § 655.22(a) (2008), WILLFULLY INFLATED THE NUMBER OF H-2B WORKERS, IN VIOLATION OF 20 C.F.R. 655.22(n) (2008), AND MADE IMPROPER UNIFORM CLEANING AND HOUSING DEDUCTIONS, IN VIOLATION OF 20 C.F.R. § 655.22(g)(1), BUT VACATES AND MODIFIES CMP BECAUSE 1 OF 3 CLAIMS WAS TIME BARRED

In Administrator, Wage and Hour Div., USDOL v. C.S. Lawn & Landscape, Inc., ARB No. 2020-0005, ALJ No. 2018-TNE-00023 (ARB Apr. 4, 2022) (per curiam), the Administrator found that the Respondent substantially failed to comply with the recruitment and hiring of U.S. workers, imposed unfavorable terms and working conditions, impermissibly deducted pay, and willfully misrepresented a material fact regarding the accuracy or its need for temporary workers with respect to 3 Applications covering 2013, 2014, and 2015, assessing $147,200.84 in unpaid wages and $75,000 in civil money penalties (“CMP”).  Id., slip op. at 2–3.  Following a hearing, the ALJ found that the Respondent offered prospective U.S. workers less favorable terms than it did to several H-2B workers, in violation of Attestation 4 in the Application and 20 C.F.R. § 655.22(a), as the Respondent’s advertisements listed a salary or $9.01 per hour during the 2013 season and $9.78 during the 2014 season but paid several H-2B workers a higher salary.  Id. at 3.  The ALJ also determined that the Respondent willfully failed to comply with Attestation 13 and 20 C.F.R. § 655.22(n) during all 3 seasons because it “brought in the wives of two of Respondent’s H-2B workers knowing it would not employ them.”  Id.  Last, the ALJ determined that the Respondent substantially failed to comply with 20 C.F.R. § 655.22(g)(1) because of improper uniform cleaning deductions during the 2015 season, and improper deductions for housing during the 2013, 2014, and 2015 seasons.  Id. at 3–4.  The ALJ “determined the gravity of the violations was moderate” and reduced the $75,000 CMP to $21,000.  Id.  The Respondent appealed.  Id.  

Applicability of 2008 H-2B Regulations:  ARB Finds 2008 H-2B Regulations Apply Because the Form 9142 was Certified Before Injunction was Issued by the Northern District of Florida

The ARB rejected the Respondent’s contention that the 2008 H-2B regulations did not apply to this matter because the permanent injunction issued in Perez v. Perez, 14-cv-682, (N.D. Fla. Mar. 4, 2015), which enjoined the Department of Labor from enforcing the H-2B regulations at 20 C.F.R. Part 655, Subpart A, did not apply retroactively, and the Form 9142 in this matter was certified before the permanent injunction was issued.  Id. at 5–6.  In doing so, the ARB relied on Deggeller Attractions, Inc., ARB No. 2020-0004, ALJ No. 2018-TNE-00008 (ARB Jan. 25, 2022) (per curiam), a recent decision addressing this issue.  Id. at 6.  

Statute of Limitations:

The ARB rejected the Respondent’s argument that 1 of the following 3 statute of limitations period could apply to this matter:  the 28 U.S.C. § 1658(a) 4-year “catch-all” statute of limitations, the 2-year statute of limitations in the H-2A program, or the FLSA statute of limitations.  Id. at 7.  The ARB again relied on Deggeller Attractions in finding that the 28 U.S.C. § 2462 five-year statute of limitations controls, as this matter involved the assessment of CMPs.  Id. at 7–8.  The ARB noted that as the WHD issued a determination letter on February 20, 2018, the claims for the 2014 season and the 2015 season were not time barred, while the claims for the 2013 was time barred because they accrued during 2012.  Id. at 8.

Violations:

--ARB Affirms ALJ’s Finding that Respondent Substantially Failed to Comply with Attestation 4 and 20 C.F.R. § 655.22(a)

The ARB agreed with the ALJ that the Respondent’s practice of paying a higher wage than listed on the Application supported a “reasonable inference that it may have misled U.S. workers into not applying for the positions,” which contradicted the Respondent’s “attestation that the job opportunity was clearly open to U.S. workers on the same terms and conditions offered to its H-2B workers.”  Id. at 10.  

--ARB Affirms ALJ’s Finding that Respondent Willfully Failed to Comply with Attestation 13 and 20 C.F.R. § 655.22(n)

The ARB agreed with the ALJ that the Respondent willfully inflated the number of workers it purportedly needed to account for the wives of 2 H-2B workers, in violation of Attestation 13 and 20 C.F.R. 655.22(n), both of which required the Respondent to state that the “number of worker positions being requested for certification have been truly and accurately stated on the application.”  Id. at 11.  The ARB found that the Respondent could not “truly and accurately” state the number of worker positions it requested when that number “always included a plus-two for the women [it] knew were not coming into the United States to work for Respondent as [it] represented [it] would be doing.”  Id.  

