USDOL/OALJ: LCA Digest

The regulation at 20 C.F.R. § 655.705(c)(5), which states that “[t]he employer shall develop sufficient documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement of information is challenged” does not change the Prosecuting Party’s burden of proof at the hearing; the party who requests a hearing before an ALJ in an LCA case is the prosecuting party. Santiglia v. Sun Microsystems, Inc., ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005).

MT. CLEMENS BURDEN-SHIFTING PRINCIPLES

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. 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.

See also :
Employee protection (whistleblower) – Burden of proof
Damages and other remedies - Burden of proof

II. Evidence and Weighing of Evidence

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Generally

AN H-1B WORKER WHO IS THE PROSECUTING PARTY IN AN LCA CASE MAY MEET HIS OR HER INITIAL BURDEN THROUGH HIS OR HER TESTIMONY, AND OTHER EVIDENCE THAT HE OR SHE PERFORMED WORK WITHOUT FAIR COMPENSATION; WHERE AN EMPLOYER FAILS TO PROVIDE ADEQUATE RECORDS, SUCH TESTIMONY AND EVIDENCE MAY BE ACCEPTED BY THE FINDER OF FACT AS A MATTER OF JUST AND REASONABLE INFERENCE

In Jain v. ACI InfoTech, Inc., ARB No. 2019-0038, ALJ No. 2018-LCA-00024 (ARB Oct. 29, 2020), the ALJ had rescheduled the hearing after a continuance of previously scheduled hearing. Several days before the rescheduled hearing, Respondent filed a motion for continuance that was denied by the ALJ. On the hearing date, Respondent’s counsel renewed his client’s motion for continuance. The ALJ again denied the motion, and the hearing proceeded without Respondent being present, and without Respondent providing testimony or exhibits. The ALJ issued an Order to Show Cause directing Respondent show cause regarding its failure to appear at the hearing, warning that failure to show cause would result in the ALJ issuing a Decision and Order without further proceedings. The ALJ found that Respondent failed to show cause, and issued the Decision. On appeal, Respondent did not contest the ALJ’s conclusions and ruling on the Order to Show Cause.

The sole issue on appeal was whether the ALJ correctly calculated the back wages owed to the H-1B worker. Respondent raised a number of purported errors in the calculation: the actual start date of the H-1B worker under the LCA; whether the worker was entitled to a two-week paid vacation prior to completion of his first year of employment; whether Respondent was responsible for wages during a non-productive period when the worker did not submit timesheets as required by company policy; whether Respondent was required to cover 50% of the worker’s health insurance. The ARB, however, affirmed the ALJ’s determinations. The ARB stated:

The party who requests the hearing before an ALJ bears the burden of proof at hearing. However, the ARB has held that where an employer fails to provide adequate records, a prosecuting party may still meet its initial burden merely because of the absence of evidence from the employer. The Board has decided that an employee’s testimony, and other evidence that he or she performed work without fair compensation, may be accepted by the finder of fact as a matter of just and reasonable inference.

In the present case, Respondent failed to provide adequate records. Indeed, Respondent did not provide any records at the hearing. The ALJ determined that Mr. Jain had met his initial burden to demonstrate that he did not receive proper compensation based on witness testimony, earning statements, banking statements, copies of documents detailing Respondent’s employee benefits, and email exchanges.

Slip op. at 6 (footnotes omitted).

SUFFICIENCY OF EVIDENCE; HEARSAY; EVIDENCE SUBMITTED AND ADMITTED AFTER CLOSE OF DISCOVERY

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.

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.

Hearsay

HEARSAY IS ADMISSIBLE

Hearsay is admissible in administrative proceedings concerning the INA. See 20 C.F.R. § 655.825(b). Santiglia v. Sun Microsystems, Inc., ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005).

No deference to WHD “no violation” determination

ALJ IS NOT REQUIRED TO GIVE DEFERENCE TO WAGE AND HOUR DIVISION ADMINISTRATOR’S “NO VIOLATION” DETERMINATION

In Limanseto v. Ganze & Co., ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the H-1B worker filed an LCA complaint with the Wage and Hour Division. The WHD Administrator found no violation of the LCA. The ALJ, however, determined that the Respondent failed to effect a bona fide termination under the LCA regulations, and ordered payment of damages. On appeal, the Respondent contended that the ALJ should have deferred to the Administrator’s determination. The ARB rejected this contention: “There is no applicable regulation or statute requiring such deference in H-1B cases. Under 20 C.F.R. § 655.840(b), an ALJ "may affirm, deny, reverse, or modify in whole or in part" the Administrator’s decision. Under 20 C.F.R § 655.820(a), if a timely request for an administrative hearing is filed, the Administrator’s determination is inoperative unless and until the case is dismissed or the ALJ issues an order affirming the decision. We disagree that the ALJ must give deference to the Administrator in these cases.” USDOL/OALJ Reporter at 6, n.23.

III. Proceedings before Federal courts

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Attorney Fees

ATTORNEY FEES; PLAINTIFF WAS NOT ENTITLED UNDER THE AMERICAN RULE TO ATTORNEY FEES RELATED TO SETTLEMENT NEGOTIATIONS WITH DEFENDANT WHERE THE INA PROVISION INVOLVED DID NOT PROVIDE FOR SUCH ATTORNEYS FEES AND PLAINTIFF DID NOT HAVE A CONTRACTURAL RIGHT TO SUCH FEES

ATTORNEY FEES; DEFENDANT WAS ENTITLED TO ATTORNEY FEES FOR DEFENSE OF FEDERAL LAWSUITS BROUGHT IN BREACH OF SETTLEMENT IN WHICH PLAINTIFF HAD RELEASED DEFENDANT FROM THE CLAIMS, WHERE SETTLEMENT AGREEMENT ENTITLED DEFENDANT TO SUCH FEES; AMOUNT REQUESTED WAS REDUCED, WHERE THE AMOUNT WAS DISPORTIONAL TO THE DAMAGES AT STAKE AND WHERE THE ISSUES PRESENTED WERE NOT DIFFICULT; REASONABLENESS OF THE FEES, HOWEVER, WAS SUPPORTED BY FACT THAT LITIGATION REQUIRED A SIGNIFICANT EXPENDITURE OF TIME AND LABOR OVER EIGHT YEARS AND THAT PLAITNIFF FILED MANY UNMERITORIOUS AND SOME FRIVILOUS MOTIONS

In Gupta v. Headstrong, Inc., No. 17-CV-5286 (S.D. N.Y. Sept. 28, 2020) (2020 U.S. Dist. LEXIS 178129; 2020 WL 5637590), both the Defendant and the Plaintiff filed motions for an award of attorney’s fees. The case involved protracted litigation before OALJ, the ARB, and the federal courts concerning a settlement agreement the parties had entered into that resolved Plaintiff’s LCA complaint. Most recently, the District Court for the Southern District of New York had dismissed Gupta’s complaint, essentially reaffirming earlier rulings that a 2008 settlement agreement was valid and enforceable, that the agreement barred Gupta’s claims.

The court first addressed Plaintiff’s claim for fees related to the May 2008 settlement negotiations. Gupta claimed that such fees were supported by state contract law and the LCA provision of the Immigration and Nationality Act, 8 U.S.C. § 1182(n)(2)(C)(i)(I). That INA provision authorizes the Secretary to “impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate.” The court was not persuaded that this INA provision overcame the presumption of the American Rule that each litigant pays his own attorney’s fees unless a statute or contract provides otherwise. Nor did the terms of the settlement agreement entitle Gupta to attorney’s fees. The court also found that Gupta was not entitled to costs. Although at one point a DOL ALJ found that Defendant owed back wages under the INA, the ALJ also found that this obligation had been extinguished by the settlement agreement; the ARB and the courts had affirmed this conclusion. Thus, the court found that Gupta had not obtained a judicially sanctioned change in the legal relationship of the parties, and thus was not a prevailing party entitled to costs.

In contrast, the court found that Defendant was entitled to attorney’s fees for the federal court proceedings because Plaintiff clearly breached the settlement agreement by filing two federal actions against Defendant despite having released Defendant from such claims, and the settlement agreement entitled Defendant to collect fees for such a breach. The court, however, reduced the fee award to half what was requested after balancing several factors. The court reduced the award in part because the damages at stake (essentially only $4,500 more than what was paid to Gupta in the settlement) were only a fraction of fees now requested, and because the issues presented were not particularly difficult. The court found support for the reasonableness of the fee request because defending the two federal suits requires a significant expenditure of time and labor over eight years, compounded by the fact that Gupta filed an usually large number of motions, many which the court denied and some of which were frivolous. The amount awarded was $105,081.05.

Enforcement

SUIT TO ENFORCE H-1B AWARD AGAINST EMPLOYER; DISTRICT COURT DISMISSES FOR LACK OF JURISDICTION WHERE DOL PROCEEDINGS WERE NOT YET COMPLETE WHEN SUIT FILED AND BECAUSE THE APA ONLY AUTHORIZES SUIT AGAINST A GOVERNMENT AGENCY AND NOT A PRIVATE COMPANY

In Huang v. Ultimo Software Solutions, Inc. , No. 12-cv-785 (N.D.Cal. June 5, 2012) (case below ARB Nos. ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), appeal filed, No. 12-17605 (9th Cir.), the Plaintiff brought suit seeking to enforce the ARB’s order affirming the ALJ’s finding in favor of the Plaintiff on a H-1B complaint. Because the DOL proceedings had not yet been completed at the time the Plaintiff filed his district court complaint, and because the APA authorizes suit against a government agency, not a private company like the Defendant, the court found that it lacked jurisdiction and granted the Defendant’s motion to dismiss.

SECOND CIRCUIT HOLDS THAT COLLECTION ACTION BROUGHT BY DOL FOR BACK PAY OWED TO H-1B WORKER IS NOT A TYPE OF DEBT COVERED BY THE FEDERAL DEBT COLLECTION PROCEDURES ACT OF 1990

In United States v. Bedi, et al., 20-1955-cv, 2021 U.S. App. LEXIS 29478, 2021 WL 4468410 (2d Cir. Sept. 30, 2021) (relates to ARB No. 14-096; OALJ No. 2012-LCA-00057; United States v. Bedi, et al., 453 F. Supp. 3d 563 (N.D.N.Y. 2020)), the Appellant sought review of the district court’s grant of summary judgement in favor of the United States (“the Government”) on its claim to collect $341,000 in back wages to an H-1B administrative complainant under the Federal Debt Collection Procedures Act of 1990 (“FDCPA”). The Appellants argued that the district court erred in granting summary judgement in the Government’s favor because an administrative award of back wages is not an amount “owing to the United States” under the FDCPA, and that the Second Circuit’s opinion to the contrary in NLRB v. E.D.P. Medical Computer Systems, Inc., 6 F.3d 951 (2d Cir. 1993) (“E.D.P.”) should be overturned.

The Second Circuit held that a “debt” must be “owed to the United States” under the plain meaning of the operative provisions of the FDCPA. The Second Circuit stated that the Government has no claim to the debt because the ALJ found that the H-1B worker was deprived of wages, and the Administrative Order required the Appellants to remit back wages to the H-1B worker rather than the United States.

The Second Circuit found that its conclusion was supported by the legislative history of the FDCPA, which demonstrated that the FDCPA was “intended to address the growing problem of delinquent debt owing to the United States, in great measure due to high rates of default in various government loan programs.” The Second Circuit stated that “[n]othing in the legislative history indicates that Congress enacted the FDCPA to aid in the enforcement of federal labor laws or to promote compliance with other obligations that are regulated by the Government but owed to private parties.”

The Second Circuit stated that this interpretation accords with Nathanson v. NLRB, 344 U.S. 25 (1952), where the Supreme Court held that an award of back pay by the National Labor Relations Board was not a “debt owing [to] the United States” under provisions of the Bankruptcy Act that “parallel the FDCPA in terms of both their text and the legislative purpose that Congress sought to achieve.” The Second Circuit further noted that E.D.P. has been expressly rejected by the First Circuit in United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997), and the Fifth Circuit in Sobranes Recovery Pool I, LLC v. Todd & Hughes Construction Corp., 509 F.3d 216 (5th Cir. 2007).

The Second Circuit thus reversed the judgement of the district court, remanded the matter for a judgement in favor of the Appellants, and overruled E.D.P. as wrongly decided and inconsistent with the FDCPA.

COLLECTION ACTION BROUGHT BY DOL UNDER FEDERAL DEBT COLLECTION PROCEDURES ACT OF 1990; WHETHER APA STATUTE OF LIMITATIONS IMPACTS TIMING OF COLLECTION ACTION; WHETHER BACK PAY DEBT OWED TO H-1B WORKER IS TYPE OF DEBT COVERED BY FDCPA

In United States v. Bedi, No. 17-cv-1168 (N.D. N.Y. June 1, 2018) (2018 WL 2455434) (relates to ARB No. 14-096; 2012-LCA-00057), the Defendants had been found by an ALJ to owe back wages to an H-1B worker engaged under the LCA program. The ARB affirmed the ALJ’s decision with only a slight adjustment to the wage calculation. The H1B worked filed a civil action in state court seeking to collect the back wages. That action was denied by the state trial court, and was pending on appeal. In the interim, the DOL filed an action in federal district court to collect the back pay award. The Defendants filed a FRCP 12(b)(6) motion to dismiss on two grounds: (1) the APA provides a 6 year statute of limitations period to challenge the validity of an ARB final order, and thus the Government cannot yet enforce the ARB’s order, and (2) the Government failed to cite the statutory or regulatory for it to enforce the monetary award in federal court.

During oral argument, the Defendants apparently argued that the Government failed to identify the authority for its enforcement action in the complaint, and therefore the Government should be estopped from pursuing the collection action. The court criticized the poor form of the Government’s complaint but found that it was now clear that the Government was relying on the Federal Debt Collection Procedures Act of 1990 ("FDCPA"), and that poor pleading form is not a ground for dismissal of the complaint.

The court examined the APA and concluded that whoever is permitted to collect the back pay award was entitled to do so once the ARB’s decision became final.

The court noted the Defendant’s argument that the LCA back pay award is not a "debt" within the meaning of the FDCPA because it originated from an employment contract initially entered into between the H-1B worker and the Defendant’s employer. The court found that Second Circuit caselaw suggested otherwise, but also noted that other circuits have rejected the Second Circuit’s reasoning under different facts. The court noted that the Government — surprisingly given how long the H-1B program had been around – was unable to cite a single other instance where the FDCPA had been used to collect a back pay award owing to an H-1B visa worker. In the end, however, the court did not directly decide the issue, but found that the Government’s collection action was plausible enough to survive a motion to dismiss.

Filing injunction

FILING INJUNCTION FOR ABUSE OF COURT SYSTEM; DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN IMPOSING FILING INJUNCTION WHERE APPELLANT HAD REPEATEDLY FILED MERITLESS CLAIMS, WHERE APPELLANT HAD BEEN WARNED OF POSSIBILITY OF INJUNCTION AND HAD A FULL OPPORTUNITY TO OPPOSE IMPOSITION OF SUCH, AND WHERE THE INJUNCTION WAS PROPERLY NARROW IN SCOPE

In Gupta v. Wipro Ltd., No. 18-3033 (3d Cir. Apr. 2, 2019) (per curiam) (unpublished) (2019 U.S. App. LEXIS 9627; 2019 WL 1466942), the U.S. District Court for the District of New Jersey granted a motion for a filing injunction against Gupta, who had for almost a decade pursued relief in federal court and before the U.S. Department of Labor based on his allegation that his former employer improperly took unlawful deductions from his wages. The H-1B “LCA” administrative complaints had been filed with the Wage and Hour Division, and adjudicated by ALJs and the ARB. Gupta appealed the filing injunction to the Third Circuit, which summarily affirmed the district court.

The court noted that, pursuant to the All Writs Act, 28 U.S.C. § 1651(a), district courts can impose filing injunctions on litigants who have engaged in abusive, groundless, and vexatious litigation – but also noted that “[s]uch an injunction is an exception to the general rule of free access to the courts and its use against a pro se plaintiff must be approached with caution.” Slip op. at 5-6 (citation and footnote omitted). The court found that the district court had complied with the requirements for imposing a filing injunction.

First, exigent circumstances existed because the record demonstrated that Gupta had abused the judicial process by repeatedly asserting meritless claims. Second, Gupta had notice of the possibility of a filing injunction and had an opportunity to show cause why such an injunction should not be imposed. Third, the injunction was properly narrow in scope—it applied only when Gupta was proceeding pro se, it was limited to the topic of his termination from employment with Wipro, it only applied in the District of New Jersey, and it allowed Gupta to pursue new, meritorious claims. The court thus found that the district court had not abused its discretion.

Exhaustion of administrative remedies; reviewability

WAGE AND HOUR DIVISION ’S DECISION NOT TO INVESTIGATE H-1B COMPLAINT BECAUSE IT WAS NOT TIMELY IS NOT REVIEWABLE

In Takamiya v. DNP America, LLC, No. 14-cv-10301 (S.D.N.Y. July 25, 2016) (2016 U.S. Dist. LEXIS 97243; 2016 WL 4030861), the Wage and Hour Division had concluded that it would not investigate the H-1B worker’s complaint because the alleged acts had occurred more than twelve months earlier, and the complaint was therefore untimely pursuant to 20 C.F.R. § 655.806(a)(5). Further, the WHD informed the Plaintiff that she did not have a right to appeal the decision not to investigate the complaint. The court granted the Defendant’s motion to dismiss because no private right of action exists to enforce the statutory provisions of the INA upon which the Plaintiff relied, and because the Plaintiff never received an agency decision subject to appeal. The court found that it did not have subject matter jurisdiction. The court also noted that the complaint would fail as a APA, 5 U.S.C. § 701(a)(2) claim because the APA explicitly excludes from review those agency actions that are committed to agency discretion by law (such as the decision not to investigate an untimely LCA claim), or as a petition for writ of mandamus because such writs are appropriate only when the defendant owes the moving party a clear non-discretionary duty.

ARB REMAND TO ALJ WAS NOT FINAL ACTION SUBJECT TO DISTRICT COURT REVIEW

In Compunnel Software Group, Inc. v. Gupta and Perez, No. 14-cv-4790 (S.D.N.Y. Oct. 22, 2014) (case below ARB No. 12-049; ALJ No. 2011-LCA-45), the Petitioner sought judicial review under the APA of an ARB remand order to the ALJ for further proceedings. The court stated: “Because the ARB remanded the case to the ALJ for further fact finding, the ARB’s decision is not final, and is therefore not subject to review by this Court. Until the ARB decision is final, neither Compunnel nor Gupta can currently seek review of the ARB’s decision, or any other issues arising under the INA.” Slip op. at 3 (footnote omitted).

SUIT FOR DECLARATORY JUDGMENT ON TIMELINESS OF COMPLAINT DISMISSED WHERE WHD HAD REOPENED COMPLAINT

In Gupta v. Headstrong, Inc., No. 12-cv-06652 (S.D. N.Y. Aug. 30, 2013) (Memorandum Opinion and Order) (case below ARB Nos. 11-065, 11-008, ALJ No. 2011-LCA-38), the Plaintiff sought a declaratory judgment regarding the timeliness of his LCA complaint. The court found that the complaint had been reopened by the Wage and Hour Division, and therefore the Plaintiff must exhaust his administrative remedies before proceeding in federal court.

In Huang v. Ultimo Software Solutions, Inc., No. 12-cv-785 (N.D.Cal. June 5, 2012) (case below ARB Nos. ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), appeal filed, No. 12-17605 (9th Cir.), the Plaintiff brought suit seeking to enforce the ARB’s order affirming the ALJ’s finding in favor of the Plaintiff on a H-1B complaint. Because the DOL proceedings had not yet been completed at the time the Plaintiff filed his district court complaint, and because the APA authorizes suit against a government agency, not a private company like the Defendant, the court found that it lacked jurisdiction and granted the Defendant’s motion to dismiss.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Plaintiff sought declaratory judgment regarding the timeliness of his LCA complaint; Complaint had been reopened by the Wage and Hour Division, and therefore he must exhaust his administrative remedies before proceeding in federal court. Gupta v. Headstrong, Inc., No. 12-cv-06652 (SDNY Aug. 30, 2013) (Memorandum Opinion and Order) (case below ARB Nos. 11-065, 11-008, ALJ No. 2011-LCA-38).

RICO CLAIM BASED ON H-1B VIOLATIONS WILL NOT BE ENTERTAINED IN FEDERAL DISTRICT COURT WHERE PLAINTIFF HAD NOT EXHAUSTED ADMINISTRATIVE REMEDIES

WHD’S DETERMINATION NOT TO INVESTIGATE BASED ON LACK OF TIMELINESS OF COMPLAINT AND FINDING THAT EQUITABLE TOLLING WAS NOT WARRANTED IS NOT REVIEWABLE

In Palmer v. Trump Model Management, LLC, 175 F. Supp. 3d 103 (S.D. N.Y. Mar. 23, 2016), the Plaintiff filed an action in district court alleging violations of the FLSA, the INA and RICO, alleging that the Defendants engaged in a fraudulent scheme to lure foreign fashion models to the U.S. with false promises of a glamorous life, lying to the Federal government to obtain H-1B visas, and then cheating the models out of their pay. The court found that the Plaintiff failed to plead sufficient facts to support the FLSA claim. In regard to the RICO claim, the court found that Congress had had set forth the specific administrative remedies available to H-1B workers in INS Section 1182(n), evincing a clear intent to limit enforcement of alleged violations to administrative mechanisms before resort to a court action. The court also found that because the Plaintiff had not exhausted her administrative remedies, the INA claim could not be asserted.

On March 24, 2016, the Plaintiff filed a LCA complaint with the Wage and Hour Division. The WHD declined to investigate because the complaint was not timely filed and grounds did not exist for equitable tolling. The Complainant (i.e., the Plaintiff in the Federal court action) requested an ALJ hearing. The ALJ issued an Order to Show Cause why the matter should not be dismissed for lack of jurisdiction because the WHD Administrator had determined that an investigation was not warranted. The ALJ cited 20 C.F.R. § 655.806(a) and Gupta v. Headstrong, Inc., ARB Nos. 11-008, 11-065, ALJ No. 2011-LCA-38 (ARB June 29, 2012). The Complainant argued that the WHD’s decision not to final equitable tolling was arbitrary and capricious, but did not specifically address the jurisdictional issue. The ALJ found that OALJ had no jurisdiction to review the Administrator’s determination that an investigation was not warranted, therefore it also lacked jurisdiction to review whether equitable tolling was warranted. Palmer v. Trump Model Management, LLC, 2016-LCA-00022 (ALJ Aug. 18, 2016)

The ARB issued an order giving notice of its intent to review the ALJ’s decision. However, before the ARB ruled, the Complainant filed a Voluntary Notice of Dismissal with Prejudice, and the ARB dismissed the case. Palmer v. Trump Model Management, ARB No. 16-094, ALJ No. 2016-LCA-00022 (ARB Jan. 11, 2017).

Indispensable party

EMPLOYER AS INDISPENSABLE PARTY IN APA SUIT AGAINST THE AGENCY WHERE RELIEF SOUGHT EXCEEDS AMOUNT ORDERED TO BE PAID BY THE ALJ AND THE ARB

The court found that the employer was an indispensable party to the action because, although this was an APA suit against the ARB, the relief sought would require the employer to pay much more than ordered by the ALJ and the ARB. The court stated that Huang would have to amend his complaint to add the employer and to add factual allegations sufficient to establish personal jurisdiction. The court found, however, that given that the complaint was dismissed for other reasons, amendment of the complaint was futile.

The Fifth Circuit affirmed. See Huang v. Administrative Review Board, USDOL, 579 Fed. Appx. 228 (5th Cir. Aug. 12, 2014) (per curiam) (unpublished) (2014 WL 3906772), cert. denied No. 14-8370 (U.S. Apr. 6, 2015).

Motions

LATE FILING OF MOTION TO DISMISS BY GOVERNMENT; PREJUDICE TO PLAINTIFF IS NOT ESTABLISHED MERELY BECAUSE THE COURT CONSIDERED THE MOTION

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Dec. 5, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the court denied the Plaintiff’s motion for reconsideration of the court’s decision affirming the Administrative Review Board’s decision. Among other rulings, the court rejected the Plaintiff’s claim that the court erred in striking his motion to dismiss the ARB’s motion to dismiss as untimely. The ARB’s motion had been one day late, but the court had denied the Plaintiff’s motion to dismiss on the ground that Huang had not shown that he was prejudiced. In his motion for reconsideration, the Plaintiff claimed the ruling was erroneous because he was prejudiced by the late filing in that the court considered the arguments it presented. The court wrote: "This not prejudice, as a matter of law. [The Plaintiff] has not shown how he was unduly prejudiced by having the motion to dismiss filed 47 days instead of 45 days after he filed his first amended complaint. [The Plaintiff] was given the full amount of time to respond to the motion and did file a response. This claim is not a basis for relief." Slip op. at 3-4.

Summary judgment

LOCAL RULE REQUIRING NOTICE TO PRO SE LITIGANT OF CONSEQUENCES OF FAILING TO RESPOND TO A SUMMARY JUDGMENT MOTION; FAILURE TO PROVIDE NOTICE EXCUSED WHERE IT WAS CLEAR THAT THE PRO SE LITIGANT UNDERSTOOD HIS OBLIGATIONS IN RESPONSE

In Baiju v. U.S. Dept. of Labor, No. 12-cv-5610 (E.D.N.Y. Jan. 31, 2014) (2014 WL 349295) (unpublished), the Petitioner, an H1B worker who filed a complaint with the Wage and Hour Division (WHD) seeking back wages and relief under the H1B employee protection provision, sought review of an Administrative Review Board (ARB) decision upholding, with modification, an ALJ decision on the matter. The Department of Labor filed a motion for summary judgment, but failed to provide, as required by local rule, a notice to the pro se Petitioner of the consequences of failing to respond to a summary judgment motion. However, the employer had provided the notice. Moreover, it was evident—from the Petitioner’s own motion for summary judgment, his opposition papers, and the numerous citations he made to the administrative record —that he fully understood that he was required to deny factual allegations and cite to the record in support of those denials. The court thus found that the Petitioner had sufficient notice, and that the Department of Labor was excused for its failure to comply with the local rule.

Transfer

TRANSFER MOTION GRANTED

In Gupta v. Perez, No. 14-cv-01102 (N.D.Cal. June 24, 2014) (2014 WL 2879743) (case below ARB Nos. 11-041, 12-050, ALJ No. 2010-LCA-24), the U.S. District Court for the Northern District of California granted the Defendant’s motion, joined by the USDOL, to transfer the case to the District of New Jersey.

U-visa

MOTION BY H-1B WORKER FOR COURT TO CERTIFY U-VISA; DECISION BY COURT WHETHER TO CERTIFY IS DISCRETIONARY

In Baiju v. U.S. Dept. of Labor, No. 12-cv-5610 (E.D.N.Y. Jan. 31, 2014) (2014 WL 349295) (unpublished), the Petitioner requested the court to certify a Form I-918, Supplement B for his U-visa application. A federal judge that "has responsibility for the investigation or prosecution of a qualifying crime or criminal activity" may certify, by completing and signing Form I-918, Supplement B, that the U-Visa petitioner "has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim." 8 C.F.R. § 214.14(a)(2), (12); 8 U.S.C. § 1184(p)(1). The court noted that the decision to sign a U-visa certification form is discretionary, and declined to grant the Petitioner’s request in the instant case "because there is no evidence of any possible pending investigation or prosecution of the qualifying crimes that petitioner alleges." In addition, even assuming that prima facie showing that a defendant had engaged in qualifying criminal activities could be sufficient to merit U-visa certification "the court would still decline certification here because petitioner fails to make a prima facie showing that [the employer] engaged in perjury, involuntary servitude, and retaliation [as alleged by the Petitioner]." Slip op. at 54. In regard to the perjury claim, the court stated "Petitioner’s interpretation of documents in the trial record and his disagreement with the credibility determination of the ALJ regarding the testimony of [the Employer’s] executive director are insufficient to establish perjury." Slip op. at 54-55.

IV. Proceedings before ARB

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Failure to prosecute/comply with ARB orders; other sanctions

ARB DISMISSES COMPLAINT DUE TO COMPLAINANT’S FAILURE TO RESPOND TO AN ORDER TO SHOW CAUSE REQUIRING IT TO DEMONSTRATE WHY CASE SHOULD NOT BE DISMISED FOR FAILURE TO SERVE OPENING BRIEF ON RESPONDENT

In Govindarajan v. N2 Services, Inc., ARB No. 2020-00032, ALJ No. 2020-LCA-00001 (ARB Mar. 17, 2021) (per curiam), Complainant failed to serve the petition for review on Respondent. Id., slip op. at 1. In its Briefing Schedule, the ARB stated that Complainant “must serve all further filings on the Respondent. If the requirement is not met, the Board may dismiss the petition for review.” Id. Complainant, however, did not serve his opening brief on Respondent. Id. at 1-2. The ARB thus issued an Order to Show Cause requiring Complainant to demonstrate why the case should not be dismissed for failing to serve his opening brief on Respondent. Id. at 2. In responding to the Order to Show Cause, Complainant offered no explanation why he did not serve the Respondent in accordance with the Briefing Schedule’s requirements. Id.

The ARB dismissed the case, finding that Complainant did not demonstrate good cause to excuse his failure to serve his opening brief on Respondent. Id. In doing so, the ARB recognized its “‘authority to effectively manage its docket[,] . . . require compliance with . . . briefing orders,’ which ‘is necessary to achieve orderly and expeditious disposition of cases[, and] . . . issue sanctions, including dismissal, for a party’s failure to comply with the Board’s orders and briefing requirements.” Id.

PRO SE LCA COMPLAINANT’S APPEAL DISMISSED WHERE, DESPITE SEVERAL OPPORTUNITIES AND WARNING, HE FAILED TO PROVIDE PROOF OF SERVICE OF THE RESPONDENT’S COUNSEL

In Administrator, Wage and Hour Div., USDOL v. E-Business International, Inc., ARB No. 15-082, ALJ No. 2015-LCA-10 (ARB Nov. 12, 2015), the Complainant/Prosecuting Party filed a petition requesting the ARB to review the ALJ’s order denying the Complainant’s motion to reopen the claim. Because the petition failed to show that the Respondent and the ALJ had been served as required by the regulations, the ARB ordered the Complainant to provide proof of service. The Complainant did not receive the ARB’s order, and the ARB issued a second order. In the second order, the ARB informed the Complainant that, because he lived in India, he would only be required to provide proof of service of the Respondent’s counsel. The ARB provided the Respondent’s counsel’s address and phone number, and stated that the Complainant could arrange with that counsel for service by email. The ARB warned that failure to provide proof of service on Respondent’s counsel could result in dismissal of the appeal. Thereafter, the Complainant only provided proof of service of the Respondent. The ARB stated that even though the Complainant was pro se, its patience was not inexhaustible. The ARB issued a third order directing the Complainant to provide proof of service on the Respondent’s counsel, and warning that failure to do so would result in dismissal of the appeal. The Complainant failed to respond, and the ARB denied the appeal.

DISMISSAL FOR FAILURE TO PROSECUTE APPEAL BEFORE THE ARB

In Administrator, Wage and Hour Div., Employment Standards Adm., USDOL v. Winvision, Inc., ARB No. 09-084, ALJ No. 2006-LCA-24 (ARB Oct. 7, 2009), the ARB dismissed the Respondent’s appeal based upon the Respondent’s failure to file opening appellate brief (failure to prosecute).

FAILURE TO PROSECUTE; FAILURE TO FILE APPELLATE BRIEF OR RESPOND TO ARB’S ORDER TO SHOW CAUSE

In Administrator Wage and Hour Div. v. Pegasus Consulting Group, Inc., ARB No. 05-085, ALJ No. 2004-LCA-21 (ARB Nov. 28, 2008), the ARB dismissed the Respondent’s appeal where it failed to file an appellate brief or to respond to the ARB order to show cause.

ARB NOTIFIES COMPLAINANT/PROSECUTING PARTY, WHO HAD FILED A NUMBER OF POST-DECISION MOTIONS RELATING TO HIS H1B ACTION, THAT IT WOULD NOT ENTERTAIN ANY FURTHER MOTIONS WITHOUT FIRST OBTAINING ADVANCE PERMISSION FROM THE ARB

In Bidwai v. Board of Education of Prince George’s County, ARB No. 12-072, ALJ No. 2011-LCA-29 (ARB Nov. 5, 2012), the ARB had earlier dismissed the Complainant’s motion for reconsideration of the ARB’s dismissal of his appeal, and for recusal of the ARB and its general counsel. In that order, the ARB had notified the Complainant that if he remained dissatisfied with the Board’s Final Order, he should address any further arguments on appeal to the appropriate U.S. district court. Ignoring the ARB’s notification that he should address any further arguments to a U.S. district court, the Complainant filed a second motion for reconsideration and other requests. The ARB denied the motion and wrote: "The Board will not entertain any further motions for reconsideration from the Complainant. Furthermore, we will not permit the Complainant to file any additional motions of any kind unless the Complainant requests, in writing, and receives permission in advance of filing, from the Board to file such motions." USDOL/OALJ Reporter at 3.

DISMISSAL OF APPEAL BASED ON PERSISTENT AND CONTUMACIOUS REFUSAL TO COMPLY WITH ARB’S BRIEFING ORDER

In Bidwai v. Board of Education of Prince George’s County, ARB No. 12-072, ALJ No. 2011-LCA-29 (ARB Oct. 11, 2012), the ARB dismissed the pro se Prosecuting Party’s appeal based on the Prosecuting Party’s persistent and contumacious refusal to comply with the Board’s briefing order despite the ARB’s explicit warning of the consequences of his failure to comply.

Interlocutory review

INTERLOCUTORY REVIEW; ARB DENIES INTERLOCUTORY REVIEW OF ALJ RULINGS GRANTING PARTIAL SUMMARY DECISION WHERE THE RULINGS WERE ON MERITS ISSUES, FULLY REVIEWABLE ON APPEAL ONCE THE ALJ ISSUES A FINAL DECISION

INTERLOCUTORY REVIEW; ARB DENIES INTERLOCUTORY REVIEW OF ALJ’S DECISION TO DENY MOTION TO RECUSE BECAUSE DISQUALIFICATION ISSUES ARE FULLY REVIEWABLE ON APPEAL ONCE THE ALJ ISSUES A FINAL DECISION

In Manoharan v. HCL America, Inc., ARB No. 2021-0031, ALJ Nos. 2018-LCA-00029, 2021-LCA-00009 (ARB June 30, 2021) (per curiam), the Complainant (an H-1B worker), sought interlocutory review by the ARB of the ALJ’s order granting summary decision on a LCA wage claim, but denying on Respondent’s motion to dismiss a retaliation claim. Complainant specifically contended that the ALJ incorrectly determined the period of time that Respondent was obligated to pay the required wages, erred in findings that there was not a genuine issue of material fact regarding when Complainant entered into employment with Respondent, and incorrectly determined Complainant’s last date of authorized employment. The ARB found that these were merits issues, fully reviewable on appeal once the ALJ issued a final decision, and that the collateral order exception did not apply.

Complainant also sought interlocutory review of the ALJ’s order denying Complainant’s motion to recuse. The ARB, however, stated that it “has held that the denial of a recusal motion is not subject to interlocutory review because disqualification issues are fully reviewable on appeal from the ALJ’s final decision.” Slip op. at 4, citing Dann v. Bechtel SAIC Co., LLC, ARB No. 2005-0150, ALJ Nos. 2005-SDW-00004 to -00006, slip op. at 3 (ARB Oct. 31, 2005).

DENIAL OF PETITION FOR INTERLOCUTORY REVIEW

In Gupta v. Headstrong, Inc., ARB No. 14-058, ALJ No. 2014-LCA-8 (ARB June 4, 2014), the ARB denied the Prosecuting Party’s petition for interlocutory review of certain ALJ orders where the Prosecuting Party had not obtained a certification from the ALJ (the ALJ having denied a motion for such certification) and had not demonstrated exceptional circumstances sufficient to persuade the ARB to exercise its discretionary authority to accept an interlocutory appeal. The ALJ had denied a request to include an additional party, ruled that Headstrong, Inc. was the sole respondent in the matter, and denied a motion for default against Headstrong.

Non-acquiescence

NON-ACQUIESCENCE; WHERE ARB HAD ISSUED A DECISION NOT ACQUIESCING TO COURT OF APPEALS DECISION OUTSIDE THAT CIRCUIT, THE ALJ WAS BOUND TO APPLY THE ARB PRECEDENT IN ANOTHER CIRCUIT EVEN THOUGH A DISTRICT COURT IN YET ANOTHER CIRCUIT HAD EXPRESSED DISAGREEMENT WITH THE ARB PRECEDENT

In Administrator, Wage and Hour Div. v. Volt Management Corp., ARB No. 2018-0075, ALJ No. 2012-LCA-00044 (ARB Aug. 27, 2020), the ALJ granted summary decision in favor of Respondent on the ground that the violations and penalties imposed by the Administrator in regard to all of the employer’s H-1B workers, and not just the aggrieved party complainant’s situation, were based on an investigation in excess of the Administrator’s power under the INA. In this regard, the ALJ had departed from ARB precedent because he concluded that it had been reversed or modified on appeal. The ARB disagreed with the ALJ’s conclusion. At ARB noted that although it had been reversed by the Eighth Circuit in Greater Missouri Med. Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015), it had issued a subsequent decision in Admin., Wage & Hour Div. v. Aleutian Capital Partners, LLC, ARB No. 2014-0082, ALJ No. 2014-LCA-00005 (ARB June 1, 2016), declining to acquiesce in the Eighth Circuit’s decision outside the Eighth Circuit. Although the Southern District of New York in Aleutian Capital Partners, LLC v. Hugler, 16 Civ. 5149 (ER), 2017 WL 4358767 (S.D.N.Y. Sept. 28, 2017), indicated disagreement with the ARB’s Aleutian decision, the instant case arose in the Ninth Circuit. The ARB thus stated that for purpose of the instant case, the ARB’s precedent remained valid and the ALJ was bound to follow it.

Despite noting that the ALJ should have applied the ARB’s precedent, in order to decide the instant appeal, the ARB reevaluated the law and clarified its opinion in a way that harmonized its ruling with the reasoning employed by the Eighth Circuit and the Southern District of New York.

Qualified judicial immunity

See Damages and other remedies; Qualified judicial immunity of ALJ and ARB.

Reconsideration

MOTION FOR RECONSIDERATION; ARB DENIED FOURTH MOTION FOR RECONSIDERATION WHICH REITERATED PRIOR ARGUMENTS; ARB STATED THAT IT WOULD NOT ENTERTAIN ANY ADDITIONAL MOTIONS FOR RECONSIDERATION

In Govindarajan v. N2 Services, Inc., ARB No. 2020-0032, ALJ No. 2020-LCA-00001 (ARB Oct. 26, 2021) (per curiam), the ARB denied Complainant's fourth motion for reconsideration which only raised arguments previously considered and rejected by the ARB in ruling on the first motion for reconsideration. The ARB stated that it would not consider any additional motions for reconsideration.

ARB DENIES MOTION TO RECONSIDER DISMISSAL OF COMPLAINT FOR FAILING TO MEET CLEARLY-STATED OBLIGATIONS REQUIRED BY AN ORDER TO SHOW CAUSE; MOTION FAILED TO MEET LIMITED GROUNDS FOR GRANTING RECONSIDERATION OF A FINAL DECISION AND ORDER

In Govindarajan v. N2 Services, Inc., ARB No. 2020-00032, ALJ No. 2020-LCA-00001 (ARB May 25, 2021) (per curiam), following a dismissal of the Complainant’s Complaint for failing to demonstrate good cause to excuse his failure to serve his opening brief on the Respondent, the Complainant requested reconsideration, asserting that he had not explained his failure to serve an opening brief because he misunderstood the Order to Show Cause, and that he did not receive the ARB’s Briefing Schedule because he recently moved from Bangalore, India, to Tamil Nadu, India, and was thus unaware of his obligation to serve an opening brief on the Respondent. Id. at 2.

The ARB dismissed the Complainant’s motion. The ARB enumerated its four, non-exclusive grounds for reconsidering a final decision and order, which included “whether the movant has demonstrated: (i) material differences in fact or law from those presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board’s decision, (iii) a change in the law after the Board’s decision, or (iv) failure to consider material facts presented to the Board before its decision.” Id. (citing Gupta v. Headstrong, Inc., ARB Nos. 2015-0032, -0033, ALJ No. 2014-LCA-00008, slip op. at 2 (ARB Feb. 14, 2017)). The ARB stated that the Order to Show Cause explicitly detailed the Complainant’s obligations, that even if the Complainant recently moved, he was a registered e-Filer, which he used to file his opening brief, and that none of Complainant’s arguments fall within any of the four limited circumstances under which the ARB would reconsider a decision. Id. at 2–3.

MOTION FOR RECONSIDERATION OF BACK WAGE CALCULATION; ARB DENIES COMPLAINANT’S REQUEST FOR RECONSIDERATION BASED ON CONTENTIONS THAT HE DID NOT KNOW LEGAL FORMALITIES, WAS TOLD BY ARB STAFF THAT HE WOULD HAVE A CHANCE TO PRESENT ISSUES FOR REVIEW, AND RECONSIDERATION WAS A REQUEST TO INCREASE SCOPE OF BOARD’S REVIEW AND NOT AN ATTEMPT TO DIMINISH RESPONDENT’S RIGHTS; ARB LIMITS RECONSIDERATION TO FOUR CIRCUMSTANCES NOT PRESENT IN COMPLAINANT’S PETITION

In Jinna v. MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039 (ARB May 26, 2020) (per curiam), the ALJ had affirmed the Administrator’s determination not to impose CMPs for a LCA violation by Respondent, but modified the back pay award. On appeal, the ARB further modified the back pay award. Complainant petitioned for reconsideration of the ARB’s decision. Complainant argued that the ARB should reconsider because “(1) he did not neglect to file a cross appeal because he did not know legal formalities or that it was required; (2) he called the ARB and was informed that he would get a chance to present issues to be reviewed; and (3) his arguments were not an effort to diminish the appealing party’s rights, but instead, to increase the scope of review by the Board.” Slip op. at 2 (citing to Complainant’s petition). The ARB denied the petition because it did not fall within the four limited circumstances in which the ARB will reconsider: “(1) material differences in fact or law from those presented to a court of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the court’s decision, (iii) a change in the law after the court’s decision, or (iv) failure to consider material facts presented to the court before its decision.” Id.

RECONSIDERATION BASED ON NEW EVIDENCE; FAILURE TO SHOW THAT THE EVIDENCE COULD NOT HAVE BEEN OBTAINED UPON REASONABLE DILIGENCE PRIOR TO THE ARB’S ORIGINAL RULING

In Amtel Group of Florida, Inc., ARB No. 07-104, ALJ No. 2004-LCA-6 (ARB Jan. 29, 2008), the Respondent moved for reconsideration based on new evidence. The ARB had earlier found that the Respondent was liable for back wages to an H-1B worker because it had failed to effect a bona fide termination of her employment because the record did not provide evidence that the Respondent had notified the USCIS of the termination and because the Respondent had not paid the worker for her transportation home. After the ARB’s decision, the Respondent’s immigration counsel provided evidence to the Respondent’s counsel before the Board showing that the immigration counsel had, in fact, notified USCIS. The ARB, however, agreed with the worker that the Respondent could have known through reasonable diligence not only of the regulatory notice requirement, but also of the evidence that the notification had been made. The ARB therefore denied reconsideration. The ARB also denied reconsideration because the Respondent conceded that it had not paid for the worker’s transportation home.

MOTION FOR RECONSIDERATION OF ARB DECISION IS ANALOGOUS TO PETITION FOR PANEL REHEARING UNDER FRAP 40

In Ndiaye v. CVS Store No. 6081, ARB No. 05-024, ALJ No. 2004-LCA-36 (ARB May 9, 2007), the ARB stated that it is authorized to reconsider its decisions. The ARB stated that such a motion for reconsideration is analogous to petitioning for panel rehearing under Rule 40 of the Federal Rules of Appellate Procedure, which expressly requires that any petition for rehearing "state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended . . . ." The Board stated that such a petition should not reargue unsuccessful positions or assert an inconsistent position that may prove more successful. The Board also stated that issues not presented in initial briefs or during oral argument are not appropriate subjects for rehearing. Raising new issues on rehearing, however, may be appropriate if supervening judicial decisions or legislation, not reasonably foreseen during initial argument, would alter the outcome. In Ndiaye, the Complainant partially based her motion for reconsideration on citation of an ARB decision that had been issued two months before the ARB issued the decision in Ndiaye’s case but months after the briefing had been completed. The ARB found that the earlier decision demonstrated a material difference in law from that presented to the Board that the Complainant could not have been aware of through reasonable diligence. In making this finding, the ARB took into consideration that the Complainant was pro se. The ARB thus granted reconsideration; however, it found that the new ruling was inapplicable and affirmed its earlier decision.

MOTION FOR RECONSIDERATION OF ARB DECISION

In Chelladurai v. Infinite Solutions, Inc., ARB No. 03-072, ALJ No. 2003-LCA-4 (ARB July 24, 2006), the Board denied reconsideration of issues already ruled on in its Final Decision and Order, and of matters immaterial to the case before the Board.

Remands

ONCE ARB REMANDED, IT DIVESTED ITSELF OF JURISDICTION TO REVIEW ALJ’S DECISION TO HOLD CASE IN ABEYANCE

In Gupta v. Compunnel Software Group, Inc., ARB No. 14-086, ALJ No. 2011-LCA-45 (ARB Sept. 23, 2014), the ARB had remanded the matter to the ALJ for further findings on the Complainant’s whistleblower claim and for recalculation of certain damages. The Respondent then sought review of the ARB decision in the Southern District of New York (No. 14-cv-4790). The ALJ granted the Respondent’s motion to hold the remand proceedings in abeyance pending a decision from the district court, and denied the Complainant’s motion for reconsideration of the order granting the abeyance. The Complainant asked the ARB to summarily reverse the ALJ’s abeyance order. The ARB denied the motion, stating that once it remanded the matter it divested itself of jurisdiction.

REMAND BASED ON ALJ PROCEDURAL ERROR NOT REQUIRED WHERE IT WOULD AMOUNT TO AN EMPTY EXERCISE

In Yabot v. Board of Education of Prince George’s County, ARB No. 12-012, ALJ No. 2011-LCA-59 (ARB Feb. 21, 2013), the ARB held that the ALJ had abused his discretion in dismissing the pro se Complainant’s case for failure to timely respond to the ALJ’s order to show cause.'' The ALJ’s error was failure to warn that failure to timely respond could result in dismissal of the case.' The ARB, however, found that a remand was unnecessary because it was able to determine as a matter of law that the Complainant’s response to the show cause order compelled dismissal of her complaint.' The ARB cited Myers v. AMS/Breckenridge/Equity Grp. Leasing One, ARB No. 10-144, ALJ Nos. 2010-STA-007, -008; slip op. at 12 n.29 (ARB Aug. 3, 2012). Accord Dantran v. U.S. Dep’t of Labor, 171 F.3d 58, 73 (1st Cir. 1999)("when a reviewing court discovers a serious infirmity . . . the ordinary course is to remand[,] . . . [b]ut such a course is not essential if remand will amount to no more than an empty exercise") (internal citations omitted).

Scope of review

WHERE THE PROSECUTING PARTY IN LCA CASE HAD NOT FILED A CROSS-APPEAL OF THE ALJ’S DECISION AND ORDER, HE COULD NOT USE RESPONDENT’S APPEAL AS A VEHICLE FOR CONTENDING THAT HE WAS ENTITLED TO MORE IN BACK WAGES THAN THE ALJ AWARDED

In Jain v. ACI InfoTech, Inc., ARB No. 2019-0038, ALJ No. 2018-LCA-00024 (ARB Oct. 29, 2020), Respondent filed an appeal in an LCA case contesting the ALJ’s calculation of back wages owed to the H-1B worker, who was the Prosecuting Party in the matter. In response, the H-1B worker made several arguments that he was entitled to more in back wages than the ALJ awarded. He had not, however, filed a cross-appeal of the ALJ’s Decision and Order. The ARB held that “[u]nder our well-established precedent, ‘[w]e adhere to the principle that [a] party who neglects to file a cross-appeal may not use his opponent’s appeal as a vehicle for attacking a final judgement.’” Slip op. at 5 (footnote omitted).

ARGUMENT FIRST MADE ON APPEAL; ARB DENIES WAGE AND HOUR DIVISON ADMINISTRATOR’S REQUEST FOR REMAND TO RECALCULATE BACK WAGES WHERE THE ADMINISTRATOR RAISED CONTENTION FOR THE FIRST TIME ON APPEAL THAT THE REQUIRED WAGE SHOULD BE THE PREVAILING WAGE BECAUSE THE H-1B’S POSITION WAS UNIQUE; THE ARB FOUND — THAT THE ALJ HAD GRANTED THE BACK WAGES AS SOUGHT IN THE ADMINISTRATOR’S MOTION FOR SUMMARY DECISION BASED ON A HIGHER ACTUAL WAGE REPORTED ON THE LCA — THAT THE RECORD INDICATED THE EXISTENCE OF SIMILARLY EMPLOYED WORKERS — THAT THE RESPONDENT WOULD BE HELD TO THE ACCURACY OF ITS ATTESTATIONS IN THE LCA ABOUT THE ACTUAL WAGE — THAT ALLOWING A REMAND ON A CONTENTION NOT RAISED BELOW THAT WOULD POTENTIALLY LOWER BACK PAY AWARD BE UNFAIR TO THE H-1B WORKER

In Administrator, Wage and Hour Div. v. Government Training, LLC, ARB No. 16-049, ALJ No. 2015-LCA-5 (ARB Feb. 23, 2018), the Wage and Hour Division (WHD) Administrator had ordered back wages based on the required wage (based on the actual wage reported by the Respondent) on two sequential two Labor Condition Applications (LCA) filed by the Respondent. The actual wage reported by the Respondent for the first LCA was $65,000, and the prevailing wage was reported as $55,806. The Respondent reported both the actual and prevailing wage as $38,500 for the second LCA. The ALJ ordered this amount as the back wages due when granting the Administrator’s motion for summary decision. On appeal, the WHD Administrator sought a remand to the ALJ for recalculation of back wages based on the contention that, because the Respondent never paid the H-1B worker (who the Administrator asserted was the only employee in the position) more than the prevailing wage, the prevailing wage was the actual wage, and because the actual wage was less than the prevailing wage, the prevailing wage becomes the “required wage.”

The ARB declined to grant a remand. First, the ALJ had ordered the amount the Administrator sought in the motion for summary decision. Second, the ARB found that the record indicated that there were other similarly employed workers and therefore 20 C.F.R. § 655.731(a)(1) (mandating payment of “actual wage” where other employees with substantially similar experience and qualifications do not exist) did not apply. The ARB noted that the Administrator had not argued while the case was before the ALJ that the H-1B worker’s employment was unique, and failed to cite any evidence to support such a contention before the ARB. Third, the ARB held the Respondent to the accuracy of its attestations in the LCA that the actual wage for the first LCA period was $65,000, and that this wage was based on the amount it paid to similarly employed workers. Fourth, the Administrator had not filed a petition for review, and permitting it to now raise an argument not made below before the ALJ would be unfair to the H-1B worker who had not participated in the appeal, but who could have asked to intervene.

WHERE RESPONDENT DID NOT FILE A CROSS-APPEAL OF THE ALJ’S DECISION, THE ARB DECLINED TO CONSIDER WHETHER THE RESPONDENT OVERPAID ON IT BACK WAGES LIABILITY

In Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014), OSHA determined that the Respondent owed back wages for the period from January 10 through March 31, 2009. The Prosecuting Party, the H-1B complainant, asked for an ALJ hearing. The ALJ determined that the back wage liability ended on March 4, 2009, but upheld the backpay award because she was not aware of a method to recoup voluntary overpayment and because the Respondent had not requested a hearing. The Prosecuting Party appealed the ALJ’s decision, contending that he was owed additional back wages and other relief. The Respondent did not appeal. The ARB determined that the only issue before it was whether Prosecuting Party was entitled to more weeks of back wages and not whether the Respondent overpaid. Id. The ARB stated: "We adhere to the principle that '[a] party who neglects to file a cross-appeal may not use his opponent’s appeal as a vehicle for attacking a final judgment in an effort to diminish the appealing party’s rights thereunder.'" Slip op. at 8 (citation omitted). The ARB, however, declined to award pre- or post-judgment interest on the award because the Prosecuting Party had already been overcompensated. See Id. at 16-17.

IN LCA CASE, WHERE MOTION FOR RECONSIDERATION WAS PENDING BEFORE ALJ, ARB FOUND CASE NOT YET RIPE FOR ARB REVIEW

In The Principal Deputy Administrator, Wage and Hour Div. v. International Technologies, Inc., ARB No 14-064, ALJ No. 2013-LCA-35 (ARB June 30, 2014), where the Respondent had a motion for reconsideration pending before the ALJ prior to filing its petition for review with the ARB, the ARB found that the case was not yet ripe for its consideration because the ALJ had not yet issued a final decision. The ARB stated that it would hold the petition for review in abeyance, and that the Respondent must notify the ARB within 30 days after the ALJ’s decision on reconsideration if it still wanted ARB review. The other parties were also to file within 30 days of the ALJ’s decision on reconsideration if they sought ARB review.

See also The Principal Deputy Administrator, Wage and Hour Div. v. International Technologies, Inc., ARB No. 14-064, ALJ No. 2013-LCA-35 (ARB Aug. 28, 2014) (ARB review dismissed where case settled while motion for reconsideration was pending before the ALJ).

SCOPE OF REVIEW; ARB DECLINES TO CONSIDER ISSUES NOT RAISED IN THE PETITION FOR REVIEW

In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No. 04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), the ARB declined to consider the Respondent’s appellate argument disagreeing with the ALJ’s award of back pay in a case involving the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)), where the Respondent had not specified back pay as an issue in its petition for review. See 29 C.F.R. § 655.845(b)(2) and (3).

SCOPE OF ARB REVIEW; ARB WILL NOT CONSIDER ARGUMENTS RAISED FOR THE FIRST TIME ON APPEAL

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A., ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent argued on appeal that because of a regulation that was in effect at the time of the LCA which provided that no prevailing wage violation would be found in a case where the employer paid a wage equal to or more than 95% of the prevailing wage, 20 C.F.R. § 655.731(d)(4) (2004), the Administrator’s higher calculations based on 100% of the prevailing wage which had been accepted by the ALJ were erroneous. The ARB rejected the argument for two reasons. First, under well-established precedent, the ARB declines to consider arguments a party raises for the first time on appeal. Second, even if it considered the argument, the record showed that the Respondent paid less than 95% of the applicable prevailing wage, and therefore could not avail itself of the old regulation.

NOTICE OF REVIEW MUST SPECIFY ISSUES; SEEKING TO REITERATE ALL ARGUMENTS MADE AT THE HEARING IMPERMISSIBLY ATTEMPTS TO PUT THE BURDEN ON THE ARB TO UNEARTH THE BASIS FOR THE APPEAL

In Administrator v. American Truss, ARB No. 05-032, ALJ No. 2004-LCA-12 (ARB Feb. 28, 2007), the Respondent sought "to reiterate all arguments made at the hearing and in the Respondent’s Closing Statement" and to "request[] that the Board consider these issues on appeal as well." The ARB, however, noted that, in accepting the Petition, it had agreed to review only "[w]hether the ALJ properly calculated [the] backpay award." The Board observed that by "request[ing] that we ferret out and review any and all arguments it made below — without explaining which ones have merit, and where the [ALJ] may have erred," the Respondent "clearly runs afoul" of the regulations requiring that the petition for review "[s]pecify the issue or issues in the [ALJ] decision giving rise to such petition" and "[s]tate the specific reason or reasons why the party petitioning for review believes such decision and order are in error." 20 C.F.R. § 655.845(b); See 20 C.F.R. § 655.845(e)(1). The ARB cited authority to the effect that by attempting to "incorporate" all arguments made below, a litigant impermissibly attempts to transfer its duty to make arguments to the appellate body. The ARB, therefore, held that the Respondent waived the arguments it had not properly presented for review.

WAIVER OF ASSIGNMENT OF ERROR; MERE PASSING REFERENCE DURING HEARING TO CONCERN ABOUT CERTAIN CALCUATIONS WITHOUT IDENTIFICATION OF THAT CONCERN AS AN ISSUE IN PRE-HEARING SUBMISSION OR CLOSING ARGUMENT

In Administrator v. American Truss, ARB No. 05-032, ALJ No. 2004-LCA-12 (ARB Feb. 28, 2007), the ARB found that the Respondent had waived assignments of error relating to vacation and holiday hours, where the Respondent’s pre-hearing submission and closing statement did not refer to vacation and holiday hours, and where a passing exchange at the hearing did not put the ALJ on notice that the Respondent sought a ruling on vacation and holiday hours.

WHERE RESPONDENT DID NOT RAISE TIMELINESS OF COMPLAINT ISSUE BEFORE THE ALJ, THE ARB REFUSED TO CONSIDER THE ISSUE ON APPEAL

In Limanseto v. Ganze & Co., ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the Respondent argued on appeal that the Complainant’s LCA complaint should be dismissed as untimely filed because it fired the Complainant on August 14, 2008, and he did not file a claim until October 26, 2009. The ARB noted a complaint must be filed no later than 12 months after the latest date on which the alleged violations were committed, which would be the date on which the employer allegedly failed to perform an action or fulfill a condition specified in the LCA. 20 C.F.R. § 655.806(a)(5). The ARB refused to address the issue, however, because the Respondent admitted that it had not raised it with the ALJ. Adm'r v. Am Truss, ARB No. 05-032, ALJ No. 2004-LCA-12, slip op. at 4-5 (ARB Feb. 28, 2007).

FAILURE TO OBJECT TO FINDING BY ADMINISTRATOR DOES NOT COMPEL WAIVER OF DE NOVO REVIEW BY THE ARB

In Vojtisek-Lom v. Clean Air Technologies International, Inc., ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009), the Administrator argued that the Respondent waived its right to have the ARB review de novo the ALJ’s back wage award for the same time period as the Administrator’s earlier finding because the Respondent had not contested the Administrator’s determination that it owed the back wages for that period. The ARB rejected this argument, finding no basis for not exercising its de novo review authority.

Settlements

ENFORCEMENT OF VALID SETTLEMENT AGREEMENT ON AN H-1B ADMINISTRATIVE COMPLAINT THAT INCLUDED A PROVISION IN WHICH COMPLAINANT GAVE UP HIS RIGHT TO FURTHER LITIGATION ON THE MATTER

In Compunnel Software Group v. Gupta, No. 19-1761 (2d Cir. Sept. 20, 2021) (2021 U.S. App. LEXIS 28300) (not precedential), Appellant sought review of the district court's grant of summary judgment dismissing Appellant's repudiation of and collateral attacks on a settlement agreement on his H-1B administrative complaint. The Second Circuit found that the district court did not err in concluding that Appellant had entered into a valid settlement agreement with Defendant.

The record shows that Gupta, after negotiating with Compunnel about the payment schedule and terms of the release, signed the settlement agreement. The agreement provided that Compunnel would pay Gupta $28,000 “as payment in full and final compensation from [Compunnel] to Gupta arising from or in any way related to the employment of Gupta with [Compunnel].” More specifically, the parties agreed to “giv[e] up their right to a trial in connection with the allegations contained in the complaints filed with U.S. Department of Labor - Wage and Hour Division (WHD) against [Compunnel] or any other rights which are the subject of this Agreement and Stipulation including any rights in the administrative proceedings in [the ALJ, ARB, or district court cases].” Thus, the district court correctly ruled that the terms of the release contained in the settlement agreement were clear and unambiguous and enforced its terms accordingly.

Slip op. at 3-4. The court found that Appellant's remaining arguments attacking the validity of the settlement agreement, and the ALJ's and ARB's authority to approve a facially valid settlement agreement, were meritless. The court stated: "... Gupta’s agreement with Compunnel is valid, it extinguished his claims against his former employer, the DOL’s ALJ and ARB properly approved the settlement, and the district court correctly granted Compunnel and the DOL summary judgment and denied relief on reconsideration." Id. at 4.

EARLIER SETTLEMENT OF LCA CLAIM WHICH INCLUDED A RELEASE OF ALL CLAIMS AGAINST THE RESPONDENT EXTINGUISHED ANY NEW CLAIM RELATED TO THE H-1B EMPLOYMENT THAT WAS THE SUBJECT OF THE SETTLEMENT; COLLATERAL ATTACKS ON SETTLEMENT AS INEFFECTIVE, VOID, FRAUDULENT OR RESCINDED ARE BEYOND THE ARB’S AUTHORITY TO ADJUDICATE

In Gupta v. Headstrong, Inc., ARB Nos. 15-032, -033, ALJ No. 2014-LCA-8 (ARB Jan. 26, 2017), the ALJ dismissed the Complainant’s LCA case based on the parties’ 2008 settlement agreement, the ALJ finding that the settlement included a release of all claims and that the parties’ execution of it “fully extinguished” any claim the Complainant may have had related to his employment with the Respondent. The ALJ rejected the Complainant’s arguments that the settlement was ineffective, void, fraudulent, or had been rescinded by the Complainant. On appeal, the ARB affirmed the dismissal, writing:

Upon review, the Board finds that the extensive evidentiary record amply supports the ALJ’s factual findings, including her determination that the parties’ settlement and release of claims extinguished all claims against Headstrong. Gupta attacks the settlement as ineffective, void, and fraudulent, and claims that he rescinded it. However, Gupta has evoked no statute, regulation, or precedent authorizing the Board to adjudicate collateral attacks on a facially valid contract. The Board is an administrative body with only the authority emanating from statutes, implementing regulations, and delegations of authority. The ARB has, however, affirmed an ALJ’s dismissal based on the parties’ settlement in an INA case involving this same complainant. Gupta v. Compunnel Software Grp., ARB No. 16-056, ALJ No. 2011-LCA-045 (ARB Apr. 29, 2016). In that case, as well as this, the settlement included a release of all claims related to Gupta’s employment. Gupta’s claims that this settlement is ineffective, void, fraudulent, or has been rescinded by him, are collateral issues that we do not address in this instance. Because the ALJ’s conclusion that the settlement extinguished all claims is consistent with ARB precedent, we uphold it. We, therefore, affirm the ALJ’s dismissal of this case.

USDOL/OALJ Reporter at 3 (footnotes omitted). In a footnote, the ARB indicated that it the Administrator’s amicus brief may have been correct that that the Complainant did not have a right to pursue his LCA claims by seeking a formal hearing because he effectively waived his right to do so in the settlement agreement. The ARB indicated that, by extension, it appeared that the ARB did not have authority to review the settlement agreement.

[For later district court proceedings on this case, see Proceedings before ALJ; Settlements and consent findings.]

PRIVATE SETTLEMENT AGREEMENT OF LCA CLAIM

In Gupta v. Headstrong, Inc., No. 17-cv-5286 (S.D. N.Y. Mar. 30, 2018) (2018 U.S. Dist. LEXIS 56008; 2018 WL 1634870), the Plaintiff had signed a settlement agreement with the Defendant in 2008. The ARB affirmed the ALJ’s finding that although the Defendant owed the Plaintiff back wages under the LCA regulations, the settlement had released all claims related to the Plaintiff’s employment, and the settlement therefore extinguished liability. The Plaintiff then filed an action in federal district court. The district court considered the Plaintiff’s various arguments on why the settlement should not be considered invalid and rejected each argument under New York law (purported reliance on a misrepresentation by the Defendant; adequacy of consideration; fraud and duress; FLSA caselaw that claims cannot be resolved through private settlement). The court granted the Plaintiff leave to amend his complaint, but expressed doubt about whether the Plaintiff could make in good faith the allegations necessary to avoid dismissal, and noted that the Plaintiff would need to address both why the agreement is voidable, and why his retention of the lump-sum payment for 10 years did not ratify the agreement.

APPEAL OF ALJ’S APPROVAL OF SETTLEMENT AGREEMENT; ARB DECLINES REVIEW FOR LACK OF JURISDICTION WHERE APPEAL WAS GROUNDED SOLELY ON COLLATERAL ATTACKS TO FACIALLY VALID AGREEMENT

In Gupta v. Compunnel Software Group, Inc., ARB No. 16-056, ALJ No. 2011-LCA-45 (ARB Apr. 29, 2016), the parties negotiated a settlement of the case while the matter was before the ALJ on remand. The settlement agreement was submitted to the ALJ for approval. The ALJ approved the agreement and dismissed the case. The Prosecuting Party, the H-1B worker, appealed and contested the validity of the settlement agreement. The ARB declined to accept the petition for review. The ARB wrote:

Gupta’s appeal rests entirely on collateral attacks against the Settlement Agreement, including fraud, duress, lack of consideration, lack of voluntariness, lack of initials on every page, and contradiction of public policy. The Board is an administrative body with only the authority emanating from statutes, implementing regulations, and delegations of authority. Gupta points to no statute or regulation that authorizes the Board to adjudicate collateral attacks to a facially valid contract (i.e., a settlement agreement). We do not suggest that we can never review an ALJ’s dismissal of a case involving settlement agreements under the INA, and we will not speculate as to every conceivable case where we may have authority to review the ALJ’s dismissal of a case. In this case, as confirmed by Gupta’s own motion, the Settlement Agreement appears valid on its face as it is signed, no party challenges the signatures, and the agreement expressly identifies this case as part of the settlement. Because Gupta raises only collateral attacks to the validity of the settlement agreement and does not raise any appealable issue, we lack jurisdiction and decline to accept his petition.

USDOL/OALJ Reporter at 3-4 (footnote omitted).

[For later district court proceedings on this case, see Proceedings before ALJ; Settlements and consent findings.]

WHERE COMPLAINANT DID NOT PARTICIPATE AS A PARTY BEFORE THE ALJ, OR VOICE AN OBJECTION WHILE THE MATTER WAS BEFORE THE ALJ TO A SETTLEMENT REACHED BETWEEN THE PROSECUTING PARTY (THE WAGE AND HOUR DIVISION ADMINISTRATOR) AND THE RESPONDENT, THE ARB DECLINED TO DISTURB THE SETTLEMENT AGREEMENT ON APPEAL

In Mikami v. Administrator, Wage and Hour Div., USDOL, ARB No. 13-005, ALJ No. 2012-LCA-25 (ARB June 16, 2014), the Complainant petitioned for ARB review of the ALJ’s Decision and Order Approving Consent Findings. The Wage and Hour Division Administrator had issued a determination assessing back wages and a civil money penalty against the Respondent. The Respondent appealed, which under the regulations made the Administrator the Prosecuting Party before the ALJ. The Complainant, who was the H-1B worker whose complaint had instigated the Wage and Hour Division investigation, did not request a hearing. Nor did he request permission from the ALJ to participate either as an intervening party or amicus. Thus, he was not a party-participant before the ALJ. The Administrator’s attorney informed the Complainant’s attorney that the Administrator/Prosecuting Party and the Respondent had reached a settlement. The ALJ subsequently approved the settlement agreement. The Complainant petitioned for review of the ALJ’s approval of the settlement. The ARB declined to disturb the settlement agreement given the Complainant’s failure to participate in the ALJ proceedings or to assert any objection to the settlement during those proceedings. The ARB noted that the Complainant may not have been personally responsible for that non-participation and failure to object during the ALJ proceedings, but that parties are held to the acts and omissions of their freely chosen representatives.

SETTLEMENT; APPROVAL IN ABSENCE OF TIMELY OBJECTION IN RESPONSE TO SHOW CAUSE ORDER

In Administrator, Wage and Hour Div., USDOL, v. API Accounting & Computer Consulting, ARB No. 07-081, 2006-LCA-26 (ARB Jan. 25, 2008), the Administrator filed a motion for approval of settlement agreement, attaching thereto a signed copy of the agreement and request for entry of a Final Order in accordance with the terms and conditions set forth in the settlement agreement. The Respondent thereafter filed a brief in which it was not clear about whether it agreed to the settlement. The ARB then issued a show cause order, warning that if a response was not timely received, the settlement would be approved. The Respondent did not respond, and the ARB then approved the settlement and dismissed the case.

Specification of issues for review

PETITION FOR ARB REVIEW OF ALJ'S LCA DECISION DISMISSED WHERE SELF-REPRESENTED COMPLAINANT'S PETITION FAILED TO CLEARLY IDENTIFY REASONS WHY THE ALJ ERRED, AND FAILED TO SUBSTANTIATE THOSE REASONS WITH LEGAL AUTHORITY

In Pajany v. Capgemini, Inc., ARB No. 2019-0071, ALJ No. 2019-LCA-00015 (ARB Jan. 25, 2021)(per curiam), Complainant was a U.S. citizen proceeding as a self-represented litigant. He filed a complaint alleging that Respondent committed several violations of the H-1B provisions at 20 C.F.R. § 655.805(a). Respondent filed a motion to dismiss with the ALJ. The ALJ considered converting the motion to dismiss into a motion for summary decision due to Respondent's evidentiary submissions. After reviewing Complainant's responsive materials, however, the ALJ concluded that it was not necessary to consider evidentiary materials outside the pleadings in order to rule on Respondent’s Motion, and the ALJ dismissed the complaint for failure to state a claim that Respondent had violated a provision of 20 C.F.R. § 655.805(a). Complainant petitioned for ARB review.

The ARB dismissed the Petition for Review and affirmed the ALJ's decision pursuant to 20 C.F.R. § 655.845--which requires that the petition “[s]tate the specific reason or reasons why the party petitioning for review believes such decision and order are in error”--and case precedent that requires the petitioning party to substantiate those reasons with legal authority. The ARB noted that, though pro se filings are construed liberally, the ARB must be able to discern cogent arguments. Here, Complainant's petition failed to meet these criteria:

In his Petition for Review, Complainant extensively argues that the ALJ was biased, manipulated his case, fabricated documents, and committed forgery, among other attacks. Complainant fails to support any of these accusations. Construing his pleading liberally, Complainant appears to argue that the ALJ erred because he did not consider fully Complainant’s evidence or appropriately analyze his claims. Complainant asserts that the ALJ issued a “wrong order” and that Complainant’s “348-page document” proves that “Capgemini violated § 655.805(a).” While Complainant’s arguments on appeal repeatedly assert that the ALJ erred, Complainant fails to clearly identify a sufficient basis for reversal. Throughout his arguments on appeal, Complainant fails to clearly identify reasons why the ALJ erred and substantiate those reasons with legal authority. Thus, Complainant’s alleged errors are deemed forfeited or waived.

Slip op. at 3-4 (footnotes omitted).

Standard of review

ARB’S STANDARD OF REVIEW IN LCA CASE; DIFFERING VIEWS ON WHETHER DE NOVO REVIEW IS LIMITED TO CONCLUSIONS OF LAW, OR FOR BOTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

In Administrator, Wage and Hour Div., USDOL v. Doctor’s Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024 (ARB Dec. 9, 2020), a two-member panel of the ARB summarily affirmed the ALJ’s Decision and Order awarding back wages to an H-1b worker based on the LCA “no benching” provision. The two members wrote separate concurrences to address the ARB’s standard of review in LCA cases. Judge Haynes stated that the ARB should adopt a de novo review standard for ALJ conclusions of law, and a substantial evidence review standard for findings of fact where the applicable statutes or regulations do not provide a standard of review. Judge Burrell stated that the ARB’s standard of review of ALJ findings of fact and legal conclusions should be de novo, although on the record that was before the ALJ. Slip op. at 6–11.

STANDARD OF REVIEW

Under the Administrative Procedure Act, the ARB’s has plenary power to review an ALJ’s factual and legal conclusions de novo. See USDOL v. Jackson, ARB No. 00-068, ALJ NO. 1999-LCA-4 (ARB Apr. 30, 2001).

Timeliness of petition for review

REQUEST FOR ALJ HEARING IN LCA CASE; EQUITABLE TOLLING FOUND NOT TO BE WARRANTED WHERE WHD ADMINISTRATOR HAD SERVED THE DETERMINATION LETTER TO COMPLAINANT AT HIS LAST KNOWN ADDRESS, AND COMPLAINANT HAD NOT INFORMED THE ADMINISTRATOR OF A PREFERABLE ADDRESS FOR SERVICE PRIOR TO ISSUANCE OF THE LETTER

In Bagri v. Erection & Welding Contractors, LLC, ARB No. 2020-0033, ALJ No. 2020-LCA-00003 (ARB Jan. 29, 2021) (per curiam), the Prosecuting Party (“Complainant”) was the H-1B worker who filed an LCA complaint alleging that Respondent failed to pay required wages. The Wage and Hour Division (“WHD”) Administrator issued a determination letter assessing back wages, noting that Respondent had paid the assessment in full, and notifying the parties of their right to request an ALJ hearing of the procedures for doing so. The matter was docketed before OALJ. The presiding ALJ found that Complainant had not actually filed a hearing request and that the record showed that Complainant had been sent the determination letter to the address of record. The ALJ thus dismissed the matter.

On appeal, the ARB considered whether equitable tolling applied based on Complainant’s contention that “the determination letter was ‘misplaced,’ and ‘extraordinary circumstances’ prevented him from receiving the determination letter.” Slip op. at 4. The ARB noted that Complainant “acknowledges that the Administrator sent the determination letter to the same address as the back wages check, but Complainant alleges that he had only intended to use that address as a ‘temporary address’ and he would have received the determination letter if it had been sent to his ‘home address.’” Id. The ARB found that this contention resembled the equitable tolling ground of being-prevented-in-some-extraordinary-way-from-making-the-filing. The ARB was not persuaded:

Complainant, however, still cannot meet the burden for equitable tolling to apply because Complainant failed to exercise due diligence to preserve his legal rights and keep the Administrator apprised of his best mailing address. The Administrator’s responsibility is to send the determination letter to the parties’ “last known addresses,” but it is Complainant’s responsibility to inform the Administrator of any changes in the address. Based on the record and arguments on appeal, Complainant’s “temporary address” was his “last known address” and it was where Complainant received the back wages check.

Complainant may have intended to receive future mail at a different address than his “temporary address,” but Complainant had the responsibility of informing the Administrator of that intention. Nothing in the record or Complainant’s arguments indicate that Complainant clarified his intentions to the Administrator or provided the Administrator with a preferable address before the Administrator sent the determination letter.

We find that Complainant’s failure to keep the Administrator informed of his best address constitutes a lack of due diligence. Consequently, Complainant does not meet the burden for equitable tolling to apply.

Id. at 4-5 (footnotes omitted). See 20 C.F.R. § 655.815(a) (requirement that Administrator’s determination be served to the parties’ last known addresses). The ARB observed in a footnote that Complainant had received the back wages check at the “temporary address” on November 13, 2019, that the determination letter had been sent to that same address on November 19, 2019, that Complainant had not provided a preferable address before the determination letter was sent, and thus the “temporary address” was Complainant’s “last known address.”

TIMELINESS OF REQUEST FOR ARB REVIEW; EQUITABLE GROUNDS FOR TOLLING NOT PRESENT WHERE COMPLAINANT WAITED 83 DAYS AFTER ALJ’s ORDER OF DISMISSAL TO FILE A MOTION TO REOPEN WITH THE ALJ

In Maity v. E-Business International, Inc., ARB No. 15-082, ALJ No. 2015-LCA-10 (ARB Aug. 30, 2017), the Complainant failed to file a timely appeal to the ARB from either the date of the ALJ’s order dismissing the complaint or the date of the ALJ’s order denying the Complainant’s request to reopen. The Complainant alleged that OALJ failed to notify him timely of the order denying the request to reopen. The ARB noted that the record did not show any evidence that Complainant had provided the ALJ with a forwarding address when he returned to India. The ARB also noted the Complainant had waited 83 days before filing the motion to reopen with the ALJ and that the period for requesting ARB review was 30 days from the date of the ALJ’s order of dismissal. The ARB thus found no equitable grounds for tolling the limitations period for requesting ARB review.

TIMELINESS OF PETITION FOR ARB REVIEW; EQUITABLE TOLLING NOT ESTABLISHED WHERE EMPLOYER HAD CONDUCTED OTHER URGENT BUSINESS DURING LIMITATIONS PERIOD

In Vicuña v. Westfourth Architecture, ARB No. 15-034, ALJ No. 2012-LCA-23 (ARB Apr. 6, 2015), the ARB found that equitable tolling of the limitations period for filing a petition for ARB review of an ALJ’s LCA decision was not established where the Respondents were conducting urgent business activities during the limitations period, but had decided that filing a petition for review, or even a motion for an enlargement of time to file the petition, was not an urgent business matter.

TIMELINESS OF APPEAL

In Administrator, Wage & Hour Division, USDOL v. Wings Digital Corp., ARB No. 05-090, ALJ No. 2004-LCA-30 (ARB July 22, 2005), the ALJ had found that the Respondent owed over $78,000 in back wages and other liabilities. The Respondent’s appeal to the ARB was several days late. The ARB held that neither the illness of the Respondent’s representative nor his misinterpretation of the regulations established meritorious grounds for equitable tolling. The record indicated that the representative had apparently drafted the appeal within the limitations period despite a serious headache and fever, but had failed to either fax the appeal to the Board or telephone to request an enlargement of time. The ARB rejected the misinterpretation argument where the ALJ’s notice of appeal rights provided unambiguous notice of the steps necessary to perfect an appeal.

TIMELINESS OF PETITION FOR ARB REVIEW

In Administrator, Wage & Hour Division, USDOL v. The Board of Trustees of Indiana University, ARB No. 05-106, 2005-LCA-21 (ARB Aug. 31, 2005), one of the aliens owed back wages asked for review as an "interested party" of Wage and Hour’s decision not to impose a civil money penalty and alleged failure to investigate all of her complaints. The ALJ ruled against the alien and she made an untimely request for ARB review. She argued for equitable tolling based on the harm that the Defendant’s actions would cause her if the petition was not received. The ARB ruled that was not a ground for tolling — that instead she had to have shown that the Defendant had acted to deceive her for the purpose of preventing her from timely filing a petition for review. The alien cited several regulations to support her argument that her filing was timely, but the ARB found that they were not relevant, and that all the Complainant had to have done was read the ALJ’s notice of appeal to learn the correct procedure. The alien also argued that she had attempted to fax her appeal, but the Board rejected this argument because its facsimile activity report showed no unsuccessful attempts on the day in question, and because "a petitioner who waits until the day a petition for review is due and then unsuccessfully attempts to serve it by facsimile has not demonstrated the necessary diligence to invoke the tolling provision." (footnote omitted).

TIMELINESS OF PETITION FOR ARB REVIEW; ARB CLOSES CASE AFTER RESPONDENT FAILED TO FILE PETITION EVEN AFTER BEING GRANTED TWO ENLARGEMENTS OF TIME TO DO SO

In Administrator, Wage and Hour Div., USDOL v. Abacuss Software Technologies, LLC, ARB No. 12-104, ALJ No. 2012-LCA-15 (ARB Oct. 18, 2012), no party filed a timely petition for review of the ALJ’s Decision and Order awarding back pay and interest under the H-1B non-immigrant worker provisions of the INA. The Respondent, however, was subsequently granted an enlargement of time to file a petition for review by the ARB. The Respondent did not file a petition for review within the enlarged time but instead requested an additional three-month enlargement of time. The Administrator opposed the request, noting inter alia, that filing a petition for review only requires a statement of the issues and the reason or reasons that the petitioner believes the ALJ incorrectly decided the case. The ARB denied the request for a three month enlargement of time, but gave the Respondent an opportunity to file the petition within a lesser amount of time (the decision does not state how long). The Respondent again did not file the petition within the enlarged period of time, and again requested additional time for the same reasons previously given. The ARB denied the motion and closed the case before the ARB, noting that the ALJ’s decision had become the Secretary’s final decision and order in the case.

DISMISSAL OF PETITION FOR REVIEW BASED ON RESPONDENT’S FAILURE TO FILE PETITION FOR REVIEW AFTER BEING GRANTED EXTENSION OF TIME TO DO SO

In Administrator, Wage and Hour Div., USDOL v. Frank Sacks Tennis Camps, Inc., ARB No. 11-089, ALJ No. 2010-LCA-26 (ARB Jan. 9, 2012), the Respondent was granted an extension of time to file a petition for review. The ARB closed the case after the Respondent failed to file a petition for review under the extended time period, and failed to respond the ARB’s order to show cause why the matter should not be closed.

TIMELINESS; EQUITABLE TOLLING; ALLEGATION THAT ALJ’S DECISION WAS TARDY

In Administrator, Wage and Hour Div., USDOL v. Food Pro International, Inc., ARB No. 09-014, ALJ No. 2008-LCA-5 (ARB Dec. 12, 2008), the Respondent failed to file a petition for review with the ARB in a timely manner. The ARB issued an Order to Show Cause to provide the Respondent with an opportunity to establish grounds for equitable tolling. The Respondent complained that the hearing was unfair and that the ALJ incorrectly decided the case, but only addressed the timeliness issue by asserting that the ALJ’s D & O was "tardy." The Respondent, however, acknowledged that it had received the ALJ’s decision four days after it was issued, and that it had sufficient time to write to the ALJ requesting advice 15 days after issuance of the decision. The ARB found that the Respondent was not entitled to tolling of the limitations period.

Withdrawal

WITHDRAWAL OF APPEAL

In Shaikh v. Vision Systems Group, ARB No. 04-094, ALJ No. 2004-LCA-5 (ARB July 27, 2005), the Complainant took an appeal of an ALJ decision in which he found that the Respondent did not owe the Complainant back wages. The ARB approved a withdrawal of the appeal which had been agreed to in a settlement reached in state court. The Respondent had to seek enforcement actions in the state court to get the Complainant to comply with his agreement to withdraw the ARB appeal.

V. Proceedings before ALJ

Top

ALJ discretion and control over proceedings

MOTION TO DISMISS OR TO COMPEL DEPOSITION OF OUT OF TOWN PARTY DENIED WHERE RESPONDENT HAD MADE NO EFFORT TO ACCOMMODATE THE DEPONENT’s LOCATION OR SCHEDULE

In Maity v. E-Business International, Inc. , 2015-LCA-10 (ALJ Mar. 24, 2015), the ALJ denied the Respondent’s motion to dismiss base on the Complainant’s failure to appear for his scheduled deposition or order the Complainant to attend the Deposition. The ALJ noted that the Respondent had not contacted the Complainant first with proposed dates for his deposition, and that the Complainant lived in Minnesota, while the Respondent’s business and its attorney were in New Jersey. The ALJ noted that the Respondent made no effort to conduct the deposition in Minnesota, or by video or telephone. The ALJ stated that she would "not strike the request for hearing or compel the Complainant to attend an out of town deposition when there exists other means to handle the location differences."

ALJ’S DISCRETION REGARDING THE ADMISSION OF POST-HEARING EXHIBITS

The ARB found in Mao v. Nasser Engineering & Computing Services, ARB No. 06-121, ALJ No. 2005-LCA-36 (ARB Nov. 26, 2008), that the ALJ had not abused his discretion when he refused to admit into the record proposed exhibits submitted by the Respondents for the first time in their post-hearing brief to the ALJ. The ARB found that the record showed that the Respondents had ample opportunity to present their case and to develop and submit all evidence they deemed relevant.

UNTIMELY RESPONSE TO ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED AS PREMATURE OR UNTIMELY; ARB HOLDS THAT ABSENT A WARNING TO THE PRO SE COMPLAINANT THAT FAILURE TO TIMELY RESPOND TO SHOW CAUSE ORDER COULD RESULT IN DISMISSAL OF THE APPEAL, THE ALJ ABUSED HIS DISCRETION IN DISMISSING THE CASE BASED ON THE UNTIMELY RESPONSE

In Yabot v. Board of Education of Prince George’s County, ARB No. 12-012, ALJ No. 2011-LCA-59 (ARB Feb. 21, 2013), the Respondent moved to strike the Complainant’s untimely response to the ALJ’s order to show cause why her hearing request should not be dismissed as either premature or untimely.'' It had not been clear whether the Complainant was seeking a hearing on a retaliation complaint (which appeared to be premature as the Wage and Hour Division had not rendered a decision on that complaint) or a hearing on the WHD’s separate finding that the Respondent had violated the H-1B regulations’ (on which the Complainant appeared not to have timely filed her appeal).' The Complainant’s response was postmarked after the due date for the response, and included an explanation that she had sprained a foot as a result of an earthquake.' The ALJ granted the motion to strike because the earthquake had actually occurred the day after the date claimed by the Complainant and because there was no medical documentation or other corroboration of the claimed injury.' On appeal, the ARB stated that a judge must warn pro se parties, in advance, of the potential consequences of failing to timely respond to an order to show cause.' Because there was no evidence suggesting that the ALJ gave the Complainant such a warning, and because there was no history of obstructive or non-compliant behavior by the Complainant, the ALJ abused his discretion in dismissing the complaint based on the untimely response to the show cause order.

Dismissals for cause; sanctions

ALJ DID NOT ABUSE HER DISCRETION IN DISMISSING THE COMPLAINANT’S H-1B COMPLAINT FOR FAILURE TO RESPOND TO ORDER TO SHOW CAUSE WHY THE COMPLAINT SHOULD NOT BE DISMISSED FOR REPEATED FAILURE TO COOPERATE IN DISCOVERY; ARB FOUND THAT EVEN IF COMPLAINANT ACTUALLY RESPONDED, THE RESPONSE WAS INSUFFICIENT

In Walia v. The Veritas Healthcare Solutions LLC, ARB No. 14-002, ALJ No. 2013-LCA-5 (ARB Feb. 27, 2015), the ARB found that the ALJ did not abuse her discretion is dismissing the Complainant’s H-1B complaint based on the Complainant’s repeated failures to respond to discovery orders and insufficient justifications for his failures. The ARB noted that the ALJ had explained the discovery regulations to the Complainant and repeatedly warned him of the potential consequences of failing to participate in discovery; had taken into account the Complainant’s pro se status and provided leniency given his lack of legal training; and had issued an order to show why the complaint should not be dismissed due to repeated failures to comply with discovery orders, warning that failure to respond could result in dismissal of the complaint.

The ARB noted that ALJ had dismissed for failure to respond to the order to show cause. The record contained an 8 page fax, and it was unclear whether the ALJ had not received the fax, or had received it but considered in not responsive to the order to show cause. The ARB reviewed the fax and found that it was largely incomprehensible, and did not provide a justification for not participating in discovery except for a rehash of an argument previously rejected by the ALJ. The ARB found that even if the fax was considered a response to the order to show cause, the dismissal was affirmed because it neither addressed the order, nor demonstrated good cause for repeated failure to participate in discovery. The ARB noted authority to the effect that if the decision below is correct, it must be affirmed even though the court below relied upon a different reason.

DEFAULT JUDGMENT BASED ON FAILURE TO FILE TIMELY PRE-HEARING STATEMENT

In Sisfontes v. International Business Software Solutions, Inc., ARB Nos. 07-107, 07-114, ALJ No. 2007-LCA-14 (ARB Aug. 31, 2009), the ARB found that the ALJ did not abuse his discretion in finding that the Respondents had not shown good cause for the late filing of a pre-hearing statement.

DISMISSAL FOR CAUSE; FAILURE TO ATTEND HEARING; ALJ’S ABUSE OF DISCRETION IN DISMISSING CLAIM WHERE GOOD CAUSE ESTABLISHED

In Administrator, Wage and Hour Div., Employment Standards Adm., USDOL v. Siliconlinks, Inc., ARB No. 09-131, ALJ No. 2009-LCA-24 (ARB Oct. 28, 2009), the ARB found that the ALJ abused his discretion is dismissing the claim based on the Regional Solicitor of Labor’s (RSOL) failure to attend the hearing. Although the ARB acknowledged that the RSOL might have handled the situation more professionally, it showed good cause for the failure because the RSOL did not have notice of the hearing until the day before it was scheduled to take place. The ARB noted that the Complainant, who was completely without fault in the matter, was prejudiced by the dismissal. The ARB distinguished cases in which a party is held responsible for the deficiencies of his or her counsel, because in the instant case, the RSOL was responsible for prosecuting the complaint. The RSOL was not an attorney of the Complainant’s choosing.

REIMBURSEMENT OF COURT REPORTER COSTS AS SANCTION; SHORT DELAYS IN ARRIVAL OF DEPONENTS FOUND NOT TO JUSTIFY ORDER OF REIMBURSEMENT; ADMINISTRATOR’S COUNSEL DID NOT ENGAGE IN MISCONDUCT IN, EX PARTE, HAVING COURT REPORTER RECORD TIME OF ARRIVAL OF DEPONENT

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc., ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent sought reimbursement for the cost of the court reporter’s services as a sanction on the Administrator’s counsel based on the late arrivals of two deponents. The ALJ denied the motion for costs finding that the Respondent’s allegations of enormous delays and improper conduct by the Administrator’s counsel in requesting the court reporter to record one deponent’s late arrival with no one from the Respondent present, were false representations of what had happened. On appeal, the ARB affirmed the ALJ’s findings that there had not been extended delays between depositions for the arrival of deponents or that the Administrator’s counsel had engaged in misconduct for asking the court reporter to record the arrival time of the last deponent.

Enforcement

MOTION TO RENEW JUDGMENT UNDER STATE LAW; ALJ’S DECISION AND ORDER IS NOT A “JUDGMENT,” DOES NOT NEED TO BE RENEWED, AND IS NOT SUBJECT TO STATE LAW

MOTION TO ENFORCE; ALJ DOES NOT HAVE AUTHORITY TO ENFORCE LCA DECISION AND ORDER; PROPER VENUE IS WAGE AND HOUR DIVISION ADMINISTRATOR OR FEDERAL COURT

In Huang v. Ultimo Software Solutions, Inc., ALJ No. 2008-LCA-11, slip op. at 3 (Feb. 2013, 2019), the Prosecuting Party filed a request for an order, pursuant to a California code provision, renewing the ALJ’s “judgment” because it allegedly had not yet been satisfied. The Acting District Chief ALJ (“DCJ”) considered the request because the presiding judge had retired. The DCJ found that the ALJ’s Decision and Order was not a judgment under the California code, and even if it was, the ALJ’s decision was not subject to the California code and does not expire.

The DCJ further noted that he had no authority to enforce the action or even take any action in the matter because the original ALJ’s decision had become final more than six years earlier. Moreover, the original ALJ’s order had made it clear that payment occurs through the Wage and Hour Division Administrator, and if the Prosecuting Party had not yet received the unpaid wages and other damages he is entitled to under the original ALJ’s orders, “that is an issue for the Administrator or the appropriate federal district court, as the ARB indicated in its November 10, 2011 order denying reconsideration.” The DCJ denied the Prosecuting Party’s motion for reconsideration, finding that it was, at its core, simply an argument that the DCJ was wrong and reassertion of prior argument. See Huang v. Ultimo Software Solutions, Inc., ALJ No. 2008-LCA-11 (ALJ Mar. 19, 2019).

In Huang v. Ultimo Software Solutions, Inc., ARB No. 2019-0047, ALJ No. 2008-LCA-00011 (ARB Apr. 18, 2019), the ARB issued a notice that it was declining the Prosecuting Party’s request for review of the DCJ’s Order Denying Motion To Renew Judgment, ALJ No. 2008-LCA-00011 (Feb. 2013, 2019) and Order Denying Reconsideration, ALJ No. 2008-LCA-00011 (Mar. 19, 2019).

Hague Convention Rules

WHETHER THE HAGUE CONVENTION RULES ARE MANDATORY WHERE FEDERAL OR OALJ RULES ARE SUFFICIENT

In Walia v. The Veritas Healthcare Solutions LLC, ARB No. 14-002, ALJ No. 2013-LCA-5 (ARB Feb. 27, 2015), the Complainant argued that the Respondent’s deposition requests should have complied with the Hague Convention. On appeal of the ALJ’s later dismissal for the Complainant’s failure to show cause why the complaint should not be dismissed for repeated failure to cooperate in discovery, the ARB described the ALJ’s ruling on the Hague Convention compliance argument:

The ALJ cited to Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for S.D. Iowa, 482 U.S. 522, 541 (1987), for the proposition that while the Hague Convention rules apply to discovery requests of foreign litigants, the Hague Convention was not meant to be the exclusive means of prehearing discovery but rather an optional procedure when its procedures provide a better alternative than local rules to international evidence issues. Id., slip op. at 2. The ALJ ruled that Walia failed to show that the Hague Convention should apply to Veritas’s discovery requests. Id.

In deciding the appeal, the ARB considered whether a fax submitted by the Complainant had been responsive to the ALJ’s order to show cause. The ARB found that the fax was largely incomprehensible and that it did not offer a justification for the Complainant’s failure to participate in discovery other than to rehash the Hague Convention argument. In this regard, the ARB noted: "The ALJ ruled that the Hague Convention does not require foregoing the federal rules or ALJ discovery rules when those rules serve the purpose effectively. ALJ Order, slip op. at 2, (July 24, 2013)(citing Societe Nationale Industrielle Aerospatiale, 482 U.S. at 541). Walia, as the ALJ found, has not offered any examples or arguments as to the insufficiency of the federal or ALJ rules. Id. at 2-3."

Jurisdiction and scope of review authority

COMPLAINANT MAY CHALLENGE THE ADMINISTRATOR’S ASSESSMENT OF LCA BACK WAGES PURSUANT TO 20 C.F.R. § 655.820(b)(1); ARB REVERSES ALJ’S ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE, REMANDS FOR HEARING, AND PERMITS THE COMPLAINANT TO ACT AS PROSECUTING PARTY ON BACK WAGES CLAIM

In Manoharan v. HCL America, Inc., ARB No. 2020-0007, ALJ No. 2018-LCA-00029 (ARB Dec. 21, 2020) (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. Id., slip op. at 2. Following an investigation, the WHD determined that the Respondent failed to pay the required wage, and awarded the Complainant back wages. Id. The Complainant requested a hearing, challenging the WHD’s assessment as too low and not accurately stating the start date, end date, and duration of the Complainant’s employment. Id. at 2–3. The ALJ determined that the Complainant could not request a hearing on the wage claim because 20 C.F.R. § 655.820(b)(2) (“Subsection 2”), which the ALJ stated “gives [the] Administrator the exclusive power to prosecute” a claim, applied to this matter. Id. at 3. The ALJ concluded that the Complainant could “request a hearing for the back wages claim but may not prosecute it because Administrator is the only party that may do so.” Id. The ALJ thus held the wage claim in abeyance pending a decision by the Administrator whether to prosecute the claim. Id. After the Administrator declined to prosecute, the ALJ dismissed the wage claim, from which the Complainant appealed. Id. The ARB reversed the ALJ’s Order dismissing the back wages claim, and remanded the case for a hearing on the Administrator’s assessment of back wages.

20 C.F.R. § 655.820(b)(2)

The ARB rejected the Complainant’s argument that Subsection 2 allows any interested party to request a hearing upon the Administrator’s finding that a violation occurred, and that either the Administrator must prosecute the claim on behalf of the Complainant or that the Complainant may prosecute the claim. Id. at 5–7. In doing so, the ARB stated that the plain language in Subsection 2—that the “Administrator shall be the prosecuting party and the employer shall be the respondent”—specifically designates the role of the Administrator and the role of the employer who the Administrator found committed a violation, and that it “would be unreasonable to interpret the regulation’s use of ‘shall’ in the subsections to require any interested party to act or allow a complainant to force the Administrator to advance a position that it had already rejected.” Id. at 5. The ARB also rejected the Complainant’s contention that the Complainant may act as a prosecuting party under this subsection because it “derives its ‘properties’” from 20 C.F.R. § 655.820(b)(1) (“Subsection 1”) for the same reasons noted above as well as finding that subsections 1 and 2 apply in different circumstances. Id. at 5–6.

20 C.F.R. § 655.820(b)(1)

The ARB rejected the Respondent’s contention that the ALJ should not have evaluated the Complainant’s request under Subsection 1 because that section applies when no violation is found while Subsection 2 applies if a violation is found. Id. at 7. The ARB found that the Respondent’s interpretation of these subsections would “create[] a sharp imbalance between the rights of H-1B employers and employees in adjudicating complaints under the INA” because “the Administrator would be able to order a remedy that is unequivocally inadequate or even no remedy at all, despite a finding that the employer committed an H-1B violation, with no recourse for the complainant” if an employee is not afforded an opportunity to participate in a hearing on the Administrator’s remedy. Id. at 7–8. The ARB noted several decisions where H-1B complainants requested a hearing to contest the Administrator’s back-wage assessment and there was no suggestion that a complainant may not serve as the prosecuting party. Id. at 8. The ARB thus held that the Complainant was permitted to serve as the prosecuting party to a hearing on the Administrator’s back wages assessment under Subsection 1. Id. at 8–9.

[Editor’s Note: The Complainant separately petitioned the ARB to review the ALJ’s Order dismissing a retaliation claim. The ARB accepted the petition, and remanded the claim to the WHD to issue a determination whether the Complainant presented reasonable cause for an investigation on the claim as required under 20 C.F.R. § 655.806(a)(2). See Manoharan v. HCL America, Inc., ARB No. 2019-0067, ALJ No. 2018-LCA-00029 (ARB Dec. 7, 2020).]

FAILURE OF THE WAGE AND DIVISION TO INFORM COMPLAINANT WHETHER IT FOUND REASONABLE CAUSE TO INVESTIGATE RETALIATION COUNT OF LCA COMPLAINT, OR TO ISSUE A DETERMINATION ON THAT COUNT; ARB FINDS THAT REGULATIONS MANDATE SUCH ACTIONS BY THE WHD, AND THAT A REMAND WAS REQUIRED FOR THE WHD TO ISSUE THE REQUIRED DETERMINATION

In Manoharan v. HCL America, Inc., ARB No. 2019-0067, ALJ No. 2018-LCA-00029 (ARB Dec. 7, 2020), Complainant, an H-1B worker, filed a complaint with the Wage and Hour Division (WHD), alleging that Respondent failed to pay him the required wage rate and retaliated against him for protected conduct. The WHD investigated, and issued a determination letter finding several violations of the INA by Respondent. The WHD, however, did not address the retaliation complaint. Complainant requested an ALJ hearing. The ALJ found that that he did not have jurisdiction to consider the retaliation complaint because the WHD had neither conducted an investigation nor issued a determination on that complaint. The ARB reversed and remanded “because the WHD failed to follow its basic regulatory requirements,” which require the WHD division to make a reasonable cause determination on whether to investigate, and to notify the complainant of its determination and to permit the complainant to submit a new complaint with additional necessary information. If the WHD Administrator determines that an investigation is warranted, the WHD is required to conduct that investigation and issue a determination. The ARB found these requirements to be mandatory and not subject to the agency’s discretion. The ARB found that the WHD clearly failed to adhere to the regulations in this matter. The ARB did not decline jurisdiction, as had the ALJ, stating:

If the ALJ’s reasoning here were to stand, Complainant would be left with no process to vindicate his claims of retaliation and be caught in a “Catch-22,” because the failure of the agency to respond with any determination at all precludes any avenue of relief—a situation particularly egregious here where the Complainant has no private right of action in court. Phrased another way, the agency could insulate itself from review by its complete failure to take any action whatsoever. We shall not allow Complainant to “be penalized” and foreclosed from pursuing any avenue for possible relief by the agency’s failure to follow its own rules.

Slip op. at 6 (footnotes omitted). The ARB noted:

On remand the Administrator may indeed determine that an investigation is not warranted, which would end the enforcement process because that decision is not reviewable. Gupta v. Headstrong, Inc., ARB Nos. 2011-0065, -0008, ALJ No. 2011-LCA-00038, slip op. at 8 (ARB June 29, 2012); 20 C.F.R. § 655.806(a)(2). If the Administrator does find reasonable cause to investigate, the WHD would then be required to conduct an investigation and issue a determination as to whether retaliation occurred. § 655.806(a)(2) & (3). If the Administrator determines no retaliation occurred after the investigation, Complainant could then have that decision reviewed by an ALJ. § 655.820(b)(1).

Id. at n. 28.

[Editor’s note: The ARB indicated that, although it had earlier consolidated Complainant’s appeals of the ALJ’s determinations on the retaliation and back wages issues, it was vacating the order of consolidation, and would separately consider the back wages issue in ARB Case No. 2020-0007.]

JURISDICTION TO DETERMINE WHAT CONSTITUTES A SPECIALTY OCCUPATION

In Santiglia v. Sun Microsystems, Inc., ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005), the ARB affirmed the ALJ’s ruling that she did not have jurisdiction to rule on the Prosecuting Party’s argument that the positions for which the Respondent filed LCAs are not 'specialty occupations’ and that, therefore, the LCAs should not have been approved; only the INS (USCIS) has the authority to determine what constitutes a 'specialty occupation.' See 20 C.F.R. § 655.715 and 20 C.F.R. § 655.705(b).

[Editor's note: See Drew Co. v. Wolf, No. 19-cv-11338 (D. Mass. Jan. 6, 2021) (2021 U.S. Dist. LEXIS 1934; 2021 WL 51775) (court found that USCIS abused its discretion when it found that Plaintiff's Market Research Analyst position qualified as a "specialty occupation").]

WHD’S DETERMINATION NOT TO INVESTIGATE BASED ON LACK OF TIMELINESS OF COMPLAINT AND FINDING THAT EQUITABLE TOLLING WAS NOT WARRANTED IS NOT REVIEWABLE

ALJ LACKS AUTHORITY TO HEAR LCA CASE ABSENT PRIOR INVESTIGATION BY WAGE AND HOUR

In Watson v. International Business Machine Corp., ARB No. 06-009, ALJ No. 2006-LCA-31 (ARB Oct. 20, 2006), the declined to review the ALJ Decision & Order. The ALJ had concluded that he was bound by the ARB decision in Watson v. Electronic Data Sys. Corp., ARB Nos. 04-023, -029, -050, ALJ Nos. 2003-LCA-30 and 2004-LCA-9 (ARB May 31, 2005), in which the ARB had held that in the absence of an investigation by the Administrator of the Wage and Hour Division, an ALJ may neither hear the case nor review the Administrator’s decision not to investigate. Under the LCA regulations, in order to obtain review of an ALJ’s decision the ARB must accept the case for review. 29 C.F.R. § 655.840(a).

SUMMARY JUDGMENT PROPERLY GRANTED ON H-1B ALLEGATIONS NOT INVESTIGATED BY WAGE AND HOUR DIVISION

In Jain v. Empower IT, Inc., ARB No. 08-077, ALJ No. 2008-LCA-8 (ARB Oct. 30, 2009), the Complainant contacted a Wage and Hour Division inspector, and complained about several aspects of his employment as an H-1B worker. Two days later, he filed a formal complaint claiming that the Respondent had not paid him the higher of the prevailing or actual wage, had made illegal deductions from his wages, and had required him to pay all or part of the LCA filing fee. Following an investigation, Wage and Hour found no violation of the laws governing the H-1B nonimmigrant worker program. The Complainant requested a hearing before an ALJ. The ALJ granted summary judgment as to all claims not investigated by Wage and Hour. The ARB affirmed on appeal, finding that an investigation and determination by Wage and Hour is a prerequisite for a hearing before an ALJ. The ARB found that the inspector’s "H1B Narrative" made it clear that the only allegation she investigated was the contention that the Respondent did not pay the proper wage. The ARB found that Wage and Hour’s authority to decide whether to investigate is discretionary, and the fact that it did not notify the Complainant of a decision not to investigate, does not change the fact that he could not appeal the decision not to investigate.

OALJ LACKS JURISDICTION TO CONDUCT A HEARING WHERE THE WAGE AND HOUR DIVISION (WHD) FINDS NO REASONABLE CAUSE TO CONDUCT AN INVESTIGATION BASED ON UNTIMELY FILING OF LCA COMPLAINT; COMPLAINANT MUST ADDRESS EQUITABLE TOLLING ARGUMENT TO WHD OR OTHER FORUM

In Gupta v. Headstrong, Inc., ARB Nos. 11-008, 11-065, ALJ No. 2011-LCA-38 (ARB June 29, 2012), the Complainant’s H-1B employment was terminated in November 2006, he accepted a severance payment in December 2006, DHS was notified of the termination in January 2007, the Respondent provided return airplane tickets in February 2007, and USCIS revoked the Complainant’s non-immigrant visa in March 2007. The Complainant hired an attorney who attempted to settle claims for back wages and additional benefits. On or about May 28, 2008, the Complainant filed a complaint with the Wage and Hour Division alleging H-1B violations. In June 2008, WHD informed the Complainant that it had determined that there was no reasonable cause to conduct an investigation because the Complainant had not shown a violation within the 12 months preceding his complaint. The Complainant requested an ALJ hearing, and the ALJ issued an order to show cause why the matter should not be dismissed for lack of jurisdiction under 20 C.F.R. § 655.806(a)(2), which provides that no hearing or appeal is available where "the Administrator determines that an investigation on a complaint is not warranted." The Complainant argued that his hearing request was distinguishable because the decision not to investigate was based on timeliness rather than the substance of the complaint. The Complainant argued that he was entitled to equitable tolling of the limitations period. The ALJ found that she did not have jurisdiction because a WHD determination subsequent to an investigation is a prerequisite to a hearing request under 20 C.F.R. §§ 655.806(a)(2) and 655.820(b)(1).

On appeal, the ARB agreed with the ALJ that a WHD investigation and determination is a prerequisite for requesting an ALJ hearing under the regulations. The ARB also held that because the Complainant was not entitled to a hearing, the ARB had no jurisdiction to rule upon or discuss the Complainant’s argument that the WHD should have found entitlement to equitable tolling. The ARB noted that limitations periods are customarily subject to equitable tolling, but held that "because no further hearing within the Department is permitted, this is a matter that complainants must take up while the matter is pending with the Administrator or in another forum if the Administrator refuses to investigate the complaint." USDOL/OALJ Reporter at n.14.

SCOPE OF ALJ’S REVIEW AUTHORITY IN H-1B LCA CASE; PRESUMPTION THAT ADMINISTRATOR INVESTIGATED ALL CLAIMS WITHIN A COMPLAINT UNLESS THE COMPLAINANT WAS SPECIFICALLY NOTIFIED THAT A CLAIM LACKED REASONABLE CAUSE FOR INVESTIGATION

In Puri v. University of Alabama Birmingham Huntsville, ARB No. 10-004, ALJ Nos. 2008-LCA-8 and 43 (ARB Nov. 30, 2011), following prehearing development of the case the only issue remaining before the ALJ was whether the Respondent was required to pay the Complainant wages from the date that the Respondent’s decision to fire him became final to the date of the end of the H-1B LCA employment period. The ALJ concluded that this claim, which encompassed the issue of a bona fide termination, had not been before the Wage and Hour Division (WHD) Administrator for investigation. Relying on the ARB decision in Watson v. Electronic Data Sys. Corp., ARB Nos. 04-023, -029, -050 (ARB May 31, 2005), the ALJ concluded that she did not have jurisdiction to address this claim and dismissed the Complainant’s request for a hearing.