--ARB Affirms ALJ’s Finding that Respondent Substantially Failed to Comply with 20 C.F.R. § 655.22(n) Because of Improper Uniform Cleaning Deductions and Housing Deductions

The ARB found that the Respondent deducted more than the amount disclosed in its “job offer” rather than “what [the] employees were informed upon arrival,” as held in Deggeller Attractions, with respect to the uniform cleaning deduction.  Id. at 12.  As the Respondent disclosed a uniform deducting of $13.66 in the employment contract but deducted $18.62, the ARB agreed with the ALJ that the Respondent improperly deducted more than the amount disclosed in the job offer, in violation of 20 C.F.R. § 655.22(g)(1).  Id.

Similarly, with respect to the housing deduction, the ARB agreed that the housing unit in question “was zoned ‘suburban industrial’ and was not permitted to use as a residential living quarters,” and that it was “unreasonable to collect rent for a premises in which residential use is prohibited,” in violation of 20 C.F.R. § 655.22(g)(1).  Id. at 13.  The ARB rejected the Respondent’s contention that this deduction should be excused because it was not aware of the zoning ordinance because “an employer’s failure to know the H-2B program’s requirements does not excuse a violation.”  Id. at 14.  

The ARB affirmed the ALJ’s calculation of back wages for the uniform cleaning deduction and housing deduction.  Id. at 14–15.

Civil Money Penalties: 

The ARB rejected the Respondent’s contention that CMPs may only be imposed for a “substantial failure to comply with the provisions of the” Immigration and Nationality Act and not for “willful misrepresentations” as the plain language of 20 C.F.R. § 655.65(c) authorizes the imposition of CMPs for “any willful misrepresentation in the application.”  Id. at 15.  The ARB vacated the ALJs imposition of CMPs for the 2013 claim because it is time barred but affirmed the ALJs findings with respect to the remaining violations.  Id. at 15–16.  

Administrator, Wage and Hour Div., USDOL v. Manoharan v. HCL America, Inc., ARB No. 2021-0060, ALJ No. 2018-LCA-00029, 2021-LCA-00009 (ARB Apr. 14, 2022) (per curiam) (Decision and Order)

ARB AFFIRMS BACK WAGES, DISMISSAL OF RETALIATION CLAIM, AND DENIALS OF MOTIONS TO RECUSE

In Manoharan v. HCL America, Inc., ARB No. 2021-0060, ALJ Nos. 2018-LCA-00029, 2021-LCA-00009 (ARB Apr. 14, 2022) (per curiam), the Complainant filed a complaint with the Wage and Hour Division (“WHD”), in part alleging that the Respondent failed to pay the required wages and terminated his employment in retaliation for protected conduct.  Id., slip op. at 1.  Following an investigation, the WHD determined that the Respondent failed to pay the required wage and awarded the Complainant back wages, but found the retaliation claim to be unsubstantiated.  Id. at 1–2.  The Complainant objected and requested a hearing.  Id. at 2.  Before the ALJ, the Respondent filed a motion for summary decision on the back wages claim, which the ALJ granted after finding that the Respondent did not owe the Complainant further wages than those assessed by the Administrator.  Id.  The Complainant then filed 2 motions to recuse the ALJ, both of which the ALJ denied.  Id.  The Respondent then moved to dismiss the retaliation claim for lack of prosecution, which the ALJ granted.  Id.  The Complainant appealed the ALJ’s grant of summary decision, the denials of the recusal motions, and the dismissal of the retaliation claim.  Id. at 7.  The ARB affirmed.  Id. at 17.

Back Wages and Period of Authorized Employment

The Complainant argued that, in granting summary decision in favor of the Respondent, the ALJ incorrectly determined the start and end date of the Respondent’s wage obligation and owed further back wages.  Id. at 10.  The Complainant noted a July 10, 2015 email from an employee for Respondent, stating that the Complainant “joined [the Respondent] 3 months back,” and two April 2015 emails requiring the Complainant to attend “orientation or training.”  Id. at 11.  The Respondent presented evidence that the Complainant began working for the Respondent no later than July 17, 2015, and that the April 2015 emails were sent “to everyone who had joined the company recently, even if they had already attended a meeting, and that the emails were not personalized.”  Id.  The Complainant presented no evidence that he attended the meetings, and “[m]ost importantly, Complainant did not enter the U.S. until July 16, 2015, and reported for work the following day.”  Id.  The ARB thus found that the ALJ correctly concluded that the Complainant entered into employment with the Respondent on July 17, 2015.  Id. at 12.   