On appeal, the ARB found that the ALJ erred when evaluating her jurisdiction over the claim for wages beyond the date of termination by focusing on whether the Administrator investigated the claim for such wages. The focus rather, is on whether the Administrator investigated the complaint. The ARB held that "In the absence of notice by the Administrator pursuant to 20 C.F.R. §§ 655.806(a)(2) that any particular claim contained in Puri’s complaint failed to present reasonable cause for investigation, the presumption is that his entire complaint was investigated." USDOL/OALJ Reporter at 10. In making its ruling, the ARB noted that its decision in Jain v. Empower IT, Inc., ARB No. 08-077, ALJ No. 2008-LCA-8 (ARB Oct. 30, 2009), cited Watson in holding that "the prerequisite for requesting a hearing on a claim is that the Administrator has conducted an investigation and made a determination on that claim." USDOL/OALJ Reporter at 11 (footnote omitted). The ARB held, however, that "[t]he ALJ’s interpretation of the jurisdictional prerequisite is nevertheless unsustainable because its overly narrow focus on whether specific 'claims' were investigated, like the ARB’s narrow focus in Jain, ignores the plain language of the H-1B regulations and is not supported by the ARB’s holding in Watson." USDOL/OALJ Reporter at 11. The ARB ruled in a footnote: "We find the Board’s overly narrow focus in Jain unsustainable. Accordingly, we reject Jain as having any precedential force or effect on the question of an ALJ’s jurisdictional authority to review a request for hearing filed pursuant to 20 C.F.R. § 655.820." Id. at n.49. Because the record contained no evidence that the Administrator notified the Complainant that any of his claims contained in his complaint lacked reasonable cause for investigation, it would be presumed that the Administrator investigated the entire complaint and that the ALJ had authority to address the Complainant’s request for a hearing on the payment of wages up through and including the end of his H-1B LCA period.

Motions

MOTION FOR CONTINUATION OF HEARING BASED ON ABSENCE OF ASSISTANT DISTRICT DIRECTOR, WHO HAD BEEN CALLED AS WITNESS; ALJ DID NOT ABUSE DISCRETION IN DENYING MOTION WHERE EXPECTED TESTIMONY OF ASSISTANT DISTRICT DIRECTOR WAS NOT MATERIAL

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc., ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent argued on appeal that the ALJ erred in proceeding with the hearing despite the fact that one of the witnesses called by the Respondent, the Assistant District Director for the Atlanta Wage and Hour Division office, was not available to testify. The ALJ ruled the Assistant District Director was not a necessary witness. Although the Assistant District Director’s signature was on the Wage-Hour determination letter, the ALJ noted that he was not the investigator and there was no showing that he had any first-hand knowledge of the facts uncovered in the investigation. The ALJ also noted that the Wage-Hour determination letter was not binding on him, and that he had an independent responsibility to evaluate the evidence. On appeal the Respondent contended that it had been prejudiced because the testimony of this witness would have established that Wage-Hour determination was so imprecise that the Administrator should be sanctioned, and that a loan to the H-1B worker should have been deducted from his wages due under the regulations.

The ARB, employing an abuse of discretion standard, found that the ALJ properly assessed the materiality of the Assistant District Director’s projected testimony, and found no proof of prejudice to the Respondent. The ARB noted that the Respondent could have proffered the Assistant District Director’s deposition, but did not, and that the matter of the loan deduction was a legal interpretation for which the Assistant District Director’s testimony would have been immaterial.

MOTION IN LIMINE

In Santiglia v. Sun Microsystems, Inc., ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005), the ARB found that the ALJ properly granted motion in limine requesting exclusion of an allegation that the Respondent filed improper "blanket LCAs" where this allegation had not been included in the complaint filed with or investigated by Wage and Hour.

Parties/Standing

PETITION FOR REVIEW ACCEPTED ON QUESTION OF WHETHER ALJ PROPERLY DISMISSED CASE WHERE PARTY-IN-INTEREST REQUESTED A HEARING BUT THE WAGE AND HOUR ADMINISTRATOR DECLINED TO PROSECUTE BEFORE THE ALJ

In Administrator, Wage and Hour Div. v. HCL America, Inc., ARB Nos. 2019-0081, 2020-0007, ALJ No. 2018-LCA-00029 (ARB Nov. 27, 2019), the ARB issued notice of intent to review whether the ALJ erred by dismissing the LCA claim because the Prosecuting Party (the WHD Administrator) declined to prosecute Respondent for the entirety of the amount claimed by Petitioner (the H-1B worker/complainant), notwithstanding the request by a party-in-interest (the H-1B worker/complainant) for a hearing. The ARB noted that this was the only issue it would review. The ARB’s notice administratively closed a duplicate petition (2019-0081), and consolidated two other petitions (2019-0067 and 2020-0007).

[Editor’s note: In the case below, the H-1B worker had filed a claim for back wages and a retaliation claim. The Administrator found a back wages violation, but declined to investigate the retaliation claim. The H-1B worker requested a hearing as an interested party. The ALJ first dismissed the retaliation claim because 20 C.F.R. § 655.820(b) only permits a request for a hearing after an investigation and determination by the Administrator. Administrator, Wage and Hour Div. v. HCL America, Inc., ALJ No. 2018-LCA-00029 (ALJ June 25, 2019). As to the back wages matter, the ALJ agreed with Respondent that, although the H-1B worker could file a request for a hearing as a party-in-interest, § 655.820(b)(2) gives the Administrator exclusive power to prosecute the claim. The ALJ disagreed with the party-in-interest that the Administrator must prosecute the claim once an interested party requests a hearing. Id. The ALJ held the back wages claim in abeyance and issued an order to show cause why the case should not be dismissed for failure of the Administrator to prosecute. After the Administrator filed a statement declining prosecution, the ALJ dismissed the back wages case. Administrator, Wage and Hour Div. v. HCL America, Inc., ALJ No. 2018-LCA-00029 (ALJ Oct. 2, 2019).]

WAGE AND HOUR DIVISION ADMINISTRATOR IS NOT REQUIRED TO PARTICIPATE BEFORE THE ARB

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the Petitioner (Huang) challenged parts of the Administrative Review Board (ARB)’s ruling affirming the ALJ’s decision that Huang was entitled to receive over $150,000.00 from his former employer, Ultimo Software Solutions, Inc. The court dismissed Huang’s claim that the ARB should have required the Wage & Hour Administrator to participate in the DOL proceedings because Huang had identified no legal basis for such a requirement and had not alleged that he was prejudiced by the Administrator’s absence. The court noted that Huang received more than the original compensation estimate, which the Administrator would presumably have defended.

EMPLOYER AS INDISPENSABLE PARTY IN APA SUIT AGAINST THE AGENCY WHERE RELIEF SOUGHT EXCEEDS AMOUNT ORDERED TO BE PAID BY THE ALJ AND THE ARB

WITHDRAWAL OF ADMINISTRATOR

In Santiglia v. Sun Microsystems, Inc., ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005), the ARB found that the ALJ did not unfairly prejudice the Prosecuting Party in granting Administrator’s motion to withdraw where the Administrator was not a party when the Prosecuting Party requested a hearing and did not choose to exercise her discretion to intervene or appear as amicus curiae. The effect of the withdrawal had been that ESA’s investigators were not made available to testify.

LCA COMPLAINT DISMISSED WHERE IT WAS UNTIMELY AS TO THE PROSECUTING PARTY PERSONALLY, THE PROSECUTING PARTY WAS NOT A "COMPETITOR" UNDER THE "AGGRIEVED PARTY" REGULATION AT 20 C.F.R. § 655.806(a)(5), AND THE WAGE AND HOUR DIVISION HAD DECLINED AN INVESTIGATION UNDER THE "CREDIBLE SOURCE" REGULATION AT 20 C.F.R. § 655.807

In Gupta v. Administrator, Wage and Hour Div., ARB No. 12-050, ALJ No. 2010-LCA-24 (ARB Feb. 27, 2014), the Prosecuting Party filed two complaints in 2009 alleging illegal deductions by the Respondent, Wipro Ltd., to H-1B wages connected to the base salary earned in its H-1B workers’ home country. The Wage and Hour Division (WHD) issued a letter finding reasonable cause to investigate the second complaint pursuant to 20 C.F.R. § 655.806(a)(5), which pertains to “aggrieved party” complaints. The ARB affirmed three of the grounds on which the ALJ dismissed the claims: (1) the wage claims were not timely as to the Prosecuting Party, who had not worked for the Respondent as a H-1B worker since 2006; (2) the Prosecuting Party was not an "aggrieved party" for the alleged violations related to the wages of other H-1B workers, and (3) the Prosecuting Party had no basis to appeal the WHD Administrator’s having taken no action on the claims under 20 C.F.R. § 655.807. Under 20 C.F.R. § 655.806, the WHD may initiate an investigation of alleged H-1B program violations based on a complaint filed by an aggrieved person or organization, (including competitors). In the instant case, the Prosecuting Party had wanted to set up his own recruitment business when he returned to India, but admitted that the business had not actually been set up at the time the complaints were filed. The ARB affirmed the ALJ’s finding that he was not the Respondent’s "competitor" and therefore was not adversely affected by the alleged violation, either as an employee or as a competitor. Thus, the ARB affirmed the ALJ’s dismissal of the "aggrieved party" complaint. In regard to the Prosecuting Party’s complaint as a "credible source" complaint under 20 C.F.R. § 655.807, the ARB affirmed the ALJ’s holding that "the discretion to initiate such an investigation lies with the Wage and Hour Administrator and other Labor Department officials. [T]here is no evidence that the Administrator or other Labor Department official exercised such discretion in this case, and the regulations prohibit parties from appealing the Labor Department’s exercise or refusal to exercise such discretion. See 20 C.F.R. § 655.807(h)(2)." USDOL/OALJ Reporter at 6.

STANDING AS “AGGRIEVED PARTY” UNDER 20 C.F.R. § 655.715; COURT AFFIRMS DOL FINDINGS THAT PLAINTIFF WAS NOT AN “AGGRIEVED PARTY” WHERE LAST POTENTIALLY UNLAWFUL DEDUCTION OCCURRED MORE THAN 12 MONTHS BEFORE FILING OF COMPLAINT

STANDING AS “AGGRIEVED PARTY” UNDER 20 C.F.R. § 655.715; COURT AFFIRMS DOL FINDINGS THAT PLAINTIFF WAS NOT AN “AGGRIEVED PARTY” AS A COMPETING BUSINESS WHERE AT THE RELEVANT TIME HE HAD NOT SET UP A COMPETING COMPANY; THE REGULATION DOES NOT COVER POTENTIAL OR FUTURE COMPETITORS

STANDING AS “AGGRIEVED PARTY” UNDER 20 C.F.R. § 655.715; COURT AFFIRMS DOL FINDINGS THAT PLAINTIFF WAS NOT AN “AGGRIEVED PARTY” MERELY BECAUSE HE ALLEGEDLY WAS A PARTICIPANT WORKER IN THE H-1B PROGRAM

In Gupta v. Perez, 101 F. Supp. 3d 437 (D.N.J. Apr. 27, 2015) (2015 WL 1914654; 2015 U.S. Dist. LEXIS 54519), aff’d Gupta v. Sec’y of Labor, 649 Fed. Appx. 119 (3d Cir. May 5, 2016) (per curiam), (case below ARB Nos. 11-041, 12-050; ALJ No. 2010-LCA-24), the Plaintiff appeared to seek review of the ARB’s decision that the Plaintiff did not qualify as an “aggrieved party” as defined in 20 C.F.R. § 655.715. The Plaintiff contended that he qualified as an “aggrieved party” as an employee, as a potential competitor, and as a worker in a specialty occupation. The court affirmed the ARB’s decision that Plaintiff’s complaint as an aggrieved worker was untimely; the last potentially unlawful deduction occurred more than 12 months before filing of complaint. The court also found that the ALJ and the ARB reasonably interpreted § 655.715 to preclude potential or future competitors. The Plaintiff had contended that he was in the initial stage of setting up a competing business; however, he never actually set up the business. The court also agreed with the ALJ that § 655.715 does not create a separate “aggrieved party” category based solely on status as a “worker in a specialty occupation.” The Plaintiff’s contention apparently was that because he was a participant worker in the H-1B program in non-productive status in the 12 months prior to filing the complaint, he was qualified as an aggrieved party under the regulation; the court noted that 20 C.F.R. § 655.806 and 655.807 clearly required information about possible violations to be submitted not later than 12 months after the latest date on which the alleged violation(s) were committed.

STANDING; “CREDIBLE SOURCE” INVESTIGATION; DOL’S DECISION NOT TO INVESTIGATE UNDER § 655.807 WAS NOT REVIEWABLE

The ALJ and ARB are correct in that §655.807(h) states that “[n]o hearing shall be available from a decision by the Administrator declining to refer allegations addressed by this section to the Secretary, and none shall be available from a decision by the Secretary certifying or declining to certify that an investigation is warranted.” Id. Further, there is a “presumption that agency decisions not to institute proceedings are unreviewable under 5 U.S.C. § 701(a)(2),” and Plaintiff did not provide, nor does this Court find, evidence that would overcome this presumption as it applies to § 655.807. Heckler v. Chaney, 470 U.S. 821, 837 (1985).

Slip op. at 36.

Pro Se Litigants

DUE PROCESS; A PARTY WHO CHOSES TO PROCEED AS HIS OWN REPRESENTATIVE IS NOT DENIED DUE PROCESS BECAUSE THE ALJ PERMITTED IT; A HEARING MADE PROCEED IN ABSENCE OF PARTY WHERE PARTY WAS REPRESENTED AT TIME AND INDICATED A DESIRE THAT THE HEARING PROCEED; DEPOSITIONS MAY BE USED WHERE WITNESSES ARE UNAVAILABLE DUE TO ILLINESS

In Kutty v. United States Department of Labor, 764 F.3d 540 (6th Cir. Aug. 20, 2014) (case below E.D.Tn. 05-cv-510; ARB No. 03-022; ALJ Nos. 2001-LCA-10 to 25) (2014 WL 4085824), cert. denied 135 S. Ct. 1162 (Jan. 20, 2015), the Plaintiff-Appellant (Kutty) and his wife owned medical clinics in rural locations, and hired physicians holding J-1 visas to staff those clinics. J-1 waivers were later obtained to employ the physicians under the H-1B program. Kutty appealed the district court’s affirmance of the ARB’s determination that he was personally liable for back wages, expenses incurred by the physicians for obtaining their J-1 and H-1B visas, and civil penalties.

Kutty argued that the ALJ violated due process by (a) allowing Kutty and Hooli, both non-lawyers, to represent Kutty and the corporate entities; (b) failing to postpone the hearing after Kutty was hospitalized; (c) relying instead on Kutty’s prior deposition and other testimony; and (d) finding Kutty personally liable in his absence. Kutty also asserted, generally, that the ALJ failed to adequately consider his arguments and explain her decision. The court found these arguments to be without merit. The court noted that DOL regulations permit non-attorney representatives to appear, that after Kutty’s attorney had been granted permission to withdraw the ALJ had postponed the hearing to give him time to find new counsel, and when asked by the ALJ whether he would like to seek legal representation, he opted to represent himself, “as was his prerogative.” The court noted that Kutty was represented by counsel during the hospitalization, that counsel had represented to the ALJ that Kutty wished the hearing to proceed in his absence, and that Kutty did not dispute that fact. The court noted that DOL regulations permit use of depositions of witnesses unavailable due to illness. The court rejected the claim that liability could not be imposed in Kutty’s absence, noting that Kutty had been present for much of hearing, and had made the closing argument himself. Finally, the court noted that the ALJ’s 104 page decision demonstrated careful and thoughtful consideration of the issues.

Qualified judicial immunity

See Damages and other remedies; Qualified judicial immunity of ALJ and ARB.

Recusal

MOTION TO DISQUALIFY ALJ DENIED WHERE IT WAS GROUNDED IN PROSECUTING PARTY’S BELIEF THAT ALJ HAD MISMANAGED THE CASE RATHER THAN A SHOWING OF BIAS BY THE ALJ

In Vudhamari v. Advent Global Solutions, ARB No. 2021-0018, ALJ No. 2018-LCA-00022 (ARB Apr. 26, 2021) (per curiam), the ARB adopted the ALJ’s Decision and Order on Remand and Ruling on Motion for Disqualification, and dismissed Vudhamari’s LCA complaint. In his original decision, the ALJ had granted Respondent’s motion for summary decision on the ground that Respondent had already paid, in response to the Administrator’s determination, the back wages owed, and the other relief sought by Vudhamari was not relief he was entitled to, or which the ALJ had the authority impose. The ARB remanded for the ALJ to provide notice to the pro se prosecuting party of the rules for responding to the opposing party’s motion for summary decision. Vudhamari presented no new evidence or arguments, and consequently, the ALJ ratified his earlier Decision and Order. The ALJ also denied Vudhamari’s motion to disqualify the ALJ because it was grounded only in purported mismanagement of the case by the ALJ, and not any showing of personal or extra-judicial bias of the ALJ against the Prosecuting Party. The ALJ ordered Respondent to pay pre- and post-judgment interest on the back pay.

RECUSAL; ALJ DID NOT ABUSE HER DISCRETION IN NOT RECUSING HERSELF BASED ON A PRIOR ASSOCIATION WITH ONE OF THE RESPONDENT’S ATTORNEYS WHERE THE ASSOCIATION WAS REMOTE IN TIME AND CHARACTER, AND THE COMPLAINANT DID NOT TIMELY OBJECT

In Baiju v. Fifth Avenue Committee, ARB No. 10-094, ALJ No. 2009-LCA-45 (ARB Mar. 30, 2012)(reissued Apr. 4, 2012), the Prosecuting Party was the H-1B worker who originally filed a complaint with the Wage and Hour Division. On appeal to the ARB, the Prosecuting Party challenged the ALJ’s decision not to recuse herself because one of the Respondent’s attorneys was the ALJ’s husband’s college roommate and had met the ALJ before. The ALJ had denied the Prosecuting Party’s request that the ALJ recuse herself, because her association with the attorney at issue was too remote in time and character, because the Prosecuting Party stated that he did not object to her hearing the case when he became aware of the association, and because the attorney was not a party to the case. The ARB reviewed the ALJ’s decision not to recuse on an abuse of discretion standard, and found that she had not abused that discretion.

Representatives

RESPONDENT’S REPRESENTATION AT THE HEARING BY ITS PRESIDENT; ALJ WAS NOT OBLIGATED TO QUESTION THE PRESIDENT AS TO HIS QUALIFICATIONS AS A REPRESENTATIVE

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A., ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent’s president entered an appearance at the outset of the ALJ hearing. The ALJ advised the president of his right to be represented by counsel and the president acknowledged that he was aware of that right. The ALJ stated that, although counsel was not required to proceed, an attorney would be of assistance in this kind of case. The ALJ then asked the president whether it was his desire to proceed without counsel. The president replied that he was willing to present his facts. On appeal, now represented by counsel, the Respondent argued that the ALJ erred by not inquiring into the president’s qualifications to render legal advice, which put the Respondent at a disadvantage by allowing its president to represent the company. The ARB rejected this argument. The ARB found that the applicable rules of practice and procedure at 29 C.F.R. Part 18 provide that any party has the right to appear at the hearing in person, by counsel, or by other representative including a non-lawyer. The president’s representation of the Respondent at the hearing was in keeping with these rules, and the ALJ was under no obligation to question the president as to his qualifications.

Settlements and consent findings

ENFORCEMENT OF VALID SETTLEMENT AGREEMENT ON AN H-1B ADMINISTRATIVE COMPLAINT THAT INCLUDED A PROVISION IN WHICH COMPLAINANT GAVE UP HIS RIGHT TO FURTHER LITIGATION ON THE MATTER

The record shows that Gupta, after negotiating with Compunnel about the payment schedule and terms of the release, signed the settlement agreement. The agreement provided that Compunnel would pay Gupta $28,000 “as payment in full and final compensation from [Compunnel] to Gupta arising from or in any way related to the employment of Gupta with [Compunnel].” More specifically, the parties agreed to “giv[e] up their right to a trial in connection with the allegations contained in the complaints filed with U.S. Department of Labor - Wage and Hour Division (WHD) against [Compunnel] or any other rights which are the subject of this Agreement and Stipulation including any rights in the administrative proceedings in [the ALJ, ARB, or district court cases].” Thus, the district court correctly ruled that the terms of the release contained in the settlement agreement were clear and unambiguous and enforced its terms accordingly.

SETTLEMENT AGREEMENT; VALIDITY AND ENFORCEABILITY UNDER NEW YORK CHOICE OF LAW PROVISION; FORM AND PLACEMENT OF SIGNATURE IS NOT DETERMINATIVE AS LONG AS THERE WAS A MEETING OF THE MINDS AND INTENTION TO BE BOUND

SETTLEMENT AGREEMENT; VALIDITY AND ENFORCEABILITY UNDER NEW YORK CHOICE OF LAW PROVISION; CLAIM OF ECONOMIC DURESS FAILED WHERE THERE WAS NO EVIDENCE THAT PARTY WAS THREATENED AND THERE WAS EVIDENCE THAT HE VOLUNTARILY MET WITH OPPOSING PARTY AT ALJ’S OFFICE AND PARTICIPATED IN NEGOTIATION

SETTLEMENT AGREEMENT; VALIDITY AND ENFORCEABILITY UNDER NEW YORK CHOICE OF LAW PROVISION; CLAIM OF FRAUDULENT INDUCEMENT FAILED WHERE PARTY HAD DISCUSSED TERMS OF AGREEMENT DURING NEGOTIATIONS BEFORE ALJ’S LAW CLERK, HAD BEEN ACTIVELY NEGOTIATING FASHION OF PAYMENT AND ASKING QUESTIONS ABOUT SCOPE AND MEANING OF ANOTHER TERM, HAD BEEN ACTIVELY PARTICIPATING IN DRAFTING OF AGREEMENT PRIOR TO PARTIES’ SEEKING ALJ’S FACILITATION OF FINAL AGREEMENT

SETTLEMENT AGREEMENT; VALIDITY AND ENFORCEABILITY UNDER NEW YORK CHOICE OF LAW PROVISION; EVEN IF AGREEMENT IS FOUND TO BE VOIDABLE, PARTY MAY BE FOUND TO HAVE RATIFIED AGREEMENT WHERE HE NEVER OFFERED TO RETURN CONSIDERATION PAID BY OTHER PARTY

In Compunnel Software Grp., Inc. v. Gupta, No. 14-cv-4790 (S.D. N.Y. Sept. 30, 2018) (2018 U.S. Dist. LEXIS 170187) (case below ARB No. 16-056; ALJ No. 2011-LCA-45), the H-1B worker (“Gupta”) had challenged whether a settlement agreement in which he had released claims against his LCA employer (“Compunnel”) in a DOL proceeding and the district court, barred all of his current claims. The case has a complex factual and procedural background, but essentially, Gupta and Compunnel had been negotiating a settlement agreement concerning the H-1B employment, and turned to the presiding ALJ’s office for assistance in facilitating a final agreement. An agreement was signed while the parties were at the ALJ’s office, and as part of the negotiation, Compunnel agreed to immediately pay Gupta $28,000 in a lump sum rather than installments as provided in the draft agreement. The ALJ approved the settlement agreement and Gupta cashed the check. Two weeks later, however, Gupta challenged the ALJ’s approval order on multiple grounds. Eventually the issue came before the ARB, which found that it did not have jurisdiction to adjudicate collateral attacks to a facially valid agreement. The matter was then reopened in district court. (Gupta had previously sought review by the court and the matter had been remanded to DOL because the DOL proceedings were not yet final; it was during the remand that the settlement agreeement at issue was negotiated by the parties and approved by the ALJ).

Before the district court, Gupta did not dispute that the terms of the agreement unambiguously released his claims against Compunnel, but instead made several asssertions to show why he believed the agreement was invalid and unenforceable. The court, applying the New York law choice of law provision of the agreement, found each of Gupta’s assertions to be without merit.

Signature on each page and notarization of signature on final page

Gupta’s first two assertions were that the agreement was not valid because his signature did not appear on every page, and because his signature on the final page was not notarized. The court wrote:

As to the signatures, “[a] party need not sign every page of a contract for the whole of the document to be effective.” Master Palletizer Sys., Inc. v. T.S. Ragsdale Co., Inc., 725 F. Supp. 1525, 1531-32 (D. Colo. 1989). Nor is notarization necessarily required to bind parties to a settlement agreement. Cf. N.Y. Gen. Obligations Law, Ch. 24-a, § 5-705 (requiring notarization for assumption of indebtedness secured by a mortgage); N.Y. Real Prop. Law § 298 (permitting notarization to serve as one method of effecting transfer of real property).[6] Gupta does not claim that the signature appearing on the final page of the settlement agreement was forged or that it otherwise does not belong to him. … To the contrary, there is no genuine dispute that the final page of the agreement was “signed by Gupta.” … Gupta’s challenge to the form and placement of his signature thus does not itself raise a dispute of material fact, so long as there was ‘a meeting of the minds and an intention to be bound.’ Carroll v. Fremont Inv. & Loan, 636 F. Supp. 2d 41, 49-50 (D. D.C. 2009).

[6] Even signatures are not necessarily required to manifest assent to a written contract, when the parties’ conduct manifests that assent. See 251 W. 18th St., LLC v. Del Rio Stellita, 2002 WL 992097, at *1 (1st Dep’t Apr. 26, 2002) (per curiam) (unsigned contract valid where tenant failed to sign lease but made payments in accordance with its terms).

Slip op. at 14-15.

Meeting of the Minds — Fraud and Economic Duress

Gupta’s next assertion was there had been no meeting of the minds because agreement was signed under circumstances constituting fraud and economic duress. For example, Gupta alleged that was coerced during a period in which the parties were briefly left alone in the ALJ office, and that he was under financial duress caused by Compunnel’s depriving him of his statutory wages.

The court, citing New York law, found that Gupta’s claim of economic duress failed because there was no evidence that he was threatened by Compunnel whereas there was evidence that he voluntarily and independently met with Compunnel officials at the ALJ’s office and had negotiated the $28,000 lump sum payment.

Again citing New York law, the court found Gupta’s fraud claim was insufficient, noting that he could not establish the element of justifiable reliance on a fraudulent inducement. The court noted that the day before the agreement was signed, Gupta had discussed the terms of the agreement with both Compunnel and the ALJ’s law clerk at the ALJ’s office; had negotiated the $28,000 lump sum payment and had asked questions about the scope and meaning of a term; had in the prior weeks been actively corresponding with Compunnel’s counsel and participating in the drafting of the agreement; and had, in is own email, referenced in bold print “Re: ALJ Case No. 2011-LCA-045, Compunnel.” The court noted Gupta’s claim that Compunnel had represented that the settlement solely released claims under Indian law, but found that Gupta could not have have justifiably relied on such a representation. The court further noted that even if Gupta could show fraudulent inducement or economic distress, that would only make the agreement voidable—not void. Here, Gupta ratified the agreement. He never offered to return the $28,000, but had deposited the full sum into his bank account the same day the agreement was signed and had kept it ever since. The court also found that under New York law, to recsind a voidable contract one must return the consideration.

In sum, the court found that there was no genuine dispute of material fact concerning the validity and enforceability of the settlement agreement, that the agreement contained an unambiguous release of Gupta's claims against Compunnel, both in the district court and in the DOL, and therefore Gupta's claims against Compunnel were barred and Compunnel was entitled to judgment as a matter of law.

AUTHORITY OF ALJ TO APPROVE A SETTLEMENT AGREEMENT IN AN LCA CASE; COURT SUGGESTS THAT DOL APPROVAL WAS NOT REQUIRED, BUT DECLINED TO REVIEW ALJ’S ACTIONS WHERE IT HAD FOUND THAT THE AGREEMENT WAS VALID AND ENFORCEABLE; FUTILITY OF REMAND

ALJ AND ARB ARE PROTECTED BY QUASI-JUDICIAL AND SOVEREIGN IMMUNITY FROM SUIT SEEKING DAMAGES RELATED TO PERFORMANCE OF JUDICIAL FUNCTIONS IN LCA CASE

The court found that there was no genuine dispute of material fact concerning the validity and enforceability of the settlement agreement, that the agreement contained an unambiguous release of Gupta's claims against Compunnel, both in the district court and in the DOL, and therefore Gupta's claims against Compunnel were barred and Compunnel was entitled to judgment as a matter of law.

In addition, Gupta sought judicial review of DOL’s orders approving the settlement agreement and dismissing his case with prejudice. The court found it unnecessary to resolve whether it was proper for DOL to approve the settlement and dismiss Gupta’s case because the fact remained that he had entered into a valid and enforceable agreement releasing his claims against Compunnel. A remand to the ARB for further proceedings would be a futile act.

The court, however, did note that “[n]either the H-1B provisions of the INA nor its implementing regulations required the DOL to approve the parties’ settlement agreement in order for it to become effective. See 8 U.S.C. § 1182(n)(2); 20 C.F.R. 655 Subpart I.” (During the negotiation at the ALJ’s office, the ALJ’s law clerk had told the parties that it was mandatory that a settlement agreement be submitted to the ALJ for approval).

The court also dismissed Gupta’s claims for damages from the ALJ and the ARB for purportedly violating his constitutional rights. The court stated that:

such claims fail on multiple grounds, not least of which is that the ALJ and ARB are protected by quasi-judicial and sovereign immunity. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived.”); Gertskis v. New York Dep’t of Health & Mental Hygiene, No. 13-CV-2024 (JMF), 2014 WL 2933149, at *5 (S.D.N.Y. June 27, 2014) (“[T]he doctrine of quasi-judicial immunity ... bars claims against administrative law judges performing judicial functions.” (citation omitted)).

Slip op. at 19-20, n.9.

CONSENT ORDER; ARB DECLINES TO ADDRESS RESPONDENT’S CONTENTION ON APPEAL THAT ALJ’s REFUSAL TO POSTPONE A HEARING FORCED IT TO NEGOTIATE, WHERE CONSENT ORDER INCLUDED PROVISION EXPLICITLY WAIVING RIGHT CHALLENGE ITS VALIDITY

Where the Respondent in an E-3 nonimmigrant worker Wage and Hour Division enforcement action explicitly waived its right to challenge the validity of a consent order that had been filed with the ALJ, the ARB declined to address the Respondent’s contention on appeal that it had been forced to participate in negotiations leading to the consent order because it had been unable to attend the scheduled hearing date, and the ALJ declined to postpone the hearing. Administrator, Wage and Hour Div., USDOL v. S V Technologies, LLC, ARB No. 12-042, ALJ No. 2011-LCA-9 (ARB Dec. 23, 2013).

Subpoenas

SUBPOENAS; ARB DECLINES TO REVISIT CHILDERS DECISION, WHICH APPLIES TO FORMAL ALJ HEARINGS UNDER THE IMMIGRATION AND NATIONALITY ACT, AND WHICH IS NOT LIMITED TO SITUATIONS IN WHICH THE PERSON TO BE SUBPOENED IS UNDER THE CONTROL OF A PARTY

SUBPOENAS; ERROR BY ALJ IN REFUSING TO ISSUE PREHEARING SUBPOENA REMEDIED BY TESTIMONY AT HEARING WHERE NO PREJUDICE TO ABILITY TO MOUNT DEFENSE ESTABLISHED

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc., ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Complainant was a computer programmer who had been hired as a nonimmigrant worker under the H-1B regulations. He filed a complaint after resigning his employment alleging that the Respondent failed to properly compensate him as required by the labor condition application regulations. The Respondent requested that the ALJ issue a subpoena requiring the Complainant to appear for deposition. The Wage and Hour Administrator - who was the prosecuting party before the ALJ - opposed the motion because the Immigration and Nationality Act does not expressly authorize administrative law judges to issue subpoenas in labor condition application cases. The ALJ agreed and denied the motion. Further, the ALJ found 29 C.F.R. § 18.29(a)(3) inapplicable because the Complainant was under no party’s control. Section 18.29(a)(3) is the OALJ rule of practice stating the power of an ALJ to compel the appearance of witnesses in control of the parties. In denying the request for issuance of a subpoena, the ALJ declined to follow the ARB’s decision in Childers v. Carolina Power & Light, ARB No. 98-077, ALJ No. 1997-ERA-032 (ARB Dec. 29, 2000), because Childers was decided under the whistleblower provision of the Energy Reorganization Act, and because the individuals sought to be subpoenaed in that case were employees under the respondent’s control.

On appeal, the Respondent contended that the ALJ erred in denying its motion to subpoena the Complainant. The Administrator urged the ARB to reexamine and reject Childers as it "is at odds with the well-established principle that an ALJ does not have the authority to issue subpoenas absent Congress’s clear grant of such authority." USDOL/OALJ Reporter at 7. The ARB, however, declined to reexamine its decision in Childers. The ARB found that, because both the ERA and the INA contain mandates that ALJs provide formal hearings in cases arising under those statutes, the ALJ’s distinction of Childers on this basis was not valid. The ARB also held that the Childers rationale was not limited to cases in which the individual to be subpoenaed is under the control of one of the parties.

The Board, however, found that any error by the ALJ made in refusing to follow Childers was harmless because the Complainant testified at the hearing, and the Respondent cross-examined him. The Respondent offered no support for its assertion that it was prejudiced by its inability to subpoena the Complainant prior to the hearing, and therefore the ARB found no due process concerns over the Respondent’s ability to mount its defense.

Summary decision

LCA RETALIATION COMPLAINT; ALJ DID NOT ERR IN CONSIDERING RESPONDENT’S SUMMARY DECISION MOTION UNDER THE CORRECT STATUTORY PROVISION WHERE COMPLAINANT DID NOT SHOW PREJUDICE OR DISADVANTAGE BASED ON RESPONDENT’S CITATION TO WRONG STATUTORY PROVISION

On appeal, Complainant argued that the ALJ’s summary decision was an improper sua sponte action because Respondents’ summary decision motion had cited 8 U.S.C. § 1324b, which is a different immigration related whistleblower statute. The ARB was not persuaded that the ALJ erred by considering summary decision under the correct statute. Complainant did not argue that he lacked notice of the true nature of Respondent’s motion or that he did not have the opportunity to respond because of the citation error. Moreover, Complainant cited to and made substantive arguments that matched the correct statute. The ARB stated: “There is also no indication the ALJ was led astray by SEG’s erroneous citation or that the citation had any impact on the arguments, analysis, or outcome in the proceedings below. Absent any showing of lack of notice, lack of opportunity to respond, or unfair prejudice or disadvantage to Nieman, we conclude the ALJ did not err by considering summary decision under the correct statute.” Slip op. at 11.

SUMMARY DECISION; TO SHOW THAT ALJ ABUSED HIS DISCRETION IN LIMITING DISCOVERY PRIOR TO RULING ON MOTION FOR SUMMARY DECISION, OPPOSING PARTY MUST OFFER MORE THAN MERE SPECULATION AND MUST STATE WITH PRECISION WHAT MATERIALS WOULD HAVE HELPED IN OPPOSING SUMMARY DECISION

On appeal, Complainant argued that the ALJ’s entry of summary decision was premature in light of Respondent’s alleged failure to properly participate in discovery. The ARB first described its review standard:

ALJs have wide discretion to set or limit the scope of discovery and will be reversed only when such evidentiary and discovery rulings are arbitrary or an abuse of discretion. To establish an abuse of that discretion, Nieman must, at a minimum, show how further discovery could have permitted him to rebut SEG’s Motion for Summary Decision. Nieman must offer more than mere speculation as to what facts might be uncovered by additional discovery. He must “state with some precision the materials he hopes to obtain with further discovery, and exactly how he expects those materials would help him in opposing summary judgment.”

Slip op. at 21-22 (footnotes and citations omitted). The ARB found that several of the subjects on which Complainant argued he was denied discovery were irrelevant to the causation issue he needed to address in response to the summary decision motion. The ARB pointed in this regard to discovery requests for “documents and information related to other employees’ claims of misconduct, discrimination or retaliation, [Respondent’s General Counsel’s] disciplinary record, comparator data, the nature of SEG’s E-3 or H-1B visa hiring practices, and documents and communications related to the EEOC’s investigation of Nieman’s complaint.” Id. at 22.

Complainant argued that he was denied documents relating to Respondent’s interactions with the Wage and Hour Division during its investigation of the INA retaliation complaint. The ARB, however, found that Complainant had not explained how such evidence would have raised a material fact question regarding the causation issue. The ARB, noting that Complainant expressly asked DOL to keep his identity confidential, found that Complainant was merely speculating that there were documents that would have implicated him in the investigation.

Complainant argued that Respondent failed to produce the majority of communications relating to Respondent’s investigation of Complainant and termination of his employment. The ARB, however, noted that Complainant had not shown that there was anything else for Respondent to produce other than the 1,100 pages it had turned over in discovery. The ARB found that Complainant had not explained why additional documents concerning the termination or the reasons therefore could have helped him rebut the conclusion that termination was contemplated before Respondent became aware of the DOL complaints.

Complainant also argued that he was precluded from discovery and/or examination regarding post-termination conduct. The ARB, however, found that Complainant failed to explain, to any meaningful degree, what facts relevant to the issue presented on summary decision he expected to uncover with additional discovery. The ARB stated that mere speculation did not warrant reversing the ALJ’s grant of summary decision.

SUMMARY DECISION; ALJ MAY GRANT SUMMARY DECISION ON GROUNDS NOT RAISED BY A MOVANT AS LONG AS NON-MOVANT HAS NOTICE AND AN OPPORTUNITY TO RESPOND; EXPLICIT NOTICE BY ALJ NOT REVERSIBLE ERROR WHERE NON-MOVANT PUT THE QUESTION BEFORE THE ALJ AND HAD EXTENSIVELY BRIEFED THE QUESTION

On appeal, Complainant argued that the ALJ erred in granting summary decision in regard to the events occurring after Respondent terminated Complainant’s employment, the motion for summary decision having focused on the conduct and events leading up to the termination. The ARB noted that Complainant had discussed the post-termination events extensively in his brief opposing summary decision, and found that the ALJ did not error in including that question in the summary decision determination. The ARB stated:

An ALJ may grant summary decision for a non-movant, or grant a motion for summary decision on grounds not raised by a movant, as long as he provides notice and an opportunity to respond. Although the ALJ did not expressly provide notice that he was considering granting summary decision on the issue of post-termination conduct, Nieman himself put the issue before the ALJ in his Opposition. Nieman also had the opportunity to be heard. His argument to the ALJ on the issue was extensive—his factual recitation and arguments concerning the post-termination conduct covered nearly thirteen pages of his Opposition brief. Nieman does not argue that there were any facts, evidence, or arguments that he was not able to present to the ALJ in his Opposition. Under these circumstances, and without any evidence of unfair prejudice, we conclude that the ALJ’s consideration of the post-termination conduct in the D. & O. was not in error.

Slip op. at 20 (footnotes omitted).

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED CAN BE CONVERTED TO A MOTION FOR SUMMARY DECISION WHERE PARTIES SUBMIT EVIDENCE OUTSIDE THE PLEADINGS

MOTION FOR SUMMARY DECISION; WHERE A PARTY IS SELF-REPRESENTED, ALJ MUST PROVIDE THAT PARTY WITH NOTICE, IN A SUFFICIENTLY UNDERSTANDABLE FORM, OF THE REQUIREMENTS FOR OPPOSING A MOTION FOR SUMMARY DECISION ALONG WITH THE TEXT OF 29 C.F.R. § 18.72

In Vudhamari v. Advent Global Solutions, ARB No. 2019-0061, ALJ No. 2018-LCA-00022 (ARB July 30, 2020) (per curiam), the Prosecuting Party before the ALJ was the H-1B worker. Respondent filed a motion to dismiss for failure to state a claim upon which relief could be granted. The ALJ denied the motion for failure to state a claim, but granted the motion under summary decision.

On appeal, the ARB agreed with the ALJ that the Prosecuting Party stated a claim upon which relief could be granted by alleging that Respondent underpaid his wages. The ARB, however, reversed the ALJ’s grant of summary decision and remanded for additional proceedings. The ARB explained that the ALJ properly converted the motion to a request for summary decision, but erred in failing to provide the self-represented Prosecuting Party with adequate notice of the requirements for opposing a motion for summary decision:

But the Complaint incorporates claims beyond the back pay award, and Advent submitted exhibits in support of its assertion that it was entitled to dismissal of the Complaint. Vudhamari also submitted additional documents in support of his response to the Motion. Because the parties submitted evidence outside the pleadings, it was proper for the ALJ to interpret the Motion as a request for summary decision. Hukman v. U.S. Airways, Inc., ARB No. 2015-0054, ALJ No. 2015-AIR-00003, slip op at 6-7 (ARB July 13, 2017).

The ALJ informed Vudhamari of the consequences for failing to reply to the Motion when it was presented as a motion to dismiss. See March 19, 2019 Order Establishing Deadline for Prosecuting Party to File Reply to Respondent’s Motion to Dismiss. But the ALJ did not inform Vudhamari that he was converting the Motion to a motion for summary decision. Vudhamari is appearing pro se, and the ALJ should have provided him with notice of the requirements for opposing a motion for summary decision, in a form sufficiently understandable to apprise him of what was required, along with the text of the rule governing summary decisions. See, e.g., Zavaleta v. Alaska Airlines, Inc., ARB No. 2015-0080, ALJ No. 2015-AIR-00016, slip op. at 11-12 (ARB May 8, 2017); see also Timms v. Frank, 953 F.2d 281, 285 (7th Cir 1992) (“a short and plain statement in ordinary English” is appropriate because “the need to answer a summary judgment motion with counter-affidavits is contrary to lay intuition.”).

Accordingly, we direct the ALJ to provide Vudhamari with a notice containing: (1) the text of the rule governing summary decisions before ALJs (i.e., 29 C.F.R. § 18.72), and (2) a short and plain statement that factual assertions in Advent’s submissions will be taken as true unless he contradicts Advent with counter-affidavits or other documentary evidence. Although we express no opinion on the merits of Vudhamari’s claims, we REVERSE the ALJ’s Decision and Order Granting Summary Decision and REMAND the case for further proceedings consistent with this opinion.

Slip op. at 4.

SUMMARY DECISION; FAILURE TO PRODUCE EVIDENCE TO ESTABLISH ISSUE OF MATERIAL FACT; IF DISCOVERY NEEDED TO RESPOND, STEPS MUST BE TAKEN TO OBTAIN IT

In He v. Citigroup, ARB No. 04-119, ALJ No. 2004-LCA-16 (ARB Sept. 30, 2005), the ALJ properly granted summary decision to the Respondent where the Prosecuting Party’s request for hearing was based solely on a contention that the Respondent was underpaying its H-1B employees, and supported solely on a claim naming one employee who was allegedly underpaid. The Complainant did not produce any evidence in response to the Respondent’s evidence that this employee was not an H-1B employee and was not underpaid. The Complainant, therefore, failed to establish the existence of an issue of material fact. On appeal the Complainant contended that the ALJ had not permitted her to engage in discovery prior to granting the summary judgment motion, but the ARB found that the Complainant had taken no steps to obtain discovery and had not asserted a need for additional discovery in response to the motion for summary judgment.

ARB DECLINES TO REVIEW ALJ’S SUMMARY DECISION IN FAVOR OF RESPONDENT WHERE RESPONDENT WAS NOT GIVEN NOTICE OF ALJ PROCEEDINGS

In Gupta v. Wipro Limited, ARB No. 11-041, ALJ No. 2010-LCA-24 (ARB Aug. 11, 2011), the Complainant filed a complaint with the Wage and Hour Division (WHD) alleging that the Respondent had violated the H-1B regulations by taking unauthorized deductions from his pay. DOL rejected this complaint as untimely. The next month, the Complainant provided additional information (a pay stub), and DOL accepted the complaint for investigation, with the Complainant being considered an aggrieved party based on his status as a business competitor with the Respondent. The complaint was transferred to a different WHD office. The Complainant informed the WHD that he was no longer going to engage in a recruiting business. The WHD informed the Complainant that an investigation had been assigned. Later, however, the WHD determined that there was no reasonable cause to conduct an investigation. The Complainant requested an ALJ hearing. The ALJ issued an Order to Show Cause (OSC) to the WHD Administrator to explain why it should not be required to follow the procedures at 20 C.F.R. § 655.806(b) and 20 C.F.R. § 655.815 (i.e., there did not appear to be any regulatory procedure for initially accepting a complaint for investigation, but then later determining that no investigation is warranted). The Complainant had moved when the case was initially docketed before OALJ to keep his identity confidential (see 20 C.F.R. § 600.800(d)), and the two ALJs who were involved in the matter essentially determined that for the preliminary purpose of determining authority to adjudicate the matter, it was appropriate not to serve the Respondent with notice of the ALJ proceedings.

Based on the responses to the OSC, the ALJ found that the WHD was required to issue a determination letter to the Complainant, but that since the Complainant had requested a hearing, he had not been prejudiced by the failure to issue a determination letter. The ALJ then found that the Complainant’s complaint as a former employee was untimely, and that the Complainant was not an aggrieved party based on his status as a competitor of the Respondent. [Editor’s note: The Complainant had argued before the ALJ that he was a "potential or future competitor." Gupta v. Wipro Limited, 2010-LCA-24 (ALJ Mar. 28, 2011), slip op. at 13.] The ALJ also found that the Administrator’s refusal to investigate the complaints was not reviewable. Thus, the ALJ found that summary decision was appropriate. The Complainant appealed to the ARB.

On review, the ARB found that because the Respondent had not been given an opportunity to participate before the ALJ, it could not review the ALJ’s summary decision ruling. The ARB wrote: "One might argue 'no harm, no foul' since Gupta lost on both of the[] issues [of timeliness of his complaint as a employee, and his status as a competitor]. But Gupta is now seeking to overturn the ALJ’s decision and given our due process concerns, the Board cannot review this appeal at this juncture without Wipro' involvement." The ARB noted that the Complainant’s identity as a complainant had now been disclosed, and therefore "the original reason the ALJ proffered for denying Wipro an opportunity to participate is now moot...."

The Acting WHD Administrator argued that the ALJ’s decision was correct as a matter of law and the possibility of a remand from the ARB unlikely — and thus, it would impose undue burdens on the ALJ, and potentially on the Acting Administrator, to require the ALJ to reopen the proceedings to permit the Respondent to participate. The ARB, however, rejected this argument, finding that the WHD had cited no authority to support the proposition that due process may be ignored in the interest of administrative efficiency, and had failed to distinguish an ARB decision in which it had quoted the Supreme Court to the effect that "judicial predictions about the outcome of hypothesized litigation cannot substitute for the actual opportunity to defend that due process affords." Powers v. Paper, Allied-Industrial, Chemical & Energy Workers Int'l Union, ARB No. 04-111, ALJ No. 2004-AIR-019, slip op. at 7-8 (ARB Aug. 31, 2007), quoting Nelson v. Adams USA, Inc., 529 U.S. 460, 471 (2000).

Timeliness of request for hearing

TIMELINESS OF HEARING REQUEST

In Kumar v. Nihaki Systems, Inc., ARB No. 11-025, ALJ No. 2010-LCA-35 (ARB May 9, 2012), the ARB affirmed the ALJ’s order dismissing the Complainant’s hearing request because it was not filed with the Office of Administrative Law Judges within 15 calendar days of Administrator’s determination, and the Complainant had not presented grounds for equitable tolling.

TIMELINESS OF REQUEST FOR HEARING; INACTION IN PURSUING CLAIM SHOWS A FAILURE TO EXERCISE DUE DILIGENCE

In Lubary v. El Floridita d/b/a Buenos Ayres Bar & Grill, ARB No. 10-137, ALJ No. 2010-LCA-20 (ARB Apr. 30, 2012), the Complainant failed to establish equitable grounds for failing to timely request a hearing before an ALJ on the WHD Administrator’s findings under the H-1B regulations where the Complainant admitted that he had received the findings, those findings provided clear instructions on the procedure for requesting a hearing, the Complainant was capable of creating and filing documents in English, the Complainant had accepted and cashed a check from the Respondent paying the back wages that the WHD found were owed to the Complainant, and the Complainant took no action in pursuit of his claim for over a year. The ARB found that the Complainant’s inactivity showed a failure to exercise due diligence in preserving his legal rights.

TIMELINESS OF HEARING REQUEST; EQUITABLE TOLLING NOT WARRANTED WHERE WAGE AND HOUR DIVISION GAVE ACCURATE ADVICE TO COMPLAINANT ABOUT THE NEED TO APPEAL, EVEN IF THERE WAS A MISUNDERSTANDING OF THE NATURE OF MATTER THE COMPLAINANT WAS SEEKING TO APPEAL

In Yabot v. Board of Education of Prince George’s County, ARB No. 12-012, ALJ No. 2011-LCA-59 (ARB Feb. 21, 2013), it was not clear whether the Complainant was seeking a hearing on a retaliation complaint (which appeared to be premature as the Wage and Hour Division (WHD) had not rendered a decision on that complaint) or a hearing on the WHD’s separate finding that the Respondent had violated the H-1B regulations in regard to the employment of nonimmigrant school teachers (on which the Complainant appeared not to have timely filed her appeal).' In response, the Complainant argued that she had been told by a person at the WHD that it was not necessary to appeal the WHD finding that the Respondent violated the H-1B regulations since the Complainant agreed or was amenable to the DOL’s determination.' The Complainant explained that her case had been separate or difference from the other schoolteachers, and stated that she had refrained from appealing to the ALJ because the advice from the WHD.' The ARB found that even viewing the Complainant’s statements in the light most favorable to her, they did not compel tolling of the limitations period.' The advice from the WHD had been accurate, and while there may have been a misunderstanding as to the nature of the Complainant’s complaint, the WHD district office that gave the advice 'did not and could not, in any way, have prevented [the Complainant] from filing a timely hearing request with the Chief Administrative Law Judge, as did six other Prince George’s County teachers.''

VI. Timeliness of complaint

Top

Generally

TIMELINESS OF LCA COMPLAINT; ARB INDICATES THAT ANY NON-PAYMENT OF WAGES DURING SECOND LCA PERIOD STARTS THE CLOCK; IN ALTERNATIVE, ARB RULES THAT RESPONDENT’S NOTIFICATION TO H-1B WORKER DURING SECOND LCA PERIOD THAT IT WOULD NO LONGER PAY HIM STARTED A LIMITATIONS PERIOD

In Varess v. Persian Broadcast Service Global, Inc., ARB No. 2020-0017, ALJ No. 2016-LCA-00019 (ARB July 14, 2020) (per curiam), the ALJ initially found in favor of Respondent. On a first appeal, the case had been remanded to the ALJ after the ARB found that none of the exceptions to the Respondent’s obligations to pay wages under the LCAs applied. On remand, the ALJ was directed to determine the timeliness of the complaint. On remand, the ALJ held that the complaint was timely as Respondent’s obligation to pay Complainant wages continued until the end of a second LCA period, which ran from September 12, 2013, to September 12, 2015.

In its appeal of the ALJ’s decision on remand, Respondent argued that the complaint was not timely. The ARB, however, had rejected in its prior decision Respondent’s arguments as to why its obligation to pay ended at an earlier date. The ARB agreed with the ALJ’s explanation as to why Respondent was liable to pay wages for the duration of the second LCA, the ARB stating that: “It seems that any nonpayment of wages during the second LCA period would start the clock as a failure to perform an action.” The ARB held in the alternative that the evidence showed that “on July 11, 2014, Respondent paid Complainant wages and notified Complainant that it would no longer pay him”—and that “[c]onsidering this notification, notice of an adverse action, the limitations period would have started running on July 11, 2014. Thus, Complainant February 5, 2015 is timely under either alternative.”

The ARB affirmed the ALJ’s order of payment of back wages for both LCA periods.

TIMELINESS OF COMPLAINT; WHERE RESPONDENT SIGNED SECOND LCA AND IT WAS CERTIFIED BY DOL, FACT THAT COMPLAINANT FAILED TO RENEW E-3 VISA WAS NOT RELEVANT; REGULATIONS FOCUS ON LATEST DATE RESPONDENT’s ALLEGED VIOLATIONS OCCURRED

In Varess v. Persian Broadcast Service Global, Inc., ARB No. 2018-0023, ALJ No. 2016-LCA-00019 (ARB Sept. 26, 2019) (per curiam), the ARB reversed the ALJ’s finding that Respondent had not violated its obligation to pay wages required by two LCAs. The ARB remanded because the ALJ had not ruled on Respondent’s alternative contention that the complaint was not timely filed. The ARB, however, was not persuaded by Respondent’s contention that Complainant’s failure to renew his E-3 visa for the second LCA period meant that the expiration of the first LCA period was the latest day on which a violation could have occurred. The ARB stated:

[T]he second LCA was signed by the Respondent, certified by the DOL, and constituted an obligation Respondent had to abide by until the expiration of the LCA period or an exception to that obligation was satisfied. Respondent’s argument attempts to shift the relevant focus to the Complainant’s activity but the regulations provide that the Complainant has to file a complaint “not later than 12 months after the latest date on which the alleged [employer’s] violation(s) were committed.” 20 C.F.R. § 655.806(a)(5). As such, we will remand to the ALJ to make appropriate findings of fact as to whether Complainant’s February 5, 2015 complaint was filed “not later than 12 months after the latest date on which” Respondent violated its LCA obligations.

Slip op. at 8.

TIMELINESS OF COMPLAINT AND BACK PAY; CENTRAL DISTRICT OF CALIFORNIA FINDS THAT “CONSISTENT AND CONTINUAL” FAILURE TO PAY REQUIRED WAGE, INCLUDING FAILURE TO PAY FOR NONPRODUCTIVE TIME, IS A CONTINUING VIOLATION, AND THAT ARB’S FINDING THAT AN EMPLOYER IS NOT RELIEVED OF PAYMENT OBLIGATIONS WHEN EXISTING EMPLOYEE FAILS TO RENEW VISA AND DEPARTS THE UNITED STATES TO PERFORM DUTIES ABROAD IS A REASONABLE INTERPRETATION OF INA AND REGULATIONS

In Persian Broadcast Service Global, Inc. v. Walsh, et al., 21-cv-00229, 2022 U.S. Dist. LEXIS 22783 (C.D. Cal. Feb. 7, 2022) (relates to ARB No. 2020-0017; ALJ No. 2016-LCA-00019), the court granted summary judgment in favor of the Appellee (USDOL) in a case where the ARB reversed the ALJ’s determination that the employee who filed a complaint with the Appellee was not an employee of the Appellant (Persian Broadcast Service Global, Inc.) who was entitled to a salary.

The Appellant filed a motion for summary judgment seeking review of the ARB’s findings that 1) the employee entered into employment with the Appellant; 2) the Appellant never effected a bona fide termination; 3) that the employee never entered into voluntary nonproductive status; and 4) any misrepresentations of the employee did not relieve the Appellant of its obligations. The Appellee filed a cross motion for summary judgment. The Appellant argued that no remedy is available to the employee because the employee’s administrative complaint was time barred. The Appellant also argued that the calculation of back pay was arbitrary and capricious because it was not required to pay the employee under the second LCA because his E-3 visa expired and he left the country.

The ARB’s Timeliness Finding

The ARB found that the employee’s complaint was timely, determining that the second LCA was binding because it was signed by the Appellant, certified by the Department of Labor, and constituted an obligation that the Appellant had to abide by until the LCA period expired or an exception to that obligation was satisfied. The ARB also held that the Appellant was liable to pay wages for the duration of the second LCA, September 12, 2013, to September 12, 2015, and the reasons the Appellant provided for why the second LCA was invalid did not relieve it of its obligations. The ARB thus concluded that a complaint filed on February 5, 2015, would be timely because any nonpayment of wages during the second LCA period would “would start the clock as a failure to perform an action, and the LCA period was still ongoing when [the employee] filed his complaint.” The ARB noted that the Appellant notified the employee it could no longer pay him on July 11, 2014, and if this was considered an adverse action, then a complaint filed on February 5, 2015, would still be timely.

The district court found that the administrative record indicated that the Appellant’s President signed a second LCA “to all four[ ](4) labor condition statements summarized,” including the requirement to pay at least “the local prevailing wage or the employer’s actual wage, whichever is higher, and pay for nonproductive time.” The district court stated that neither the text of the INA, the regulations, or the LCA itself supported the Appellant’s argument that an employee’s non-renewal of an E-3 visa or the departure of an employee from the United States terminates the “period of authorized employment” thus discharging an employer’s responsibility to continue to pay the employee under the LCA. The district court found that as an employer’s “consistent and continual failure to pay the required wage, including failing to pay for nonproductive time, is a continuing violation,” the employee’s complaint, filed in February 2015, was timely since it was filed within one year of the Appellant’s failure to pay the required wage under the LCA.

The ARB’s Back Pay Award

The ARB found that the Appellant failed to pay the required wage under the first LCA and the second LCA. The ARB found that since the Appellant’s President signed and filed both LCA’s with the Department of Labor, it was legally obligated to pay the specified wages until the LCA period expired unless an exception to that obligation applied. The ARB determined that no exception applied because no bona fide termination occurred.

The district court affirmed the back pay award. In doing so, the district court stated that the ARB correctly noted that the “plain language of the statue did not list an exception for the expiration of an existing E-3 worker's visa or for travel to outside the United States,” and the ARB properly rejected “such exceptions as being unauthorized.” The district court noted that the ARB did not make a finding that an LCA is binding on an employer when an employee does not have an E-3 visa and never enters the United States. Rather, the court noted that the ARB made a factual finding that the second LCA was binding because the employee “entered into employment” under the second LCA when he “entered the U.S. and began or continued working for [the Appellant] under the second LCA . . . .” The court noted that the record supports the ARB’s finding that “Customs and Border Protection’s admission of the employee into the United States from September 2013 to September 2015—whether or not in error—was sufficient to authorize [the employee’s] employment under the second LCA, because he had already ‘made himself available to work’ and ‘received authorization for travel to the U.S.’ under the terms of the LCA.” The court also briefly summarized additional facts supporting this finding.

The court noted that the regulations are silent as to whether bona fide termination is still required to relieve an employer of its duty to pay wages when the Department of Labor has approved a second LCA for a previously authorized employee, and that employee has been admitted to the United States through Customs and Border Protection, even if that employee is no longer in the United States. The court found that the ARB’s finding that the Appellant was not relieved of its payment obligations due to the employee’s failure to renew his visa and departure from the United States was a “reasonable interpretation of the statutory and regulatory ambiguities to which this Court must defer.” The court thus found that “an employer remains bound by its wage obligations to an existing E-3 worker who can perform his duties abroad notwithstanding the worker's visa's expiration and overseas travel.”

TIMELINESS OF COMPLAINT; STATUTE OF LIMITATIONS IS AN AFFIRMATIVE DEFENSE THAT IS WAIVED IF NOT RAISED IN THE PLEADINGS; RESPONDENT FOUND TO HAVE WAIVED DEFENSE WHEN IT DID NOT RAISE IT BEFORE THE ALJ UNTIL A POST-HEARING CLOSING BRIEF

In DeDios v. Medical Dynamic Systems, Inc., ARB No. 16-072, ALJ No. 2013-LCA-9 (ARB Mar. 30, 2018), the Respondent argued for the first time in its closing brief, filed after the evidentiary hearing before the ALJ, that the Prosecuting Party/Complainant had not timely filed his LCA complaint. On appeal, the ARB affirmed the ALJ’s holding that the Respondent had waived this argument by raising it too late in the hearing process. The ARB wrote:

The ALJ found that MDSI waived any objection to timeliness by not raising it until after the hearing when the record had closed and consequently, the complainant did not have an opportunity to address it or submit evidence to support his timely complaint. As noted above in the Legal Background [to the ARB’s decision], the limitations period for the INA is not jurisdictional. Thus, an objection to timeliness may be waived if not raised. The defense that a complaint is untimely falls into the category of defenses that must be raised in a motion to dismiss for failure to state a claim. According to the ALJ rules [at 29 C.F.R. Part 18.70 (c) (2017)], such a motion should be filed before a hearing has occurred. The Federal Rules of Civil Procedure, which apply in situations not provided for or controlled by the ALJ rules, require that a party file a motion asserting this defense no later than the conclusion of the trial on the merits. Under either of these rules, MDSI failed to file a motion to dismiss for untimeliness (or object in any way) at or before the hearing, and the argument is waived.

USDOL/OALJ Reporter at 7-8 (footnotes omitted). Although the Respondent argued before the ARB that it had not deliberately relinquished the timeliness issue, the ARB noted that the Respondent knew about an apparently undated complaint for more than a year prior to raising the question in the post-hearing closing brief, and that it was clear that it had the opportunity to raise the issue earlier.

TIMELINESS OF COMPLAINT; ARB FINDS THAT 20 C.F.R. § 655.806(a)(5) ALLOWS AN LCA COMPLAINT TO BE FILED WITHIN 12 MONTHS AFTER THE LATEST DATE ON WHICH ALLEGED VIOLATIONS WERE COMMITTED, EVEN IF ALJ LATER FOUND AFTER HEARING THAT CERTAIN OF THE ALLEGATIONS WERE NOT SUBSTANTIATED OR ONLY PARTIALLY SUBSTANTIATED

The ARB noted that “[t]he language of the INA makes clear that a complaint must be filed ‘not later than 12 months after the date of the failure’ in an LCA and the regulations clarify that this means ‘not later than 12 months after the latest date on which the alleged violations were committed.’” USDOL/OALJ Reporter at 8 (quoting 20 C.F.R. § 655.806(a)(5); emphasis as added by the ARB). In the instant case, the Complainant’s complaint alleged that the Respondent benched him, failed to pay him for the entire LCA period, and never effected a bona fide termination. The ARB thus found that the “the 12-month limitations period did not begin to run until the end of [the] LCA period.” Id. at 8-9 (footnote omitted). The ARB acknowledged that the ALJ had found that a bona fide termination had occurred prior to the end of the LCA, but the ARB noted that the regulations speak to the 12 months “after the latest date on which the alleged violations were committed.” Id. at 9. The ARB continued: “Thus a complaint’s timeliness is based in part on the content and allegations contained in the complaint. In this case, the limitation period did not begin running until the last day of the LCA period since DeDios alleged benching violations (that are considered continuing violations) and that MDSI never effected a no [sic] bona fide termination.” Id. (footnote omitted).

TIMELINESS OF H-1B LCA COMPLAINT; WHERE ARB FOUND THAT THE RECORD WAS AMBIGUOUS AS TO THE STATUS OF THE EMPLOYMENT RELATIONSHIP, IT REVERSED THE ALJ’s FINDING THAT THERE HAD BEEN AN FINAL, DEFINITIVE AND UNEQUIVOCAL TERMINATION OUTSIDE THE LIMITATIONS PERIOD

In Vyasabattu v. eSemantiks, ARB No. 10-117, ALJ No. 2008-LCA-22 (ARB Feb. 11, 2015), the Complainant was sponsored for an H-1B visa by the Respondent. Upon arrival, the Complainant was put up in a guesthouse. There was no job waiting for him. Rather, he was sent on interviews with the Respondent’s clients and required by the Respondent to be selected by one of clients before the Respondent would start to pay the Complainant. The Complainant went on several interviews but was not selected. The Respondent told the Complainant that if he failed to obtain employment with his next interview, he would be charged rent for the guesthouse. Instead, the Alien left to visit a brother in St. Louis and to try to arrange his own interviews. The Respondent told the Complainant that he would not be paid. A few months after the Complainant left the guesthouse, the Respondent requested the USCIS to revoke the I-129 petition for the alien worker. After USCIS revoked the petition, the Respondent attempted to contact the Complainant, but got no response.

Several months later, the Complainant worked as a contractor at three U.S. companies, claiming that he was the Respondent’s employee. The Complainant emailed POs and timesheets to the Respondent, and claimed that the Respondent therefore profited from his work. The Complainant received no compensation from the Respondent. Several months later, there were email communications between the Complainant and the Respondent involving the Complainant’s request for a W-2, and whether the Complainant was still employed by the Respondent. The Respondent made conflicting statements. In one email, it stated it was puzzled why the Complainant thought he was employed given that he was terminated after he absconded. In another, however, it stated "in our case, you left us on your own. We did not fire you even though we should have."

The Complainant filed a complaint with the Wage and Hour Division, which found no violation.. The Complainant then requested an ALJ hearing. The ALJ determined that the one year limitations period for filing a complaint commenced upon the Complainant’s departure from the guesthouse and the Respondent’s statement that he would not be paid. Because this was more than one year before the complaint was filed, the ALJ found that the complaint was untimely. The ALJ relied on Ndiaye v. CVS Store No. 6081, ARB No. 05-024, ALJ No. 2004-LCA-36 (ARB May 9, 2007), aff'd 547 F. Supp. 2d 807 (S.D. Ohio 2008), for the proposition that the limitations period begins on the date a complainant receives final, definitive and unequivocal notice of a discrete adverse employment action.

The ARB reversed, noting that it was assuming that Ndiaye was correctly decided, and finding that the ALJ’s conclusion overlooked "salient and dispositive facts." First, the ARB found that the Respondent had admitted that it had not fired the Complainant. Second, because the Respondent had never paid the Complainant, its statement at the time of the Complainant’s departure from the guesthouse that it would not pay him did not denote a change in employment status. The ARB also found that the ALJ had failed to consider email exchanges between the Complainant and the Respondent that muddied the water as to the Complainant’s employment status, including the Respondent’s having accepted a PO contract for one of the contractors for which the Complainant had worked. The ARB found that the "ambiguousness of the record" caused it to be unconvinced that the Respondent effected a final, definitive and unequivocal termination of the Complainant’s employment outside the limitations period. The ARB awarded the Complainant $135,000 in compensation plus interest.

TIMELINESS OF COMPLAINT; ACCEPTANCE OF CLAIM BY WAGE AND HOUR FOR FILING DOES NOT CURE LACK OF TIMELINESS

In Ndiaye v. CVS Store No. 6081, ARB No. 05-024, ALJ No. 2004-LCA-36 (ARB Nov. 29, 2006), the Complainant argued on appeal that the fact that DOL’s Wage and Hour Division accepted her case for investigation should toll the time period for filing her complaint. The ARB, however, observed that Wage and Hour stopped its investigation once it determined that the claim was not timely filed. The ARB found that this circumstance was not relevant to whether the complaint was timely: "...the WHD could not decide whether she timely filed her complaint without first accepting the case for investigation." USDOL/OALJ Reporter at 7.

TIMELINESS OF BENCHING COMPLAINT; LCA REGULATION MAKES BENCHING A "CONTINUING VIOLATION" THAT REMAINS ACTIONABLE FOR THE DURATION OF THE LCA EMPLOYMENT PERIOD

In Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-39 (ARB Mar. 30, 2007), the ALJ erred in finding that the one-year limitations period for filing a " benching" complaint under 20 C.F.R. § 655.806(5) commenced on the date that the Alien knew that he was no longer receiving assignments or being paid by the Respondent. Rather, the ARB held:

[T]he regulatory text expressly provides to the contrary —the limitations period commences on the latest date on which the employer fails to perform an action or fulfill a condition specified in the LCA.

Thus, the limitations period for a benching complaint does not begin to run as long as the employer maintains an employment relationship with a nonimmigrant it has chosen to place in nonproductive status. ... In other words, the express terms of the regulation make a benching violation a "continuing violation" that remains actionable for the duration of the employment relationship as stipulated in the LCA.

Gupta, supra USDOL/OALJ Reporter at 5 (citation omitted). The ARB held that because the complaint was filed before the term of employment stipulated in the LCA had expired, it was timely. The Respondent had presented an alternative argument that it had effected a bona fide termination of the employment relationship more than one year before the Alien filed his benching complaint. Applying the FRCP 12(b)(6) standard for a motion to dismiss for failure a state a claim on which relief can be granted (drawing all reasonable inferences in favor of the non-moving party), the ARB rejected this argument finding that the Respondent had only alleged that it had notified the INS (now DHS) that the employment relationship had ended, but that a bona fide termination also required showings that notice had been given to the Alien, and in some circumstances, payment for transportation home. Because there was an issue of material fact on whether the employment relationship had been terminated, the ARB held that there was no limitations barrier to the Alien’s complaint.

TIMELINESS OF COMPLAINT; LIMITATIONS PERIOD FOR LCA "WHISTLEBLOWER" COMPLAINT COMMENCES UPON FINAL AND DEFINITIVE NOTICE OF TERMINATION, AND NOT WHEN THAT TERMINATION BECOMES "BONA FIDE"

In Ndiaye v. CVS Store No. 6081, ARB No. 05-024, ALJ No. 2004-LCA-36 (ARB May 9, 2007), the Complainant filed a motion for reconsideration of the ARB’s ruling that she had filed an untimely complaint, arguing that the limitations period did not begin to run until the Respondent effected a "bona fide termination" as recently articulated by the ARB in Amtel Group v. Yongmahapakorn ("Rung"), ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006). The ARB granted reconsideration, but nonetheless affirmed the denial of relief based on finding that the limitations period for an H-1B retaliation claim begins to run from when the Complainant had been given final and definitive notice of her termination, and not when the termination became "bona fide." The Board wrote: "A 'bona fide termination' date must be determined to assess the compensability of an H-1B employee’s claim for damages under the INA. But, an employer can give an H-1B employee final and definitive notice of its intention to terminate such employee’s employment without also informing the INA and offering the employee a return ticket. Such final and definitive notice constitutes an adverse action, regardless whether the employer also effects a 'bona fide termination.'" USDOL/OALJ Reporter at 7.

TIMELINESS; 12 MONTH LIMITATIONS PERIOD

In Kersten v. Lagard, Inc., ARB No. 06-111, ALJ No. 2005-LCA-17 (ARB Oct. 17, 2008), the Complainant’s complaint that his H-1B employer had made material misrepresentations on its Labor Condition Application was time barred, where the complaint was filed more than 12 months after the allegedly false LCAs had been filed. Equitable tolling based on the continuing violation doctrine grounded on the assertions that the Respondent failed to make good on a promise to put the Complainant in a management position and that it did not pay him for the work he performed in addition to his Quality Control Engineer duties, was not warranted where the Complainant had not performed those additional duties for more than 12 months after the filing an LCA supporting an extension on the H-1B visa.

LIMITATIONS PERIOD RUNS FROM DATE ALLEGED VIOLATION WAS COMMITTED

In Jain v. Empower IT, Inc., ARB No. 08-077, ALJ No. 2008-LCA-8 (ARB Oct. 30, 2009), the ARB found that the ALJ erred when she held that an H-1B complainant could raise H-1B pay violations that occurred anytime during the period of employment as long as the complaint was filed within 12 months of the employee was last employed under the H-1B visa. The ARB stated that "[t]he INA requires that a complaint alleging violations by an H-1B employer under the LCA program be filed 'not later than 12 months after the latest date on which the alleged violation(s) were committed.'" USDOL/OALJ Reporter at 12 (citing in a footnote, 20 C.F.R. § 656.806(a)(5); see 8 U.S.C.A. § 1182(n)(2)(A)). "Thus, the limitations period begins to run when the violation occurred, not when the "employee was last employed under an H-1B visa." Id. (footnote omitted).

In Gupta v. Administrator, Wage and Hour Div., ARB No. 12-050, ALJ No. 2010-LCA-24 (ARB Feb. 27, 2014), the Prosecuting Party filed two complaints in 2009 alleging illegal deductions by the Respondent, Wipro Ltd., to H-1B wages connected to the base salary earned in its H-1B workers’ home country. The Wage and Hour Division (WHD) issued a letter finding reasonable cause to investigate the second complaint pursuant to 20 C.F.R. § 655.806(a)(5), which pertains to 'aggrieved party' complaints. The ARB affirmed three of the grounds on which the ALJ dismissed the claims: (1) the wage claims were not timely as to the Prosecuting Party, who had not worked for the Respondent as a H-1B worker since 2006; (2) the Prosecuting Party was not an "aggrieved party" for the alleged violations related to the wages of other H-1B workers, and (3) the Prosecuting Party had no basis to appeal the WHD Administrator’s having taken no action on the claims under 20 C.F.R. § 655.807. Under 20 C.F.R. § 655.806, the WHD may initiate an investigation of alleged H-1B program violations based on a complaint filed by an aggrieved person or organization, (including competitors). In the instant case, the Prosecuting Party had wanted to set up his own recruitment business when he returned to India, but admitted that the business had not actually been set up at the time the complaints were filed. The ARB affirmed the ALJ’s finding that he was not the Respondent’s "competitor" and therefore was not adversely affected by the alleged violation, either as an employee or as a competitor. Thus, the ARB affirmed the ALJ’s dismissal of the "aggrieved party" complaint. In regard to the Prosecuting Party’s complaint as a "credible source" complaint under 20 C.F.R. § 655.807, the ARB affirmed the ALJ’s holding that "the discretion to initiate such an investigation lies with the Wage and Hour Administrator and other Labor Department officials. [T]here is no evidence that the Administrator or other Labor Department official exercised such discretion in this case, and the regulations prohibit parties from appealing the Labor Department’s exercise or refusal to exercise such discretion. See 20 C.F.R. § 655.807(h)(2)." USDOL/OALJ Reporter at 6.

WHERE RESPONDENT DID NOT RAISE TIMELINESS OF COMPLAINT ISSUE BEFORE THE ALJ, THE ARB REFUSED TO CONSIDER THE ISSUE ON APPEAL

In Limanseto v. Ganze & Co., ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the Respondent argued on appeal that the Complainant’s LCA complaint should be dismissed as untimely filed because it fired the Complainant on August 14, 2008, and he did not file a claim until October 26, 2009. The ARB noted a complaint must be filed no later than 12 months after the latest date on which the alleged violations were committed, which would be the date on which the employer allegedly failed to perform an action or fulfill a condition specified in the LCA. 20 C.F.R. § 655.806(a)(5). The ARB refused to address the issue, however, because the Respondent admitted that it had not raised it with the ALJ. Adm'r v. Am Truss, ARB No. 05-032, ALJ No. 2004-LCA-12, slip op. at 4-5 (ARB Feb. 28, 2007).

Equitable tolling

UNTIMELY COMPLAINT; EQUITABLE TOLLING BASED ON “PRECISE-STATUTORY CLAIM FILED IN WRONG FORUM”; FILING WITH OFFICE OF THE INSPECTOR GENERAL FOUND SUFFICIENT DESPITE COMPLAINANT’S CITATION OF WRONG REGULATIONS

In Mehra v. West Virginia University, ARB No. 2017-0058, ALJ No. 2017-LCA-00002 (ARB Nov. 21, 2019) (per curiam), Complainant filed a complaint against Respondent on April 16, 2014 with the U.S. Department of Labor, Office of the Inspector General (OIG) alleging failure to pay the correct salary. On August 21, 2014, OIG referred the complaint to the Wage and Hour Division (WHD). OIG had delayed the referral because Complainant had notified OIG that he would be out of the country. On March 9, 2016, the WHD determined that reasonable cause existed to conduct an investigation. On October 4, 2016, the WHD district director concluded that Respondent had committed no violations.

In the meantime, on October 8, 2014, Complainant filed an additional complaint, this time addressed to the Secretary of Labor and other offices. This complaint was acknowledged as received by WHD on October 24, 2014. The WHD advised Complainant that no investigation would be conducted because more than 12 months had passed since his H-1B employment had ended.

Complainant filed objections and a request for an ALJ hearing following the district director’s October 4, 2016 determination. The ALJ granted Respondent’s motion for summary decision, finding that the October 8, 2014 complaint was untimely and that the OIG filing was not an adequate basis for equitable tolling. On appeal, the ARB affirmed the ALJ’s holding that that the October 8, 2014 complaint was not timely, but reversed in regard to equitable tolling.

Complainant contended that his April 2014 complaint fit the equitable category of precise statutory complaint but filed in the wrong forum, while Respondent contended that OIG does not meet the definition of “forum” defined as “a court or other judicial body.” The WHD Acting Administrator, appearing as amicus, asserted that

Respondent’s argument that OIG is not a forum “relies on an unduly narrow understanding of what constitutes a forum that is inconsistent with Board precedent and antithetical to the principles of equitable tolling and the statutory structure and purpose of the H-1B program . . . .”

Slip op. at 4 (quoting Amicus brief, citation by Amicus omitted). The ARB noted that the Acting Administrator also asserted that

Like the Wage & Hour Division, OIG is authorized to accept complaints and conduct investigations related to H-1B visa violations, albeit a narrower range of such violations.

Id. The ARB agreed with Complainant and the Acting Administrator and found that equitable tolling applied.

Respondent also argued that the “precise-statutory-claim” equitable principle did not apply because Complainant cited the H-2A rather than the H-2B regulations. The ARB, however, agreed with the Acting Administrator that: “Complainant’s citation to the H·2A regulation does not affect this analysis because the complaint is measured using the standards normally used to evaluate aggrieved party complaints which are informal, filed for the purpose of initiating an investigation and are only required to set forth sufficient facts for the Administrator to determine whether there is cause to believe that a violation has been committed.” Id. at 5, n.2.

EQUITABLE TOLLING NOT WARRANTED BASED ON COMPLAINANT NOT BEING PAID FOR ADDITIONAL DUTIES WHERE COMPLAINANT HAD NOT PERFORMED SUCH DUTIES IN 12 MONTHS PRIOR TO FILING OF LCA EXTENSION

EQUITABLE TOLLING; WRONG FORUM; MUST RAISE PRECISE STATUTORY CLAIM IN ISSUE

In Ndiaye v. CVS Store No. 6081, ARB No. 05-024, ALJ No. 2004-LCA-36 (ARB May 9, 2007), the Complainant filed a motion for reconsideration of the ARB’s ruling that she had filed an untimely complaint, arguing that her filing for state unemployment benefits constituted a "mistaken filing" of the correct statutory claim in an incorrect forum, thus providing a basis for equitable tolling. The ARB noted that it had addressed equitable tolling in its original decision, and indicated that the Complainant had not stated grounds compelling it to reconsider. Nonetheless, the ARB considered whether the unemployment filing was grounds for equitable tolling, and found that it was not because the relief sought was through a different statutory claim that provided for unemployment benefits and not relief under the Immigration and Nationality Act’s H-1B provisions.

UNTIMELY COMPLAINT; EQUITABLE TOLLING AND EQUITABLE ESTOPPEL; FACT THAT ENGAGEMENT LETTER MAY HAVE HAD ELEMENTS VIOLATIVE OF LCA REGULATIONS AND MAY BE A MISREPRESENTATION OF THE EMPLOYMENT RELATIONSHIP IS NOT THE SAME AS A DEFENDANT MISLEADING AN EMPLOYEE THE RIGHT TO FILE A COMPLAINT

the distinction between actively misleading a plaintiff as to the terms of an employer-employee relationship and actively misleading a plaintiff as to his cause of action is readily understandable and has been enforced by the ARB in other, similar cases. See, e.g., In the Matter of: Seyanabou A. Ndiaye, Complainant v. CVS Store No. 6081, Respondent, ARB No.: 05-024, 2006 WL 3508487, at *5 (“[T]here is no evidence that the Respondent actively misled the Complainant with respect to her rights to file a complaint . . . .”). Further, the evidence in the record does not detract from the ARB’s decision. Wipro’s December 27, 2005 letter stating that “the terms of this letter agreement shall control the terms and conditions of your employment” does not so clearly rise to the level of actively misleading the Plaintiff about the nature of his claim such that would require remand, and there is no other evidence in the record showing that Plaintiff “could not, by the exercise of reasonable diligence, have discovered essential information bearing on his or her claim.” Ruehl v. Viacom, Inc., 500 F.3d 375, 384 (3d Cir. 2007).

Slip op. at 30-31. In regard to equitable tolling, the court found that the Plaintiff appeared to be conflating “the principles of equitable estoppel with the very nature of his claim.” Id. at 31. The court noted that arguing that the engagement letter had been misleading insofar as the INA’s applicable statutes and regulations supersede any contrary terms of the employment “is tantamount to arguing that Wipro unlawfully deducted amounts from Plaintiff’s wages.” Id. (citation omitted).

VII. Investigations

Top

Authority and jurisdiction; scope of investigation

LCA AGGRIEVED PARTY COMPLAINT; SCOPE OF DOL’S INVESTIGATION MAY EXTEND TO WHETHER SPECIFIC MISCONDUCT ALLEGED IN COMPLAINT IMPACTED EMPLOYEES OTHER THAN THOSE NAMED IN COMPLAINT

In Aleutian Capital Partners, LLC v. Scalia, No. 17-3810 (2d Cir. Sept. 22, 2020), Aleutian Capital Partners, LLC (“Aleutian”), a private equity investment group, engaged two H-1B Program employees: Horn and Gangjee. Gangjee filed a complaint with DOL alleging that Aleutian violated the LCA regulations by underpaying him for several months. DOL determined that the monthly salary payments Gangjee received frequently fell below the amount he was due under H-1B Program standards, albeit Gangjee’s total compensation for the year in question was higher than the annual salary required. DOL, however, “determined that applicable regulations called for Aleutian to pay Gangjee back wages for each of the months in which it failed to remit in wages the full amount due, regardless of any bonuses or overpayments that it made in other months.” Slip op. at 3 (citation to record omitted). DOL also found during its investigation that Aleutian underpaid Horn during one month, and ordered back wages for that month.

In the instant case, Horn had not filed a complaint and Gangjee’s complaint did not mention underpayment of Horn; rather, DOL discovered the underpayment in the course of its investigation. Relying on the Eighth Circuit’s decision in Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015), Aleutian argued that 8 U.S.C. § 1182(n)(2)(A) authorizes DOL to conduct compliance investigations only into specific allegations made in an aggrieved party’s complaint, and thus DOL could not investigate or order back pay as to the other H-1B worker.

The Second Circuit, however, found that the regulation at § 655.800 gives DOL “broad discretion to gather the information that it ‘deem[s] necessary’ to determine an employer’s ‘compliance regarding the matters which are the subject of the investigation,’ and that this may require determining whether the practice complained of in an aggrieved-party complaint also applied to other H-1B workers.” Id. at 22. The court stated that this interpretation does not conflict with the Eighth Circuit’s analysis in Greater Missouri, in which court declared that DOL can investigate the employer’s ‘specific misconduct as alleged in the complaint.’ 812 F.3d at 1138.” Id. at 23.

The Second Circuit stated:

Where the “specific misconduct” alleged in a complaint is that the employer is using a wage payment practice that is impermissible under the H-1B Program, then an investigation into that “specific misconduct” would in our view reasonably include payroll information about the employer’s one other H-1B Program employee, to determine whether the impermissible practice is being applied to her as well.

Id.

LCA AGGRIEVED PARTY COMPLAINT; ONE-YEAR LIMITATIONS PERIOD APPLIES TO FILING OF COMPLAINT, AND NOT TO SCOPE OF RELIEF THAT DOL MAY AWARD

Aleutian argued that the one-year statute of limitations set forth in 20 C.F.R. § 655.806(a)(5) for aggrieved-party complaints precluded DOL from taking investigatory action and making payment orders with respect to any time before the one year immediately preceding the submission of Gangjee’s complaint. The Second Circuit determined, however, that the limitations period for filing a complaint did not limit DOL’s authority to assess remedies, and that the regulations reflected this jurisdictional concept. See 20 C.F.R. § 655.806(a)(5). The court noted that the regulation states: “Where, for example, a complaint is timely filed, back wages may be assessed for a period prior to one year before the filing of a complaint.” The court stated that Section 655.806(a)(5) “reflects a reasonable interpretation of DOL’s statutory directive to adopt the position that, where an investigation into a timely filed complaint reveals that an employer’s failure to conform to an LCA has resulted in a pattern of underpayment that extends earlier than the statute of limitations cut-off, DOL may assess back wages that remedy the full scope of that failure. See Brand X, 545 U.S. at 980.” Id. at 19.

SCOPE OF ADMINISTRATOR’S INVESTIGATION INITIATED BASED UPON RECEIPT OF AGGRIEVED PARTY COMPLAINT; ARB RE-VISITS ITS PRECEDENT ON THE QUESTION AND FINDS COMMON GROUND BETWEEN ARB AND COURT RULINGS; ADMINISTRATOR’S INVESTIGATION MUST BE MUST BE CONDUCTED WITH REGARD TO THE AGGRIEVED PARTY COMPLAINT, BUT UNDER SOME CIRCUMSTANCES MAY EXTEND BEYOND THE AGGRIEVED COMPLAINANT OR HIS PARTICULAR GRIEVANCE; ARB DECLINES TO DEFINE EXACT CONTOURS

The parties agreed that the Administrator’s investigation was initiated based on the Complainant’s aggrieved party complaint pursuant to 8 U.S.C. § 1182(n)(2)(A). The Administrator sought records on Volt’s H-1B employees and LCAs for a two-year period. The Administrator ultimately determined that Volt failed to pay the Complainant and many other H-1B employees for non-productive time in violate of 20 C.F.R. § 655.731. As noted, the ALJ granted summary decision based on a determination that the scope of the Administrator’s investigation went too far.

The ARB described how the ARB and the courts had grappled with this issue in the past.

In Admin., Wage & Hour Div. v. Greater Missouri Med. Providers, Inc., ARB No. 2012-0015, ALJ No. 2008-LCA-00026 (ARB Jan. 29, 2014) , the ARB in a split decision, concluded that the Administrator had the power and authority to conduct investigations not constrained to the specific allegations in a single aggrieved party complaint, and under the facts of the case where the complainant’s allegations were detailed, the Administrator had reasonable cause to investigate related H-1B violations encountered in the course of the investigation. On appeal in Greater Missouri Med. Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015), the Eighth Circuit circumscribed the scope of an investigation in response to an aggrieved party complaint. Although it declined to set the exact contours of the Administrator’s authority to investigate, it found that an open-ended investigation without regard to the actual allegations of the aggrieved party complaint was not supported by the plain language of the INA.

The ARB next addressed the issue in Admin., Wage & Hour Div. v. Aleutian Capital Partners, LLC, ARB No. 2014-0082, ALJ No. 2014-LCA-00005 (ARB June 1, 2016), where the Administrator’s expansion of the investigation was on a much smaller scale to cover the complainant and the employer’s lone other H-1B worker. The ARB “rejected the Eighth Circuit’s interpretation of the INA, summarily affirmed its holding from Greater Missouri, and held that the Administrator’s expansion of the investigation was within the authority granted to her under the Act.” Slip op. at 9 (footnotes omitted); see also id. at 10-11, n. 53, explaining that the ARB exercised “non-acquiescence” in Greater Missouri outside the Eighth Circuit. The Southern District of New York affirmed the outcome in Aleutian Capital Partners, LLC v. Hugler, 16 Civ. 5149 (ER), 2017 WL 4358767 (S.D.N.Y. Sept. 28, 2017) (appeal pending in the Second Circuit). The district court, however, held that the Administrator’s investigatory powers are not unlimited, and must be “tethered” the allegations of the complaint.

For the instant case, the Administrator asked the ARB to recommit to its holdings in Greater Missouri and Aleutian, while Volt asked the ARB to adopt the holdings of the Eighth Circuit and the Southern District of New York.

The ARB returned to a review of the statutory and regulatory language, and determined that read in conjunction, the Secretary’s and Administrator’s investigation is bounded in its purpose, nature and scope—but that the Administrator is granted “significant discretion with respect to defining and conducting an investigation.” Id. at 13. The ARB stated that “[t]his discretion gives the Administrator the power and authority to go beyond the four corners of the complaint, as may be appropriate.” Id. The ARB also determined that the opinions of the courts in Greater Missouri and Aleutian did not bind the Administrator to the four corners of the complaint, and recognized latitude to investigate “as necessary and appropriate, so long as the investigation did not lose sight of the complaint or the finding of reasonable cause.” Id. (footnote omitted). The ARB concluded that the statutory scheme had been a compromise between using a foreign labor supply to compete in the global economy, and protection of the domestic labor market. The ARB stated:

The compromise statutory scheme may be undermined with too narrow of an application of the aggrieved party complaint investigation provision of the INA. The H-1B program is, after all, a voluntary program offered by the government, and employers participate in the program because of the benefit it provides. The Department of Labor has been given the power, and the responsibility, to ensure that the applicable laws and rules are followed by all the participants in the H-1B visa program. It is incomprehensible that Congress would delegate enforcement power to the Secretary in an elaborate, detailed statutory scheme without also giving the Secretary the means to exercise that delegated power and responsibility.

As the foregoing discussion reflects, while the Administrator’s investigation is prompted by and must be conducted with regard to a particular aggrieved party complaint, there is authority for and circumstances in which the investigation may extend beyond the aggrieved complainant or his particular grievance. But, just as the Eighth Circuit and the Southern District of New York did, we decline today to define the exact contours of an investigation in response to an aggrieved party complaint.

Id. at 14-15.

In the instant case, the ARB could not determine based on the record whether the investigation was authorized under the INA, and remanded to the ALJ for additional proceedings and factual development.

SCOPE OF INVESTIGATION AND BACK WAGE LIABILITY; WAGE AND HOUR DIVISION ADMINISTRATOR HAS THE DISCRETION TO LIMIT TIME PERIOD INVESTIGATED AND ORDER BACK WAGES FOR THAT LIMITED TIME PERIOD, EVEN THOUGH ADMINISTRATOR HAS THE DISCRETION TO ORDER BACK WAGES FOR ENTIRE PERIOD OF FIRST AND SECOND LCAS

In Administrator, Wage and Hour Div. v. Government Training, LLC, ARB No. 16-049, ALJ No. 2015-LCA-5 (ARB Feb. 23, 2018), the ARB indicated that although the Wage and Hour Division (WHD) Administrator had the discretion to order the Respondent to pay back wages for the entirety of two sequential Labor Condition Applications (LCA) until the date the H-1B worker quit his employment, the WHD also had the discretion to limit its investigation to the two years prior to the H-1B worker’s resignation. The ARB found that the ALJ properly awarded back wages for the time period covered by the Administrator’s order.

WAGE AND HOUR DIVISION’S DECISION NOT TO INVESTIGATE H-1B COMPLAINT BECAUSE IT WAS NOT TIMELY IS NOT REVIEWABLE

ALTERING TIME FRAME OF PERIOD COVERED ON WH-56; SUFFICIENCY OF NOTICE; LACK OF PREJUDICE

In Administrator, Wage & Hour Div., USDOL v. Sirsai, Inc., ARB No. 12-102, ALJ No. 2011-LCA-1 (ARB Jan. 28, 2015), the ARB summarily affirmed the ALJ’s Decision and Order finding that the Respondents violated the H-1B regulations when it misclassified various employees and paid them improper wages; “benched” employees; failed to reimburse employees for business expenses; misrepresented material facts on their LCAs regarding prevailing wages and employees’ worker locations; and failed to comply with posting requirements. The ARB also affirmed the ALJ’s conclusion that the actions were willful and that CMPs and debarment were appropriate. The ARB rejected the Respondents’ argument on appeal that the WHD provided them with insufficient notice of the extent of the violations that WHD was investigating. The ARB agreed with the ALJ that sufficient notice had been provided and that there had been no prejudicial effect of altering the time frame of the period covered on the WH-56. The ARB noted that the Respondents’ violations had been “particularly egregious.”

WAGE AND HOUR INVESTIGATORY AUTHORITY DOES NOT HINGE ON RECEIPT OF A COMPLAINT FROM A WORKER

In Administrator, Wage and Hour Division, ESA, USDOL v. Synergy Systems, Inc., ARB No. 04-076, ALJ No. 2003-LCA-22 (ARB June 30, 2006), the Wage and Hour Division had found that the Respondent violated the INA when it did not properly pay two nonimmigrant alien workers. The Wage and Hour investigation was initiated based on a complaint received from one of the workers. On appeal the Respondent argued that Wage and Hour did not have the authority to investigate payment of the worker who did not file a complaint. The ARB rejected the Respondent’s argument, finding that Wage and Hour has the authority to investigate alleged INA violations even in the absence of a complaint.

ACTIONS OR INACTIONS OF WAGE AND HOUR DIVISION; FAILURE TO ISSUE DETERMINATION WITHIN 30 DAYS DID NOT DEPRIVE WAGE AND HOUR OF JURISDICTION TO PROCEED

In Cyberworld Enterprise Technologies, Inc. v. Adm., Wage and Hour Div., ESA, USDOL, ARB No. 04-049, ALJ No. 2003-LCA-17 (ARB May 24, 2006), the ARB affirmed the ALJ’s finding that the Wage and Hour Administrator’s failure to issue a determination within 30 days of the filing of the complaint, as directed by 20 C.F.R. § 655.806(a)(3), did not deprive the Administrator of jurisdiction to proceed; the 30 day limit was directory, and not mandatory.

JURISDICTION TO PROSECUTE LCA VIOLATION OUTSIDE STATUTORY TIME LIMITS; LCA STATUTORY AND REGULATORY PROVISIONS ON TIME LIMITATIONS ARE NOT JURISDICTIONAL; EXCESSIVE DELAY MAY CREATE PRESUMPTION OF PREJUDICE, BUT ACTUAL PREJUDICE MUST BE SHOWN TO WARRANT DISMISSAL OF CASE

In Administrator, Wage and Hour Division, ESA, USDOL v. Synergy Systems, Inc., ARB No. 04-076, ALJ No. 2003-LCA-22 (ARB June 30, 2006), the ARB held that the rationale of Brock v. Pierce County, 476 U.S. 253 (1986) “holding in a CETA case that the word ‘shall’ when setting deadlines for agency actions is not, standing alone, jurisdictional and does not remove the Secretary of Labor’s power to act after the deadline has expired”' applies to LCA time limits found in 8 U.S.C.A. § 1182(n)(2)(B) and 20 C.F.R. §§ 655.806(a)(3) and 655.835(c). Thus, the Administrator’s and OALJ’s failure to act within those time frames did not remove the Administrator’s jurisdiction to prosecute the case. The ARB noted that some prior authority had mischaracterized the Pierce County holding as requiring a statute to specify a consequence for to comply with a deadline. The ARB clarified that this was not a holding in that case. The Respondent also contended that the Administrator’s delays prejudiced its opportunity to depose some employees. The ARB acknowledged that excessive delay prior to a hearing may create a presumption of prejudice, but held that a respondent must demonstrate actual prejudice to warrant dismissal of a case. In the instant case, actual prejudice had not been shown.

In Gupta v. Administrator, Wage and Hour Div., ARB No. 12-050, ALJ No. 2010-LCA-24 (ARB Feb. 27, 2014), the Prosecuting Party filed two complaints in 2009 alleging illegal deductions by the Respondent, Wipro Ltd., to H-1B wages connected to the base salary earned in its H-1B workers’ home country. The Wage and Hour Division (WHD) issued a letter finding reasonable cause to investigate the second complaint pursuant to 20 C.F.R. § 655.806(a)(5), which pertains to 'aggrieved party' complaints. The ARB affirmed three of the grounds on which the ALJ dismissed the claims: (1) the wage claims were not timely as to the Prosecuting Party, who had not worked for the Respondent as a H-1B worker since 2006; (2) the Prosecuting Party was not an "aggrieved party" for the alleged violations related to the wages of other H-1B workers, and (3) the Prosecuting Party had no basis to appeal the WHD Administrator’s having taken no action on the claims under 20 C.F.R. § 655.807. Under 20 C.F.R. § 655.806, the WHD may initiate an investigation of alleged H-1B program violations based on a complaint filed by an aggrieved person or organization, (including competitors). In the instant case, the Prosecuting Party had wanted to set up his own recruitment business when he returned to India, but admitted that the business had not actually been set up at the time the complaints were filed. The ARB affirmed the ALJ’s finding that he was not the Respondent’s "competitor" and therefore was not adversely affected by the alleged violation, either as an employee or as a competitor. Thus, the ARB affirmed the ALJ’s dismissal of the "aggrieved party" complaint. In regard to the Prosecuting Party’s complaint as a "credible source" complaint under 20 C.F.R. § 655.807, the ARB affirmed the ALJ’s holding that "the discretion to initiate such an investigation lies with the Wage and Hour Administrator and other Labor Department officials. [T]here is no evidence that the Administrator or other Labor Department official exercised such discretion in this case, and the regulations prohibit parties from appealing the Labor Department’s exercise or refusal to exercise such discretion. See 20 C.F.R. § 655.807(h)(2)." USDOL/OALJ Reporter at 6.

STANDING; “CREDIBLE SOURCE” INVESTIGATION; DOL’S DECISION NOT TO INVESTIGATE UNDER § 655.807 WAS NOT REVIEWABLE

The ALJ and ARB are correct in that §655.807(h) states that “[n]o hearing shall be available from a decision by the Administrator declining to refer allegations addressed by this section to the Secretary, and none shall be available from a decision by the Secretary certifying or declining to certify that an investigation is warranted.” Id. Further, there is a “presumption that agency decisions not to institute proceedings are unreviewable under 5 U.S.C. § 701(a)(2),” and Plaintiff did not provide, nor does this Court find, evidence that would overcome this presumption as it applies to § 655.807. Heckler v. Chaney, 470 U.S. 821, 837 (1985).

Slip op. at 36.

SCOPE OF DOL INVESTIGATORY AUTHORITY ON LCA COMPLAINT; COURT DISAGREES WITH EIGHTH CIRCUIT DECISION IN GREATER MISSOURI

In Aleutian Capital Partners, LLC v. Hugler, No. 16-cv-5149 (S.D. N.Y. Sept. 28, 2017) (2017 U.S. Dist. LEXIS 162965; 2017 WL 4358767) (case below ARB No. 14-082, ALJ No. 2014-LCA-5), the district court granted summary judgment to the Defendant on the Plaintiff’s APA challenge to the ARB decision in Administrator, Wage and Hour Div. v. Aleutian Capital Partners, LLC, ARB No. 14-082, ALJ No. 2014-LCA-5 (ARB June 1, 2016). Among other issues addressed, the court agreed with the DOL that the INA authorizes DOL to look beyond the four corners of the complaint in formulating an appropriate investigation, and to the extent that such a conclusion conflicts with the Eighth Circuit decision in Greater Missouri, the court respectively disagreed. The court, however, noted that it did not agree that DOL’s investigatory authority includes an open-ended look into the employer’s general compliance, finding instead that the investigation is limited to subject of the investigation.

SCOPE OF DOL INVESTIGATION IS LIMITED IN SCOPE TO THE REASONABLE CAUSE FINDING FOR INITIAL INVESTIGATION

In Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 14-3717 (8th Cir. Dec. 14, 2015) (2015 U.S. App. LEXIS 21544; 2015 WL 8591614) (case below W.D. Mo. No. 14-cv-05028; ARB No. 12-015; ALJ No. 2008-LCA-26), the Eighth Circuit held that "the Secretary’s authority to conduct an initial investigation under § 1182(n)(2)(A) is based upon the Secretary finding reasonable cause to believe the employer’s specific misconduct as alleged in the complaint violates the INA. That reasonable-cause finding limits the scope of the initial investigation." Slip op. at 11 (footnote omitted).

[Editor’s note: The District Court for the S.D. N.Y. disagrees with the Eighth Circuit. See Aleutian Capital Partners, LLC v. Hugler, No. 16-cv-5149 (S.D. N.Y. Sept. 28, 2017) (2017 U.S. Dist. LEXIS 162965; 2017 WL 4358767) (case below ARB No. 14-082, ALJ No. 2014-LCA-5)].

SCOPE OF WAGE AND HOUR DIVISION LCA INVESTIGATION IS NOT LIMITED TO THE MATTERS RAISED IN SINGLE AGGRIEVED PARTY’S COMPLAINT

UNTIMELINESS OF PART OF ORIGINAL COMPLAINANT’S COMPLAINT DOES NOT REMOVE WHD JURISDICTION OVER OTHER VIOLATIONS REGARDING OTHER EMPLOYEES THAT OCCURRED WITHIN THE LIMITATIONS PERIOD

In Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 3_14-cv-05028 (W.D. Mo. Oct. 24, 2014), the Plaintiff did not contest the ARB’s findings that the Plaintiff violated the Immigration and Nationality Act when made deductions from several H-1B employee paychecks for attorney and LCA fees; did not pay any of its H-1B employees for training time; and withheld final paychecks from certain employees. However, the Plaintiff argued on appeal that the Wage and Hour Division Administrator did not have authority to extend the investigation beyond the original complaint filed by a single H-1B employee. The Defendant (the Secretary of Labor) moved for summary judgment. The court found that the ARB’s decision was not arbitrary and capricious or in conflict with the law. The court granted the Defendant’s motion, finding that the ARB’s decision was reasonable and permissible under the statute and regulations. The ARB had essentially found that the Plaintiff had received notice from the outset about the scope of the WHD investigation, and that neither the statute nor regulations restrict the scope of an H-1B investigation to allegations contained in a single aggrieved party complaint. The court was also not persuaded by the Plaintiff’s argument that because the original Complainant’s complaint about benching was found to be untimely, then jurisdiction did not exist to investigate other benching violations within the limitations period.

[Editor’s note: The Eight Circuit reversed. See Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 14-3717 (8th Cir. Dec. 14, 2015) (2015 U.S. App. LEXIS 21544; 2015 WL 8591614). The District Court for the S.D. N.Y. disagrees with the Eighth Circuit. See Aleutian Capital Partners, LLC v. Hugler, No. 16-cv-5149 (S.D. N.Y. Sept. 28, 2017) (2017 U.S. Dist. LEXIS 162965; 2017 WL 4358767) (case below ARB No. 14-082, ALJ No. 2014-LCA-5)].

SCOPE OF INVESTIGATION INITIATED BY SINGLE AGGRIEVED PARTY COMPLAINT; TIME LIMITATIONS ON SCOPE OF INVESTIGATION

[Editor’s note: The U.S District Court for W.D. Mo. affirmed this part of the ARB’s decision; however, the Eighth Circuit reversed the district court’s decision. See Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 14-3717 (8th Cir. Dec. 14, 2015) (2015 U.S. App. LEXIS 21544; 2015 WL 8591614). The District Court for the S.D. N.Y. disagrees with the Eighth Circuit. See Aleutian Capital Partners, LLC v. Hugler, No. 16-cv-5149 (S.D. N.Y. Sept. 28, 2017) (2017 U.S. Dist. LEXIS 162965; 2017 WL 4358767) (case below ARB No. 14-082, ALJ No. 2014-LCA-5)].

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

The Respondent’s contended on 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.

Authority of District Director to Issue Determination Letters

ARB FINDS THAT RESPONDENT FAILED TO PRESENT EVIDENCE TO REBUT PRESUMPTION OF REGULARITY THAT DETROIT DISTRICT DIRECTOR HAD DELEGATED, OR REDELEGATED, AUTHORITY TO ISSUE H-1B DETERMINATION LETTERS ON BEHALF OF THE ADMINISTRATOR

In Administrator, Wage and Hour Div., USDOL v. Broadgate, Inc., ARB No. 2019-0079, ALJ No. 2019-LCA-00013 (ARB Apr. 20, 2021) (per curiam) (“Broadgate”), the Administrator appealed the ALJs Decision and Order which, in part, reversed the Administrator’s Determination that Broadgate willfully and substantially failed to provide notice of the filing of LCAs in violation of 20 C.F.R. § 655.734 upon a finding that the Detroit District Director was not delegated or re-delegated the authority to issue the Administrator’s Determination. Id., slip op. at 1, 5, 19. In Administrator, Wage and Hour Div., USDOL v. Spate Business Solutions, LLC, ARB No. 2019-0083, ALJ No. 2019-LCA-00002 (ARB Apr. 20, 2021) (per curiam) (“Spate”), the Respondent appealed the ALJs Decision and Order finding that the Detroit District Director was presumed to have been delegated or re-delegated the authority to issue the Administrator’s Determination. Id. at 6.

The ARB reversed, in part, and remanded, in part, the Broadgate Decision and Order, and affirmed the Spate Decision and Order, holding that the Detroit District Director was presumed to have been delegated or re-delegated the authority to issue the Administrator’s Determinations. Id. at 20. In doing so, the ARB found that the presumption of regulatory applied to these matters, and stood for the proposition that “if the law imposes a relevant, official duty on an official, [the tribunal will] presume that the official has been properly appointed to that position and performed that duty, unless there is evidence to the contrary.” Id. at 12.

The ARB found that “[t]he distinction between a subdelegation (or re-delegation) in-house to subordinates and delegations to outside entities is paramount,” and that “[t]he caselaw reflects that courts permit subdelegations to subordinates, even where the enabling statute is silent, so long as the enabling statute and its legislative history do not indicate otherwise.” Id. at 15. The ARB stated that the statutory basis for H-1B enforcement is silent regarding delegations or re-delegations of authority, and, importantly, Secretary’s Order No. 01-2014 expressly permitted re-delegation of H-1B enforcement authority. Id. at 16. The ARB found dispositive the fact that the Administrator’s Determinations in LCAs “are not the product of the administrative hearing process, but rather they are a product of investigations into employers’ compliance with representations made on LCAs,” and that the Administrator’s Determinations are “only the first step” to final agency action. Id. The ARB thus found that the Broadgate ALJ should have presumed that the Detroit District Director “was both properly appointed and acted in accordance with the statutory and regulatory requirements” and was “delegated or re-delegated the authority to issue the Administrator’s Determination unless there was evidence to the contrary,” as Broadgate concerned “an individual acting on behalf of the DOL, in performance of a legal duty.” Id. at 17.

The ARB found that the Respondents’ contention that the Detroit District Director “was not explicitly delegated or re-delegated the authority via a statute, regulation, order, or delegation memorandum” insufficient to rebut the presumption on its own, as no evidence, “let alone clear evidence,” was presented demonstrating that the Detroit District Director was not delegated or re-delegated that authority. Id. at 18.

The ARB thus affirmed the Spate Decision and Order, and remanded Broadgate for a determination on the number of violations incurred, the nature and severity of violations, the amount of civil money penalties for any violations, and any other applicable remedies, including debarment, as the ALJ did not reach these questions. Id. at 18–19.

[Editor’s Note: Broadgate and Spate were consolidated on appeal due to the similarity of the issues raised and contradictory conclusions of the ALJs in their respective decisions.]