The ARB affirmed the ALJ’s conclusion that the period of employment ended on March 1, 2017.  Id. at 12–14.  The ARB observed that the Immigration and Nationality Act and relevant regulations “demonstrate that an LCA authorizes the employer to employ H-1B nonimmigrants for a particular position in the country, while the approved Petition authorizes an individual H-1B nonimmigrant to work for an employer in the U.S.”  Id. at 14.  The ARB noted that the Complainant had 2 sources of employment authorization at the time the Respondent terminated his employment, and since the Respondent withdrew a pending Petition on February 16, 2017, the period of authorized employment concluded on March 1, 2017, the end date of another approved Petition.  Id.

The ARB therefore affirmed the ALJs grant of summary judgement on the back wages claim.  Id.  

The Retaliation Claim

The ARB noted that ALJs have the inherent authority to “manage their own affairs so as to achieve the orderly and expeditious disposition of cases” and may dismiss a proceeding because of a party’s failure to comply with orders, “especially if a party fails to justify [its] noncompliance.”  Id. at 14–15.  The ARB cited the Complainant’s failure to follow the ALJ’s orders to resubmit exhibits for the retaliation claim and noted that the Complainant “did not admit . . . fault” when the ALJ asked about the failure to file but instead “argued that . . . refiling was unnecessary and that the hearing was ‘meaningless’ without considering the other claims.”  Id. at 15.  The ARB also stated that a dismissal may be justified by an “overall course of dilatory and contemptuous behavior” that interferes with the judicial process.  Id.  The ARB noted that the Complainant filed a Motion to Recuse on the morning of the first scheduled hearing date and a Motion to Continue the night before the second scheduled hearing date in which the Complainant reasoned that “he had guests visiting” and which the ALJ did not accept.  Id.  The ARB further stated that the Complainant was also late to a subsequent status conference and continually expressed disagreement with the ALJ’s past decisions, and that the ALJ credited the argument that the late filings caused the Respondent prejudice “because it had to coordinate the attendance of witnesses, costing it time and expenses.”  Id.  

The ARB held that while the “Complainant’s conduct was not extraordinarily egregious, the circumstances supported the ALJ’s conclusion that Complainant’s recalcitrant behavior was unlikely to improve, given his failure to admit his fault in failing to follow the ALJ’s orders and continued objections to the ALJ’s past decisions.”  Id.  The ARB also found that the Complainant failed to present any persuasive arguments that the ALJ erred in her decision.  Id. at 15.  The ARB thus found that the ALJ did not abuse her discretion in dismissing the retaliation claim.  Id.

Motions to Recuse:

The ARB noted that “ALJs are ‘presumed to be impartial’ and that a party moving for recusal has a ‘substantial burden’ to prove otherwise.”  Id. at 16.  The ARB stated that the Complainant alleged that clerical errors made by the ALJ and legal decisions that the Complainant “believes were incorrect” demonstrated bias and criticized the ALJ for failing to reconcile disagreements regarding the hearing dates.  Id.  The ARB stated that recusal is generally not warranted “without proof of an extra-judicial source of bias,” which the Complainant failed to substantiate.  Id.  The ARB further noted that “legal errors in ALJ orders . . . are not sufficient to prove bias.”  Id.  The ARB therefore held that the Complainant failed to justify the ALJs recusal, and that the ALJ did not abuse her discretion in denying the Complainant’s motions.  Id.
 

Administrator, Wage and Hour Div., USDOL v. Broadgate, Inc., ARB No. 2022-0009, ALJ No. 2019-LCA-00013 (ARB Apr. 29, 2022) (per curiam) (Decision and Order)

ARB REJECTS IMPOSSIBILITY DEFENSE TO 20 C.F.R. § 655.734 NOTICE REQUIREMENT AND FINDS THAT WHD MAY EXPAND AN INVESTIGATION BEYOND INITIAL SCOPE IF REASONABLE CAUSE EXISTS BASED ON EVIDENCE LAWFULLY OBTAINED DURING INVESTIGATION

In Administrator, Wage and Hour Div., USDOL v. Broadgate, Inc., ARB No. 2022-0009, ALJ No. 2019-LCA-00013 (ARB Apr. 29, 2022) (per curiam), the ALJ, on remand from the ARB, found that the Respondent willfully violated 20 C.F.R. § 655.734 on 14 occasions, and the Administrator’s civil money penalty assessment of $4,136 for each violation was appropriate.  Id., slip op. at 3–4.  The Respondent appealed.  Id. at 4.