Alleged deficiencies

ALLEGED DEFICIENCIES IN WAGE AND HOUR INVESTIGATION IRRELEVANT WHERE RECORD SHOWED THAT RESPONDENT UNDERPAID REQUIRED WAGES UNDER THE LCA

In Administrator, Wage and Hour Div. v. Efficiency3 Corp., ARB No. 15-005, ALJ No. 2014-LCA-7 (ARB Aug. 4, 2016), the Respondent argued that the Wage and Hour Division investigator made “serious errors” by failing to investigate the Respondent’s claim that the H-1B nonimmigrant employee and his wife (also an H-1B employee of the Respondent) had defrauded the company in regard to the manner of payment of required wages. The ARB found this argument was unavailing because it was the employer’s obligation to comply with the law’s required wage and payroll obligations.

Similarly, the Respondent argued that the investigator was biased and prejudged the facts. The Respondent claimed to have filed a complaint against the investigator with the Department of Labor Office of the Inspector General. The ARB found that whatever the investigator may have done, it did not change the fact that the Respondent violated the H-1B required wage obligation.

Impeding investigation

CIVIL MONEY PENALTY FOR IMPEDING INVESTIGATION BASED ON FAILURE TO MAINTAIN OR PRODUCE REQUIRED RECORDS

In Administrator, Wage and Hour Division v. Avenue Dental Care, ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the ARB affirmed a $500 civil money penalty for lack of cooperation with the Administrator’s investigation where uncontroverted evidence showed that the Respondent impeded the investigation because he had not maintained or produced records requested by the investigator.

Obtaining of PWD from ETA

WHEN CONDUCTING AN LCA ENFORCEMENT INVESTIGATION, THE WAGE AND HOUR DIVISION "MAY" GO TO THE EMPLOYMENT AND TRAINING ADMINISTRATION FOR A PREVAILING WAGE DETERMINATION, BUT HAS THE DISCRETION TO MAKE THE PWD WITHOUT RESORT TO ETA; ARB AFFIRMS ALJ’S "REASONABLENESS OF METHODOLOGY" REVIEW OF WHD’S ASCERTATION OF PW RATE

In Administrator, Wage and Hour Div., USDOL v. Advanced Professional Marketing, Inc., ARB No. 12-069, ALJ No. 2008-LCA-17 (ARB June 3, 2014), the Wage and Hour Division (WHD) conducted an investigation of the Respondents’ LCA, and found a number of violations. The WHD calculated back wages owed. Where the WHD found that the prevailing wage determinations (PWD) reported in the LCA were inaccurate, or where the LCA was missing, the WHD used the OES Wage Survey to determine the rate for the back wages. The Respondents argued that the WHD violated 20 C.F.R. § 655.731(d) by assigning the PWD without going to the Employment and Training Administration (ETA). The Respondents argued that ETA is the specialist and correct institution to make prevailing wage determinations, and failure to use ETA deprived the Respondents of access to the § 655.731(d)(2) complaint system as intended by the regulations. Before the ALJ, the Respondents introduced into evidence a section of the WHD Field Operations Handbook (FOH) which indicated that the WHD must go to ETA for the PWD. The ALJ acknowledged that the FOH contained mandatory language, but held that the governing regulations were the binding authority and were permissive on the point of going to ETA for a PWD. On appeal, the ARB affirmed the ALJ’s holding.

The ARB reviewed the regulatory framework for establishing the PWD for a LCA. An employer has the opportunity, prior to filing the LCA, of obtaining a PWD from the ETA Office of Foreign Labor Certification. Such a PWD cannot be further reviewed during the enforcement or litigation phase of a WHD investigation. In the instant case, however, the Respondent did not take that opportunity. During the investigation, a number of the relevant LCAs were missing and the Administrator challenged other of the Respondents’ LCA-PWDs. The WHD therefore assigned PWDs based on the OES Wage Surveys based on information extrapolated from the available documentation. The ARB quoted the regulation at § 655.731(d)(1), which states that the WHD Administrator "may' contact ETA for a PWD. The ARB found that the plain language of the regulation established that the Administrator’s decision to go to ETA for the PWD is discretionary, and does not forbid the Administrator from establishing its own prevailing wage for the purpose of assessing back wages. The ARB rejected the Respondents’ contention that they were denied the ability to dispute the assigned wages before ETA, finding that the Respondents’ right to such review was conditioned on the Administrator seeking a PWD from ETA. The ARB noted that the ALJ had carefully reviewed the methodology used by the WHD to determine the wage rates at issue and found it to be reasonable. The ARB noted that the WHD used the same source of wage data (the OES Wage Survey) that the Respondents had used in most of the LCAs, and indicated that the WHD investigator had used reasonable extrapolations from the available documentation. The ARB agreed with the WHD Administrator that "where the prevailing wage is readily ascertainable, it would be inefficient to mandate resort to ETA." Slip op. at 11. The ARB agreed with the ALJ that FOH provision was not controlling in light of the regulation.

The Respondents argued that the ALJ erred by reviewing the validity of the PWDs because the regulation at 20 C.F.R. § 655.840(c) states that "[u]under no circumstances shall the administrative law judge determine the validity of the wage determination'." The ARB stated that the Respondents had taken this language out of context because that language appears to pertain solely to review of a PWD obtained from ETA. Moreover, the ARB noted that the ALJ had not assessed "the accuracy or validity of the wage determination but instead considered the reasonableness of the Administrator’s methodology of ascertaining the prevailing wage rates." Slip op. at 13.

One member of the ARB wrote a concurring opinion explaining that he disagreed with the majority’s conclusion that the Administrator has the authority to establish prevailing wages for an H-1B LCA enforcement action other than through the ETA process. This member, however, concurred with the majority’s ultimate decision because (1) the Respondent had not shown how its procedural objection would lead to any different result, and (2) the Respondent had a two year period during which it knew about and participated in the WHD investigation, but raised no procedural objection before the Administrator’s determination letter. The concurring member would have found the objection untimely under the particular circumstances of the case.

AUTHORITY OF WAGE AND HOUR DIVISION TO REQUEST PREVAILING WAGE DETERMINATION DURING INVESTIGATION BASED ON NONEXISTENT OR INSUFFICIENT DOCUMENTATION

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A., ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Wage and Hour Division obtained a prevailing wage determination from the State Workforce Agency during its investigation of an LCA complaint about the wages paid to H-1B nonimmigrant physicians by a medical professional association. The investigator requested the wage determination because the Respondent had no documentation supporting the prevailing wages it attested to in the LCA for two of the physicians, and only a one-page job classification print-out for the third, which appeared on its face to be incredibly low for a physician and in comparison to the prevailing wage attestations for the other two physicians.

On appeal, the Respondent argued that the job classification print-out it retained adequately supported all of the prevailing wage attestations for all three physicians. The Respondent also asserted that the Wage and Hour investigator’s procurement of a wage determination was unwarranted and inappropriate.

The ARB found these arguments unpersuasive. The ARB found that the argument that the print-out for one of the physicians was sufficient to document all prevailing wage attestations was contrary to the record. Rather, the record showed that the Respondent’s prevailing wage documentation was either "nonexistent" or "insufficient," which are grounds under 20 C.F.R. § 655.731(d) for Wage and Hour to seek an appropriate prevailing wage during the investigation.

Timeliness

TIMELINESS OF ADMINISTRATOR’S INITIAL DETERMINATION ON INVESTIGATION OF H-1B COMPLAINT; FAILURE TO MEET REGULATORY DEADLINE IS NOT GROUNDS FOR DISMISSAL OF COMPLAINT

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc., ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent contended that the Complainant’s complaint under the H-1B regulations should be dismissed because the Wage and Hour Administrator failed to timely issue the initial decision. The regulation at 20 C.F.R. § 655.806(a)(3) required a determination within 30 calendar days of the filing of the complaint. The Administrator’s decision in this case, however, was issued more than a year following the filing of the complaint. The ALJ denied the motion based on the ARB’s ruling in Administrator, WHD v. Synergy Systems, Inc., ARB No. 04-046, ALJ No. 2003-LCA-22, slip op. at 7 (ARB June 30, 2006), that the time limits for processing a complaint under the Immigration and Nationality Act are directional and not jurisdictional. On appeal, the Respondent urged the ARB to reconsider Synergy in light of ARB precedent involving the statute of limitations for filing an INA complaint. The ARB found that the ALJ had correctly described the distinction between the requisites for meeting the statute of limitations deadline for filing a complaint with Wage and Hour and the time prescribed for rendering a decision once the complaint is file. Alternatively, the Respondent argued that Synergy should not be applied because the Administrator’s delay was too excessive to be excused. The ARB, however, found that the Administrator’s delay did not bar him from processing the complaint.

VIII. Bona fide termination

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Generally

BONA FIDE TERMINATION; REQUIREMENT THAT EMPLOYER EXPRESSLY TERMINATE EMPLOYMENT RELATIONSHIP IS MET WHERE H-1B WORKER GAINS ACTUAL NOTICE BY LEARNING OF REVOCATION OF H-1B STATUS ON USCIS WEBSITE

In Chettypally v. Premier IT Solutions, Inc., ARB No. 2017-0057, ALJ No. 2017-LCA-00006 (ARB Jan. 21, 2020) (per curiam), the Prosecuting Party (who was the H-1B worker) was not notified of his discharge by Respondent—but Respondent notified USCIS—and the Prosecuting Party then learned of the ensuing revocation of his H-1B status on the USCIS website. The ALJ found that the fact that Respondent did not inform the Prosecuting Party of his termination did not, in itself, warrant extending the salary award because the Prosecuting Party had actual notice from USCIS. The ARB affirmed.

BONA FIDE TERMINATION; REQUIREMENT OF PAYMENT OF H-1B WORKER’S TRANSPORTATION HOME WHERE EMPLOYER DISMISSES THAT WORKER AHEAD OF THE AUTHORIZED PERIOD OF EMPLOYMENT IS FULFILLED WHERE RESPONDENT PAYS WAGE AND HOUR DIVISION ASSESSMENT THAT INCLUDED REIMBURSEMENT FOR TRAVEL EXPENSES, EVEN THOUGH WORKER HAD ALREADY RETURNED HOME

In Chettypally v. Premier IT Solutions, Inc., ARB No. 2017-0057, ALJ No. 2017-LCA-00006 (ARB Jan. 21, 2020) (per curiam), the Prosecuting Party (who was the H-1B worker) returned to India on March 23, 2016, and filed an LCA complaint with the Wage and Hour Division. WHD investigated, and assessed Respondent for back wages and reimbursement of travel costs. Respondent paid the assessment. The ALJ held that Respondent’s payment of the assessment effectuated the element of a bona fide termination requiring payment of the H-1B transportation home where the employer terminates the employment ahead of the LCA authorized period of employment, and that the Prosecuting Party was not entitled to further compensation. The ARB affirmed, finding that although Respondent had not effectuated a bona fide termination prior to the Prosecuting Party’s return to India, the ALJ properly concluded that there was no regulatory authority for payment of additional compensation where Respondent paid the WHD assessment for paid back wages and reimbursement for travel expenses.

LABOR CONDITION APPLICATION; MEANING OF "BONA FIDE TERMINATION" OF EMPLOYMENT OF H-1B NON-IMMIGRANT; EMPLOYER IS NOT REQUIRED TO ESTABLISH GOOD CAUSE, BUT MUST NOTIFY THE ALIEN, NOTIFY THE INS, AND PAY FOR RETURN TRANSPORTATION

In Amtel Group of Florida, Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the ARB summarized the regulatory framework governing payment of an H-1B non-immigrant sponsored under a labor condition application. The Board noted that an LCA stipulates the wage levels that the employer guarantees for an H-1B nonimmigrants. An employer need not compensate a nonimmigrant, however, if it has effected a "bona fide termination" of the employment relationship. 20 C.F.R. § 655.731(c)(7)(ii). The employer must notify the INS (now DHS) that it has terminated the employment relationship so that the INS may revoke approval of the H-1B visa. 8 C.F.R. § 214.2(h)(11) (2004).

In Amtel, the ALJ had determined that the Respondent had not effectuated a "bona fide termination" of the Alien/Complainant, based on the definition of "bona fide" found in Black’s Law Dictionary (i.e., made with good faith, honestly, openly and sincerely). Because the Employer had not followed the procedures found in its own handbook, because a state unemployment insurance determination found that the Complainant had not been discharged for misconduct, and because the Respondent had not provided any reason for the discharge, the ALJ concluded that it was not bona fide.

The ARB, reviewing the regulatory history and the arguments of the parties and the Wage and Hour Administrator as amicus, found that the ALJ confused a determination of whether there was a valid basis or good cause for an H-1B’s termination with a determination whether the employer effected a bona fide termination under the H-1B provision. The ARB held that in order to effect a bona fide termination, an employer need not establish a valid basis or good cause, but pursuant to 20 C.F.R. § 655.731(c)(7), three elements — (1) notice to the employee, (2) notice to the INS (now DHS), and (3) payment of the Alien’s transportation home.

Because in the instant case there was no evidence that the Respondent notified the INS or paid for the Alien’s return transportation, it failed to effectuate a "bona fide termination" under 20 C.F.R. § 655.731(c)(7)(ii) (2004). Thus, it was liable for paying the Complainant the LCA wage until the H-1B visa expired.

Actions of H-1B worker

BONA FIDE TERMINATION’S REQUIREMENT TO PAY FOR RETURN TRANSPORTATION; ARB AFFIRMED ALJ’S FINDING THAT THERE HAD BEEN A BONA FIDE TERMINATION WHERE RESPONDENT HAD REPEATEDLY OFFERED IN GOOD FAITH TO PAY FOR THE H-1B WORKER’S AIRFARE BACK TO HIS HOME COUNTRY, BUT COMPLAINANT HAD NOT BEEN RESPONSIVE

In Childs v. DimensionalMechanics, Inc., ARB No. 2021-0001, ALJ No. 2017-LCA-00008 (ARB Sept. 30, 2021) (per curiam), Complainant, (the H-1B worker), filed a complaint alleging a variety of violation of the H-1B labor condition application regulations. The ALJ awarded $1,359.12 based on a finding that Respondent committed two violations: it made an unauthorized wage deduction and it failed to automatically enroll Complainant in its 401(k) plan. Id., slip op. at 1. The ALJ found Complainant’s other objections without merit. Id. at 3. The ARB affirmed the ALJ’s decision. Id. at 5–7. In doing so, the ARB held that the employer effectuated a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii). Id. at 7.

As there was no dispute that the employer notified the Complainant and USCIS of the termination, the sole issue addressed by the ARB was whether the employer satisfied the requirement to provide return transportation to effect a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii). Id. at 5. The Complainant alleged that the employer failed to do so when it did not pay for return transportation until five months after the termination. Id. The employer stated that it repeatedly attempted to contact the Complainant and it offered to pay for return transportation. Id. The employer also stated that the Complainant filed with USCIS to change to another legal status the day after he was terminated and purchased a return ticket when it learned that the Complainant was still in the United States. Id.

The ARB noted that the ALJ relied on Puri v. Univ. of Alabama Birmingham Huntsville, ARB No. 2013-0022, ALJ Nos. 2012-LCA-00010, 2008-LCA-00038, 2008-LCA-00043, slip op. at 8 (ARB Sept. 17, 2014), and other caselaw recognizing exceptions to the “three-part bona fide termination test in some circumstances.” Id. at 5–6. The ARB stated that the ALJ recognized that, generally, a statement that “return flights will be provided” is insufficient to satisfy the return transportation requirement of 20 C.F.R. § 655.731(c)(7)(ii), but in some cases, “offers to provide for the reasonable costs of return transportation were sufficient.” Id. The ARB agreed with the ALJ’s reliance on Baiju v. Fifth Avenue Committee, ARB No. 2010-0094, ALJ No. 2009-LCA-00045, slip op. at 9 (ARB Apr. 4, 2012) (reissued decision), aff’d, No. 12–cv–5610, 2014WL349295 (E.D.N.Y. Jan. 31, 2014), in finding that the employer effected a bona fide termination because it “repeatedly offered to pay for his airfare back to the United Kingdom” to which the Complainant was not responsive. Id.

While the ARB noted that changing to another lawful status alleviates employers’ obligation to provide return transportation, the ARB found dispositive to its affirmance the employer’s good faith effort to comply with the law by repeatedly attempting to contact the Complainant to pay for return transportation. Id. at 7.

BONA FIDE TERMINATION; WHERE COMPLAINANT HAD MARRIED A U.S. CITIZEN AND INFORMED THE RESPONDENT THAT HE DID NOT INTEND TO RETURN TO PAKISTAN IN VIEW OF HIS ENSUING CHANGE IN IMMIGRATION STATUS, IT WAS SUFFICIENT TO NOTIFY USCIS OF THE TERMINATION OF EMPLOYMENT TO EFFECT A BONA FIDE TERMINATION AND END THE RESPONDENT’S H1B WAGE LIABILITY

In Puri v. University of Alabama Birmingham Huntsville, ARB No. 13-022, ALJ Nos. 2008-LCA-38, -43, 2012-LCA-10 (ARB Sept. 17, 2014), the ARB affirmed the ALJ’s determination that the Respondent effected a bona fide termination of the Complainant’s H1B employment on the date it notified the USCIS of the termination of employment. The date of the bona fide termination ended the Respondent’s liability for wages for an H1B worker in nonproductive status. The Complainant, prior to his discharge, had notified the Respondent that he had married a U.S. citizen and that in light of the marriage and ensuing change in immigration status, he did not intend to return to Pakistan. The Complainant argued that the Respondent not effected a bona fide termination until it rendered the reasonable cost of return transportation.

The Board wrote:

The Board held in Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006) that employers must meet three requirements to effect a bona fide termination of H-1B employment and end their obligation to pay wages promised under the Labor Condition Application(s): (1) expressly terminate the employment relationship with the H-1B nonimmigrant; (2) notify USCIS of the termination so that the petition may be cancelled, and; (3) provide the nonimmigrant with the reasonable cost of return transportation to his or her home country. But the Board recently recognized that the material facts of a case may warrant an exception to a strict application of these requirements in compliance with the H-1B visa program’s statutory and regulatory scheme. Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-025 (ARB July 16, 2014)(Amtel definition of bona fide termination cannot be strictly applied to cases involving multiple H-1B employers).

The ALJ’s determination that the criteria for effecting a bona fide termination are flexible, see D. & O. at 8, is consistent with the Board’s recent decision in Barclays Capital. The ALJ permissibly ruled that the University effected a bona fide termination of Puri’s employment on July 30, 2007, when it informed USCIS that Puri no longer worked for the University and requested that the agency revoke its approval of the H-1B petition the University had filed to hire Puri. Id. at 10. The ALJ rationally determined that the "clear intent" of the regulations at 20 C.F.R. § 655.731(c)(7)(ii) and 8 C.F.R. § 214.2(h)(4)(iii)(E) is to "prevent H- 1B employees from remaining in the United States illegally once their petitions have been revoked." Id. at 8. The ALJ noted the exact language of Section 655.731(c)(7)(ii) that the employer’s obligation to provide reasonable return transportation costs arises "only under certain circumstances" as when, the ALJ indicated, "the nonimmigrants have not otherwise obtained lawful status." Id. at 9. The ALJ rationally found that the Department of Labor’s comments in the Federal Register to the preamble for Section 655.731(c)(7)(ii) provide support for this interpretation of the regulation where they make clear that "an H-1B worker must either leave the United States or seek a change in immigration status once its employment relationship has been terminated." Id. at 8 (citing 65 Fed. Reg. 80,171 (Dec. 20, 2000)). The ALJ properly concluded that awarding Puri back wages beyond the University’s July 30, 2007 notice to USCIS and until 2009 when the University provided the cost of return transportation, would contravene the purposes of the Act and regulations where the facts are that Puri’s May 2007 marriage to a United States citizen made him eligible for a change in immigration status and formed the basis for his decision not to return to his home country, a decision of which he informed the University before his discharge.

USDOL/OALJ Reporter at 8.

FACT THAT H-1B WORKER STARTED NEW BUSINESS IN PARTNERSHIP WITH THE EMPLOYER WHO SIGNED THE LCA DID NOT CONSTITUTE A BONA FIDE TERMINATION OF THE EMPLOYMENT RELATIONSHIP WHERE THE EMPLOYER DID NOT NOTIFY DHS, DID NOT PROFFER THE COST OF TRANSPORTATION HOME, AND LATER SIGNED A NEW LCA

In Administrator, Wage and Hour Division v. Avenue Dental Care, ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the Respondent (a dentist) argued that the H-1B worker’s employment relationship with the Respondent ended when the worker (also a dentist) left the dental clinic at which he began employment under the LCA, and became a partner with the Respondent in new clinics opened in a neighboring state, or that the H-1B voluntarily placed himself in nonproductive status when he moved to the neighboring state and became self-employed. The ARB rejected these arguments, finding that the Respondent did not report to the DHS that he terminated the H-1B worker’s employment, that the Respondent did not give the H-1B worker the cost of transportation home, and that two years after the worker had moved to the new clinics, the Respondent signed a second LCA. The ARB found that the employment relationship thus continued and that "[t]he Act and its regulations impose the duty to terminate the employment relationship on the employer, not the H-1B nonimmigrant." Slip op. at 7-8 (footnote omitted).

Effectiveness of termination

FAILURE OF RESPONDENT TO PAY REQUIRED WAGES TO COMPLAINANT IN NON-PRODUCTIVE STATUS PRIOR TO BONA FIDE TERMINATION; ARB SUMMARILY AFFIRMS DECISION AND ORDER AWARDING BACK WAGES

In Administrator, Wage and Hour Div., USDOL v. Doctor’s Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024 (ARB Dec. 9, 2020), the Complainant filed a complaint with the Wage and Hour Division (“WHD”), alleging that the Respondent failed to pay the required wage rate, the cost of legal representation, and the H-1B visa application fee. Slip op. at 3. Following an investigation, the WHD determined that the Respondent failed to pay the required wages, and ordered reimbursement of the fees, from which the Respondent requested a hearing before an ALJ. Id. Following the hearing, the ALJ awarded back wages. Id.

The ARB summarily affirmed, agreeing that the Respondent did not effectuate a bona fide termination until the Complainant voluntarily returned to Brazil and the Respondent subsequently terminated her and informed the Department of Homeland Security’s United States Citizenship and Immigration Services of the termination. Id. at 4–5. Although the Respondent contended that the Complainant “never worked” for the Respondent, the ARB also agreed that the Complainant was entitled to back wages because the record demonstrated that she worked “at least some hours” and, importantly, she was in non-productive status under the INA’s “no benching provision” while in the United States. Id. at 5; see also 8 U.S.C. § 1182(n)(2)(C)(vii)(I) (requiring H-1B employers to pay required wages, even during non-productive status, due to a decision, such as a lack of assigned work, by the employer); 20 C.F.R. § 655.731(c)(7)(i) (same). The ARB noted that the Respondent stipulated to repayment of the fees at the hearing, but emphasized that H-1B employees are prohibited from paying the H-1B visa application fee and H-1B employers must pay attorney fees. Slip op. at 5 n.26; see also 20 C.F.R. § 655.731(c)(9)(ii), 655.731(c)(10)(ii).

BONA FIDE TERMINATION; MERELY STATING THAT A RETURN FLIGHT “WILL BE PROVIDED” IS INSUFFICIENT TO SHOW COMPLIANCE WITH PAYMENT-FOR-TRANSPORTATION-BACK-TO-EMPLOYEE’S –HOME-COUNTRY ELEMENT OF BONA FIDE TERMINATION STANDARD

In Jinna v. MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039 (ARB Apr. 15, 2020) (per curiam), although the only issue on appeal was the amount of LCA back wages owed to Complainant, the ARB addressed a statement by Respondent in its Appeal Brief that it completed a bona fide termination when if offered the H-1B worker transportation back to India. The ARB noted that there are three elements to a bona fide termination, and that Respondent had not notified immigration officials of the terminated employment relationship and did not pay Complainant for transportation back to his home country. The ARB quoted the ALJ as correctly ruling that “ ‘stating that return flights “will be provided” does not constitute proof of actual payment of the reasonable transportation cost for [Complainant’s] return to his home country.’” Slip. op at 8, n. 4, quoting ALJ’s decision.

BONA FIDE TERMINATION; ARB STATES IN APPARENT DICTA THAT—TO BE EFFECTIVE – ANY OFFER OF TRANSPORTATION HOME, AND THE NOTICE OF TERMINATION TO USCIS, MUST OCCUR AFTER NOTICE OF TERMINATION TO THE H-1B WORKER

In DeDios v. Medical Dynamic Systems, Inc., ARB No. 16-072, ALJ No. 2013-LCA-9 (ARB Mar. 30, 2018), the Respondent argued for the first time in its closing brief that the Prosecuting Party/Complainant had not timely filed his LCA complaint. On appeal, the ARB affirmed the ALJ’s holding that the Respondent had waived this argument by raising it too late in the hearing process. The ARB went on to also address how to interpret the limitations period for an LCA complaint, finding that the regulation at 20 C.F.R. § 655.806(a)(5) allows an LCA complaint to be filed within 12 months after the latest date on which alleged violations were committed. The ARB also stated, in apparent dicta that “although we have never had the occasion to so hold, it would be reasonable to assume that any offer of transportation home (and again, notice to USCIS of termination) would necessarily have to occur after notice of termination to the employee to be effective.” The ARB explained:

First, notice to USCIS is notice “that the employment relationship has been terminated . . .”. MDSI did not notify USCIS that the employment relationship had been terminated but instead simply moved that the petition be withdrawn or revoked. Arguably, without properly informing a nonimmigrant of his termination, the requirement of notice to USCIS would not be effective. But not only did MDSI fail to notify USCIS that it had terminated DeDios’ employment, it apparently failed even to notify DeDios that he was fired, before moving to revoke his H-1B status. Second, although we have never had the occasion to so hold, it would be reasonable to assume that any offer of transportation home (and again, notice to USCIS of termination) would necessarily have to occur after notice of termination to the employee to be effective. Here, neither occurred after termination. Had it been argued and/or appealed, it may have been found that there was no bona fide termination for the reason that notice to the employee of termination must necessarily come before a notice to USCIS of termination or an offer of return fare home. One final argument calls into question the legitimacy of the termination in this case. MDSI continued to offer DeDios interviews for jobs after it offered him a return trip home and after it moved for USCIS to revoke the H-1B petition—evidence of an ongoing employment relationship after the satisfaction of the three requirements (notice to employee, notice to USCIS, and payment home) could “belie a bona fide termination” and negate their effectivity. To continue to offer an H-1B nonimmigrant worker interviews for work would at least confuse the question of whether he was still employed if not convince him that he was, regardless of any past offers of airfare home.

USDOL/OALJ Reporter at 9 (footnotes omitted).

EMPLOYER’S LIABILITY UPON FAILURE TO EFFECT A BONA FIDE TERMINATION IS LIMITED TO REIMBURSEMENT FOR REQUIRED WAGE OBLIGATION, AND NOT UNPAID ROOM RENT OR FOOD AND LAUNDRY ALLOWANCES

In Amtel Group of Florida, Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the ARB held that the ALJ erred in determining that the Respondent owed reimbursement to an H-1B nonimmigrant, about whom it had failed to effect a bona fide termination in employment, for room rent and unpaid food and laundry allowances, over and above its required wage obligation to the Alien. Such reimbursement was not authorized under the INA and its implementing regulations.

BONA FIDE TERMINATION; EMPLOYER IS ONLY REQUIRED TO OFFER PAYMENT OF TRANSPORTATION HOME; EMPLOYEE’S NONACCEPTANCE OF OFFER DOES NOT NEGATE COMPLIANCE WITH THIS ELEMENT

BONA FIDE TERMINATION; EMPLOYER IS ONLY REQUIRED TO NOTIFY USCIS OF TERMINATION; NO REQUIREMENT OF PROOF THAT USCIS ACTUALLY CANCELLED THE LCA

To effect a bona fide termination, an employer must (1) give notice of the termination to the H-1B worker, (2) give notice to the Department of Homeland Security (USCIS), and (3) under certain circumstances, provide the H-1B non-immigrant with payment for transportation home. Non-acceptance of the offer of the cost of return transportation, does not affect whether a bona fide termination was completed. Moreover, notice to USCIS is all that is required to fulfill the notice requirement for effecting a bona fide termination; there is no requirement that USCIS cancel the LCA for a termination to be bona fide. Baiju v. Fifth Avenue Committee, ARB No. 10-094, ALJ No. 2009-LCA-45 (ARB Mar. 30, 2012)(reissued Apr. 4, 2012).

BONA FIDE TERMINATION OF E-3 WORKER; VERBAL NOTICE TO USCIS OF TERMINATION OF E-3 WORKER’S EMPLOYMENT FOUND INSUFFICIENT TO EFFECT BONA FIDE TERMINATION; WORKER’S CONTINUED TRAINING, NOTICE OF JOB OPPORTUNTIES, AND RESIDENCE IN RESPONDENT GUEST HOUSE, SUPPORTED FINDING THAT EMPLOYMENT RELATIONSHIP CONTINUED BEYOND PURPORTED DISCHARGE

In Administrator, Wage and Hour Div., USDOL v. S V Technologies, LLC, ARB No. 12-042, ALJ No. 2011-LCA-9 (ARB Dec. 23, 2013), an E-3 nonimmigrant worker filed a complaint with the Wage and Hour Division alleging that the Respondent violated the Immigration and Nationality Act by failing to pay wages to which he was entitled. The WHD found in favor of the worker, and the Respondent requested a hearing before an ALJ. E-3 labor condition applications, which involves a program for nationals of the Commonwealth of Australia, are handled under the H-1B LCA regulations.

In the instant case, the Respondent determined that the foreign worker did not have the necessary skills for the job, and informed the worker that he was being discharged and was being asked to leave the country. The Respondent’s president called USCIS and verbally informed it that the Respondent had terminated an E-3 employee. USCIS asked for a reference number for the worker, but the Respondent did not provide the number, did not inform USCIS of the name of the worker, and never followed up with USCIS to provide the necessary documentation. The worker stayed in the U.S., continued to participate in the Respondent’s training, and continued to receive potential employment projects from the Respondent. The ALJ found on summary decision on undisputed facts that the Respondent failed to effect a bona fide termination of the E-3 worker. On appeal, the ARB affirmed. The Respondent admitted that it had had not given USCIS written notification that it had terminated the worker’s employment, that it did not provide USCIS with the worker’s name or any other data that would enable USCIS to identify the worker, and that the Respondent’s president did not expect the worker’s E-3 petition to be cancelled following his call to USCIS. The ARB held that "Verbal notification to USCIS that an unnamed E-3 employee was terminated would not enable USCIS to identify which E-3 petition to cancel and does not therefore meet the requirement contained in 20 C.F.R. § 655.731(c)(7)(ii). Without the bona fide termination, [the Respondent] owes [the E-3 worker] wages during [his] employment in productive status." USDOL/OALJ Reporter at 7. The ARB also found that the undisputed facts of record showed that the E-3 worker’s employment relationship with the Respondent continued after he was allegedly discharged. The worker continued to be emailed concerning job opportunities and sample resumes after his alleged termination; he continued to receive training form the Respondent; and he continued to live rent-free in the Respondent’s guest home.

WHERE EMPLOYER ENDS EMPLOYMENT RELATIONSHIP PRIOR TO COMMENCEMENT OF H-1B AUTHORIZED EMPLOYMENT PERIOD, BUT FAILS TO EFFECT A BONA FIDE TERMINATION UNDER THE LCA REGULATIONS, EMPLOYER IS LIABLE FOR H-1B WAGES AND OTHER DAMAGES

In Limanseto v. Ganze & Co., ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the Complainant had been working for the Respondent under an F-1 student visa. Before the Complainant began work under an H-1B visa issued as the result of a LCA filed by the Respondent, the Respondent ended the employment relationship. The ALJ found that the Respondent failed to effect a bona fide termination of employment under the H-1B LCA regulations and therefore the Respondent was liable for wages for the full period of the H-1B employment. On appeal, the Respondent argued that there was no actual employment relationship under the LCA between it and the Complainant, and thus the ALJ erred in applying the "bona fide" termination test and finding it liable for wages during the entire period of H-1B authorized employment. The ARB affirmed the ALJ’s finding that the Respondent failed to effect a bona fide termination under the LCA regulations. The ARB noted that the termination notice to the Complainant did not end the Respondent’s LCA attestation that for the entire "period of authorized employment," including non-productive time, it will pay the required wage to the H-1B non-immigrant. The ARB noted that an employer may avoid payment of H-1B wages for the entire period if there has been a bona fide termination of the employer, which under the regulations requires three steps: notice to the employee; notice to USCIS, and payment for transportation home under certain circumstances. See 20 C.F.R. § 655.731(c)(7). In the instant case, the Respondent did not notify USCIS until advised to do so by a WHD investigator after the Complainant filed his LCA complaint. Moreover, the Respondent did not pay for the Complainant’s return home to Indonesia.

The ARB, however, reduced the damages award to the amount requested while the case was pending before the ALJ. In this regard, the ARB noted that the Complainant’s attorney had requested only that the Complainant be compensated for his unpaid H-1B salary up to the date he returned home. The attorney also indicated that the Complainant was not seeking damages for the three month period when he worked for another company. Thus, before the ALJ the Complainant only sought damages for wages for 220 work days. On appeal, the Complainant shifted his position and urged the ARB to affirm the ALJ’s award in its entirety. The ARB however, held the Complainant to the relief he sought before the ALJ. The ARB stated that 'the relief [the Complainant] requested at the ALJ hearing is a consequence that reasonably flows from [the Respondent's] failure to properly effect a bona fide termination. We also find that it is appropriate to hold [the Complainant] to the relief he requested and modify the ALJ’s order without deciding (1) whether [the Respondent's] failed attempt to terminate the H-1B employment would have required payment of the entire three years promised in the LCA or (2) whether offsets for other wages earned and the duty to mitigate may be considered in H-1B wage disputes.'

The ALJ had not awarded the cost of transportation home as damages because he had ordered payment of wages for the entire three year period of authorized H-1B employment. The ARB, because it had reduced the damages award for the wages, awarded the Complainant the actual cost of his air fare home, not to exceed the $1,000 originally requested before the ALJ. The ARB affirmed the ALJ’s conclusions that the Complainant was also entitled to reimbursement of $1,500 in legal fees during the H-1B application process; that the Respondent was not entitled to offset the balance of a tuition loan it had made to the Complainant; and that pre- and post-judgment interest were applicable (26 U.S.C.A. § 6621(a)(2)(federal short-term rate plus three percentage points)).

BONA FIDE TERMINATION OF H1B WORKER; REFUSAL OF OFFER OF PAYMENT OF COST OF RETURN HOME IS NOT RELEVANT; USCIS MUST BE NOTIFIED, BUT USCIS NEED NOT HAVE ACTUALLY REVOKED VISA FOR TERMINATION TO CUT OFF BACK PAY LIABILITY

In Administrator, Wage and Hour Div., USDOL v. University of Miami, Miller School of Medicine, ARB Nos. 10-090 and -093, ALJ No. 2009-LCA-26 (ARB Dec. 20, 2011), the ARB affirmed the ALJ’s determination that the Respondent effected a bona fide termination of the H1B worker after giving the worker notice of the termination, giving notice of the termination to the USCIS, and making a proffer of $5000 to the worker for transportation expense back to Germany. The fact that H1B worker rejected the offer of payment of relocation expenses because she was concerned that it would cut off her legal rights did not affect the fact that the Respondent made the offer of payment of the cost of return transportation. The ARB, however, rejected the Respondent’s claim that a bona fide termination did not require notice to the USCIS based on language found in the ARB decision in Administrator v. Ken Technologies, ARB No. 03-140, ALJ No. 2003-LCA-15, slip op. at 4-5 (ARB Sept. 30, 2004). The ARB stated that it had clarified in Gupta v. Jain Software Consulting, Inc., ARB No. 05-088, ALJ No. 2004-LCA-39, slip op. at 5 (ARB Mar. 30, 2007), that such notice was one of the required three steps to effect a bona fide termination of an H1B worker. The ARB also rejected, however, the H1B worker’s argument that actual revocation of the visa by USCIS is required before a bona fide termination is effected.

BONA FIDE TERMINATION UNDER LCA REGULATIONS; FAILURE TO REPORT TERMINATION TO DHS AND FAILURE TO TENDER PAYMENT FOR RETURN TRANSPORATION IS CRITICAL ELEMENT OF PROOF SHOWING LACK OF BONA FIDE TERMINATION

In Mao v. Nasser Engineering & Computing Services, ARB No. 06-121, ALJ No. 2005-LCA-36 (ARB Nov. 26, 2008), a case arising under the labor condition application regulations governing DOL’s H-1B program, the ARB agreed with the ALJ’s finding that the Respondent did not effect a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii) of the Prosecuting Party’s ("the Alien") employment under the INA and its implementing LCA regulations because it did not notify DHS of the termination or tender payment for the Alien’s return transportation home. The ARB agreed with the ALJ’s finding that the Respondent’s failure to report to DHS its termination of the Alien’s employment "is the critical element of proof that there was no bona fide termination of the employment relationship that would have relieved Nasser of the liability to pay Mao his full salary." Slip op. at 9, quoting the ALJ’s decision. The ARB thus held that the Respondents failed to establish an end to their obligation to pay the Complainant’s "actual wage." The ARB rejected the one Respondent’s alternative argument that the Complainant was on extended leave at his own choosing, finding that the Complainant was ready and willing to take on new projects, but that the Respondent did not have assignable work and cooperated with the Complainant to perpetuate a false impression of his status vis-a-vis the immigration authorities. The ARB calculated a back pay liability of $66,919.48.

IX. Benching

Top

Generally

NO-BENCHING PROVISIONS

In Administrator, Wage and Hour Division, ESA, USDOL v. Synergy Systems, Inc., ARB No. 04-076, ALJ No. 2003-LCA-22 (ARB June 30, 2006), the ARB affirmed the ALJ’s finding that two nonimmigrant alien workers were available to work continuously for the Respondent and never took a legitimate leave of absence during the relevant period. The Board described the "no-benching" requirement of an LCA as follows:

Under its "no benching" provisions, the INA requires that an employer pay the required wage specified in the LCA even if the H-1B nonimmigrant employee is in a nonproductive status (i.e., not performing work) because of lack of assigned work or some other employment-related reason. 8 U.S.C.A. § 1182(n)(2)(C)(vii)(I); 20 C.F.R. § 655.731(c)(6)(ii), (7)(i); Administrator v. Kutty, ARB No. 03-022, ALJ Nos. 01-LCA-010 through 01-LCA-025, slip op. at 7 (ARB May 31, 2005); Rajan v. International Bus. Solutions, Ltd., ARB No. 03-104, ALJ No. 03-LCA-12, slip op. at 7 (ARB Aug. 31, 2004). But an employer need not pay wages to H-1B nonimmigrants that are in nonproductive status due to conditions that remove the nonimmigrants from their duties at their "voluntary request and convenience" or which render them unable to work, such as a requested leave of absence. 20 C.F.R. § 655.731(c)(7)(ii).

USDOL/OALJ Reporter at 9. It did not matter, therefore, whether the workers actually reported to the office while they were in a nonproductive status because of lack of assigned work; the Respondent was nonetheless required to pay them wages due under the LCA.

COMPENSATION OF BENCHED WORKERS; ALTHOUGH 1995 REGULATIONS INVALIDATED ON PROCEDURAL GROUNDS, STATUTORY REQUIREMENT STILL APPLIED

In Administrator v. Pegasus Consulting Group, Inc., ARB No. 05-086, ALJ No. 2004-LCA-21 (ARB Apr. 28, 2009), the ARB noted that the 1995 LCA regulation requiring an employer to compensate H-1B workers for non-productive time was declared invalid on procedural grounds by a U.S. District Court. The ARB, however, applied 8 U.S.C. § 1182(n)(2)(C)(vii)(I), because it was the same as the invalidated regulations.

FAILURE TO PAY REQUIRED WAGE UNDER AN LCA; THE LAW RECOGNIZES ONLY TWO EXCEPTIONS TO THE BENCHING PROVISION; SUCH EXCEPTIONS OR EXCUSES DO NOT INCLUDE — DOWNTURN IN BUSINESS, H-1B WORKER’S FAILURE TO MITIGATE BY FINDING OTHER WORK OR RETURNING TO HOME COUNTRY, UNDOCUMENTED ALTERNATIVE COMPENSATION, AND WAGE HOUR DIVISION’s ALLEGED EXCEEDING SCOPE OF ITS INVESTIGATORY AUTHORITY

“An employer is required to pay its H-1B nonimmigrant employees the required wage, including for so-called ‘nonproductive time,’ for the entire duration of the H-1B visa, unless the employer can show that one of the two exceptions to the benching provision applies.” Administrator, Wage and Hour Div. v. Government Training, LLC, ARB No. 16-049, ALJ No. 2015-LCA-5 (ARB Feb. 23, 2018), slip op. at 6 (footnote omitted) (citing 20 C.F.R. § 655.731(b)(7)(ii)). In Government Training, LLC, the Respondent did not argue that it paid the H-1B worker the required wage for certain periods during two Labor Condition Applications (LCA) or that either of the two regulatory exceptions to the benching provision applied. Rather, the Respondent argued before the ALJ that “it should be excused from paying for various reasons. These reasons included a downturn in business, that Sharma should have mitigated his damages by finding other work or returning to India, that Sharma took more time off of work than the Administrator accounted for (eight days), and that the Administrator exceeded its authority by assessing back wages for a two-year period of time.” Slip op. at 5. The ALJ rejected these excuses on the ground that none of them relieved the Respondent from the obligation to pay required wages under the LCA. The ALJ also found that the Respondent failed to submit any documentation that any other benefits that could be viewed as compensation (health insurance, car, cell phone) were ever recorded or reported either on the payroll or to the IRS, as required by the regulations.

On appeal to the ARB, the Respondent repeated “the arguments it made to the ALJ about mitigation; impracticability; and payments it allegedly made for Sharma’s health insurance, a car, and cell phone….” Id. at 6. The ARB found that none of these arguments speak to the law’s two available exceptions, found that the ALJ had addressed all of these arguments, and affirmed the ALJ’s findings that the Respondent failed to pay the H-1B worker required wages.

Actions of H-1B worker

EVIDENCE THAT RESPONDENT PAID PER DIEM TO WORKERS DURING BENCHING PERIOD IS REASONABLY RELIED ON BY ALJ AS EVIDENCE OF AVAILABILITY

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014), the Respondent argued that the ALJ erred in awarding back wages for some H-1B workers for periods those workers allegedly failed to show that they were available for work or had reported for work. The ARB rejected this contention, noting that it had recently held that "after an H-1B nonimmigrant employee enters employment, the employer has the burden of proving that it is not obligated to pay the amounts required by the approved LCA." Id., slip op. at 10, citing Gupta v. Compunnel Software Group, Inc., ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014). The ARB also found that the ALJ in the instant case reasonably relied on evidence of per diem payments during the benching period as evidence of availability.

FAILURE TO PAY REQUIRED WAGE UNDER AN LCA; THE LAW RECOGNIZES ONLY TWO EXCEPTIONS TO THE BENCHING PROVISION; SUCH EXCEPTIONS OR EXCUSES DO NOT INCLUDE H-1B WORKER’S FAILURE TO MITIGATE BY FINDING OTHER WORK OR RETURNING TO HOME COUNTRY

See Administrator, Wage and Hour Div. v. Government Training, LLC, ARB No. 16-049, ALJ No. 2015-LCA-5 (ARB Feb. 23, 2018) (rejection of Respondent’s that it should be excused from paying for various reasons, such as that the H-1B worker should have mitigated his damages by finding other work or returning to India, that the H-1B worker took more time off of work than the Administrator accounted for).

When employment relationship begins

H-1B WORKER ENTERS EMPLOYMENT UPON MAKING HIMSELF AVAILABLE FOR WORK OR OTHERWISE COMES UNDER CONTROL OF THE EMPLOYER; FAILURE OF WORKER TO BE SELECTED BY EMPLOYER’S CLIENTS TO WORK ON CLIENT’S PROJECTS IS NOT RELEVANT

In Vyasabattu v. eSemantiks, ARB No. 10-117, ALJ No. 2008-LCA-22 (ARB Feb. 11, 2015), the Complainant was sponsored for an H-1B visa by the Respondent. Upon arrival, the Complainant was put up in a guesthouse. There was no job waiting for him. Rather, he was sent on interviews with the Respondent’s clients and required by the Respondent to be selected by one of clients before the Respondent would start to pay the Complainant. The ARB stated that the ALJ properly rejected the Respondent’s argument that because the Complainant had never started work with a client company, he never entered employment. The ALJ, citing 20 C.F.R. 655.731(c)(6), noted that an H-1B nonimmigrant is entitled to receive pay when he enters into employment, and that such happens when the nonimmigrant first makes himself available for work or otherwise comes under the control of the employer. Id. at 655.731(c)(6)(i); Vojtisek v. Clean Air Tech., Inc., ARB No. 07-097, ALJ No. 2006-LCA-9, slip op. at 10-11 (ARB July 30, 2009).

LIABILITY OF EMPLOYER THAT FILES AN H-1B PORTABILITY PETITION; EMPLOYEE BEARS BURDEN OF PROVING ELIGIBILITY FOR WAGES PRIOR TO ENTERING EMPLOYMENT; EMPLOYER BEARS BURDEN OF PROVING THAT IT IS NOT LIABLE FOR WAGES AFTER H-1B WORKER ENTERED EMPLOYMENT

In Gupta v. Compunnel Software Group, Inc., ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014), the Prosecuting Party was an H-1B worker who had accepted employment with the Respondent pursuant to the INA’s portability provisions.

Respondent’s liability for wages and travel time during period between filing of portability petition with USCIS and Prosecuting Party’s commencement of work; burden is on employee to establish that he was qualified to work during this period and did work during this period

The ARB affirmed the ALJ’s holding that the Prosecuting Party was not entitled to back wages for the period of time prior to the date that the Respondent filed a nonfrivolous H-1B petition with the USCIS under the portability provision where the Prosecuting Party had performed no actual work for the Respondent during this time. The ARB found, however, that the ALJ erred in concluding that the prior H-1B employer’s benching of the Prosecuting Party rendered him unavailable to work for the Respondent during the period between the Respondent’s filing of the H-1B petition and the Prosecuting Party’s commencement of work on a project for a client of the Respondent. The ARB noted that the INA’s portability provision "permits an H-1B nonimmigrant to work for more than one employer so long as each employer has filed an H-1B petition on the nonimmigrant’s behalf with USCIS." 8 C.F.R. § 214.2(h)(2)(i)(C). The ARB also noted that if the prior employer had been benched, the conclusion that he was not available to work for the Respondent was not valid. The ARB, however, found the ALJ’s error to be harmless because the Prosecuting Party failed to prove that he had worked for the Respondent during this period of time.

The ARB found that the portability provision at 8 U.S.C. § 1184(n)(2) does not address an employer’s payment obligations during the portability period. The regulations only provide that once DOL approves the LCA, the H-1B employer must pay the wage rates required under sections 655.731 and 655.732 at any time H-1B nonimmigrants are employed pursuant to the LCA. In the absence of any other legal authority, the ARB held that "it is the H-1B employee’s burden to prove that he qualifies under 8 U.S.C.A. § 1182(n)(2) to work for a new employer during a portability phase and that he engaged in compensable activities for such employer." The ARB found that the ALJ’s findings and the record demonstrated that the Respondent owed no wages for the period between the filing of the H-1B portability petition and the Prosecuting Party’s commencement of work. The ARB, however, found that the Prosecuting Party was entitled to compensation for travel time to the client location.

Respondent’s liability for wages after nonimmigrant worker entered into employment with the Respondent; burden is on employer to prove that it is excused from paying the employee

The ALJ had placed the burden on the Prosecuting Party to show that he was available for work after entering into employment for the Respondent at the client’s facility. The ARB found that this was reversible error. The ARB found that the employer’s continuing obligation to pay wages subject to the conditions in 20 C.F.R. § 655.731(c)(7), coupled with the employer’s attestations in the LCA and H-1B petition, impose the burden on the employer to prove that it is excused from paying the employee.

It is clear from these provisions that an H-1B employee’s non-productivity caused by the H-1B employer, and particularly due to a "lack of assigned work," results in the continuing obligation to pay. If, however, during a period of non-productivity, the H-1B employee has "assigned work" duties that he is not performing, then the focus turns to the reasons that take him away from those duties. Subsection 655.731(c)(7)(i) makes clear that the employer is liable for any reason that takes the employee away from his duties "except" those specified in subsection 20 C.F.R. § 655.731(c)(7)(ii). Under 20 C.F.R. § 655.731(c)(7)(ii), to be relieved from paying wages for nonproductive periods the H-1B employer must prove: (1) the existence of conditions unrelated to the employee’s employment that either; (2) took the employee away from his/her duties at his or her request and convenience, or (3) otherwise render the employee unable to work. A "condition unrelated to employment" cannot take an employee "away from his duties" if the employee has no duties. Logically, to invoke the unavailability exception to wage liability, the employer must prove that the H-1B employee had assigned work. Then, the employer must prove that the worker requested to be away from those duties for reasons unrelated to work or that conditions unrelated to work rendered him "unable" to do those assigned duties.

USDOL/OALJ Reporter at 16 (footnote omitted; this footnote noted second basis for excusing an H-1B employer’s liability for back wages based on conditions unrelated to employment which render the non-immigrant unable to work).

Reviewing the facts of the case, the ARB found that there was no evidence in the record that the Prosecuting Party had any assigned duties during a nonproductive period. Evidence that the Respondent kept in contact with the Prosecuting Party about projects and that the Prosecuting Party had interviewed for a position did not show that the Prosecuting Party had assigned duties. In a footnote, the ARB expressed concern that that it appeared that the Respondent was acting more like a job placement service or "job shop" than an employer; the ARB, however, found that it was not presented with the question of whether the Respondent was violating the H-1B program by only bringing in H-1B workers to meet possible workforce needs.

AN H-1B WORKER "ENTERS INTO EMPLOYMENT" WHEN HE/SHE FIRST MAKES HIM/HERSELF AVAILABLE FOR WORK OR OTHERWISE COMES UNDER THE CONTROL OF THE EMPLOYER

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.

[Editor’s note: In Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 14-3717 (8th Cir. Dec. 14, 2015) (2015 U.S. App. LEXIS 21544; 2015 WL 8591614) (case below W.D. Mo. No. 14-cv-05028; ARB No. 12-015; ALJ No. 2008-LCA-26), the Eighth Circuit found that the ARB’s findings of violations and the resulting awards were based entirely on the Secretary’s unauthorized investigation of matters beyond the scope of the initial complaint; the court found that the awards could not stand because the unauthorized scope of the investigation. The court did not review the ARB’s decision beyond the scope-of-the-investigation issue.]

When employment relationship ends

NO-BENCHING PROVISION; CONTINUED TREATMENT OF ALIEN AS AN EMPLOYEE PAST DATE INS (NOW DHS) NOTIFIED OF TERMINATION

In Innawalli v. American Information Technology Corp., ARB No. 04-165, ALJ No. 2004-LCA-13 (ARB Sept. 29, 2006), the ARB adopted, with modification, the ALJ’s recommended decision finding that the Respondent had violated the INA’s "no benching" provisions, awarding back wages for the time that the Complainant was in nonproductive status due to a lack of assigned work, and awarding a $1,000 civil money penalty for willful failure to pay the required wages. The ALJ and the ARB found that, even though the Respondent had sent letters to the Complainant in April 2002 notifying her that it no longer needed her services and also notified the INS of the same, the company continued to act as if a termination never occurred. The Complainant was asked to become certified in "Cognos," and the day after she was so certified, the Respondent updated her resume and marketed her as a "Cognos Certified Professional." It submitted her resume for a position in Chicago, sent her information about a client, and asked the Complainant several times to update her resume or fashion it in a certain way. It asked her to sign an Employee Consent form, reimbursed her for medical expenses, and filed labor certification forms with the U.S. Government representing that it was her employer and that she was in the U.S. with H-1B visa status.

NO-BENCHING PROVISION; DETERMINATION OF END OF EMPLOYMENT RELATIONSHIP UPON FILING OF COMPLAINT WITH USCIS

In Innawalli v. American Information Technology Corp., ARB No. 04-165, ALJ No. 2004-LCA-13 (ARB Sept. 29, 2006), the Respondent had sponsored the Alien/Complainant as an H-1B non-immigrant worker, and the Complainant ultimately won a complaint that the Respondent violated the no-benching provision of the INA. An issue not resolved by the ALJ was the date when the Complainant’s employment actually ended. The ARB recited that in March of 2003, the Complainant tried urgently — but without success — to obtain from the Respondent an INS Form I-94 to facilitate a trip to India. On April 7, 2003, she approached USCIS to file a complaint against the Respondent. The ARB found that, under the special nature of the employment relationship between the Complainant and the Respondent, the parties mutually intended to end their employment relationship on the date that the Complainant filed the complaint with USCIS. The ARB limited its holding to the specific facts of the case, observing that it was not finding, or even suggesting "that a party’s approach to the USCIS or the DOL to enforce his or her H-1B rights under the INA necessarily evinces an intention by that party to end the employment relationship."

X. Posting-Notice Requirement

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Generally

CIVIL MONEY PENALTY; RESPONDENT’S FAILURE TO VERIFY THAT LCA WAS POSTED AT END CLIENT WORK LOCATIONS DESPITE BEING ON NOTICE OF POSTING REQUIREMENT

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014), the Respondent, an IT consulting company, argued that it should not be responsible for payment of a civil money penalty for it vendors’ failure to cooperate in the posting of the LCA notices at end client sites. The ARB was not persuaded. The Respondent never verified whether the vendors distributed LCA posting verification forms, and the Respondent’s president testified that he never received a completed verification form and that he "did not wish" to check on distribution of the forms. The Respondent’s president was on notice of the posting requirements from an earlier investigation. The ALJ had found reasonable the Administrator’s assessment of a single CMP for a posting violation, as the total number of violations was unknown, given the president’s testimony showing a practice of placing employees at end client locations without first ensuring that the LCA would be posted. See 20 C.F.R. § 655.734(a)(1)(ii)(A) (LCA must be available for public inspection at all worksites whether the place of employment is owed or operated by the employer or some other person or entity).

Substantial and willful violation

POSTING REQUIREMENT; EMPLOYER’S KNOWLEDGE OF POSTING REQUIREMENT; ARB FOUND TO HAVE IGNORED DOCUMENTATION OF EMPLOYER’S EFFORTS TO POST AT THIRD-PARTY SITES

In Camo Technologies, Inc., No. 2:12-cv-06050 (D.N.J. Oct. 18, 2013) (case below ARB No. 11-026, ALJ No. 2010-LCA-23), the district court found that the ARB’s finding of a "willful failure" was arbitrary and capricious. "The weight of the evidence supported the ALJ’s finding that Camo actually did believe that documenting its efforts to post LCA notices at worksites out of its control demonstrated compliance with the LCA Notice Requirements." "Knowledge of the LCA Notice Requirements themselves and knowledge that particular conduct is violative of the LCA Notice Requirements is not the same thing. The ARB correctly concluded that CAMO officials had been put on notice of the LCA Notice Requirements. However, the ARB ignored the weighty evidence that Camo believed documenting its attempts to post at third-party worksites was an acceptable practice where the clients in control of those worksites refused to cooperate." "[T]he regulations clearly do not permit DOL to impose liability on an employer where the employer actually believed its conduct was permissible." "The DOL cannot impose liability for a negligent violation, and therefore, the ARB’s Decision and Order should be set aside."

POSTING-NOTICE REQUIREMENT OF 20 C.F.R. § 655.734; WILLFUL VIOLATION WHERE THE RESPONDENT WAS WARNED THAT ITS PRACTICE OF POSTING AT THE HEADQUARTERS WAS INSUFFICIENT; THERE IS NO EXCEPTION TO THE REQUIREMENT THAT THE NOTICE BE POSTED AT THE WORKSITE EVEN THOUGH A CLIENT WOULD HAVE TO POST THE NOTICE

In Administrator, Wage and Hour Div., USDOL v. Camo Technologies, Inc., ARB No. 11-026, ALJ No. 2010-LCA-23 (ARB Aug. 31, 2012), rev’d Camo Technologies, Inc., No. 2:12-cv-06050 (D.N.J. Oct. 18, 2013), the ALJ found that the Wage and Hour Division (WHD) Administrator did not establish a willful violation of the Immigration and Nationality Act’s notice-posting requirement, and therefore did not affirm the Administrator’s assessment of $192,625 in civil money penalties (CMP) and debarment of the Respondent. The ARB reversed the ALJ’s decision.

The Respondent was an information technology company that contracted with "direct" or "primary" clients to place its H-1B workers with other secondary clients located throughout the U.S. In 2001, the Respondent was notified by email by a WHD investigator that its practice of posting the required notice to U.S. workers of the impending H-1B filing at the Respondent’s headquarters was not in compliance with the regulatory requirement to post such notices at each place of employment where any H-1B nonimmigrant will be employed. The investigator warned about civil penalties and other sanctions. Thereafter, the WHD discussed or investigated the Respondent’s notice-posting practices on several occasions. In 2006, the WHD issued a determination letter finding the Respondent in violation of the notice-posting regulation. The Employer admitted that after the 2001 email and the 2006 determination letter, it did not make the required notice-posting at 67 locations; these were locations that the Respondent did not own or operate, but were where the H-1B workers spent the majority of their working hours.

During a 2010 WHD investigation, the Employer stated that it would post notice of the LCA filing at its offices in New Jersey. Where the H-1B worker was to be placed at the direct client’s worksite, the Respondent would post notice there after getting permission to post. Where the H-1B worker was to be placed by a direct client at a work location controlled by their client, the Respondent asked the direct client to ask its client for permission to post notice at that worksite. Where permission was granted, the Respondent would provide the H-1B worker with a copy of the relevant LCA and direct that worker to post the LCA when the worker was first required to report for work there. Where the direct client or the secondary client denied permission to post, the Respondent instructed its H-1B workers to report to that worksite anyway. The Respondent documented its success or failure to post notice. During the period relevant to the appeal, the Respondent failed to post notice in connection with 67 LCAs, and it was after the 2010 investigation that the WHD imposed the CMP and debarment.

The ALJ found that the Respondent had not knowingly and intentionally violated the posting requirement, and that it had attempted in good faith to comply with the posting requirements. The ARB, however, found that the ALJ’s ultimate conclusions squarely contradicted the stipulated facts of the case: the Respondent had sent its H-1B workers to work at 67 worksites irrespective of whether or not its attempt to meet the notice-posting requirement was successful; moreover the Respondent admitted that it had been advised that its notice-posting practices were insufficient under the regulations. The ARB found that these admissions established as a matter of law that the Respondent willfully violated the posting requirements of 8 U.S.C.A. § 1182(n)(1) and 20 C.F.R. § 655.734. The ARB further noted that the purpose of the notice-posting requirement is the protection of U.S. workers from displacement by H-1B non-immigrant workers. The ARB stated: "The notice-posting requirement precedes the filing of the LCA and precedes the placement of an H-1B nonimmigrant worker — necessarily where its purpose is to prevent displacement of U.S. workers." USDOL/OALJ Reporter at 8 (emphasis as in original). The ARB indicated its agreement with the Administrator that "'the importance of the posting of notice requirement may be gauged by the fact that the regulations contain no exception to such requirement' even where, such as here, the employer had to have its client post the notice." Id. (quoting the Statement of the Acting Administrator, who in turn was quoting 65 Fed. Reg. 80110 (Dec. 20, 2000)).

POSTING AND PUBLIC ACCESS: SUBSTANTIAL AND WILFUL VIOLATIONS

In Santiglia v. Sun Microsystems, Inc., ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005), the ARB affirmed the ALJ’s finding that the Respondent violated the posting and public access requirements of the Immigration and Nationality Act but that neither of these violations was substantial or willful. The ARB also affirmed the ALJ’s determination that she would not assess any civil money penalties but only order the Respondent to change its posting practices. The Respondent had posted one notice at headquarters and one notice the worksite rather than two at the worksite. The ALJ found that the Prosecuting Party had been denied access for several months, but that this was not a substantial or willful violation because the Prosecuting Party had been given access both prior to and afterwards, and the reason he had been denied access was because of employee concerns over his past angry behavior while reviewing the files.

Wage rate

PUBLIC ACCESS FILE; PREVAILING WAGE RATE

In Santiglia v. Sun Microsystems, Inc., ARB No. 03-076, ALJ No. 2003-LCA-2 (ARB July 29, 2005), the ARB affirmed the ALJ’s interpretation of 20 C.F.R. § 655.760 (a)(2) as not requiring an employer to make available to the public the specific wage rate it pays to specific H-1B workers.

XI. Underpayment of wages

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Actions of H-1B worker

UNDERPAYMENT OF REQUIRED WAGE; BONA FIDE TERMINATION EXCEPTION TO BENCHING PROVISION NOT ESTABLISHED BY FOREIGN WORKER’S ALLEGED “SELF TERMINATION”

In Administrator, Wage and Hour Div. v. Efficiency3 Corp., ARB No. 15-005, ALJ No. 2014-LCA-7 (ARB Aug. 4, 2016), the Respondent failed to pay an H-1B nonimmigrant employee (“Mr. Liu”) the required wage for several months. On appeal, the Respondent argued that the “bona fide termination” exception to the benching provision applied because Mr. Liu allegedly “self-terminated” when he was not “ready and willing” to work because he would not perform certain tasks, such as, train his replacement or provide passwords and “documentation” to the Respondent. The ARB stated that “[t]he problem with this argument is that any alleged failure on Mr. Liu’s part to perform his job tasks simply does not constitute a ‘bona fide termination’ within the meaning of the regulations. Mr. Liu was on Efficiency3’s payroll. Even if he was not doing his job in the way his employer demanded, that does not mean he resigned or was terminated. Even if Efficiency3 found Mr. Liu’s job performance substandard, the onus would then have been on Efficiency3 to sanction him in some legal way, including perhaps by firing him. It had no authority to pay him less than the legally mandated required wage.” USDOL/OALJ Reporter at 12 (footnote omitted).

UNDERPAYMENT OF REQUIRED WAGE; ALLEGATION THAT H-1B EMPLOYEE BREACHED PROPRIETARY INFORMATION CONTRACT MIGHT SUPPORT A CIVIL ACTION FOR BREACH OF CONTRACT BUT IS NOT A DEFENSE TO UNDERPAYMENT UNDER THE LCA

In Administrator, Wage and Hour Div. v. Efficiency3 Corp., ARB No. 15-005, ALJ No. 2014-LCA-7 (ARB Aug. 4, 2016), the Respondent failed to pay an H-1B nonimmigrant employee the required wage for several months. On appeal, one of the Respondent’s arguments was that the employee allegedly breached a “Proprietary Information, Inventions and Non-Solicitation Agreement,” when he failed to turn over passwords or documentation belonging to the Respondent. The ARB stated that if the Respondent believed that the employee breached the contract, it could have brought a civil action against him for breach of contract, but that any alleged breach of contract is irrelevant to the DOL proceeding for underpayment under the LCA.

ALLEGED SCHEME BY H-1B EMPLOYEES, WHO WERE ENGAGED TO BE MARRIED, TO DEFRAUD EMPLOYER BY ARRANGING WAGE CUT TO BE DISTRIBUED SO AS TO KEEP ONE OF THE EMPLOYEE’S WAGE AT LCA REQUIRED WAGE DID NOT EXCUSE RESPONDENT’S FAILURE TO PAY REQUIRED WAGE TO OTHER EMPLOYEE

In Administrator, Wage and Hour Div. v. Efficiency3 Corp., ARB No. 15-005, ALJ No. 2014-LCA-7 (ARB Aug. 4, 2016), the Respondent failed to pay an H-1B nonimmigrant employee (“Mr. Liu”) the required wage for several months. On appeal, it argued that it was the victim of a conspiracy to defraud the company. The ARB described the alleged fraud, which is too complex to fully describe in a casenote. In brief, the Respondent lost an important contract which required all employees to take a pay cut. Mr. Liu and his fiancée (who was also an H-1B employee of the Respondent) agreed to the pay cut but made it clear that they would only work five hours a day. The Respondent agreed to this with the understanding that the two employees would be engaged in a job search. Then, somehow it was arranged so that the fiancée would continue to get the salary had always been getting, while Mr. Liu’s salary would be lower, so that the fiancée’s H-1B status would not be jeopardized. The ARB found that this arrangement strongly suggested that the Respondent well knew that it was not allowed to reduce H-1B salaries without running afoul of the law. In fact, it proved that the Respondent violated the law. The ARB stated that any money the Respondent “gave to Ms. Liu, whatever the reason cannot count as wages paid to Mr. Liu for purposes of satisfying Efficiency3’s legal obligation to pay Mr. Liu the required wage.” USDOL/OALJ Reporter at 14-15 (emphasis in original).

FAILURE TO PAY PREVAILING WAGE STIPULATED ON LCA; LIABILITY FOR BACK WAGES IS NOT DETERMINED BY ALIEN’s FAILURE TO COMPLY WITH IMMIGRATION OBLIGATIONS OR FAILURE TO WORK A FULL-TIME SCHEDULE WHERE HE WAS AVAILABLE AND WILLING TO WORK

In Administrator, Wage and Hour Div., USDOL v. Help Foundation of Omaha, Inc., ARB No. 07-008, ALJ No. 2005-LCA-37 (ARB Dec. 31, 2008), the ALJ found that the Respondents had failed to pay the Alien, a physician, the prevailing wage as required under the LCA regulations. On appeal to the ARB, the Respondents conceded that it had not paid the wage it had intended to pay pursuant to its LCA, but argued that the ALJ erred in finding that the Alien had worked full-time. The Respondents relied on evidence that the Alien worked in a location that contravened his obligation under a J-1 waiver to work in Council Bluffs, Iowa, and that the Alien did not work enough clinical hours or see enough patients for a minimum of forty hours per week. The ARB held, however, that these circumstances were not determinative of the issue of whether or not the Respondents were liable for the Alien’s unpaid wages. Rather, " [i]n signing and filing an LCA, an employer attests that for the entire 'period of authorized employment,' the required wage rate will be paid to the H-1B nonimmigrant. " The Respondents had filed an LCA wherein they represented that the employment would be full-time. The ARB also found that to the extent that the Alien experienced periods of unproductiveness, the reason was not his unavailability or unwillingness to work, but a lack of patients coming to the Respondents’ clinics for medical attention. Moreover, the ARB found that the weight of the testimony and documentary evidence showed that the Alien was ready and willing to see patients during all his shifts and was available for work assignments.

Applicable wage rate

CENTRAL DISTRICT OF ILLINOIS GRANTS SUMMARY JUDGMENT IN FAVOR OF DOL, FINDING THAT DOL DID NOT ACT ARBITRARILY AND CAPRICIOUSLY IN FINDING THAT THE APPELLANT VIOLATED THE INA BY NOT PAYING REQUIRED WAGE

In Southern Illinois University School of Medicine v. U.S. Department of Labor, 18-cv-01092, 2021 U.S. Dist. LEXIS 228334 (C.D. Ill. Nov. 23, 2021) (relates to ARB Nos. 16-064–065; OALJ No. 2015-LCA-00023), the court granted summary judgment in favor of the Appelle (USDOL) in a case where the ARB had affirmed the ALJ’s determination that the Appellant (Southern Illinois University School of Medicine) did not pay the actual wage to a physician working under an H-1B visa.

The Appellant filed a motion for summary judgment seeking review of the ARB’s affirmance of the ALJ’s back pay award of $223,884.27. The Appellee filed a cross-motion for summary judgment. The Appellant argued that the ALJ and ARB decisions holding that it failed to pay the required wage were arbitrary and capricious because the Appellant’s “productivity-based compensation system of a piece-rate system [were] akin to an hourly wage and permissible under the INA,” that the decisions were unsupported by substantial evidence, and that the Appellee used improper comparator physicians when determining the actual wage.

The district court found that the Appellant forfeited its piece-rate compensation argument by not raising it before the ALJ or ARB—it was not “actually argued” such that the Appellee was “on notice” that it was attempting to challenge the Appellee’s finding based on that argument. The district court further found that the 5 comparator physicians used by the Appellee to determine the actual wage was not arbitrary and capricious, stating that each of the 20 C.F.R. 655.731(a)(1) factors to determine the actual wage were considered by the ALJ, who relied on testimony and exhibits in finding that the comparator physicians occupied roles which their “job duties, responsibilities and functions [were] substantially the same” despite the minor difference in titles. The court further found that the ALJ relied on substantial evidence in concluding that the employee’s ability to earn a higher pay during her H-1B employment was “impacted by the instruction she received to stop taking trauma call.”

The district court thus denied the Appellant’s motion for summary judgment, granted the Appellee’s cross-motion for summary judgment, and affirmed the back pay award of the ALJ and ARB.

BACK PAY LIABILITY UNDER LABOR CONDITION APPLICATION WHERE EMPLOYER-SURVEY DERIVED PREVAILING WAGE DETERMINATION WAS INVALID; EMPLOYEE IS ENTITLED TO WAGE RATE DETERMINED BY EMPLOYMENT AND TRAINING ADMINISTRATION DURING H1B LCA INVESTIGATION AND NOT TO WAGE RATE DETERMINED BY STATE WORKFORCE AGENCY FOR RELATED PENDING PERM APPLICATION; EMPLOYER IS NOT OBLIGATED TO PAY PERM PWD RATE UNTIL PERM APPLICATION IS APPROVED

In Baiju v. U.S. Dept. of Labor, No. 12-cv-5610 (E.D.N.Y. Jan. 31, 2014) (2014 WL 349295) (unpublished), the Petitioner, an H1B worker who filed a complaint with the Wage and Hour Division (WHD) seeking back wages and relief under the H1B employee protection provision, sought review of an Administrative Review Board (ARB) decision upholding, with modification, an ALJ decision on the matter. The ALJ had found that the H1B employer owed back wages (but not at the rate claimed by the Petitioner), that the employer had effected a bona fide termination of the employment, and that the employer had not retaliated against the Petitioner for protected activity under the Immigration and Nationality Act (INA). The court granted summary judgment in favor of the Department of Labor.

The Petitioner had been hired as an accountant under an H1B labor condition application (LCA) filed by the employer. When it filed the LCA, the employer relied on its own survey for determining the putative prevailing wage of $45,000 per year. The employer then filed a PERM application to sponsor the Petitioner for permanent employment in the U.S. Under the regulations in effect at the time, PERM applicants were required to obtain a prevailing wage determination (PWD) from a State Workforce Agency (SWA) (the current regulations require PERM applicants to obtain the PWD from a USDOL prevailing wage center). The SWA rendered a PWD of $72,571 a year. The employer obtained an opinion from an immigration attorney that the SWA PWD for the PERM application did not need to be paid until the PERM application was approved. The Petitioner believed that he was entitled to receive the SWA-determined PWD for his work under the LCA, and starting petitioning the employer for a raise. The employer found the manner of the petition to be disruptive and aggressive. After repeatedly informing the Petitioner that he was not entitled to the SWD-determined PWD until a PERM labor certification was approved, and after informing the Petitioner that he needed to meet with his supervisor to present other reasons he may be entitled to a raise, the employer’s executive director met with the Petitioner. In this meeting, the Petitioner stated that he was unwilling to perform his job duties under the current wage rate. After the executive director told the Petitioner that such unwillingness meant that the employer would have to terminate his employment, the Petitioner relied "You don't terminate me. I terminate you." The employer then terminated the employment for unprofessional behavior. The Petitioner filed an internal appeal, but the termination was upheld. The employer then informed USCIS of the termination of employment, and withdrew the PERM application. The Petitioner filed a complaint with the WHD. In the course of its investigation, the WHD determined that the employer’s survey for the LCA PWD was invalid under regulatory criteria. Thus, the WHD, following regulatory procedure, obtained a wage determination from the Employment and Training Administration (ETA). Using the ETA PWD, the WHD found that the employer owed $377.28 in back wages. The Petitioner asked for an ALJ hearing. The ALJ affirmed the WHD back wage determination, found that the employer had effected a bona fide termination of the LCA employment, and found no whistleblower retaliation. As noted above, the ARB affirmed the ALJ’s decision, except that unlike the ALJ, the ARB found that the Petitioner’s complaints about the employer’s refusal to pay the SWA PWD were protected activity.

On appeal, the Petitioner argued that the employer had lied about conducting its own survey to determine the prevailing wage rate for the H1B visa. The court, however, found that substantial evidence supported the ARB’s determination (affirming the ALJ’s finding) that the employer had relied on its own survey when filing the LCA.

The Petitioner’s central argument was that he was entitled to back wages under the SWA PWD rate. The court reviewed the applicable regulations, and found that the WHD properly requested a PWD from ETA in course of its LCA investigation. The court also found that under the applicable regulations, an employee sponsored under the PERM regulations for permanent employment in the U.S. is only entitled to the prevailing wage rate once the employee becomes a permanent resident. (During the application process, the sponsoring employer only needs to establish the ability to pay the SWA-determined prevailing wage). Accordingly, the court found that the Petitioner’s claim that he was entitled to the rate of pay under the SWA PWD was without merit. Accordingly, the court affirmed the ARB’s decision upholding the use of the ETA wage rate to determine back wages owed.

ALIEN WHO WORKS IN OCCUPATION OTHER THAN THE ONE SPECIFIED IN THE LCA; APPROPRIATE WAGE LIABILITY

In Amtel Group of Florida, Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the ALJ had determined that the Complainant — a non-immigrant H-1B worker — had performed the duties of a vice-president rather than an internal auditor as specified in the LCA. Thus, he concluded that the Respondent owed the Complainant the higher prevailing wage for a vice-president until the expiration of her H-1B visa. The ARB reversed based on 20 C.F.R. § 655.731(c)(8), which provides that if the employee works in an occupation other than the one identified on the LCA, the employer’s required wage obligation is based on the occupation identified in the LCA. The ARB observed that if the Complainant had complained about the job specification or the appropriate wage, the INA contains a whistleblower provision for that purpose.

Creditable deductions

LCA REGULATIONS MANDATE THAT EMPLOYER MAKE MONTHLY PRO RATA WAGE PAYMENTS; FACT THAT CUMULATIVE PAYMENTS FOR THE YEAR EXCEEDED REQUIRED SALARY DID NOT EXCUSE FAILURE TO MAKE MONTHLY PAYMENTS AND PERMITTED DOL TO ASSESS BACK WAGES

Aleutian argued that because it paid Gangjee by the end of the year the wage specified in its H-1B Program application, DOL cannot order it to pay any back wages at all. The Second Circuit, however, affirmed the determination in the ALJ, ARB and District Court proceedings that the applicable regulations unambiguously require H-1B employers to make wage payments in “prorated installments,” “no less often than monthly.” 20 C.F.R. § 655.731(c)(4). The court thus concluded that an employer’s failure to satisfy this requirement constitutes a failure to comply with the INA’s overall “required wage obligation,” and supports an award of back wages.

UNDERPAYMENT OF REQUIRED WAGE; “CHANGING ECONOMIC CONDITIONS” EXCEPTION FOUND IN WAGE AND HOUR DIVISION FIELD OPERATIONS HANDBOOK; ARB DECLINES TO REVIEW WHERE HANDBOOK WAS NOT AVAILABLE TO THE PUBLIC AND WAS NOT PLACED INTO THE RECORD OF THE CASE

In Administrator, Wage and Hour Div. v. Efficiency3 Corp., ARB No. 15-005, ALJ No. 2014-LCA-7 (ARB Aug. 4, 2016), the Respondent argued that its failure to pay the required wage to an H-1B employee after the loss of an important contract was eligible for an exception stated in a provision in a Wage and Hour Division Field Operations Handbook, which stated that employer may reduce H-1B nonimmigrants’ wages because of “changing economic conditions.” The Wage and Hour Division responded that the exception applies only where an employer had a “wage system” encompassing other employees with similar experience and qualifications performing the same type of work as the H-1B worker, and where the wage system was recorded in public access file. There was some dispute about whether the Respondent had such a wage system. The ARB declined to make any determination about this provision of the Handbook because it apparently was not available to the public and was not placed in the record of the case. The ARB noted that without access to the Handbook, the ARB could not possibly interpret it, or even determine whether it was legally binding.

REQUIRED MONTHLY PRO-RATA SALARY PAYMENT; FACT THAT H-1B WORKERS WERE PAID A TOTAL WAGE GREATER THAN THE RESPONDENT’S ANNUALIZED LCA OBLIGATION DID NOT EXCUSE FAILURE TO MAKE PRO-RATA MONTHLY PAYMENTS; BONUSES THAT WERE CONTINGENT ON COMPANY REVENUE DID NOT MEET EXCEPTION FOUND IN 20 C.F.R. § 655.731(c)(4)

In Administrator, Wage and Hour Div. v. Aleutian Capital Partners, LLC, ARB No. 14-082, ALJ No. 2014-LCA-5 (ARB June 1, 2016), the ARB affirmed the ALJ’s grant of summary decision in favor of the Administrator, Wage and Hour Division, based on the ALJ’s finding of undisputed facts showing that the Respondent failed to meet its obligation to make monthly pro-rata salary payments to two H-1B non-immigrant workers. The ALJ rejected the Respondent’s argument that it could rely on bonuses paid to the immigrant worker who filed a LCA complaint with the WHD to meet its monthly pro rata salary payment obligation.

The Respondent employed the non-immigrant worker who filed the complaint as a salaried financial analyst at $65,000 per year, and a second non-immigrant worker as a salaried market research analysis at $42,453 per year, under H-1B Labor Condition Applications (LCA) approved by DOL. In regard to the first worker, the Respondent paid wages monthly, and these wages included base pay and occasional bonuses calculated at three percent of monthly revenue that the Respondent earned and received. For tax year 2012, the Respondent paid this worker a dollar amount that exceeded the compensation required to be paid him that year. However, the monthly salary payments did not always meet the monthly pro rata salary amount. Regarding the second worker, the Respondent paid her in December 2012 less than the monthly pro rata salary amount.

The Respondent argued before the ALJ that it was undisputed that it paid the worker “a dollar amount over the 12 months preceding the filing of the complaint that exceeded the amount the Administrator calculated as due and owing for that time period or for 2012, establishing that the required compensation was paid.” USDOL/OALJ Reporter at 3. The ARB was not convinced by this argument. The ARB began by citing the applicable regulatory requirements:

An H-1B nonimmigrant worker must be paid the “required wage,” which is the higher of the actual wage or the prevailing wage for the occupation in which the H-1B worker is employed. 20 C.F.R. § 655.731(a)(1). An H-1B worker must be paid, at least monthly, one-twelfth of his or her annual required rate. Specifically, the “required wage must be paid to the employee, cash in hand, free and clear, when due . . . .” 20 C.F.R. § 655.731(c)(1). For salaried employees, such as Gangjee and Horn, “wages will be due in prorated installments . . . paid no less often than monthly . . . .” 20 C.F.R. § 655.731(c)(4). See also Requirements for Employers Using Non-immigrants on H-1B Visas, 59 Fed. Reg. 65,646; 65,653 (Dec. 20, 1994)(“The wages of [H-1B] salaried employees are due in pro-rata installments . . . .”)

Id. at 4. The ARB noted that the case was in the stance of a review of the ALJ’s rulings on cross motions for summary decision. This stage of the hearing reflects whether the opposing party established a genuine issue of material fact—here, neither party had challenged the ALJ’s findings of undisputed facts. The ARB found that those undisputed facts were dispositive:

On appeal, Respondent does not dispute that it did not pay this monthly pro rata salary obligation for every month that it employed Gangjee and Horn. Based upon the ALJ’s undisputed facts, that are not challenged on appeal, we conclude that Respondent has failed to show that there exists an issue as to any material fact on the issue of this monthly salary obligation. Nor has Respondent set forth specific facts or presented evidence sufficient to raise a genuine issue with respect to any possible exceptions to the monthly pro rata wage requirements. We therefore affirm the ALJ’s order that the Administrator is entitled to summary decision as a matter of law.

Id. at 5 (footnote omitted). The ARB noted that the Respondent had claimed that its bonus plan was nondiscretionary but had not produced a contract to support this claim. In addition, as the ALJ explained, even if the bonuses were assured, they were contingent on company revenue. The ARB stated: “The regulations permit employers to pay less than the monthly required rate only if the employer provides certain guaranteed bonuses and documentation thereof. The employer must show both, (1) that the bonus is guaranteed, and (2) that the guaranteed bonus, once paid, will meet the wage obligation ‘for each current or future pay period.’ 20 C.F.R. § 655.731(c)(4).” Id. at 5, n.6.

On appeal, the District Court for the Southern District of New York agreed with the ARB that the Respondent was not excused from paying the complaining H-1B worker in monthly prorated installments because the Respondent failed to document its commitment to pay the 3% bonus. Aleutian Capital Partners, LLC v. Hugler, No. 16-cv-5149 (S.D. N.Y. Sept. 28, 2017) (2017 U.S. Dist. LEXIS 162965; 2017 WL 4358767). The court also deferred to the ARB’s interpretation of § 655.731(c)(4) that even a nondiscretionary payment must be guaranteed and non-contingent. The court found it is was undisputed that the Respondent’s bonus structure was contingent, and not guaranteed. The court also gave Auer deference to the ARB’s holding in a prior decision that “each pay period must be viewed separately, and that no credit can be given for overpayments in certain months. See Adm’r v. Wings Digital Corp., 2005 WL 774014, at *11 (DOL Off. Adm. App. Mar. 21, 2005), appeal dismissed on other grounds, 2005 WL 1745152, at *3 (DOL Adm. Rev. Bd. July 22, 2005).” Slip op. at 14 (footnote omitted).

COMPANY POLICY NOT TO COMPENSATE EMPLOYEES FOR TRAVEL TIME IS NOT AN EXCEPTION TO AN H-1B EMPLOYER’S OBLIGATION TO PAY H-1B WORKERS THEIR WAGES

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc., ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent argued that the ALJ erred in ordering compensation for the Complainant H-1B worker for two days of travel to install a computer system. The project required the Complainant to travel from Georgia to Phoenix. Two days were travel days, and two days were working onsite. The Respondent argued that its company policy directs that travel time is "banked" towards personal time off and is not compensated. The ARB held that "[e]ven accepting as true that Integrated’s policy is not to compensate its employees for travel time, a company policy is not among the exceptions to an H-1B employer’s obligation to pay H-1B nonimmigrant workers their wages." USDOL/OALJ Reporter at 14.

DEDUCTIONS FOR HEALTH INSURANCE PREMIUMS ARE AUTHORIZED; ALLEGATION THAT SUCH DEDUCTIONS VIOLATED EMPLOYMENT CONTRACT IS BEYOND DOL’S JURISDICTION TO CONSIDER

In Jain v. Empower IT, Inc., ARB No. 08-077, ALJ No. 2008-LCA-8 (ARB Oct. 30, 2009), the Complainant complained to a Wage and Hour investigator that the Respondent had improperly deducted varying amounts from his wages for health insurance premiums. The ARB observed, however, that "employers under the H-1B nonimmigrant worker program ... are authorized to deduct from that worker’s wages 'contribution[s] to premium[s] for health insurance policy covering all employees.' 20 C.F.R. § 655.731(c)(9)(ii)." Moreover, although the Complainant had written a letter to a DOL employee alleging that the insurance premium deductions violated his employment contract with the Respondent, the ARB stated that "[p]rivate employment agreements are outside the scope of the INA and are beyond our jurisdiction. See Kersten v. LaGard, Inc. and Masco Corp., ARB No. 06-111, ALJ No. 2005-LCA-017, slip op. at 7-8 n.23 (ARB Oct. 17, 2008)."

Creditable payments and other consideration

FAILURE TO PAY H-1B WORKER REQUIRED WAGE; FRAUD, EQUITY AND H-1B WORKER’S “UNCLEAN HANDS” ARE NOT RECOGNIZED EXCEPTIONS TO WAGE PAYMENT REQUIREMENT; WHEN RESPONDENT’S BUSINESS BEGAN TO FAIL, IN ORDER TO AVOID THE OBLIGATION TO PAY LCA WAGES, ITS OPTION WAS TO DISCHARGE THE H-1B WORKER, NOTIFY DHS, AND POSSIBLY PAY FOR TRANSPORTATION HOME

In Administrator, Wage and Hour Div. v. Integrated Geophysics, Corp., ARB No. 2019-0001, ALJ No. 2017-LCA-00018 (ARB May 13, 2020) (per curiam), the ALJ found that Respondent failed to pay the H-1B worker the required wage under the terms of its labor condition attestations. On appeal, Respondent did not argue that it paid the required wages, or that either of the two exceptions to its preexisting regulatory requirement to pay wages applied. Rather, Respondent reasserted arguments it made to the ALJ about fraud, equity, and the H-1B worker’s unclean hands. Respondent also argued that awarding the H-1B worker damages treated the nonimmigrant worker more favorably than Respondent’s U.S. workers, contrary to the intent of the act.

The ARB, however, cited the ALJ’s explanation that none of these arguments speak to the law’s two available exceptions. The two exceptions are a bona fide termination, or when conditions unrelated to employment take the nonimmigrant away from his/her duties at his/her voluntary request and convenience or render the nonimmigrant unable to work.

The ARB cited the ALJ’s statement that “when Respondent’s business began to fail, in order to avoid its obligation to pay LCA wages, it was required to discharge [the H-1B worker], notify the Department of Homeland Security, and possibly provide her payment for transportation home. 20 C.F.R. §655.731(c)(7)(ii).” Slip op. at 3 (footnotes omitted).

FAILURE TO PAY REQUIRED WAGES; ONLY EXCEPTIONS TO OBLIGATION ARE WHERE EMPLOYER EFFECTED A BONA FIDE TERMINATION OR WHERE EMPLOYEE VOLUNTARILY WENT INTO NONPRODUCTIVE STATUS; WORK OUTSIDE THE U.S., EMPLOYEE MISCONDUCT, AND EMPLOYEE FAILURE TO WORK WITHIN AREA OF INTENDED EMPLOYMENT DO NOT NEGATE EMPLOYER’s OBLIGATION TO PAY REQUIRED WAGES

In Varess v. Persian Broadcast Service Global, Inc., ARB No. 2018-0023, ALJ No. 2016-LCA-00019 (ARB Sept. 26, 2019) (per curiam), Complainant was the beneficiary of an E-3 visa for which Respondent filed two LCAs with DOL. Complainant worked as a television producer and reporter; during periods of employment under the LCA, he worked outside the U.S. producing and hosting sports programs for Respondent. Complainant filed a complaint with the WHD alleging unpaid wages. Neither the WHD Administrator nor the ALJ found any LCA violations. The ARB, however, reversed and remanded “because Respondent failed to pay Complainant the required wage under his two LCA periods and neither of the two possible exceptions applies.” Slip op. at 3.

Complainant’s having worked outside the U.S. does not negate employer’s responsibility to pay required LCA wages

The ARB found that Respondent had failed to pay the required wage under both LCAs. Respondent conceded that it had never effected a bona fide termination of Complainant’s employment. The ARB rejected the argument that Complainant had put himself in nonproductive status by leaving the U.S. The ARB stated that the mere fact that Complainant was outside the U.S. did not by itself indicate that he was not performing work for Respondent. The ARB stated: “Respondent’s allegation that Complainant ‘ quit’ does not negate Respondent’s responsibility to pay wages under the LCAs in this case. Respondent has not proven that Complainant put himself in nonproductive status simply because he was out of the country.”

Complainant’s alleged misconduct is not an exception justifying failure to pay required wages

Respondent argued that Complainant had misled it — having handled all the paperwork, making all arrangements, and misrepresenting the binding nature of LCAs) — and that once he secured his visa, he had no interest in abiding by the terms of the LCAs. The ARB, however, noted:

Under the implementing regulations at § 655.731, bona fide termination and voluntary nonproductive status found in 731(c)(7)(ii) are the only two alternatives to the employer’s obligation to pay LCA wages through the LCA period. The employer’s lack of work or the employee’s misconduct do not excuse an employer’s failure to pay wages

Slip op. at 6 (footnote omitted). The ARB further stated:

Complainant’s alleged misconduct does not affect Respondent’s duty to pay Complainant the wage set in the LCAs. The INA and the regulations provide that employers must submit labor condition applications to DOL. Respondent’s president Shadjareh signed both LCAs for submission to DOL as Complainant’s employer. Shadjareh’s signature affirms the truth of the statements on the LCA and acknowledges the employer’s agreement to those labor condition statements (attestations) that are specifically identified. Shadjareh testified that he signed the LCAs because he was relying on Complainant and Complainant’s attorney’s representations that they were just a formality and he wanted to do a favor for Complainant. . . . However Shadjareh may not evade his obligations under the LCAs by asserting that he did not believe the documents were valid or enforceable. We hold that Complainant’s misrepresentations, even assuming their success, do not relieve Respondent of the obligation to pay back wages.

Id. at 7 (citations and footnote omitted) (emphasis as in original).

Complainant’s failure to work in area of intended employment does not negate obligation to pay required LCA wages

Respondent argued that, because he was outside the U.S., Complainant had not complied with the terms of the LCA or regulations requiring him to work in the area of intended employment — and thus Respondent should be absolved of its wage obligations under the INA. The ARB was not persuaded by this argument, Respondent having not cited “any legal authority empowering DOL to consider Complainant’s noncompliance with respect to LCAs as negating Respondent’s wage obligations under the INA.” Id.

The ARB remanded for the ALJ to consider Respondent’s alternative argument that the complaint was not timely filed, and to allow the ALJ to make findings of fact as to the amount of damages (the ALJ having mistakenly found that Complainant never submitted a computation of claimed damages).

UNDERPAYMENT OF REQUIRED WAGE; CREDIT FOR PAY PERIODS IN WHICH EMPLOYEE WAS PAID MORE THAN REQUIRED WAGE

In Administrator, Wage and Hour Div. v. Efficiency3 Corp., ARB No. 15-005, ALJ No. 2014-LCA-7 (ARB Aug. 4, 2016), the Respondent failed to pay an H-1B nonimmigrant employee the required wage for several months. In determining the underpayment, the ARB credited the Respondent for several pay periods in which it paid the employee more than the required wage.

UNDERPAYMENT OF REQUIRED WAGE; EMPLOYEE UNAVAILABILITY EXCEPTION; EMPLOYEE INSUBORDINATION; EMPLOYEE WHO COMES TO WORK EVERY DAY BUT FAILS TO DO HIS ASSIGNED JOB TASKS IS NOT TYPE OF EMPLOYEE UNAVAILABILITY THAT MEETS THE EXCEPTION

UNDERPAYMENT OF REQUIRED WAGE; LACK OF WORK DUE TO LOSS OF CONTRACT IS QUINTESSENTIAL EXAMPLE OF A FAILURE TO PAY THE REQUIRED WAGE DUE TO CONDITIONS RELATED TO EMPLOYMENT

In Administrator, Wage and Hour Div. v. Efficiency3 Corp., ARB No. 15-005, ALJ No. 2014-LCA-7 (ARB Aug. 4, 2016), the Respondent failed to pay an H-1B nonimmigrant employee (“Mr. Liu”) the required wage for several months. On appeal, the Respondent argued that the “employee unavailability” exception to the benching provisions applied because the employee was allegedly not “ready and willing” to work because he would not perform certain tasks, such as, train his replacement or provide passwords and “documentation” to the Respondent. The Respondent was essentially arguing that the employee was a recalcitrant—perhaps even insubordinate—employee, and it should therefore be permitted to dock his pay. The ARB did not accept this argument, holding that “[e]mployee insubordination does not exempt an employer from its required wage obligation.” USDOL/OALJ Reporter at 9 (footnote omitted). The ARB wrote:

   Efficiency3 provides no legal basis for its view that discrete acts of insubordination or workplace conflicts satisfy the “employee unavailability” exception. For one, “ready and willing” is not the legal standard, at least not in the way in which Efficiency3 seems to view it. The ALJ took the phrase “ready and willing” from the testimony of the Wage and Hour Division investigator during the hearing, and in its brief, Efficiency3 picks up on this language. It is true that an H-1B nonimmigrant being “ready and willing” to work might be relevant to the “employee unavailability” exception. For example, it may be that if an H-1B nonimmigrant is “ready and willing” to work, that would suffice to show that the employee is not, as the regulation articulates it, away from his duties “at his[] voluntary request.” But just because an H-1B nonimmigrant is not “ready and willing” to do each and every task assigned by his supervisor, that does not mean that the “employee unavailability” exception is satisfied. It doesn’t necessarily mean, for example, that the employee is in a “period of nonproductive status due to conditions unrelated to employment . . . .” In fact, it is not even clear that a failure of an employee to perform specific tasks renders him in a “nonproductive status” at all. Thus, while Mr. Liu’s alleged insubordination might have demonstrated that Mr. Liu was not “ready and willing” to work in some abstract sense of those words—or, at least, it may be relevant to whether he was “ready and willing” to do all the tasks Efficiency3 required of him—it simply does not speak to the relevant question, whether Mr. Liu was in a “nonproductive” status, and if so, whether that was because of “conditions unrelated to employment which [took him] away from his[] duties at his[] voluntary request and convenience . . . or render[ed] [him] unable to work . . . .”

   More importantly, the evidence is clear—indeed, Efficiency3’s President Mr. Zaloom testified to this effect—that the reason for any time period during which Mr. Liu was in fact not working full-time had nothing to do with whether Mr. Liu was “ready and willing” to work: it was that Efficiency3 lost a major government contract. That is the quintessential example of a failure to pay the required wage due to conditions related to employment. If, as Efficiency3 alleges, Mr. Liu failed to perform his job responsibilities, that does not constitute being taken “away from [the employee’s] duties at his/her voluntary request and convenience” or being “render[ed] unable to work,” within the meaning of the “employee unavailability” exception. The examples given in the regulation—“touring the U.S.,” “caring for ill relative,” “maternity leave” and “automobile accident which temporarily incapacitates the nonimmigrant”—make clear that the employee has to be away from work altogether. Here, the evidence is undisputed that Mr. Liu came to work every workday during this period and was in the office for at least eight hours per day.

   The “employee unavailability” exception thus simply does not apply when the employee comes to work every day but fails to do his assigned job tasks. Efficiency3 was Mr. Liu’s employer, and Mr. Zaloom was the President of Efficiency3 and Mr. Liu’s supervisor. It was Mr. Zaloom’s responsibility, as Mr. Liu’s boss, to make sure he performed his job tasks. If Mr. Liu refused to do his job properly, there may well be things Efficiency3, as the employer, could have done—for example, fire him. What Efficiency3 could not do is pay Mr. Liu less than the required wage: doing so violates the H-1B visa provisions of the Immigration and Nationality Act and the Labor Department regulations implementing that Act.

Id. at 9-11 (footnotes omitted).

UNDERPAYMENT OF REQUIRED WAGE FOR SURGEON BASED ON CONTINGENT CLINCIAL COMPENSATION; IN CERTAIN CIRCUMSTANCE, CONTINGENT COMPENSATION MAY BE COUNTED AS WAGES WHERE IT WAS ACTUALLY PAID AND RECORDED AND REPORTED AS REQUIRED BY REGULATIONS

UNDERPAYMENT OF REQUIRED WAGE FOR SURGEON BASED ON CONTINGENT CLINCIAL COMPENSATION; REASONABLE AND CUSTOMARY DEDUCTIONS ARE AUTHORIZED ONLY IF EVIDENCE SHOWS WHAT THE PRACTICE IS IN THE COMMUNITY IN GENERAL

UNDERPAYMENT OF REQUIRED WAGE FOR SURGEON BASED ON CONTINGENT CLINCIAL COMPENSATION; AUTHORIZED DEDUCTIONS MUST BE “PRINCIPALLY FOR THE BENEFIT OF THE EMPLOYEE”

UNDERPAYMENT OF REQUIRED WAGE FOR SURGEON BASED ON CONTINGENT CLINCIAL COMPENSATION; ALJ MAY USE COMPARATOR PHYSICIANS TO SET REQUIRED WAGE IF SUCH IS BORNE OUT BY THE RECORD EVEN IF H-1B WORKER IS ONLY EMPLOYEE IN PRECISE POSITION

The worker was engaged by the Respondent as an Assistant Professor of Surgery/Bariatric Surgeon. Under a private employment agreement, the University paid the worker separately for academic work ($125,000 per year for each year) and clinical work ($125,000 per year for two years, upon which this compensation became contingent on clinical incentives and became subject to deductions for failing to meet those incentives). The appeals focused on the clinical compensation.

Contingent Compensation, Once Paid, Counts As Wages As Long As It Meets the Requirements of § 655.731(c)(2)(i)(iv)

The worker’s appeal was based on the argument that none of the clinical incentive compensation wages she was paid could be credited towards the Respondent’s wage obligation because this compensation was contingent on “relative value units” (RVUs) earned monthly, as well as other factors, and as such did not count as wages under 20 C.F.R. § 655.731(c)(2)(v). The ARB rejected this argument:

[The H-1B worker] assigns error to the ALJ’s interpretation of 20 C.F.R. § 655.731(c)(2)(v) to the effect that while future, unpaid, yet to-be-paid bonuses or similar compensation may be credited toward satisfaction of the wage obligation if they are assured and not conditional or contingent, once paid such compensation counts as wages as long as it satisfies the requirements of subsections (c)(2)(i) through (iv), namely that the compensation is recorded and reported as “earnings” with appropriate taxes and withholdings. The ALJ found, “Here, though the wages were contingent on [the H-1B worker]’s RVUs, they were not future wages as they had been paid.” … The ALJ thereby applied the regulation as it is written, and the regulation plainly does not provide, as [the H-1B worker] urges, that contingent compensation can never be counted towards fulfillment of the wage obligation. Rather, the regulation imposes the requirement that certain contingent compensation, once paid, counts as wages as long as it meets the requirements of 20 C.F.R. § 655.731(c)(2)(i)(iv).

Slip op. at 5. The ARB also held that the ALJ correctly distinguished the ALJ’s decision in Administrator v. Aleutian Capital Partners, LLC, 2014-LCA-00005 (ALJ July 9, 2014), on the ground that in that case, it was not the contingency of the wages that that was at issue, but that the employee did not receive 1/12 of his annual salary each month as required for a salaried employee. In the instant case, the H-1B worker’s contingent wages were not future wages because they had been paid. The ARB summarized: “the ALJ’s decision to count as wages the clinical incentive compensation the University paid to [the H-1B worker] is consistent with the regulatory scheme. 20 C.F.R. § 655.731(c)(2); see generally Aleutian, (ARB June 1, 2016) slip op. at 5 n.6 (certain qualifying bonus payments count as wages paid).” Id. at 6.

Reasonable and customary deductions not allowed where Respondent only showed what its customary practice was and not that of the community in general

The Respondent argued on appeal that the ALJ should have allowed certain deductions to the H-1B’s clinical compensation, based on the Respondent’s contention that it is typical in a multispecialty group medical practice to enter into an agreement similar to the parties’ agreement—which allows for deductions from wages for failure to meet clinical incentive goals. The ALJ declined to consider this argument for the reason that the Respondent only offered evidence of what was customary at the Respondent University and not evidence of customary practice throughout the medical school community. The ARB affirmed the ALJ’s ruling, finding that the Respondent’s evidence failed “to demonstrate that these deductions were ‘reasonable and customary’ within the meaning of 20 C.F.R. § 655.731(c)(9)(ii).” Id. at 6 (footnote omitted).

H-1B worker’s signing of compensation package that included certain incentive goals found not to validate authorized deductions because the regulation authorizes deductions “principally for the benefit of the employee” and not, as here, where the compensation was tied to generating revenue for the entity

The ARB also affirmed the ALJ’s rejection of the Respondent’s argument that the deductions were “authorized” under 20 C.F.R. § 655.731(c)(9)(iii)(A) because the H-1B worker signed the compensation agreement accepting same. The ARB wrote:

The ALJ properly noted that under this section, deductions must be “principally for the benefit of the employee” and here, the ALJ determined, they were not. Rather, the ALJ determined that the deductions allowed the University to pay [the H-1B worker] only “when she generated revenue for the entity and not for other duties such as providing postoperative care for bariatric patients and the time [the H-1B worker] spent marketing the program to doctors in the local area. … These deductions from [the H-1B worker]’s clinical compensation were unauthorized and, as such, are considered nonpayment of that amount of wages. 20 C.F.R. § 655.731(c)(11).

Id. at 7.

Fact that H-1B worker was the only bariatric surgeon it employed during her H-1B employment did not prevent ALJ from using comparator physicians to set required wage where record supported such

The ARB found that the record amply supported the ALJ’s setting the required wage using comparator physicians, despite the Respondent’s argument on appeal that the H-1B worker was the only bariatric surgeon it employed during her H-1B employment and therefore the required wage had to be what she was actually paid as opposed to what the comparator physicians were paid. The ARB stated that it would not re-weigh the evidence.

ADVANCE LOAN NOT CONSIDERED PART OF WAGES WHERE THEY WERE NOT SHOWN ON THE PAYROLL RECORD AND WERE NOT REPORTED TO THE IRS AS EMPLOYEE EARNINGS

In Administrator, Wage and Hour Division, ESA, USDOL v. Synergy Systems, Inc., ARB No. 04-076, ALJ No. 2003-LCA-22 (ARB June 30, 2006), two nonimmigrant H-1B workers had received as an "advance loan" of $1,500. During their employment, the Respondent had deducted $1,000 from the workers’ wages as repayment. In calculating a back pay award, the ALJ deducted $500 to account for the remaining portion of the loan. The ARB held that this deduction was in error because the advance payments did not qualify as wages paid under 20 C.F.R. § 655.731(c)(2)(i)-(ii), because they were not shown in the payroll record and because the record contained no evidence that they were reported to the IRS as employee earnings.

DISCRETION OF WAGE AND HOUR DIVISION TO CONSIDER COMPENSATION, FOOD ALLOWANCES AND VALUE OF FREE ROOM AND BOARD IN DETERMINING WHETHER LCA SPONSOR FULFILLED ITS REQUIRED WAGE OBLIGATIONS

In Amtel Group of Florida, Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the Respondent should have paid the Alien — an H-1B nonimmigrant worker — an annual salary of $49,500, but in fact paid her $48,78.96 and $48,503.26 for the years in question. The ARB found that the deficit was so insignificant as to be "de minimis." It also noted that the Respondent had provided a laundry allowance, a food allowance, free meals, and free room and board, and that the Wage and Hour investigator had concluded that the Respondent had fulfilled its required wage obligation in view of the compensation and the value of the room and board and food allowances. The ARB noted that the Wage and Hour Administrator is vested with "enforcement discretion" and considers the "totality of circumstances" in fashioning remedies. The ARB found the Wage and Hour calculations to be neither arbitrary nor an abuse of discretion, and therefore declined to disturb or modify those calculations.

Immigration status

IMMIGRATION STATUS OF EMPLOYEE NOT RELEVANT IN CASE SEEKING UNPAID WAGES FOR WORK ALREADY PERFORMED

In Administrator, Wage and Hour Division, ESA, USDOL v. Synergy Systems, Inc., ARB No. 04-076, ALJ No. 2003-LCA-22 (ARB June 30, 2006), the ARB found that that the ALJ did not err in refusing to permit the Respondent to inquire into the post-termination immigration status of two workers it had engaged under an LCA. The Board found that FLSA caselaw holding that an employee’s immigration status is not relevant to a case in which unpaid wages are being sought for work already performed was properly cited by the ALJ and was consistent with the ARB’s holding in Administrator v. Ken Tech, Inc., ARB NO. 03-140, ALJ No. 2003-LCA-15 (ARB Sept. 30, 2004).

Threshold under old regulations

REGULATION THAT FORMERLY PROVIDED A 95% THRESHOLD FOR A PREVAILING WAGE VIOLATION DID NOT SHIELD RESPONDENT FROM LIABILITY FOR 100% OF UNDERPAID WAGES WHERE IT HAD PAID LESS THAN 95% OF PREVAILING WAGE

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A., ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent argued on appeal that because of a regulation that was in effect at the time of the LCA which provided that no prevailing wage violation would be found in a case where the employer paid a wage equal to or more than 95% of the prevailing wage, 20 C.F.R. § 655.731(d)(4) (2004), the Administrator’s higher calculations based on 100% of the prevailing wage which had been accepted by the ALJ were erroneous. The ARB rejected the argument for two reasons. First, under well-established precedent, the ARB declines to consider arguments a party raises for the first time on appeal. Second, even if it considered the argument, the record showed that the Respondent paid less than 95% of the applicable prevailing wage, and therefore could not avail itself of the old regulation.

XII. Costs relating to preparation and filing of H-1B petition

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Generally

COST OF J-1 VISA HOLDERS TO OBTAIN H-1B VISAS FOR J-1 WAIVER IS A BUSINESS EXPENSE THAT CANNOT BE PASSED TO EMPLOYEES IF DOING SO REDUCES WAGES BELOW REQUIRED WAGE

COST OF OBTAINING J-1 WAIVER CAN ALSO BE FOUND A BUSINESS EXPENSE WHERE THE FACTS SHOW USE OF J-1 WAIVER/H-1B PROGRAM WAS ITS BUSINESS MODEL

On appeal, Kutty argued that the costs to the physicians of obtaining the H-1B visas were not business expenses that must be borne by the employer under the LCA regulations because the physicians were already lawfully in the U.S. under J-1 visas and purportedly would only need to obtain H-1B visas if they intended to travel outside the U.S. The court rejected this argument, finding that Kutty misstated the law in regard to the need for an H-1B visa. The court noted that the J-1 waiver law requires a foreign medical graduate to fulfill a three year contract as an H-1B nonimmigrant. The court also noted that the LCA regulations plainly prohibit employers from passing costs of business expenses such as H-1B fees to their employees where those costs would reduce wages below the required rate. The court held: “Accordingly, the ARB’s determination that the costs—including attorneys’ fees—of obtaining H-1B visas are business expenses within the meaning of 20 C.F.R. § 655.731(c)(9)(iii)(C) is neither arbitrary nor an abuse of discretion.6 Nor is the regulation inconsistent with the statute. 8 U.S.C. § 1182(n)(2)(C)(i)(II).” Slip op. at 9 (footnote omitted; footnote observed that amicus had asserted that the regulation exceeded DOL’s authority, but that the court declined to address this question as it was not raised by the parties below or on appeal).