Willful and Substantial Failure to Provide Notice of Filing of LCAs Pursuant to 20 C.F.R. § 655.734

The Respondent argued that the ALJ erred in finding that it willfully failed to post notices because the Administrator did not meet her burden of proving the Respondent’s state of mind, and that since it was “impossible” for the Respondent to comply with the regulation because the Respondent “did not have physical control of the workplaces where H-1B workers were located,” it could not “willfully fail” to comply with it.  Id. at 6.

In affirming the ALJ, the ARB noted that the Respondent was repeatedly warned by its attorneys of the posting requirements and the Respondent’s representative testified that the Respondent was aware of the notice posting requirements even if it did not have physical control of the worksites, but the Respondent did not post the notices at the worksites.  Id. at 7.  The ARB stated that the Respondent’s “impossibility argument . . . is explicitly recognized by” 20 C.F.R. § 655.734(a)(1)(A), which requires notices to be posted “in at least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity).”  Id. (emphasis in original).  The ARB thus found the regulation unambiguous that posting is required whether the employer owns or operates the worksite and affirmed the ALJ’s finding that the Respondent willfully and substantially failed to provide notice of the filing of LCAs on 14 occasions, in violation of 20 C.F.R. § 655.734.  Id.  

The Respondent’s Failure to Post Notices Were Within the Permissible Scope of the Investigation

The ARB noted that it addressed the scope of an H-1B worker’s complaint pursuant to 8 U.S.C. § 1182(n)(2)(A) in Administrator, Wage and Hour Div., USDOL v. Volt Mgmt. Corp., ARB No. 2018-0075, ALJ No. 2012-LCA-00044 (ARB Aug. 27, 2020) (en banc), where it examined the Eighth Circuit’s ruling in Greater Missouri Med. Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015), and the Southern District of New York’s ruling in Aleutian Capital Partners v. Hugler, 16 Civ. 5149 (ER), 2017 WL 4358767 (S.D.N.Y. Sept. 28, 2017), aff’d sub nom. Aleutian Capital Partners v. Scalia, 975 F.3d 220, 234-236 (2d Cir. 2020), and held that investigations must be “bounded in its purpose, nature, and scope” and “fashioned and conducted with regard to the content and context of the complaint” while recognizing that the operative statutory and regulatory language also vest the Department of Labor and WHD with “significant discretion with respect to defining and conducting an investigation,” including “the power and authority to go beyond the four corners of the complaint, as may be appropriate.”  Id. at 7–9 (quoting Volt Mgmt. Corp., slip op. at 12–13).

The ARB agreed with the Administrator that the public access files of employees not associated with the H-1B worker were relevant to investigating the wage complaint and that the regulations and caselaw permit WHD to expand an investigation beyond its initial scope if reasonable cause exists based on evidence it lawfully obtained during the investigation.  Id. at 10.  The ARB found that the record did not indicate that the WHD “conducted a fishing expedition to uncover any and all violations Respondent committed.”  Id.  The ARB stated that the complainant alleged that he was not paid the higher of the prevailing or actual wage, and the WHD investigator deemed it necessary to procure the public access files to analyze wage information for the H-1B worker and comparable employees to determine whether wages were owed.  Id.  The ARB recalled the WHD investigator’s testimony that based on his experience, public access documents, which are available to the public and typically used by the Department of Labor to help determine an employer’s compliance, tend to reflect H-1B workers’ worksites and wage rates more accurately than LCAs.  Id. at 10–11.  The ARB also noted that while investigating the wage complaint, the WHD investigator received documents from the H-1B worker indicating that he worked at a secondary worksite and testified that the Respondent may not have provided notice at the secondary worksite because it was common for an employer not to do so in cases where an employee worked at multiple worksites.  Id. at 11.  The ARB therefore determined that the investigator’s discovery that the public access files associated with the H-1B worker did not contain copies of worksite postings provided “reasonable cause to investigate further and confirm the full breadth of Respondent’s notice violations.”  Id.  The ARB thus found that while the WHD investigation was initially limited to the H-1B visa worker’s complaint, it expanded to include notice violations based on reasonable cause, consistent with Volt Mgmt. Corp.  Id.
 

Phox v. The Savoy at 21C, ARB No. 2021-0057, ALJ No. 2019-FDA-00014 (ARB Apr. 26, 2022) (per curiam) (Order Denying Motion for Reconsideration)

Administrator, Wage and Hour Div., USDOL v. Five M's LLC, d/b/a Valparaiso Car Care Transmission, ARB No. 2019-0014, ALJ Nos. 2015-FLS-00010, 2015-FLS-00011 (ARB Apr. 15, 2022) (per curiam) (Order Denying Reconsideration)