The court also affirmed the ARB’s determination that the Administrator did not abuse its discretion or act arbitrarily in ordering reimbursement of costs of obtaining the J-1 waivers under the facts of the case. The court noted in this regard that it was not assuming that the ARB would hold that such costs are business expenses of an employer in every case, regardless of the facts. Here, Kutty’s business plan contemplated use of H-1B program, and all but one of the physicians (who already had green card) were hired under contracts that made their employment contingent on receipt of both an H-1B and a J-1 waiver. In addition, the physicians had been pressured into using a business that apparently was connected to Kutty to process their J-1 waiver applications.

Limitations period

CLAIM BY H-1B WORKER FOR REIMBURSEMENT OF FILING FEE IS SUBJECT TO A ONE-YEAR STATUTE OF LIMITATIONS

In Administrator, Wage and Hour Division v. Avenue Dental Care, ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the ALJ erred in applying the ARB’s ruling in USDOL v. Alden Mgt. Servs, Inc., ARB Nos. 00-020, -021, ALJ No. 1996-ARN-3 (ARB Aug. 30, 2002), that back wages are calculated for the entire period of the H-1B employment, to the question of employer liability for failing to reimburse to an H-1B worker the LCA filing fee. The ARB explained that in Alden, the H-1B workers had filed a timely claim for back pay, and the issue decided was how far back in time to go in calculating the back pay award. Here, the claim for reimbursement of the filing fee was time barred under the 12 month statute of limitations.

Scope of liability

LIABILITY FOR ATTORNEY’S FEES CONNECTED WITH H-1B PETITION

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A., ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent argued that it was not liable for unreimbursed attorney’s fees for two physicians paid in connection with their H-1B petitions because those workers had retained their own immigration counsel who advised them on matters outside the H-1B program including their J-1 visa waivers, and because the filing of the H-1B petitions benefitted the applicants and not the Respondent. The ARB rejected these arguments:

Lung Associates’s arguments lack merit. Where attorney fees and other costs connected to the preparation and filing of the H-1B petition are specifically considered to be a business expense of the employer, we reject Lung Associates’s contention that it should not be responsible for paying such fees. By virtue of their J-1 visa, Ghobrial and Yataco were entitled to enter the United States for graduate medical training. Upon completion of that training, they had to fulfill, unless waived, a two-year foreign residency requirement. Lung Associates’s attempt to distinguish legal services rendered in procuring those waivers from legal services rendered in employing Ghobrial and Yataco must fail. Only upon receiving a J-1 waiver is a nonimmigrant alien J-1 visa holder eligible to obtain an H-1B visa. Because Ghobrial and Yataco had to obtain a J-1 waiver before Lung Associates could employ them, the Administrator’s determination and the ALJ’s finding that their legal costs are employer’s business expenses is consistent with the Act and regulations. Therefore, we affirm the ALJ’s conclusion that Lung Associates is liable for Ghobrial’s and Yataco’s unreimbursed legal costs.

USDOL/OALJ Reporter at 10 (footnotes omitted).

XIII. Individual liability

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PERSONAL LIABILITY; BECAUSE THE INA IS SILENT ON INDIVIDUAL PERSONAL LIABILITY, IT DOES NOT PRECLUDE PIERCING THE CORPORATE VEIL IF SUPPORTED BY THE COMMON LAW; ALJ, ARB AND DISTRICT COURT DID NOT ERR IN APPLYING TENNESSEE MULTI-FACTOR TEST TO PIERCE CORPORATE VEIL

On appeal, Kutty argued that the INA does not provide authority to pierce the corporate veil and impose personal liability. The court rejected this argument, citing United States v. Bestfoods, 524 U.S. 51 (1998). The court found that “where a statute is silent as to personal liability, Bestfoods permits a court to impose liability on the principal to the extent common-law principles permit.” Slip op. at 12. The court found that “because the INA is silent on individual personal liability, it does not preclude piercing the corporate veil if supported by the common law.” Id. at 13 (citations omitted).

Kutty argued that the district court erred in its application of Tennessee law on piercing the corporate veil. The court noted that the Tennessee courts rely on a multi-factor test when determining whether to pierce the corporate veil, and found that “[t]he ALJ, ARB and district court did not err in concluding that a majority of these factors are present.” Id. at 14. The court wrote:

Kutty set up a web of corporate entities, with the help of his attorney, in order to hire the nonimmigrant physicians. Kutty was the sole owner and investor in these entities. He made all the companies’ major decisions regarding salaries and staffing from a single office in Florida, and he and his wife were the only officers and directors. There is no evidence that any of the corporations issued stock certificates and Kutty did not know whether they issued financial statements. Kutty treated the corporations as an extension of himself. The corporations appear to have been undercapitalized, as Kutty could not state how much money was used to start the clinics, or whether money was contributed as capital or loans.

In addition, there is support for the conclusion that the corporations were interchangeable and did not deal at arms-length with each other. During the administrative proceedings, the ALJ found that, on various documents, multiple entities were represented as the employer of the same physician, and physicians that were employed by one corporation were often paid by another. The ALJ noted that the documents signed by Kutty evidenced significant confusion with respect to “which corporate entities were acting as the H-1B physicians’ employers.”

Id. (footnote omitted).

Kutty argued that under Tennessee law, the corporate veil may not be pierced because there was no evidence of fraud. The court, however, cited Tennessee law that speaks to commission of “fraud or wrong,” and found that the record contained findings that sufficiently qualify as “wrongs,” such as failure to pay required wages, violation of the “no-benching” regulation, and retaliation against physicians who complained. The court rejected Kutty’s contention that the ALJ should have taken into consideration that the physicians were not working the requisite number of hours, finding this circumstance to be insufficient as a justification for Kutty’s actions.

PIERCING OF CORPORATE VEIL TO FIND PERSONAL LIABILITY OF SHAREHOLDERS AND OFFICERS; ARB SUGGESTS THAT ISSUE MAY BE RIPE FOR DECISION ONLY AT TIME ADMINISTRATOR MAY SEEK ENFORCEMENT AGAINST THE INDIVIDUALS, BUT GOES ON TO HOLD THAT DISREGARD OF CORPORATE FORMALITIES IN THE INSTANT CASE WAS TO THE EXTENT THAT IT JUSTIFIED PIERCING OF CORPORATE VEIL

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014), the Respondent challenged the ALJ’s decision to pierce the corporate veil to hold its president and vice-president, Jit and Renu Goel, personally liable for back wages and civil money penalties under U.S. v. Pisani, 646 F.2d 83 (3d Cir. 1981). Applying factors from the Pisani decision, the ALJ found that the Respondent observed no corporate formalities, while the Goels (husband and wife) were the sole shareholders and corporate officers and received loans and rents from the Respondent company. The Goels could produce no documentation of those transactions, and intermingled corporate and personal assets. The ALJ found that it was the Goels who compromised the Respondent company’s ability to comply with the H-1B wage requirements, and therefore justice and fundamental fairness required personal liability. The ARB, although noting that in previous cases it had affirmed piercing of the corporate veil, found that the record was not clear in the instant case that the issue was ripe at this stage, as opposed to an enforcement proceeding against the Goels. The ARB stated that to the extent it could decide the issue now, it agreed with the ALJ’s findings and conclusions.

INDIVIDUAL LIABILITY OF CORPORATE EMPLOYEE UNDER THE H-1B REGULATIONS; REFERENCE TO STATE LAW TO DETERMINE WHETHER IT IS APPROPRIATE TO PIERCE THE CORPORATE VEIL

In Baiju v. Fifth Avenue Committee, ARB No. 10-094, ALJ No. 2009-LCA-45 (ARB Mar. 30, 2012) (reissued Apr. 4, 2012), the Prosecuting Party was the H-1B worker who originally filed a complaint with the Wage and Hour Division. On appeal to the ARB, the Prosecuting Party argued that the ALJ erred in dismissing the Respondent’s executive director as a party, contending that the executive director should be personally liable. The ARB found that the ALJ properly applied state law on the question of whether it was appropriate to pierce the corporate veil. The ARB found that the ALJ properly concluded under New York law — which generally requires a showing of "complete domination" to pierce the corporate veil — that the executive director’s managerial role with authority to hire, fire, and set wage rates, did not make her personally liable and was not sufficient to show that she exercised complete control over the corporation.

INDIVIDUAL LIABILITY UNDER THE LCA REGULATIONS

In Administrator, Wage and Hour Division v. Avenue Dental Care, ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010) the ARB found that the ALJ properly found a dentist who owned outright or operated dental clinics under assumed names, was individually liable as an employer under the LCA regulations’ definition at 20 C.F.R. § 655.715. The dentist had signed the LCAs as the sponsoring employer. The clinics had no separate legal identity.

XIV. Willful violations

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Poor legal representation

WILFULLNESS FINDING NOT NEGATED BY POOR ADVICE FROM ATTORNEY OR H-1B WORKER’S FAILURE TO AMEND LCA

The ARB affirmed the ALJ’s holding that the Respondent wilfully failed to continue to pay the H-1B worker H-1B wages. The ARB rejected the Respondent’s contentions that the failure was due to bad advice from his attorneys or the H-1B worker’s failure to amend the LCA. The ARB agreed with the ALJ that "an H-1B employer’s ignorance of the INA’s requirements or contention that noncompliance was due to an attorney or employee will not excuse noncompliance." Slip op. at 12 (footnote omitted).

Relevancy of factors

WILLFUL VIOLATIONS; PAYMENT OF BONUSES OR EXTRA MONEY TO OTHER WORKERS AND OTHER FACTORS FOUND NOT RELEVANT TO ISSUE OF WILLFULNESS

In Administrator, Wage and Hour Div., USDOL v. Lung Associates, P.A., ARB No. 09-029, ALJ No. 2007-LCA-13 (ARB Mar. 24, 2011), the Respondent argued that the Administrator and the ALJ found that the Respondent’s failure to pay two H-1B physicians certain wages was "willful," without considering that it had relied on documents counsel provided to support its job classification, that it was misled by the job classification, that its payment of bonuses and extra pay for the physicians’ covering for other physicians is evidence of a good faith effort to comply with its wage obligations, and it had been negotiating with one of the physicians the terms of his future employment. The ARB rejected these arguments.

First, the finding of a willful violation had not been based on failure to sufficiently support the job classification and wage attestations, but rather a willful failure to pay the physicians at the appropriate wage rate during the final weeks of their employment. Second, the fact that the Respondent paid bonuses or extra money for covering other physicians was irrelevant where the ALJ properly found that this money was not "wages paid" under the H-1B program. Third, assuming that it was true the Respondent and one of the physicians were negotiating future employment terms, and that the Respondent withheld the other physician’s wages in an attempt to recover expenses, neither factor relieved the Respondent of its obligation to pay wages.

CIVIL MONEY PENALTY; WILFUL VIOLATION; RESPONDENT’S CREATION OF FALSE RECORDS

In Administrator, Wage and Hour Division, ESA, USDOL v. Synergy Systems, Inc., ARB No. 04-076, ALJ No. 2003-LCA-22 (ARB June 30, 2006), the ARB affirmed the ALJ’s finding that the Respondent’s no-benching violation was willful where it had generated and retained written records falsely suggesting that the H-1B workers were on leave of absence when they were in fact working in the Respondent’s office.

Respondent’s state of mind

POSTING REQUIREMENT; EMPLOYER’S KNOWLEDGE OF POSTING REQUIREMENT IS PROOF THAT EMPLOYER KNEW ITS EFFORTS WERE VIOLATIVE OF REGULATIONS

CIVIL MONEY PENALTY; WILFUL VIOLATION SHOWN BY RESPONDENT’S BEING ON NOTICE FROM PRIOR INVESTIGATION THAT ITS BENCHING POLICIES VIOLATED H-1B WAGE REQUIREMENTS

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014), the Respondent challenged the ALJ’s imposition of a civil money penalty for violations of the LCA regulations on the general grounds that the record did not show wilful violation. The ARB found that the ALJ cited ample reasons for finding wilful failure to comply with the regulations. The ARB specifically pointed out the ALJ’s finding that the Respondent’s president had been informed in a previous Wage and Hour investigation that back wages were owed to some H-1B workers because the Respondent’s benching policies violated H-1B wage requirements, but the Respondent nonetheless continued to use those same policies.

DOL CANNOT IMPOSE LIABILITY ON AN EMPLOYER FOR WILFUL VIOLATIONS WHERE THE EMPLOYER ACTUALLY BELIEVED ITS CONDUCT WAS PERMISSIBLE

In Camo Technologies, Inc., No. 2:12-cv-06050 (D.N.J. Oct. 18, 2013) (case below ARB No. 11-026, ALJ No. 2010-LCA-23), the district court found that the ARB’s finding of a 'willful failure' was arbitrary and capricious. "The weight of the evidence supported the ALJ’s finding that CAMO actually did believe that documenting its efforts to post LCA notices at worksites out of its control demonstrated compliance with the LCA Notice Requirements." "Knowledge of the LCA Notice Requirements themselves and knowledge that particular conduct is violative of the LCA Notice Requirements are not the same thing. The ARB correctly concluded that CAMO officials had been put on notice of the LCA Notice Requirements. However, the ARB ignored the weighty evidence that CAMO believed documenting its attempts to post at third-party worksites was an acceptable practice where the clients in control of those worksites refused to cooperate." "[T]he regulations clearly do not permit DOL to impose liability on an employer where the employer actually believed its conduct was permissible." "The DOL cannot impose liability for a negligent violation, and therefore, the ARB’s Decision and Order should be set aside."

H-1B WAGE REQUIREMENT TO PAY ALIEN FOR TIME IN NON-PRODUCTIVE STATUS; CIVIL MONEY PENALTIES; WILLFULNESS MAY BE DEMONSTRATED BY A KNOWING FAILURE TO COMPLY WITH THE REGULATIONS

In Administrator v. Pegasus Consulting Group, Inc., ARB No. 05-086, ALJ No. 2004-LCA-21 (ARB Apr. 28, 2009), the ALJ awarded the complainant back pay for the Respondent’s violation of the H-1B wage requirements, but rejected the Administrator’s assessment of civil money penalties, holding that it had not been established that the violations were willful. The Administrator appealed, and the ARB reversed on the civil money penalties issue. The ALJ had focused on whether the Respondent had "recklessly" stopped paying the complainant for time he was in non-productive status. The ARB found, however, that the ALJ had not addressed whether the Respondent’s conduct constituted a "knowing failure" to comply with the H-1B wage requirements, which is sufficient in itself to establish a "willful" failure to comply. The record demonstrated that the Respondent’s president and CFO were aware of the requirement to pay H-1B nonimmigrant employees for non-productive time, and in fact had paid the worker for some period of time. In closing, the ARB observed that the CMP was $5,000, and that this was a "moderate exercise of the Administrator’s authority under the circumstances''."

XV. Employee protection (whistleblower)

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Burden of proof

LCA RETALIATION CLAIM; ALJ PRODUCED UNREVIEWABLE DECISION BY APPLYING STANDARDS FOUND IN ERA AND ENVIRONMENTAL WHISTLEBLOWER REGULATION AT 29 C.F.R. PART 24; CORRECT STANDARD REQUIRES BRIEFING; BRIEFING, HOWEVER, MAY BE UNNECESSARY IF PROSECUTING PARTY CANNOT SHOW WHAT VIABLE RELIEF WOULD BE AVAILABLE UNDER RETALIATION CLAIM NOT ALREADY RECEIVED UNDER OTHER LCA REGULATORY PROVISIONS

In Gupta v. Compunnel Software Group, Inc., ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014), the ALJ decided, in the absence of explicit regulatory guidance, to apply the standards found in 29 C.F.R. Part 24 for nuclear and environmental whistleblower cases to the Prosecuting Party’s LCA retaliation claim under 8 U.S.C. § 1182(n)(2)(C)(iv). The ALJ applied the Title VII framework, analyzed whether the Prosecuting Party established a prima facie case, and applying shifting burdens of proof. The ARB found the ALJ’s rulings unreviewable because Part 24 contains different standards for ERA and environmental whistleblower cases. The ARB remanded for the parties to brief the appropriate burdens under Section 1182(n)(2)(C)(iv). The ARB, however, indicated that the ALJ should first consider whether the Prosecuting Party is seeking, and is entitled to, any viable remedies under his retaliation claim that he had not already received under his claim for back wages and other relief under other provisions of the LCA regulations.

LCA "WHISTLEBLOWER" CLAIM AND BURDEN-SHIFTING ANALYSIS; WORKER’S DISRUPTIVE BEHAVIOR IS A LEGITIMATE, NON-DISCRIMINATORY REASON FOR ADVERSE ACTION; PRETEXT NOT SHOWN BY DECISION OF STATE UNEMPLOYMENT INSURANCE BOARD, WHICH HAD NO PRECLUSIVE EFFECT

In Baiju v. U.S. Dept. of Labor, No. 12-cv-5610 (E.D.N.Y. Jan. 31, 2014) (2014 WL 349295) (unpublished), the Petitioner, an H1B worker who filed a complaint with the Wage and Hour Division (WHD) seeking back wages and relief under the H1B employee protection provision, sought review of an Administrative Review Board (ARB) decision upholding, with modification, an ALJ decision on the matter. The ALJ had found that the H1B employer owed back wages (but not at the rate claimed by the Petitioner), that the employer had effected a bona fide termination of the employment, and that the employer had not retaliated against the Petitioner for protected activity under the Immigration and Nationality Act (INA). The court granted summary judgment in favor of the Department of Labor.

The Petitioner argued that the ARB overlooked the evidence when affirming the ALJ’s determination that the Petitioner failed to show that the employer took adverse action against him because of his protected activity. The ARB found that the employer discharged the Petitioner because he refused to work. The court reviewed the INA and regulatory provisions governing H1B "whistleblower" complaints, and found that the agency had noted in rulemaking that such complaints are subject to the well-established principles arising under other whistleblower laws administered by USDOL. In this regard, the court essentially described the familiar McDonnell-Douglas burden shifting analysis.

In the instant case, the ARB determined that although the Petitioner engaged in protected activity when he challenged the employer’s decision not to raise his pay to the SWA-determined prevailing wage rate until the PERM application was approved, the employer articulated a legitimate, non-discriminatory reason for terminating the Petitioner’s employment — that the Petitioner refused to perform his work duties. The court found that substantial evidence supported the ARB’s determination.

First, the employer’s executive director’s testimony, which the ALJ had found credible and supported by the evidence, was that the Petitioner had become disruptive to work of other staff members and had been aggressive in pressing his demands. She testified that when she met with the Petitioner about his behavior, he told her he was unwilling to perform his job duties. The ALJ also found that the Petitioner’s reluctance during the hearing to follow instructions and accept adverse ruling supported the credibility of the executive director’s recollection of events. Second, the termination letter stated that the termination was for unprofessional behavior, and the personnel review committee upheld the termination decision. The court noted that "It is well-established that firing an employee because he or she is disruptive and refuses to obey instructions constitute[s] legitimate, nondiscriminatory reasons for termination." Slip op. at 35 (citations omitted). Third, the employer continued to support the Petitioner’s PERM application in the face of his repeated requests to be paid the SWA-determined wage rate. That the employer did not impose adverse employment actions for these requests supported the ARB’s determination that the stated reason for termination was legitimate and nondiscriminatory.

The court also found that the Petitioner did not carry his burden of showing that the employer’s stated reason was pretextual. The Petitioner cited a state unemployment insurance appeals board decision finding that he had been discharged for complaining about his wage rate. The court found that it was well-established that the issues involved before an unemployment insurance appeal board and those involved in a retaliation or discrimination claim are entirely distinct, and therefore the unemployment insurance board’s decision had no preclusive effect on a later retaliation or employment discrimination claim.

Claim of involuntary servitude

The Petitioner argued that the employer engaged in involuntary servitude by forcing him to work for two different companies: that the employer "threatened me for asking the wages" and "forcefully engaged me in the work of other companies [a section 501(c)(3) affiliate of the employer, not actually two separate companies] for their financial benefit," and eventually "threatened me physical harm and chased me out from my job." Slip op. at 46 (quoting Administrative Record; footnote omitted). The court rejected this contention. The court first noted that the ARB had not discussed a claim of involuntary servitude, and it was not clear that the Petitioner had properly raised such a claim before the ARB. The court found that it was not arbitrary and capricious for the ARB not to discuss the claim because the claim was clearly meritless, there being no evidence that the employer threatened the Petitioner in any way to force him to continue working for it. To the extent that the claim was based on a sub-textual threat of deportation, the court stated that "threats of deportation do not constitute holding an employee in involuntary servitude under 18 U.S.C. § 1584." Slip op. at 48. The court further found that even if it was arbitrary and capricious for the ARB not to discuss the claim, the error was harmless and did not merit a remand for further explanation. Specifically, the claim of involuntary servitude had no bearing on determination of the appropriate wage rate, retaliation, or any other legal issue before the ARB.

Causation

CAUSATION STANDARD FOR INA RETALIATION CLAIMS; ARB DECLINES TO RE-VISIT QUESTION OF WHETHER “MOTIVATING FACTOR” OR “BUT-FOR” STANDARD APPLIES IN LIGHT OF U.S. SUPREME COURT AUTHORITY ON OTHER DISCRIMINATION AND RETALIATION LAWS BECAUSE THE RECORD INDICATED THAT RESPONDENT HAD NO KNOWLEDGE OF COMPLAINANT’S PROTECTED ACTIVITY, WHICH WAS FATAL TO THE CLAIM REGARDLESS OF WHICH STANDARD APPLIES

On appeal, Complainant argued that the ALJ erred when he applied a “but-for” standard for causation. The ARB noted that in 2007 it had adopted the “motivating factor” standard for INA retaliation claims in Talukdar v. U.S. Dep’t of Veterans Affairs, ARB No. 2004-0100, ALJ No. 2002-LCA-00025, slip op at 11 n.10 (ARB Jan. 31, 2007); that the U.S. Supreme Court had subsequently applied the “but-for” standard for other discrimination and retaliation claims (specifically the Age Discrimination in Employment Act and Title VII’s anti-retaliation provision); that DOL had nonetheless confirmed in 2009 rulemaking that the motivating factor standard would apply in environmental whistleblower cases; and that federal courts had deferred to DOL’s application of the motivating factor standard in Family and Medical Leave Act cases. For the instant case, the ARB declined to consider the impact or applicability of the Supreme Court decisions on the INA causation standard for retaliation claims, because, under the facts of the instant case, there was no evidence presented to show that Respondent knew about Complainant’s protected activity before taking adverse action against Complainant—and such lack of knowledge was fatal to the claim under either the motivating factor or but-for causation standard.

CAUSATION; SUMMARY DECISION FOUND TO BE WARRANTED WHERE UNDISPUTED EVIDENCE SHOWED THAT DECISIONMAKERS HAD CONTEMPLATED TERMINATING COMPLAINANT’S EMPLOYMENT PRIOR TO LEARNING OF COMPLAINANT’S PROTECTED ACTIVITY UNDER THE INA; FACT THAT ACTUAL TERMINATION WAS A FEW DAYS LATER DID NOT CREATE A FACT ISSUE SUFFICIENT TO AVOID SUMMARY DECISION

SUMMARY DECISION; GENERAL ATTACKS ON WITNESS CREDIBILITY DO NOT CREATE A TRIABLE ISSUE OF FACT; NON-MOVING PARTY MUST PRESENT EVIDENCE TO CREATE A FACTUAL DISPUTE; SPECULATION DOES NOT SUFFICE

SUMMARY DECISION; ARGUMENT THAT RESPONDENT’S PROFFERED REASONS FOR COMPLAINANT’S TERMINATION SHIFTED OVER TIME AND WERE DEMONSTRABLY FALSE INSUFFICIENT TO CREATE A FACTUAL DISPUTE WHERE SUMMARY DECISION WAS BASED ON UNDISPUTED FACT THAT DECISIONMAKERS DID NOT KNOW ABOUT COMPLAINANT’S PROTECTED ACTIVITY UNTIL AFTER THEY CONTEMPLATED TERMINATING THE EMPLOYMENT

SUMMARY DECISION; ARGUMENT THAT CERTAIN POST-TERMINATION ACTIONS CAN BE ACTIONABLE UNDER INA RETALIATION STATUTE DID NOT CREATE A FACT ISSUE SUFFICIENT TO AVOID SUMMARY DECISION WHERE SUMMARY DECISION WAS BASED ON FAILURE TO SHOW A FACT DISPUTE ABOUT CAUSATION

Pre-Termination

Complainant had been hired in 2015 under the title “Senior Manager, Liability Claims.” Between October 2015 and October 2016, Complainant filed three complaints with the EEOC against Respondent. Complainant made Respondent aware of these complaints. He filed the INA retaliation complaint with the WHD in June 2016—but did not notify Respondent of this complaint, and asked DOL to keep his identity confidential. The WHD conducted an investigation. There was no evidence that DOL breached Complainant’s request for confidentiality or that Respondent learned from any other source that Complainant helped to prompt the WHD investigation. Respondent’s officials denied knowing of Complainant’s relationship to the WHD investigation until after they had made the decision to terminate Complainant’s employment.

In a footnote, the ARB stated:

We summarily reject any claim regarding adverse conduct that occurred before Nieman first engaged in activity protected by the INA which, at the earliest, was on April 9, 2016, when Nieman emailed his concerns about H-1B violations to the EEOC. See Chivers v. Wal-Mart Stores, Inc., 641 F.3d 927, 933 (8th Cir. 2011) (finding acts occurring before protected activity “cannot be causally related” to protected activity); Moron-Barradas v. Dep’t of Educ. of Com. of Puerto Rico, 488 F.3d 472, 481 (1st Cir. 2007) (“It is impossible for the [defendant] to have retaliated against [the plaintiff] before she engaged in protected activity”).

Slip op. at 14, n.85.

Complainant asserted on appeal that Respondent may have suspected he filed a complaint or helped prompt the WHD investigation because the investigation was extensive and that Respondent’s General Counsel would have had insight into and participated in the investigation. The ARB, however, stated: “Even accepting these facts as true, Nieman does not explain how SEG could have deduced or suspected that Nieman was the whistleblower behind the investigation based on these facts.” Id. at 15.

Complainant also appeared to argue that the pattern of animosity he suffered after he filed the DOL complaint serves as circumstantial evidence of knowledge of his conduct and intent to retaliate. The ARB, however, noted that Complainant had offered no evidence that would link this adverse conduct to the investigation or Complainant’s DOL complaints, and that the record indicated that Complainant had repeatedly argued this conduct was prompted by his EEOC activity, not his DOL complaints. The ARB determined that Complainant’s “attempt to connect the alleged pattern of animosity to his DOL complaints is based on speculation.” Id. at 16.

Complainant pointed to an email sent by Respondent’s General Counsel suggesting that he had Complainant “under scrutiny” six months after he filed his first DOL complaint, and argued that this was direct evidence of knowledge and retaliatory motive. The ARB found that the context of the “scrutiny” was not revealed by the email, and that a causal link was mere speculation. The ARB again noted that there was undisputed evidence that Respondent did not know about the DOL complaint at the relevant time.

Termination

It was undisputed that Complainant identified himself as the INA whistleblower in emails in June 2017, and that Respondent terminated Complainant’s employment shortly thereafter in July 2017. The undisputed evidence also showed, however, that Respondent had already contemplated terminating Complainant’s employment a day before it learned about his protected activity. The ARB thus determined that Complainant’s protected activity could not have caused the termination. The ARB recounted the statements of Respondent’s decisionmakers in this regard, and stated its agreement with the ALJ that “an employee cannot establish causation if the employer merely proceeds along a course of action already contemplated before it learned of his protected activity.” Id. at 17-18 (footnote omitted).

Complainant argued that summary decision was not appropriate because there was a fact issue as to whether his protected activity could have caused his termination because he showed that Respondent did not make a final decision to terminate his employment until after he identified himself as a whistleblower. The ARB acknowledged that not all of Respondent’s officials immediately agreed to the termination recommendation and that Respondent’s General Counsel recommended deferral of termination until an internal investigation was completed. The ARB, however wrote: “as Supreme Court and other federal precedent makes clear, the fact that an employer ’contemplated’ termination before learning of the employee’s protected activity undercuts an argument about causation, even if the employer does not make a final decision until after learning of the employee’s protected activity.” Id. at 18 (footnote omitted).

Complainant argued that a dispute of fact existed because there was no contemporaneous evidence to corroborate the declarations of the relevant Respondent officials that they actually contemplated termination prior to the email, those officials first making these averments with the motion for summary decisions. The ARB rejected this argument, stating: “General attacks on witness credibility like these do not create a triable issue of fact. Nieman must present evidence to create a factual dispute; speculation does not suffice.” Id. (footnote omitted). The ARB noted as well that, although there was no written, contemporaneous memorialization, the declarants’ averments were supported by other evidence of record.

Complainant argued that Respondent’s proffered reasons for the termination shifted over time and were demonstrably false, thus creating a triable issue as to the legitimacy of the termination of his employment. The ARB was not persuaded, citing the ALJ’s determination that “although the reasons for Nieman’s termination may be in dispute, that dispute is not material to the outcome of the case. . . . [A]n employee can be terminated for good reason, bad reason, or no reason at all, just not an illegal reason.” Id. at 19 (footnotes omitted). The ARB stated: “Because there is no evidence that SEG was aware of Nieman’s protected activity when it contemplated terminating his employment, the dispute over the justifications SEG gave for the termination are irrelevant to the outcome of the case.” Id.

Post-Termination

Complainant alleged three forms of post-termination retaliation. As to an alleged frivolous lawsuit and an alleged improper proposal for settlement, the ARB affirmed the ALJ’s conclusion that Complainant failed to provide any evidence to suggest that his protected activity caused Respondent’s alleged adverse conduct. The ARB found that Complainant failed on appeal to present any argument as to causation, but only addressed the general proposition that these types of post-termination conduct may be actionable and should be considered under the “continuing violation” doctrine.

Complainant also alleged that Respondent attempted to cause his subsequent employment to be quickly terminated. Complainant, however, had conceded that this allegation was “as of yet unproven.” Finding that Complainant had presented no evidence to suggest that Respondent had a role in the subsequent termination, the ARB affirmed the ALJ’s grant of summary decision as this claim was based on mere speculation.

LCA EMPLOYEE PROTECTION PROVISION; CAUSATION; ARB APPLIES "MOTIVATING FACTOR" STANDARD RATHER THE "CONTRIBUTING FACTOR" STANDARD

Absent congressional indication that a different standard applies, we have found that an employer acts "because of" protected activity when the employer is "motivated" by that activity. See Lopez v. Serbaco, Inc., ARB No. 04-158, ALJ No. 04-CAA-5, slip op. at 4 n.6 (ARB Nov. 29, 2006) (discussing ARB’s use of motivating factor standard unless Congress has indicated that a different standard applies). Although Congress has specified a "contributing factor" standard in the Energy Reorganization Act (ERA), 42 U.S.C.A. § 5851 (West 2003), the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C.A. § 42121 (West Supp. 2005), and the Sarbanes-Oxley Act, 18 U.S.C.A. § 1514A (West Supp. 2005), Congress has not made any such specification in the INA [Immigration and Nationality Act]. Thus, we apply a "motivating factor" standard in reviewing the ALJ’s determination that VAMC acted "because of" protected activity.

Coverage

LCA EMPLOYEE PROTECTION PROVISION; COVERAGE OF VETERANS AFFAIRS PHYSICIANS APPOINTED UNDER 38 U.S.C. § 7405(a)(1)

In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No. 04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), the Respondent argued that the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)) did not apply to the Complainant because he was a physician appointed under 38 U.S.C.A. § 7405(a)(1), which authorizes appointments "without regard to civil service or classification laws, rules, or regulations." The Respondent argued that the LCA employee protection provision is a civil service law. The ARB found no support for this contention because, unlike laws applying specifically to civil service workers (such as the Whistleblower Protection Act, the Veterans Preference Act, and the federal reduction in force law), the Immigration and Nationality Act applies not only to government workers but to those employed by all covered employers.

Investigation

If the ALJ’s reasoning here were to stand, Complainant would be left with no process to vindicate his claims of retaliation and be caught in a “Catch-22,” because the failure of the agency to respond with any determination at all precludes any avenue of relief—a situation particularly egregious here where the Complainant has no private right of action in court. Phrased another way, the agency could insulate itself from review by its complete failure to take any action whatsoever. We shall not allow Complainant to “be penalized” and foreclosed from pursuing any avenue for possible relief by the agency’s failure to follow its own rules.

Slip op. at 6 (footnotes omitted). The ARB noted:

On remand the Administrator may indeed determine that an investigation is not warranted, which would end the enforcement process because that decision is not reviewable. Gupta v. Headstrong, Inc., ARB Nos. 2011-0065, -0008, ALJ No. 2011-LCA-00038, slip op. at 8 (ARB June 29, 2012); 20 C.F.R. § 655.806(a)(2). If the Administrator does find reasonable cause to investigate, the WHD would then be required to conduct an investigation and issue a determination as to whether retaliation occurred. § 655.806(a)(2) & (3). If the Administrator determines no retaliation occurred after the investigation, Complainant could then have that decision reviewed by an ALJ. § 655.820(b)(1).

Id. at n. 28.

Pretext

LCA EMPLOYEE PROTECTION PROVISION; PRETEXT ESTABLISHED WHERE CIRCUMSTANCES UNDERMINED BUDGET DEFICIT RATIONALE FOR DISCHARGING COMPLAINANTS

In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No. 04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), a case involving the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)), the ARB affirmed the ALJ’s finding that the Respondent’s stated ground for dismissing the Complainants — a budget deficit — was pretext where the Respondent had hired personnel during the same time period that it had released the Complainants, the Respondent had denied one the Complainants the second of a two-step pay increase, and there was evidence that the Complainants were considered "discontent" but that they carried their share of the workload. The ARB also observed that the Respondent had not taken issue with the ALJ’s findings that the Respondent had ended the Fiscal Year with a budget surplus, that it had a budget deficit in the year that the Complainants had been hired, and that ending the Complainants’ employment was a departure with a decade-long practice of renewing all temporary appointments.

Protected activity

PROTECTED ACTIVITY; RETALIATION IN RESPONSE TO FILING OF LCA COMPLAINT AND PARTICIPATING IN DOL’S INVESTIGATION

In Huang v. Ultimo Software Solutions, Inc., ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11 (ARB Mar. 31, 2011), the ARB affirmed the ALJ’s finding that the Respondent did not effect a bona fide termination of the Complainant H-1B worker, and the ALJ’s order that the Respondent pay back wages and amend its LCA to reflect the Complainant’s original assignment to San Jose and later reassignment to Houston. The ARB also affirmed the ALJ’s finding that the Respondent retaliated against the Complainant for filing a complaint and participating in DOL’s investigation when it notified USCIS that it had terminated the Complainant’s employment two days after learning of the complaint from the Wage and Hour investigator.

PROTECTED ACTIVITY; COMPLAINT THAT RESPONDENT DID NOT LIVE UP TO PROMISES OF FORMER PRESIDENT OF A MANAGEMENT POSITION NOT DESCRIBED IN THE LCA WAS NOT PROTECTED ACTIVITY

In Kersten v. Lagard, Inc., ARB No. 06-111, ALJ No. 2005-LCA-17 (ARB Oct. 17, 2008), the Complainant had been induced to come the U.S. to work for the Respondent based its then President’s verbal offer of a management position. The Employer’s H-1B Labor Condition Application, however, was based on a salary and position as Quality Control Engineer. The President who made the management offer left the company. Over the course of his employment, the Complainant requested, to no avail, the Respondent to honor the former President’s promise. Eventually, the Complainant engaged an attorney to write the Respondent to demand that the promise be kept. After the Complainant was terminated, he filed a complaint alleging that the termination was in retaliation for disclosing that the Respondent was in violation of the H-1B provisions. The ARB held that this argument had no merit because the attorney’s letters did not evince the Complainant’s reasonable belief that the Respondent had violated the INA’s H-1B provisions or regulations. Even assuming that the Respondent fired the Complainant for complaining about not receiving what the former President had promised, the letters only complained that the Respondent had not kept the former President’s promises. Those promises did not pertain to the scope of the INA’s H-1B provisions or regulations and thus could not be the basis for INA protected activity.

Timeliness of complaint

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; SUBJECTIVE BELIEF BY COMPLAINANT THAT SHE MIGHT NOT BE TERMINATED DOES NOT WARRANT TOLLING

In Ndiaye v. CVS Store No. 6081, ARB No. 05-024, ALJ No. 2004-LCA-36 (ARB Nov. 29, 2006), the Complainant was fired by the Respondent. Several weeks later, the Complainant’s counsel sent a letter to the Respondent claiming retaliatory suspension based on the Complainant’s reporting of H-1B violations. The Respondent responded, stating that it was considering further review. The Complainant, however, never worked for or received any payment or benefits from the Respondent after the date of the original firing.

The Complainant filed claims with the EEOC and a state unemployment agency, but did not file a complaint with DOL’s Wage and Hour Division until more than a year and a half later. The limitations period for filing a LCA retaliation claim is 12 months after the latest date on which the alleged violation(s) were committed. See 20 C.F.R. § 655.806(a)(5).

Wage and Hour and the ALJ both found that the complaint was untimely. On review, the Complainant argued that her attorney’s follow-up letter and the Respondent’s response amounted to an on-going conflict with no resolution. The ARB, however, agreed with the ALJ that the Complainant was not entitled to equitable tolling. The ARB wrote:

... Although the Complainant contends that she believed that her employment was merely suspended and that future employment might be possible, a subjective belief by one party that termination might not occur does not toll the statute of limitations. An objective reading of the letter does not lead the reader to the belief that it constituted a continuance of the employment contract between CVS and Ndiaye.

The ALJ decided that the August 22, 2002 letter was not evidence of a continuing violation sufficient to toll the statute of limitations. Further, the ALJ ruled that after the August 22, 2002 letter, regardless of whether the employment action was a firing or a suspension, neither side acted in any manner to extend the employment relationship sufficient to toll the statute of limitations. The ALJ’s interpretation of the letter is valid.

USDOL/OALJ Reporter at 6-7 (footnotes omitted).

Settlement

LCA RETALIATION COMPLAINT; SETTLEMENT OF STATE COURT PROCEEDING – ONE CLAIM OF WHICH MIRRORED THE LCA RETALIATION COMPLAINT FILED WITH THE WAGE AND HOUR DIVISION – FOUND NOT TO BAR DOL PROCEEDING WHERE THE SETTLEMENT’S RELEASE WAS SPECIFIC TO THE STATE LAW CLAIMS AND WAS NOT A GENERAL RELEASE AND DID NOT REFER TO THE ADMINISTRATIVE COMPLAINT; RES JUDICATA DID NOT APPLY BECAUSE IMMIGRATION AND NATIONALITY ACT RETALIATION CLAIMS ARE ASSIGNED TO THE JURISDICTION OF THE SECRETARY OF LABOR UNDER 18 U.S.C. § 1182(n)(2)(C)(iv), AND THE STATE COURT WOULD NOT HAVE HAD JURISDICTION; ISSUE PRECLUSION DID NOT APPLY BECAUSE IT HAD NOT BEEN SHOWN THAT INA CLAIM WAS ACTUALLY LITIGATED IN THE STATE COURT ACTION

In Nieman v. Southeastern Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021 (ARB Oct. 5, 2020) (per curiam), Complainant filed a complaint with the Wage and Hour Division under the employee protection provision of the Immigration and Nationality Act (INA), 18 U.S.C. § 1182(n)(2)(C)(iv); 20 C.F.R. § 655.801. Complainant asserted that Respondent retaliated against him for filing complaints with the DOL concerning Respondent’s H-1B nonimmigrant employment practices. While the case was pending before the ARB on appeal, the parties entered into a settlement agreement of litigation in Florida state court; that litigation included a claim that Defendant unlawfully terminated Plaintiff’s employment and retaliated against him because of his complaints to the DOL regarding Defendant’s visa practices. Respondent argued to the ARB that this settlement agreement released Complainant’s administrative complaint. The ARB, assuming arguendo that it had the power or authority to enforce the state court settlement agreement, found that the settlement did not bar the administrative proceeding.

First, by its terms, the settlement referred to and released only the claims brought in the state litigation, was not phrased as a general release, and did not reference the administrative action.

Second, the ARB found that res judicata did not apply because the INA gives the Secretary of Labor jurisdiction to investigate and adjudicate INA retaliation claims, and the state court would not have jurisdiction over the INA relation claim before DOL.

Third, the ARB noted that it was unclear whether Respondent was also relying on issue preclusion, but found that it would not apply as Respondent had not demonstrated that the state litigation “actually litigated” the matters at issue in the DOL proceeding.

SETTLEMENT OF LCA EMPLOYEE PROTECTION CASE; ARB’S AUTHORITY TO DISMISS APPEAL; DISCRETIONARY NATURE OF AUTHORITY; MOOTNESS AND ABSENCE OF REQUIREMENT OF REVIEW OF SETTLEMENT BY THE ARB

In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No. 04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), one of two Complainants settled her employee protection complaint against the Respondent while the matter was pending on appeal before the ARB. The ARB found that it had the authority to dismiss a settled case, citing 5 U.S.C. § 557(b) (authority of agency review body) and the ALJ rules of practice at 29 C.F.R. § 18.9(a) and (c)(2). The ARB, however, observed that its authority to dismiss is discretionary rather than mandatory. The Board found two reasons supporting dismissal. First, the settlement mooted the portion of the appeal relating to the settled case. Although the ARB is not required to dismiss on grounds of mootness, it is the ARB’s preferred option absent exceptional policy considerations. Second, the INA and its implementing regulations contain no suggestion that the ARB should refrain from exercising dismissal authority in such a situation, or that the ARB review the settlement such as in several other types of whistleblower complaints adjudicated by DOL. The ARB’s dismissal rendered the relevant portion of ALJ’s decision inoperative pursuant to 20 C.F.R. § 655.845(c), since the ARB was not "affirming the decision and order" of the ALJ.

Status as “whistleblower” is not immunity

INA "WHISTLEBLOWER" PROVISION DOES NOT EMPOWER ADMINISTRATOR TO IMMUNIZE A COMPLAINANT FROM A LAWSUIT BY THE RESPONDENTS

In Sisfontes v. International Business Software Solutions, Inc., ARB Nos. 07-107, 07-114, ALJ No. 2007-LCA-14 (ARB Aug. 31, 2009), the ALJ entered a default judgment against the Respondents, and ordered them to pay the Complainant back wages and reimbursement for the filing fees associated with processing the LCA. On appeal the Complainant argued that the ALJ should have granted him immunity grounded in whistleblower protection under the Immigration and Nationality Act and a state employee protection law because the default decision left open the possibility that the Respondents would sue him for disclosing information about illegal activity and for cooperating with the Wage and Hour investigator. The ARB rejected this argument because (1) it had no jurisdiction in regard to the state law, (2) the Wage and Hour Administrator had not made a finding on an INA whistleblower claim, (3) the Complainant did not ask for imposition of civil money penalties or reinstatement under the INA, and (4) the clause of the INA whistleblower law giving the Administrator discretion to impose "such other administrative remedies as the Administrator determines to be appropriate" does not permit the Administrator to order immunity from a lawsuit. Thus, the ALJ did not err in limiting remedies to back pay and a refund of the filing fee.

XVI. Damages and other remedies

Top

See also Underpayment of wages

Amendment of LCA

ORDER TO AMEND LCA TO REFLECT REASSIGNMENT

Applicable pay period

BACK WAGES; FACT THAT BONA FIDE TERMINATION WAS NOT PERFECTED UNTIL H-1B WORKER LEARNED OF HIS DISCHARGE THROUGH USCIS WEBSITE AND UNTIL RESPONDENT REIMBURSED H-1B WORKER BY PAYING WAGE AND HOUR DIVISION (WHD) ASSESSMENT DID NOT ENTITLE H-1B WORKER TO ADDITIONAL BACK PAY BEYOND SCOPE OF WHD ASSESSMENT

In Chettypally v. Premier IT Solutions, Inc., ARB No. 2017-0057, ALJ No. 2017-LCA-00006 (ARB Jan. 21, 2020) (per curiam), the H-1B worker was the Prosecuting Party. He appealed the ALJ’s determination that Respondent effected a bona fide termination of the employment relationship and that upon Respondent payment of the assessment made by the Administrator of the Wage and Hour Division for back wages and travel reimbursements, Respondent had no further financial obligation. The ARB affirmed the ALJ’s decision.

ARB precedent establishes that there are three requirements for a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii). Here, the Prosecuting Party was not notified of his discharge by Respondent—but Respondent notified USCIS—and the Prosecuting Party then learned of the ensuing revocation of his H-1B status on the USCIS website. The ALJ found that, because the Prosecuting Party had actual notice from USCIS, the fact that Respondent did not inform the Prosecuting Party of his termination did not, in itself, warrant extending the salary award. These circumstances met the first two requirements. As to the third requirement, the ALJ found that Respondent did not pay for the return transportation before the Prosecuting Party’s return to India, but that it had reimbursed those costs by paying the WHD assessment. Thus, the ALJ found that Respondent effectuated a bona fide termination and that the Prosecuting Party was not entitled to further compensation.

The ARB was not persuaded by the Prosecuting Party’s arguments on appeal in which he asked for an additional year’s salary beyond the WHD assessment. First, the Prosecuting Party argued that the ALJ missed the fact that Respondent forced him to leave the country. The ARB discounted this argument because USCIS had cancelled the Prosecuting Party’s H-1B status. Second, the Prosecuting Party contended that Respondent had falsified his resume and forced him to work outside his role. The ARB held that, even if this was true, Respondent’s wage obligation was only for the occupation listed in the LCA. Third, the Prosecuting Party argued that the LCA was approved for three years, so he was entitled to another year of salary. The ARB found that the approval had no bearing on the wages owed. Fourth, the Prosecuting Party argued that the bona fide termination had not been effectuated before his return to India. The ARB rejected this argument, stating:

But as set forth above, the ALJ rationally found no regulatory authority for awarding additional compensation where the Respondent had paid back wages for all productive and nonproductive time continuing through April 21, 2016, when the Prosecuting Party learned of his discharge, to May 13, 2016, when he left the United States and returned to India, and the Prosecuting Party had been fully reimbursed for his return transportation. Accordingly, the ALJ properly concluded that the Respondent has no further financial obligation to the Prosecuting Party.

Slip op. at 5.

FAILURE OF ALJ TO VIEW PAY PERIODS SEPARATELY WHEN CALCULATING BACK WAGES NOT GROUND FOR REVIEW WHERE RESPONDENT FAILED TO SHOW NATURE OF ERROR OR INJURY SUFFERED AS A RESULT

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014), the Respondents argued that the ALJ erred in determining back wages by failing to view each pay period separately, citing Adm'r, Wage & Hour Div. v. Wings Digital Corp., ARB No. 05-090, ALJ No. 2004-LCA-30 (ARB July 22, 2005). The ARB declined to rule on the merits of this contention because the Respondent did not sufficiently demonstrate what "error and injury" it suffered from the ALJ’s alleged failure.

Applicable wage rate

ARGUMENT FIRST MADE ON APPEAL; ARB DENIES WAGE AND HOUR DIVISON ADMINISTRATOR’S REQUEST FOR REMAND TO RECALCULATE BACK WAGES WHERE THE ADMINISTRATOR RAISED CONTENTION FOR THE FIRST TIME ON APPEAL THAT THE REQUIRED WAGE SHOULD BE THE PREVAILING WAGE BECAUSE THE H-1B’s POSITION WAS UNIQUE; THE ARB FOUND — THAT THE ALJ HAD GRANTED THE BACK WAGES AS SOUGHT IN THE ADMINISTRATOR’S MOTION FOR SUMMARY DECISION BASED ON A HIGHER ACTUAL WAGE REPORTED ON THE LCA — THAT THE RECORD INDICATED THE EXISTENCE OF SIMILARLY EMPLOYED WORKERS — THAT THE RESPONDENT WOULD BE HELD TO THE ACCURACY OF ITS ATTESTATIONS IN THE LCA ABOUT THE ACTUAL WAGE — THAT ALLOWING A REMAND ON A CONTENTION NOT RAISED BELOW THAT WOULD POTENTIALLY LOWER BACK PAY AWARD BE UNFAIR TO THE H-1B WORKER

BACK WAGE LIABILITY IS FOR ACTUAL WAGE OR PREVAILING WAGE, WHICHEVER IS HIGHER

The ARB found meritless the Employer’s argument in Vojtisek-Lom v. Clean Air Technologies International, Inc., ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009), that the ALJ erred in basing a back wage calculation on the higher amount actually paid to the Alien rather than the prevailing wage listed on the LCA. The ARB cited 8 U.S.C.A. § 1182(n)(1) and 20 C.F.R. § 655.731(a) for the proposition that "[t]he enforceable wage obligation for an employer of an H-1B nonimmigrant is the 'actual wage' or the 'prevailing wage,' whichever is greater."

ALIEN WHO WORKS IN OCCUPATION OTHER THAN THE ONE SPECIFIED IN THE LCA; APPROPRIATE WAGE LIABILITY

H-1B WAGES DAMAGES CALCULATED BASED ON THE HIGHER OF THE ACTUAL WAGE OR THE PREVAILING WAGE

In Limanseto v. Ganze & Co., ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the Complainant’s attorney stated at the ALJ hearing that the H-1B wage was $23.00 an hour. In response to the ALJ’s post-hearing order, the attorney indicated that the appropriate hourly rate was the Complainant’s actual wage when the Respondent fired him, $25.30. The ALJ based his damages calculation on this amount. On appeal, the ARB also calculated the award at the higher rate, stating 'Under 8 U.S.C.A. § 1182(n)(1)(A)(i), the employer’s enforceable wage obligation is the actual wage or the prevailing wage, whichever is greater.' USDOL/OALJ Reporter at 8, n.29.

WAGE DETERMINATION MADE BY ETA AT REQUEST OF WHD DURING H-1B LCA INVESTIGATION; RESPONDENT NOT REQUIRED TO PAY HIGHER WAGE DETERMINATION MADE IN SEPARATE PERM APPLICATION

In the instant case, the WHD found that the documentation supporting a survey used by the Respondent when filing the H-1B LCA application was insufficient, and therefore requested a wage determination by the Employment and Training Administration, as provided for under 20 C.F.R. § 655.840(c). The ALJ found that the Prosecuting Party had not timely challenged ETA’s wage determination and that under the regulations the ALJ had no authority to review that wage determination. The ALJ also found that a separate wage determination made for the PERM application was not applicable to the Employer’s H-1B wage obligations "because it was issued in conjunction with [a] distinct and separate petition for permanent labor certification." The ALJ also found that the WHD’s request for a wage determination was warranted. The ARB affirmed the ALJ’s determination both on the facts and the law.

Attorney’s fees

LCA EMPLOYEE PROTECTION PROVISION; ATTORNEY’S FEES

In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No. 04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), the Complainant sought attorney’s fees for costs on appeal on a case arising under the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)). The ARB, noting that the American Rule is generally not to award fees to a prevailing party absent explict statutory authority, and finding no such authority under the INA, and noting that the Complainant had not provided any reason not to follow the general rule, held that the Complainant was not entitled to recover such fees.

Burden of proof

CALCULATION OF BACK WAGES; AVAILABILITY OF H-1B WORKERS; IT IS NOT WORKERS’ BURDEN TO SHOW AVAILABILITY, BUT RATHER RESPONDENT’S BURDEN TO SHOW THAT IT IS NOT OBLIGATED TO PAY THE WAGES; EVIDENCE THAT RESPONDENT PAID PER DIEM TO WORKERS DURING BENCHING PERIOD IS REASONABLY RELIED ON BY ALJ AS EVIDENCE OF AVAILABILITY

Respondent’s liability for wages after nonimmigrant worker entered into employment with the Respondent; burden is on employer to prove that it is excused from paying the employee

It is clear from these provisions that an H-1B employee’s non-productivity caused by the H-1B employer, and particularly due to a "lack of assigned work," results in the continuing obligation to pay. If, however, during a period of non-productivity, the H-1B employee has "assigned work" duties that he is not performing, then the focus turns to the reasons that take him away from those duties. Subsection 655.731(c)(7)(i) makes clear that the employer is liable for any reason that takes the employee away from his duties "except" those specified in subsection 20 C.F.R. § 655.731(c)(7)(ii). Under 20 C.F.R. § 655.731(c)(7)(ii), to be relieved from paying wages for nonproductive periods the H-1B employer must prove: (1) the existence of conditions unrelated to the employee’s employment that either; (2) took the employee away from his/her duties at his or her request and convenience, or (3) otherwise render the employee unable to work. A "condition unrelated to employment" cannot take an employee "away from his duties" if the employee has no duties. Logically, to invoke the unavailability exception to wage liability, the employer must prove that the H-1B employee had assigned work. Then, the employer must prove that the worker requested to be away from those duties for reasons unrelated to work or that conditions unrelated to work rendered him "unable" to do those assigned duties.

Cost of return transportation

COST OF RETURN TRANSPORTATION

In Amtel Group of Florida, Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the Respondent had sponsored the Alien/Complainant as an H-1B non-immigrant worker, and it was determined that the Employer had not effected a bona fide termination of the Complainant’s employment. The ARB held that, in view of the ruling that the employment had not been terminated, the Employer was not liable for the cost of the Complainant’s return transportation to Thailand. See 8 C.F.R. § 214.2(h)(4)(iii)(E) (employer liable for reasonable costs of return transportation if alien is dismissed before the end of the period of authorized admission).

Discretion of WHD to request PWD from ETA

BACK WAGE DETERMINATION; WHD ADMINISTRATOR’S OPTION TO CONSULT ETA FOR A PWD IS DISCRETIONARY; WHD INVESTIGATOR ACTS REASONABLY IN USING OES DATA TOGETHER WITH OTHER CREDIBLE INFORMATION IN DETERMINING WAGE

In Administrator, Wage and Hour Div. v. The Lambents Group, ARB No. 10-066, ALJ No. 2008-LCA-36 (ARB Nov. 30, 2011), the Respondents were held liable for the payment of back wages and civil money penalties. Under the regulations, the Wage and Hour Division (WHD) Administrator determines whether an employer has the proper documentation to support its prevailing wage attestation, and if the documentation is nonexistent or insufficient, the Administrator may find a violation of the regulations. The regulations permit the Administrator to consult with the Employment and Training Administration (ETA) to determine the prevailing wage rate. The ARB held, however, that contrary to the Respondent’s argument on appeal, the Administrator’s decision to go to ETA for a prevailing wage determination is discretionary under 20 C.F.R. § 655.731(d)(1), not mandatory.

The ARB acknowledged that the regulations do not describe how the WHD investigator should determine the appropriate wage rate for purposes of calculating back wages, but found that a reasonable effort had been made in this case. In determining the wage rate, the investigator relied on OES Level II data for the geographic area where the employees worked and other information such as telephone conversations with employees, and the position descriptions. The ARB rejected the Respondent’s argument on appeal that the ALJ erred in not making an independent wage determination, finding that the regulations expressly prohibit the ALJ from doing so. 20 C.F.R. § 655.840(c).

The ARB noted that the ALJ had credited the WHD investigator’s testimony that the Respondent had agreed that the appropriate wage level was OES Level II, in further support of the prevailing wage determination. The ARB stated that "While we generally defer to an ALJ’s credibility determination, as a general matter the prevailing wage should not be subject to agreement between an investigator and an employer, particularly when, as here, there is no written record of the agreement. Section 655.731(b)(3) sets out the various ways for documenting the prevailing wage, and it is reasonable for investigators to use such documentation to determine a prevailing wage for purposes of calculating back pay in the context of an enforcement action." USDOL/OALJ Reporter at 8, n.29.

Duration of liability

BACK PAY; WHERE EMPLOYMENT INVOLVED TWO LCA PERIODS, BACK PAY LIABILITY EXTENDED TO BOTH LCA PERIODS EVEN THOUGH PLAINTIFF’S COMPLAINT WAS NOT FILED UNTIL SECOND LCA PERIOD

The ARB affirmed the ALJ’s order of payment of back wages for both LCA periods.

UNCONTESTED EVIDENCE THAT H-1B WORKER VOLUNTARILY STAYED IN THE U.S.—EVEN AFTER THE RESPONDENT INFORMED HER THAT SHE HAD BEEN TERMINATED FROM EMPLOYMENT AND AFTER USCIS WAS INFORMED OF THE TERMINATION—WAS SUFFICIENT TO GRANT SUMMARY DECISION AS TO RESPONDENT’S NON-LIABILITY FOR POST-TERMINATION WAGES, EVEN THOUGH THE RESPONDENT HAD NOT PAID FOR THE COST OF TRANSPORTATION HOME OR EVEN OFFERED TO DO SO

In Vinayagam v. Cronous Solutions, Inc. , ARB No. 15-045, ALJ No. 2013-LCA-29 (ARB Feb. 14, 2017), pet. for review withdrawn sub. nom. Vinayagam v. Admin. Review Bd., No. 18-70199 (9th Cir. May 23, 2018) (2018 U.S. App. LEXIS 13762), the Prosecuting Party was an H-1B worker. The ARB affirmed the ALJ’s grant of summary decision on the ground that the Respondent ended its obligation to pay the Prosecuting Party’s wages by terminating her employment and informing the DHS-USCIS of the termination, notwithstanding not having paid her return transportation costs to India, because uncontested evidence supporting the motion for summary decision showed that the Prosecuting Party stayed in the U.S. without a valid visa after the termination. In Vinayagam, the parties had previously settled in federal district court a dispute about back wages up to the time of the termination. Thus, the only issue before the ALJ and the ARB was whether the Respondent’s wage obligation continued beyond the termination date up to the date of the originally authorized period of employment under the LCA.

The ARB noted the three part test stated in Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006), for an employer to effect a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii) and end its obligation to pay wages. The employer must (1) expressly terminate the employment relationship with the H-1B nonimmigrant worker; (2) notify USCIS of the termination so that USCIS can revoke its prior approval of the employer’s H-1B petition under 8 C.F.R. § 214.2(h)(11); and (3) provide the H-1B nonimmigrant worker with payment for transportation home under certain circumstances as provided in 8 C.F.R. § 214.2(h)(4)(iii)(E). The absence of a payment for transportation home, however, is not dispositive of the question of whether a bona fide termination had been effected. Rather, an employer can avoid liability based on certain actions by the H-1B worker, such as the worker’s marriage to a U.S. citizen, the filing by a new prospective H-1B employer of a petition to sponsor the H-1B worker, and the H-1B worker’s declining of an offer to pay the transportation home.

In the instant case, the Respondent did not pay for transportation costs home, or even offer to do so. However, the Prosecuting Party, after being informed that her employment was terminated, “voluntarily chose to remain in the United States, admittedly without a valid visa or other legal permission or authority to be in the United States.” Slip op. at 9. Thus, the ARB affirmed the ALJ’s grant of summary decision. The ARB noted that, had the Respondent’s failure to meet its obligation to pay for return transportation home left the Prosecuting Party in the U.S. against her will, the result would have been different.

One member of the ARB wrote a concurring opinion to express concern that the Respondent appeared to have been engaged in the deceptive practice of job shopping by a staffing company in violation of 8 U.S.C.A. § 1182(n)(1)(F), which makes it “illegal for an H-1B employer to place a nonimmigrant worker with another employer (regardless of whether or not such other employer is an H-1B-dependent employer) where the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer, where there are indicia of an employment relationship between the nonimmigrant and such other employer.” Slip op. at 10.

CHALLENGE TO ALJ’s AWARD OF BACK WAGES OUTSIDE INVESTIGATION PERIOD UNSUCCESSFUL WHERE RESPONDENT CITED NO LEGAL AUTHORTY FOR A TIME LIMITATION DEFENSE

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014), the Respondents argued that the ALJ erred in awarding back wages for benching periods which occurred outside the scope of the Administrator’s stated investigation period. The ARB was not persuaded by this argument given the Respondent’s failure to cite any legal authority for a time-limitation defense.

NEGATIVE INFERENCE BASED ON PROSECUTING PARTY’S REFUSAL TO PRODUCE EVIDENCE THAT WOULD HAVE RESOLVED ISSUE ABOUT END DATE OF RESPONDENT’S BACK PAY LIABILITY

In Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014), the question arose whether the Prosecuting Party was entitled to LCA wages from the Respondent after he became the beneficiary of an H-1B Form I-129 petition filed by a subsequent employer — the question depending on whether the subsequent employer’s petition was as a concurrent or a new employer — a new employer petition having the effect of ending the wage liability of the former employer. The ARB found that the Prosecuting Party waived the right to complain that the ALJ drew the negative inference that the petition was a "new employer" petition where the Prosecuting Party had refused to produce petition. The ARB also found that the facts of the case showed that the Prosecuting Party could not, as a matter of law, have been granted the right to work concurrently for the two H-1B employers.

RESPONDENT’S BACK PAY LIABILITY FOUND TO HAVE ENDED ONCE IT HAS GIVEN CLEAR NOTICE THAT THE H-1B WORKER’S EMPLOYMENT WAS TERMINATED, AND USCIS HAD APPROVED A SUBSEQUENT EMPLOYER’s CHANGE OF EMPLOYER PETITION; BONA TERMINATION DEFINITION FROM AMTEL CANNOT BE STRICTLY APPLIED IN CASES INVOLVING MULTIPLE H-1B EMPLOYERS

In Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014), the ALJ held that the Respondent’s back pay liability ended on the date that there was evidence that the Prosecuting Party (the H-1B complainant) had taken another job and became definitively unavailable to work for the Respondent. The Prosecuting Party argued that he was owed damages until the expiration of the authorized period of H-1B employment with the Respondent, relying on the ARB’s decision in Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006). Amtel "requires employers to meet three requirements to effect a bona fide termination of H-1B employment and end their obligations to pay wages promised under LCAs: (1) expressly terminate the employment relationship with the H-1B nonimmigrant; (2) notify USCIS of the termination so that the petition may be cancelled, and; (3) provide the nonimmigrant with the reasonable cost of return transportation to his or her home country." The ARB, however, rather than focusing on the Prosecuting Party’s availability, found that the USCIS’s earlier approval of another employer’s H-1B petition constituted a bona fide termination ending the Prosecuting Party’s entitlement to wages from the Respondent.

Amtel cannot be strictly applied in cases involving multiple H-1B employers

The ARB explained that its definition of bona fide termination announced in Amtel does not govern where a new employer obtained USCIS’s approval to hire the Prosecuting Party after the Respondent unequivocally notified him that it had terminated his employment. The ARB first noted that in Amtel, the H-1B employee did not have a new employer later secure USCIS’s approval of a new H-1B petition, whereas in the instant case the Prosecuting Party was positioned to start a new job with a new authorized H-1B employer. The ARB next explained that the Amtel definition of bona fide termination did not account for the portability provisions of the American Competitiveness in the Twenty First Century Act (AC21), which allow a nonimmigrant previously granted H-1B status to begin working for a prospective employer once the prospective employer files a non-frivolous H-1B petition. The ARB stated:

[A] strict reading of Amtel would suggest that each time an H-1B nonimmigrant ports to a new employer, the former employer would remain liable for back wages until it provides the nonimmigrant with the cost of return transportation. Instead, we think that back wage claims against a former employer must stop accruing if it is clear that the H-1B employee changes from one H-1B employer to another and USCIS approves the subsequent H-1B petition allowing for the change.

Slip op. at 10. The ARB held:

[W]e find a that a bona fide termination of employment can occur and end back wage liability for an employer that proves it (1) expressly notified an H-1B employee that it terminated the H-1B employment, and (2) thereafter, the H-1B employee secured USCIS’s approval for a "change of employer."

Id. The ARB stated that the burden of proving the end of back wage liability remains with the employer, and clarified that it was not suggesting that "an H-IB employer may ignore an obligation it might have to request that USCIS officially cancel an H-1B authorization after the H-1B employer terminated an H-1B’s employee’s employment. We can envision cases where an H-1B employer’s failure to notify users of an H-1B employee’s termination could cause confusion as to whether the employment relationship is in fact ongoing." Id. In the instant case, however, the ARB found no such confusion. Finally, the ARB found that, where in a subsequently filed Form I-129 the new employer indicates a classification of "change of employer," USCIS’s approval of the new employment "would have the effect of stopping any previous H-1B employer’s back wage liability from further accrual." Id. at 12.

Under the facts of the instant case, the ARB found that the Respondent’s obligation to pay LCA wages to the Prosecuting Party ended after it had given clear notice that the employment was terminated, and USCIS had approved the subsequent employer’s H-1B change of employer petition.

BACK WAGES; EMPLOYER’s POTENTIAL LIABILITY IS FOR ENTIRE PERIOD OF EMPLOYMENT OF THE ALIEN, INCLUDING A PRIOR LCA

In Vojtisek-Lom v. Clean Air Technologies International, Inc., ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009), the Respondent had engaged the Complainant (the H-1B worker) on two sequential LCAs. On appeal, the Respondent argued that because the Complainant had not filed a complaint within one year of the end of the first LCA, the ALJ erred in assessing back pay liability for periods covered by the first LCA. The ARB rejected this argument, agreeing with the ALJ’s analysis that the LCA regulations make an employer liable for paying the required wage for the entire period of employment.

BACK WAGES; VOLUNTARY NONPRODUCTIVE STATUS; PERIOD OF TIME BETWEEN ARRIVAL AND REPORTING TO RESPONDENT; PERIOD OF TIME TAKING CARE OF PERSONAL MATTERS IS VOLUNTARY, NONPRODUCTIVE STATUS; PERIOD OF TIME TO OBTAIN SOCIAL SECURITY CARD IS NOT VOLUNTARY, NONPRODUCTIVE STATUS

In Administrator, Wage and Hour Div., USDOL v. University of Miami, Miller School of Medicine, ARB Nos. 10-090 and -093, ALJ No. 2009-LCA-26 (ARB Dec. 20, 2011), the Wage and Hour Division (WHD) sought back wages for a worker who was hired under the H-1B program as an anesthesiologist at a teaching hospital. The ARB agreed with the ALJ’s finding that the Respondent did not owe back wages to the H1B worker for the time period between her date of arrival in the U.S. and when she first contacted the Respondent to let it know that she had arrived, and for that time period in which she was unavailable because the was taking care of personal matters such as opening a bank account, obtaining a car lease, securing a driver’s license, and securing schooling and day care for her children. These were periods in which the H-1B worker was in voluntary nonproductive status. The ARB found, however, that the ALJ erred in not awarding back pay for the two weeks that it took the H1B worker to obtain a Social Security card. The Respondent had required her to obtain such a Social Security card before beginning work, and this was not nonproductive status under 20 C.F.R. § 655.731(c)(7)(i).

Emotional distress

EQUITABLE REMEDIES; H-1B PROVISIONS DO NOT PROVIDE FOR DAMAGES FOR EMOTIONAL DISTRESS In Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014), the Prosecuting Party (the H-1B complainant) requested damages for emotional distress based on wrongful discharge. The ARB found that the H-1B provisions do not provide H-1B workers with such protection.

Exclusions and reductions

BACK WAGES FOR UNPRODUCTIVE STATUS; LCA EMPLOYER CANNOT AVOID LIABILITY BASED ON H-1B WORKER’S NOT BEING AVAILABLE TO TAKE ASSIGNMENTS WITHOUT FIRST ESTABLISHING THAT IT ASSIGNED THE WORKER DUTIES CONSISTENT WITH THE LCA; LCA EMPLOYER MAY DISCIPLINE OR FIRE H-1B WORKER WHO FRUSTRATES ASSIGNMENT OF DUTIES

In Administrator, Wage and Hour Div. v. Parsetek, Inc., ARB No. 16-001, ALJ No. 2013-LCA-10 (ARB Nov. 7, 2017), the Respondent’s business was to place H-1B employees with third party customers. The Respondent employed the H-1B worker as a computer programmer for the period of the wage claim before the ARB. The worker had moved from Virginia to Chicago to be with a boyfriend whom she later married. The couple later moved to Texas because of the worker’s husband’s work for one of the Respondent’s customers. The Respondent unsuccessfully marketed the worker for placement with customers for programming work in different states. The Respondent did not assign the worker any computer programming work during her employment, and eventually effected a bona fide termination of her employment. The worker filed a complaint the USDOL Wage and Hour Division (WHD) for back wages. The WHD found that the Respondent owed the worker over $58,000 in back wages, and the Respondent requested an ALJ hearing. The ALJ found that the Respondent established that the worker was in nonproductive status due to reasons of her own that were unrelated to her employment for a portion of the back wage period. The ALJ determined that the worker had frustrated the Respondent’s attempts to place her by not responding to (or rarely responding to) emails, by disconnecting her phone, by moving from the Respondent’s guest house, and by moving to another state. The ALJ concluded that the worker was obligated to remain available and in communication so that the Respondent could market her, place her, and recoup her wages. The ALJ concluded that the worker had preferred to avoid placement that would separate her from her boyfriend/husband. The WHD Administrator appealed arguing that the ALJ’s decision is inconsistent with applicable statutory and regulatory law as well as the ARB’s decision in Gupta v. Compunnel Software Group, Inc., ARB No. 12-149, ALJ No. 2011-LCA-45 (ARB May 29, 2014). The ARB agreed with the Administrator, reversed the ALJ’s finding, and remanded for calculation of additional wages and benefits.

The ARB explained:

Under the [INA and the implementing regulations], an H-1B employee’s non-productivity caused by the H1B employer, and particularly due to a “lack of assigned work,” results in the continuing obligation to pay wages. If, however, during a period of non-productivity, the H-1B employee has “assigned work” duties that he is not performing, then the focus turns to the reasons that take him away from those duties. Subsection 655.731(c)(7)(i) makes clear that the employer is liable for any reason that takes the employee away from his duties “except” those specified in subsection 20 C.F.R. § 655.731(c)(7)(ii). Under 20 C.F.R. § 655.731(c)(7)(ii), to be relieved from paying wages for nonproductive periods the H-1B employer must prove: (1) the existence of conditions unrelated to the employee’s employment that either; (2) took the employee away from his/her duties at his or her request and convenience; or (3) otherwise render the employee unable to work. A “condition unrelated to employment” cannot take an employee “away from his duties” if the employee has no duties. Logically, to invoke the unavailability exception to wage liability, the employer must prove that the H-1B employee had assigned work. Then, the employer must prove that the worker requested to be away from those duties for reasons unrelated to work or that conditions unrelated to work rendered him “unable” to do those assigned duties.

We agree with the Administrator that the ALJ committed legal error by failing to analyze how Parsetek could avoid its obligation to pay Maniyanakunnath her wages given its admitted failure to ever assign her any work—work for which she was hired under the H-1B program. The ALJ merely analyzed whether Maniyanakunnath was unavailable to work for reasons unrelated to her employment. D. &. O. at 19-21. Under Gupta, Parsetek cannot logically claim that it was relieved of its liability to pay wages for the period in question because Maniyanakunnath was in nonproductive status and away from her work duties for reasons unrelated to her employment and under conditions effectively making her unavailable for work, without first establishing that it assigned her computer programming work duties. The ALJ did not address the issue of how Maniyanakunnath could be away from work duties if Parsetek never assigned her any. On this record and given Parsetek’s admitted failure to assign work, we hold that Parsetek cannot meet its legal burden to make a showing otherwise.

USDOL/OALJ Reporter at 8 (footnotes and citations omitted). The ARB found that the record showed that the Respondent was not unable to assign the worker computer programming—it just never did.

The ARB indicated that the Respondent could have fired or disciplined an H-1B worker who frustrated its ability to assign work, and that—in this particular case—it could have terminated the worker’s employment much earlier than it did.

NO OFFSET ON BACK WAGES FOR ALLEGED BREACH OF EMPLOYMENT CONTRACT WHERE RESPONDENT CITED NO LEGAL AUTHORITY FOR SUCH

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2012-LCA-16 (ARB July 16, 2014), the Respondent argued that it should be absolved of its wage obligations under the LCA for H-1B workers who did not comply with the terms of their contracts. The ARB rejected this argument, stating "In adjudicating an H-1B nonimmigrant employee complaint, the ALJ and Board have only the authority expressly or implicitly provided by law." Slip op. at 9 (citation omitted). The Respondent failed to point to any legal authority to resolve alleged breaches of a private contract as potential offsets to wage obligations under the INA.

BACK WAGE LIABILITY IN LCA CASE; UNRELATED INCARCERATION OF H-1B WORKER DID NOT ABSOLVE EMPLOYER OF LIABILITY WHERE IT NEVER EFFECTED A BONA FIDE TERMINATION OF THE H-1B EMPLOYMENT

BACK WAGE LIABILITY IN LCA CASE; RECEIPT BY H-1B WORKER OF INCOME FROM OTHER SOURCES NOT CONSIDERED WAGES UNDER THE REGULATIONS DOES NOT SUPPORT MODIFICATION OF THE BACKPAY AWARD AS “EXCESSIVE”

In Administrator, Wage and Hour Div. and Ingvarsdottir v. Datalink Computer Products, Inc., ARB No. 14-096, ALJ No. 2012-LCA-57 (ARB Feb. 29, 2016), the ARB affirmed the ALJ’s decision ordering the Respondents to pay back wages and interest to the Complainant for failure to pay wages in contravention of the H-1B statute and regulations. The ALJ found that the Respondents were liable for wages until the end of the LCA period because the Respondents had never effected a bona fide termination of the H-1B employment. The ALJ had not credited the Respondents for payments that could not be documented as having had appropriate employer and employee taxes paid to all appropriate Federal, State and local governments as required by 20 C.F.R. § 655.731(c)(2)(i)-(iv). The ALJ also did not credit payment for housing, debt payments, or otherwise because they did not meet the requirements for “authorized deductions” under 20 C.F.R. § 655.731(c)(9)(iii). The ALJ did give credit for periods of voluntary non-productive status.

During the H-1B employment, the H-1B worker had been incarcerated in Iceland for periods due to crimes in an unrelated matter. On appeal, the Respondents’ argued that the Complainant’s crimes absolved them of liability for the LCA back wages. The ARB, however, affirmed the ALJ’s finding that the Respondents were liable the back wages because a bona fide termination had not been effected. The Respondents also argued that the back pay award was excessive because the H-1B worker had earned income from other sources during the LCA period. The ARB agreed with the ALJ, however, that the Respondents could only receive credit for wages paid as defined under the regulations.

PER DIEM PAYMENTS TO BENCHED WORKERS FOR LIVING EXPENSES ARE NOT OFFSETS FOR WAGES OWED

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014), the ALJ did not offset against back wages owed per diem payments made to benched H-1B workers for which no taxes were withheld. The ALJ concluded that the per diem payments were for living expenses and not wages. The ARB affirmed, citing 20 C.F.R. §§ 655.731(c)(2)(iii), 655.731(c)(2)(i)-(iv).

SPECIAL PAYMENT MADE TO TERMINATED EMPLOYEES BECAUSE THEY WOULD MISS THE DATE FOR ELIGIBILITY FOR BONUS FOUND NOT TO BE PART OF H-1B WAGE OBLIGATION, AND THEREFORE NOT CREDITABLE FROM BACK PAY AWARD

In Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014), the Wage and Hour Administrator erred in crediting a $3,000 special payment made to the Prosecuting Party (the H-1B complainant) from the Respondent’s back wages liability. The ARB noted that the ALJ found that this payment had been given to employees who had been terminated after an acquisition prior to the date they would have become eligible for a bonus, and that the payment had been made both to H-1B employees and to U.S. employees. The ARB found that these facts indicated that the payment was not part of the H-1B wage obligation.

DISMISSAL BASED ON COMPLAINANT’s CASHING OF CHECK TENDERED BY RESPONDENT IN PAYMENT OF BACK WAGES

In Maity v. E-Business International, Inc. , 2015-LCA-10 (ALJ Mar. 24, 2015), the Respondent had paid to the Complainant H-1B worker the amount of back wages found owed as the result of the Wage and Hour Division’s investigation, and the Complainant cashed the Respondent’s check. The Solicitor of Labor stated in a letter that given the payment, it would not be participating in the ALJ hearing. The ALJ dismissed the hearing on the Complainant’s objections, writing:

Respondent argued that Complainant’s claim for additional compensation for the same claim was waived by his cashing the check and his request for hearing must be dismissed. Respondent cited to Heavenridge v. Ace-Tex Corp., No. 92-75610, 1993 WL 603201 (E.D.Mich. Sept.3, 1993) where the Court held that where an employee cashes the employer’s check, it effectuates the waiver. I agree.

EMPLOYER’s LIABILITY UPON FAILURE TO EFFECT A BONA FIDE TERMINATION IS LIMITED TO REIMBURSEMENT FOR REQUIRED WAGE OBLIGATION, AND NOT UNPAID ROOM RENT OR FOOD AND LAUNDRY ALLOWANCES

BACK PAY AWARD; NO REDUCTION FOR ALLEGED VIOLATION BY COMPLAINANT OF ROYALTY AGREEMENT

In Vojtisek-Lom v. Clean Air Technologies International, Inc., ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009), the Respondent argued that after it terminated the Complainant (the H-1B worker), the Complainant had kept computer codes essential to operation of the product the Complainant had invented, and which the Respondent was attempting to manufacture, in contravention of a royalty agreement. The Respondent contended that because of this wrong-doing, the Complainant should not be allowed to profit in any manner from his actions and should be denied any back pay. The Respondent cited in this regard the after-acquired evidence rule from McKennon v. Nashville Banner Pub. Co., 513 U. S. 352 (1995). Both the ALJ and the ARB rejected this contention. The ARB wrote: "While Clean Air may have other rights to pursue a cause of action in another forum, alleged wrong-doing by an H-1B nonimmigrant under a royalty agreement does not fall within DOL’s jurisdiction."

LOAN OBLIGATION THAT PREDATED THE LCA AUTHORIZED WORK PERIOD IS BEYOND DOL’S AUTHORITY TO ENFORCE; ACCORDINGLY THE ARB DECLINED TO PERMIT PAYROLL DEDUCTIONS FROM LCA WAGES TO RECOUP LOAN

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc., ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent argued that $1,500 it loaned to the H-1B worker for a car could be withheld from the last three paychecks to recoup the loan. The ALJ held that no more than 25 percent of the last three paychecks could be withheld to recoup the loan pursuant to 20 C.F.R. § 655.731(c)(9)(iii)(E). On appeal the Respondent argued that it should be entitled to deduct 100 percent of the loan under 20 C.F.R. § 655.731(c)(9)(ii), or in the alternative, that DOL lacks the authority to address loans and deductions made under an agreement outside of the labor condition application. The ARB noted that DOL’s jurisdiction under the Immigration and Nationality Act extends only to employment relationships that arise under, or are terminated pursuant to the INA’s H-1B provisions. The ARB found that the parties had signed the promissory note for the loan prior to the period of the worker’s authorized employment as an H-1B nonimmigrant worker, and therefore the agreement fell outside the H-1B program and was beyond the ALJ’s and this Board’s authority under the INA to enforce. The ARB thus reversed the ALJ’s finding that the Respondent could recoup the loan by making deductions from the worker’s wages.

RENUMERATION FOR BILLABLE HOURS AS 1099 INCOME IS NOT "CASH WAGES PAID" FOR PURPOSES OF H-1B BACK PAY CALCULATION

In Administrator, Wage and Hour Div. v. The Lambents Group, ARB No. 10-066, ALJ No. 2008-LCA-36 (ARB Nov. 30, 2011), the Respondent paid the employees with a combination of monthly salary plus a percentage of their billable hours which the Respondent recorded as "per diem" payments and for which the Respondent recorded the payments with the IRS as 1099 income. The ALJ concluded that the 1099 income payments should have been treated as wages, but "the fact that they were not makes them ineligible [for qualification] as cash wages paid pursuant to the prevailing regulations." USDOL/OALJ Reporter at 7 (quoting ALJ decision). The ARB agreed, writing:

"'Cash wages paid' for purposes of satisfying the H-1B required wage shall consist only of those payments that meet all the [] criteria" set forth in 20 C.F.R. § 655.731(c)(2)(i)-(iv). Payments must be shown in the employer’s payroll records and disbursed to the employee, less authorized deductions. The employer must report the payments to the Internal Revenue Service as the employee’s earnings, with appropriate withholdings for taxes and deductions under the Federal Insurance Contributions Act."

USDOL/OALJ Reporter at 8 (citing 33 U.S.C. § 3101, et seq; 20 C.F.R. § 655.731(c)(2)) (footnote omitted).

H-1B WORKER’S PARTICIPATION IN FRAUDULENT LCA DOES NOT NEGATE BACK PAY LIABILITY OF EMPLOYER

In Administrator, Wage and Hour Division v. Avenue Dental Care, ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the Respondent (a dentist) argued that the H-1B worker (also a dentist) had fraudulently failed to amend the LCA or to submit a new one to reflect the changed circumstance that he had left the dental clinic at which he began employment under the LCA, and became a partner with the Respondent in new clinics opened in a neighboring state. The Respondent argued that the failure to report this new circumstance constituted fraud, and therefore the H-1B worker should not be entitled to recover back wages as an H-1B worker. The ARB agreed with the ALJ, however, that it was the Respondent’s responsibility alone to amend the existing LCAs or to file a new one. The ARB also rejected the Respondent’s explanation that he signed a second LCA without reading it and only later noticed that the original clinic was still listed as the employer. The ARB found that the Respondent had constructive knowledge of the documents he signed.

EMPLOYER’s LIABILITY FOR H-1B BACK WAGES IS NOT NEGATED BY THE FACT THAT THE H-1B WORKER RECEIVED A DRAW OF MONIES OR A SHARE OF PROFITS AS PART OF A BUSINESS ARRANGEMENT WITH THE EMPLOYER

In Administrator, Wage and Hour Division v. Avenue Dental Care, ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the Respondent (a dentist) sponsored an H-1B worker (also a dentist). About one year into the LCA, the H-1B worker left the dental clinic at which he began employment under the LCA, and became a partner with the Respondent in new clinics opened in a neighboring state. At the new clinics, the H-1B worker received draws of money pursuant to his business agreement with the Respondent, rather than cash wages. The ALJ, having found that the Respondent had not paid H-1B wages after the move, refused to credit the non-payroll payments, even though the Respondent argued that the H-1B worker would thereby receive double payment. The ARB affirmed. Under the statute, regulations, and ARB precedent, H-1B wages must be shown in the employer’s payroll records and disbursed to the employees, less authorized deductions, and the payments must be reported to the IRS with appropriate withholdings and deductions. The ARB also agreed with the ALJ that payment of a share of profits under a side agreement did not constitute payment of H-1B wages.

Expungement of record

PLAINTIFF NOT ENTITLED TO ORDER FOR EXPUNGEMENT OF RECORD ABOUT HIS EMPLOYMENT

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the Petitioner (Huang) challenged parts of the Administrative Review Board (ARB)’s ruling affirming the ALJ’s decision that Huang was entitled to receive over $150,000.00 from his former employer, Ultimo Software Solutions, Inc. The court dismissed the request for a court order of expungement of documents because such relief had not been requested before the ALJ, and because Huang had not identified a legal or factual basis for such a court order.

Fringe benefits

FRINGE BENEFITS; H-1B WORKER IS ENTITLED TO FRINGE BENEFITS ON THE SAME BASIS AND UNDER THE SAME CRITERIA THE EMPLOYER OFFERS TO U.S. WORKERS

In Gupta v. Compunnel Software Group, Inc., ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014), the ALJ denied fringe benefits to the Prosecuting Party (who was the H-1B worker) for the period he was in nonproductive status. The ARB found that under 20 C.F.R. § 655.731(c)(7)(ii), the Prosecuting Party was entitled to all fringe benefits afforded U.S. workers.

HEALTH INSURANCE AND PENSION PLAN CONTRIBUTIONS

In Huang v. Ultimo Software Solutions, Inc., ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11 (ARB Mar. 31, 2011), the ARB found that the record supported the ALJ’s determination that, because the Respondent did not effect a bona fide termination, it owed the Complainant compensation for health insurance benefits and pension plan contributions.

FRINGE BENEFITS; H-1B WORKER IS ENTITLED TO FRINGE BENEFITS ON THE SAME BASIS AND UNDER THE SAME CRITERIA THE EMPLOYER OFFERS TO U.S. WORKERS

ALJ HAS JURISDICTION TO CONSIDER ALL CLAIMS FOR FRINGE BENEFITS, EVEN THOUGH WAGE AND HOUR DID NOT INVESTIGATE THEM, UNLESS WAGE AND HOUR HAD PROVIDED NOTICE THAT SUCH CLAIMS FAILED TO PRESENT REASONABLE CAUSE FOR INVESTIGATION; PROSECUTING PARTY HAS BURDEN OF PROVING VALUE OF FRINGE BENEFITS

In Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014), the ALJ concluded that her jurisdiction in regard to the Prosecuting Party’s claim for fringe benefits was limited to adjudication of the issue of cash bonuses because that was the only issue investigated by the Wage and Hour Division investigator, and the investigator’s determination whether to investigation an allegation is wholly discretionary. The ARB, however, stated that it is "proper to presume that an entire complaint was investigated unless the Administrator provided notice that a particular claim failed to present reasonable cause for investigation." The Prosecuting Party (the H-1B complainant), however, failed to provide sufficient evidence to allow the ALJ to make findings of fact regarding the value of additional fringe benefits. Thus, although the ALJ had jurisdiction to make the determination, the Prosecuting Party failed to meet his burden of proof.

Front pay

EMPLOYER DOES NOT HAVE LIABILITY FOR FRONT PAY BEYOND DATE OF EXPIRATION OF H-1B VISA

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the Petitioner (Huang) challenged parts of the Administrative Review Board (ARB)’s ruling affirming the ALJ’s decision that Huang was entitled to receive over $150,000.00 from his former employer, Ultimo Software Solutions, Inc. The court dismissed the Petitioner’s claim for front pay because the ALJ had ordered payment of back pay up to the date that Huang’s H-1B visa expired, and there was no basis to find that Huang could have continued work for the employer after that date.

Interest on award

PRE- AND POST-JUDGMENT INTEREST AWARD; ARB AFFIRMS ALJ’S DIRECTION THAT THE WAGE AND HOUR ADMINISTRATOR CALCULATE THE INTEREST

In Ahad v. Southern Illinois University School of Medicine, ARB Nos. 16-064, -065, ALJ No. 2015-LCA-23 (ARB Jan. 29, 2018), the ALJ concluded that the Respondent violated the H-1B program’s required wage obligation when it underpaid an H-1B nonimmigrant worker for both her academic and clinical work during her employment on an H-1B visa. When the ARB issued a Notice of Intent to Review, it specified in part that it would review whether the Respondent was liable for the underpaid wages in the amount found by the ALJ “plus prejudgment compound interest on the back pay owed and post-judgment interest until satisfaction in full.” In its Final Decision and Order, the ARB affirmed the ALJ’s finding of underpayment, and specifically affirmed the ALJ’s direction that the Wage and Hour Administrator, “shall make such calculations with respect to back pay and interest necessary to carry out this order.”

INTEREST ON BACK PAY AWARD

[Editor’s note: the ARB decision is not clear on this point, but apparently the Respondent was contending that there had been a waiver because the Prosecuting Party had accepted a $6,976.00 back wage payment at the end of the WHD investigation.]

INTEREST CALCULATION

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the Petitioner (Huang) challenged parts of the Administrative Review Board (ARB)’s ruling affirming the ALJ’s decision that Huang was entitled to receive over $150,000.00 from his former employer, Ultimo Software Solutions, Inc. The court dismissed Huang’s claim that the interest award was miscalculated. The ALJ had ordered the Wage and Hour Division to calculate pre- and post-judgment interest on the damages award, and the court found that Huang had not alleged any plausible inconsistency between the interest found owed and the ALJ’s award.

PRE- AND POST-JUDGMENT INTEREST NOT AWARDED WHERE RESPONDENT HAD OVERPAID LCA BACK WAGES

In Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014), the Respondent paid the Prosecuting Party (the H-1B complainant) all LCA wages found owed by the Wage and Hour Division, and did not appeal that award. The Prosecuting Party appealed, asking for additional wages. The ARB found that the Respondent’s LCA wage liability ended sooner than the date used by the Wage and Hour Division. The ARB did not address the overpayment because the Respondent had not filed a cross-appeal. The ARB, however, declined to award pre- or post-judgment interest on the back pay award because the Prosecuting Party had already been overcompensated.

INTEREST ON BACK PAY AWARD

The H-1B worker to whom back pay is owed under the LCA regulations is entitled to interest on the back pay award. Where that worker was the Prosecuting Party, he did not waive entitlement to interest where he had preserved that right by requesting a hearing and seeking additional damages. Gupta v. Compunnel Software Group, Inc., ARB No. 12-049, ALJ No. 2011-LCA-45 (ARB May 29, 2014). [Editor’s note: the ARB decision is not clear on this point, but apparently the Respondent was contending that there had been a waiver because the Prosecuting Party had accepted a $6,976.00 back wage payment at the end of the WHD investigation.].

PRE- AND POST-JUDGMENT INTEREST ON BACK PAY AWARDS IS PART OF MAKE-WHOLE REMEDY

In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp., ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014), the Respondent argued that because the INA does not specifically provide for an award of interest on back pay, the ALJ erred in awarding pre- and post-judgment interest. The ARB rejected this contention, noting that that it had "previously ruled that the intent of a back pay award is to make the employee whole, which logically requires the payment of interest." Slip op. at 12, citing Doyle v. Hydro Nuclear Serv., ARB Nos. 99-041, 99-042, 00-012, ALJ No. 1989-ERA-22, slip op. at 16 (ARB May 17, 2000).

BACK PAY AWARD; PREJUDGMENT AND POST JUDGMENT INTEREST

A complainant who is entitled to back wages based on the Respondent’s violation of the INA’s no-benching provision for H-1B non-immigrant workers, is also entitled to prejudgment compound interest on the back pay award and post judgment interest until the Respondent satisfies the debt. Such interest is calculated according to the procedures set out in Doyle v. Hydro Nuclear Serv., ARB Nos., 99-041, 99-042, 00-012, ALJ No. 1989-ERA-22, slip op. at 18-21 (ARB May 17, 2000). Innawalli v. American Information Technology Corp., ARB No. 04-165, ALJ No. 2004-LCA-13 (ARB Sept. 29, 2006). To the same effect Amtel Group of Florida, Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006).

BACK WAGES; PRE- AND POST-JUDGMENT INTEREST; LENGTH OF BACK PAY LIABILITY

In Administrator, Wage and Hour Div., USDOL v. Help Foundation of Omaha, Inc., ARB No. 07-008, ALJ No. 2005-LCA-37 (ARB Dec. 31, 2008), the ARB found that although the INA does not specifically authorize an award of interest on back pay, it would award both pre- and post-judgment compound interest on a back pay award under the LCA regulations. The ARB held that the appropriate interest rate would be the interest rate charged on the underpayment of federal income taxes prescribed under 26 U.S.C. § 6621(a)(2) (Federal short-term rate plus three percentage points.). The ARB set the Respondent’s back pay obligation as extending from the date of the ALJ’s D. & O. until satisfaction. The ARB went on to consider whether the Respondents had had effected a "bona fide termination" of its employment relationship with the Alien, which can in certain circumstances end an employer’s obligation to pay wages to the H-1B nonimmigrant. In the instant case, however, the Employer had only informed the DOL and not DHS that it had terminated the Alien’s employment, and had not tendered to the Alien the cost of his return trip home when it terminated his employment before the expiration of his period of authorized employment. The ARB held that in actuality, the Respondent’s liability to pay the required wage continued until USCIS actually revoked the H-1B petition upon learning that the Alien’s employment had ended. However, “because the parties stipulated to the amount of back wages, the Administrator waived his right to pursue liability beyond that dollar amount.”

ARB DID NOT ACT IMPROPERLY IN DENYING REDUCTION OF INTEREST ON AWARD DOES ON LENGTH OF ADMINISTRATIVE PROCEEDING

In Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 3_14-cv-05028 (W.D. Mo. Oct. 24, 2014), the Plaintiff challenged the ARB’s award of pre- and post-judgment interest because of the administrative proceedings had taken too long and therefore it should not have to pay for the length of the proceedings. The court, however, found that the ARB’s decision not to reduce the interest award was not arbitrary and capricious, and was within the statutory framework and therefore not contrary to law. Vacated on other grounds, Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 14-3717 (8th Cir. Dec. 14, 2015) (2015 U.S. App. LEXIS 21544; 2015 WL 8591614).

PRE- AND POST-JUDGMENT INTEREST

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), 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. Vacated on other grounds, Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 14-3717 (8th Cir. Dec. 14, 2015) (2015 U.S. App. LEXIS 21544; 2015 WL 8591614).

INTEREST ON BACK PAY AWARD

In Mao v. Nasser Engineering & Computing Services, ARB No. 06-121, ALJ No. 2005-LCA-36 (ARB Nov. 26, 2008), the ARB agreed with the ALJ’s finding that the Prosecuting Party was entitled to prejudgment compound interest on the back pay award and post-judgment interest from the date of the ALJ’s D. & O. until satisfaction in accordance with the procedures to be followed in computing the interest due on back pay awards outlined by the ARB in Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, ALJ No. 1989-ERA-022 (May 17, 2000) (case arising under the whistleblower protection provisions of the Energy Reorganization Act).

Litigation Costs

LITIGATION COSTS

Medical damages

MEDICAL DAMAGES MUST BE PROVED

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the Petitioner (Huang) challenged parts of the Administrative Review Board (ARB)’s ruling affirming the ALJ’s decision that Huang was entitled to receive over $150,000.00 from his former employer, Ultimo Software Solutions, Inc. The court dismissed Huang’s claim in his second amended complaint that he was entitled to compensatory damages for consequences to his health. The court found that Huang had failed to show that the ALJ or the ARB erred in finding that Huang had not presented sufficient evidence or identified a legal basis to justify medical damages.

Prayer for damages

ARB HOLDS COMPLAINANT TO DAMAGES FOR H-1B WAGES REQUESTED BEFORE ALJ; DOES NOT REACH QUESTION OF WHETHER EMPLOYER IS LIABLE FOR ENTIRE PERIOD OF H-1B EMPLOYMENT WHERE VISA WAS ISSUED BUT EMPLOYMENT NEVER COMMENCED

Punitive damages

PUNITIVE DAMAGES NOT AUTHORIZED BY STATUTE

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the Petitioner (Huang) challenged parts of the Administrative Review Board (ARB)’s ruling affirming the ALJ’s decision that Huang was entitled to receive over $150,000.00 from his former employer, Ultimo Software Solutions, Inc. The court dismissed Huang’s claim that he should have been awarded punitive damages because the H-1B visa whistleblower protection statute and regulations do not authorize such an award.

Qualified judicial immunity of ALJ and ARB

ALJ AND ARB ARE PROTECTED BY QUASI-JUDICIAL AND SOVEREIGN IMMUNITY FROM SUIT SEEKING DAMAGES RELATED TO PERFORMANCE OF JUDICIAL FUNCTIONS IN LCA CASE

The court also dismissed Gupta’s claims for damages from the ALJ and the ARB for purportedly violating his constitutional rights. The court stated that:

such claims fail on multiple grounds, not least of which is that the ALJ and ARB are protected by quasi-judicial and sovereign immunity. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived.”); Gertskis v. New York Dep’t of Health & Mental Hygiene, No. 13-CV-2024 (JMF), 2014 WL 2933149, at *5 (S.D.N.Y. June 27, 2014) (“[T]he doctrine of quasi-judicial immunity ... bars claims against administrative law judges performing judicial functions.” (citation omitted)).

Slip op. at 19-20, n.9.

Raises

BACK PAY LIABILITY IS LIMITED TO RATE SUBMITTED IN H-1B VISA APPLICATION; NO LIABILITY FOR PROMISED RAISE NOT PROVIDED FOR IN LCA

The court dismissed the Petitioner’s claim for an increase in the back pay award based on a 5-10% annual raise Huang alleged the employer promised him. The court stated:

The H-1B visa statute does not require compensation for expected raises that go beyond the commitments stated in the employer’s LCA. The LCA is submitted as part of a prospective employer’s application for an H-1B visa on the prospective employee’s behalf and sets out the terms and conditions of employment. See, e.g., Kersten v. LaGard, Inc., ARB No. 06-111, ALJ No. 2005-LCA-017, at 2 (ARB Oct. 17, 2008). Huang does not allege that his LCA provided for the 5'10% annual raise he seeks. Huang has alleged no legal or factual basis to require Ultimo to pay amounts beyond what it specified in the LCA.

Slip op. at 12-13.

Reinstatement

EQUITABLE REMEDIES; ARB FINDS THAT IT HAS NO AUTHORITY TO NULLIFY A SEPARATION AGREEMENT OR TO REVERSE A U-5 TERMINATION NOTICE

In Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014), the Prosecuting Party (the H-1B complainant) requested that the ARB reverse the U-5 termination notice and nullify the Respondent’s separation agreement as equitable remedies. The ARB declined, finding that private employment agreements were outside its jurisdiction under the INA, and that the U-5 termination notice was a securities industry regulation entirely separate from the INA.

LCA EMPLOYEE PROTECTION PROVISION; REINSTATEMENT TO TEMPORARY POSITION

In Talukdar v. U.S. Dept. of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, ARB No. 04-100, ALJ No. 2002-LCA-25 (ARB Jan. 31, 2007), a case arising under the LCA employee protection provision (8 U.S.C.A. § 1182(n)(2)(C)(iv) (West 2007); 20 C.F.R. § 655.801 (2006)), the Respondent argued that reinstatement was an impossibility because the Complainant’s temporary primary care physician position no longer existed. The ARB, however, was not convinced that the position was actually "gone," noting that the Respondent continued to employ primary care physicians. The ARB noted that in DOL employee protection cases "[w]here reinstatement is ordered but the complainant’s former position no longer exists, the employer generally must offer the complainant reinstatement to 'a substantially equivalent position in terms of duties, functions, responsibilities, working conditions, and benefits.'" USDOL/OALJ Reporter at 15 (citation omitted). The Board noted that the Respondent had not argued that the Complainant’s position was unique, or that substantially equivalent positions were not available.

The Board also held that the fact that the Complainant held a limited term appointment was not in itself a bar to reinstatement. The Board stated that it was only ordering that the Respondent return the Complainant to the situation he would have occupied absent the discrimination — i.e., the situation he would have occupied had his appointment been renewed. The Board held that once the Respondent has reinstated the Complainant to a temporary position, it will have fulfilled its obligations under this order (but also observing in a footnote that subsequent discrimination would be grounds for a new employee protection complaint).

Tax consequences of lump sum award

COMPENSATORY DAMAGE AWARD FOR TAX CONSEQUENCES OF A LUMP SUM DAMAGES PAYMENT NOT AWARDED WHERE RECORD DID NOT CONTAIN COMPETENT EVIDENCE OF AMOUNT OF INCREASED TAX LIABILITY

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the Petitioner (Huang) challenged parts of the Administrative Review Board (ARB)’s ruling affirming the ALJ’s decision that Huang was entitled to receive over $150,000.00 from his former employer, Ultimo Software Solutions, Inc. The court dismissed the Petitioner’s claim for increased compensation for the tax consequences of a lump sum damages payment because the employer had not yet made the payment, the amount of any increased tax was not known and competent evidence of such was not shown to be in the administrative record.

The Fifth Circuit affirmed. See Huang v. Administrative Review Board, USDOL, 579 Fed. Appx. 228 (5th Cir. Aug. 12, 2014) (per curiam) (unpublished) (2014 WL 3906772).

XVII. Claim preclusion

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First, by its terms, the settlement referred to and released only the claims brought in the state litigation, was not phrased as a general release, and did not reference the administrative action.

COMPLAINT WHICH, INTER ALIA, CHALLENGED WAGE MATTERS ALEADY LITIGATED BEFORE THE DEPARTMENT OF LABOR AND THE COURTS DISMISSED ON IN FORMA PAUPERIS SCREENING WITHOUT PREJUDICE TO FILE ADDITIONAL AMENDED COMPLAINT

In Vinayagam v. United States Dep’t of Labor Admin. Review Bd., No. 18-cv-01206 (D. Nev. Mar. 23, 2020) (2020 U.S. Dist. LEXIS 51804), the district court had granted Plaintiff’s request to proceed in forma pauperis, which requires screening of the complaint pursuant to 28 U.S.C. § 1915(e)(2). An amended complaint was dismissed with leave to amend, and before the court was Plaintiff’s second amended complaint, which appeared to assert 17 claims stemming from her recruitment to work in the U.S. The court found it unclear that it had subject matter and personal jurisdiction over the parties — and that it appeared that the complaint had significant venue and res judicata issues. Plaintiff had previously challenged the wage issues with the Department of Labor, including appeals through to the Circuit. The court stated that such claims would be precluded in the instant lawsuit. The court dismissed the second amended complaint without prejudice to file a third amended complaint.

[Editor's note: The related USDOL case was Vinayagam v. Cronous Solutions, Inc., ARB No. 15-045, ALJ No. 2013-LCA-29. The related Court of Appeals decision was Vinayagam v. Admin. Review Bd., No. 18-70199 (9th Cir. May 23, 2018) (2018 U.S. App. LEXIS 13762).]

CLAIM PRECLUSION

In Gupta v. Wipro Ltd., No. 17-1954 (D. N.J. Dec. 15, 2017) (2017 U.S. Dist. LEXIS 206242; 2017 WL 6402636) (related to ARB Nos. 11-041, 12-050; ALJ No. 2010-LCA-24), the district court found that claim preclusion applied to the Plaintiff’s suit, which was essentially duplicative of the claims asserted in Gupta v. Perez, No. 14-4054 (see 10 F.Supp.3d 437). Although the Plaintiff’s current suit included claims for unjust enrichment, quantum meruit, promissory estoppel, and violations of the FSLA and California Labor Code, the Court noted that “claim preclusion bars not only claims that were actually asserted in a previous action, but also ‘claims that could have been brought.’” Slip op. at 23 (citation omitted) (emphasis as in original).

ISSUE PRECLUSION BASED ON ALJ’S FINDINGS OF FACT; WHERE ISSUES ON WHICH STATE COURT CLAIMS RELIED WERE LITIGATED BEFORE A DOL ALJ IN AN ADMINISTRATIVE LCA ACTION, AND THE ELEMENTS OF ISSUE PRECLUSION WERE MEET, THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT ON THE STATE COURT CLAIMS

In Sumeru Health Care Group, L.C. v. Hutchins, No. 15-5788 (6th Cir. Aug. 1, 2016) (unpublished) (2016 WL 4073303; 2016 U.S. App. LEXIS 14189) (related to Kutty, ARB No. 03-022; ALJ Nos. 2001-LCA-10 to 25), the Plaintiff brought a state law actions alleging that the Defendants played a role in the collapse of the Plaintiff’s medical-clinic business. The action was stayed before the district court until the Court of Appeals affirmed the ARB’s decision in an administrative proceeding. The ARB had affirmed the ALJs’ finding that the Plaintiff had violated LCA regulations. The Defendant’s then moved for summary judgement on the state law claims on the ground that the Plaintiff was collaterally estopped from re-litigating issues decided by the ALJ in the DOL proceeding. The District Court agreed and granted summary decision. The Sixth Circuit affirmed, finding that the state court actions were precluded by findings from the USDOL litigation affirmed in Kutty v. United States Dep't of Labor, 764 F.3d 540 (6th Cir. 2014) – specifically the ALJ’s finding that the Plaintiff’s physician’s had not breached their employment contracts with the Plaintiff. The ALJ had conducted a 16 day hearing and rendered a 104 page decision. Because the Plaintiff’s claims rested on the precluded issues, the district court’s grant of summary judgment to the Defendant’ was affirmed by the Sixth Circuit.

Upon review, the Board finds that the extensive evidentiary record amply supports the ALJ’s factual findings, including her determination that the parties’ settlement and release of claims extinguished all claims against Headstrong. Gupta attacks the settlement as ineffective, void, and fraudulent, and claims that he rescinded it. However, Gupta has evoked no statute, regulation, or precedent authorizing the Board to adjudicate collateral attacks on a facially valid contract. The Board is an administrative body with only the authority emanating from statutes, implementing regulations, and delegations of authority. The ARB has, however, affirmed an ALJ’s dismissal based on the parties’ settlement in an INA case involving this same complainant. Gupta v. Compunnel Software Grp., ARB No. 16-056, ALJ No. 2011-LCA-045 (ARB Apr. 29, 2016). In that case, as well as this, the settlement included a release of all claims related to Gupta’s employment. Gupta’s claims that this settlement is ineffective, void, fraudulent, or has been rescinded by him, are collateral issues that we do not address in this instance. Because the ALJ’s conclusion that the settlement extinguished all claims is consistent with ARB precedent, we uphold it. We, therefore, affirm the ALJ’s dismissal of this case.

XVIII. Sovereign immunity

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STATE PUBLIC UNIVERSITY FOUND TO BE IMMUNE FROM SUIT UNDER ELEVENTH AMENDMENT

In Cot v. University of South Carolina, ARB No. 2019-033, ALJ No. 2018-LCA-00030 (ARB Nov. 30, 2019) (per curiam), Complainant sought an ALJ hearing following the WHD Administrator’s determination that Respondent owed him back wages under the H-1B visa program. Complainant requested a hearing because he believed that the amount awarded was incorrect. Complainant also asked the ALJ to review his visa status and the misuse of government funds. The ALJ asked Complainant to clarify his request for hearing, upon which Complainant identified 20 issues, none of which involved the WHD back wage investigation. The ALJ found that Complainant was no longer seeking review of the Administrator’s findings, and that Complainant should be treated as the Prosecuting Party. Respondent filed a motion for summary decision seeking dismissal of the case because the Eleventh Amendment to the U. S. Constitution granted it immunity from suit. The ALJ granted the motion, finding:

(1) Respondent is an arm of the state of South Carolina, and is therefore entitled to sovereign immunity under the 11th Amendment;
(2) sovereign immunity bars DOL from adjudicating complaints filed by a private party against a nonconsenting state; and
(3) the Prosecuting Party had not shown that South Carolina had expressly waived its sovereign immunity or that Congress had abrogated it.

The ARB adopted the ALJ’s decision as the final agency decision in the matter.

SOVEREIGN IMMUNITY FOR ALJ AND ARB MEMBERS FROM SUIT SEEKING DAMAGES RELATED TO PERFORMANCE OF JUDICIAL DUTIES

See Compunnel Software Grp., Inc. v. Gupta, No. 14-cv-4790 (S.D. N.Y. Sept. 30, 2018) (2018 U.S. Dist. LEXIS 170187) (case below ARB No. 16-056; ALJ No. 2011-LCA-45), casenoted above in Settlements and consent findings (ALJ and ARB are protected by quasi-judicial and sovereign immunity from suit seeking damages related to performance of judicial functions in LCA case).

USDOL/OALJ: LCA Digest

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