Decisions of the Administrative Review Board
Benjamin v. CitationShares Management, LLC
, ARB No. 14-039, ALJ No. 2010-AIR-1 (ARB July 28, 2014)
Final Decision and Order PDF
CLEAR AND CONVINCING EVIDENCE STANDARD; EMPLOYER UNABLE TO ESTABLISH ITS BURDEN WHERE IT FIRED COMPLAINANT FOR LYING ABOUT RECORDING A MEETING WHERE RECORDING WAS ITSELF PROTECTED ACTIVITY; COMPLAINANT NOT REQUIRED UNDER AIR21 TO SHOW THAT REASON GIVEN FOR FIRING WAS PRETEXT
In Benjamin v. CitationShares Management, LLC , ARB No. 14-039, ALJ No. 2010-AIR-1 (ARB July 28, 2014), the ARB had remanded the case to the ALJ to permit the Respondent to present clear and convincing evidence, if any, to avoid damages on the Complainant’s AIR21 claim, by showing that it would have terminated the Complainant’s employment absent the protected activity. The ALJ found that the Respondent did not making this showing, and on appeal the ARB summarily affirmed, applying the discussion of the "clear and convincing" evidence standard from Speegle v. Stone & Webster Constr., Inc. , ARB No. 13-074, ALJ No. 2005-ERA-6 (ARB Apr. 25, 2014).
[Editor’s note: According to the ALJ’s decision on remand, during a meeting to discuss the Complainant’s reporting of a wing strut problem, the Complainant brought a tape recorder. During the meeting, the tape recorder began making noise, and the Complainant’s immediate supervisor demanded to know what it was. The Complainant at first claimed it was a cell phone, but eventually admitted that it was recording device. The Complainant was then escorted off site and later terminated effective the day of the meeting. The ALJ noted that the ARB had found in the remand order that the recording of the meeting was protected activity that contributed to the adverse employment actions, and that it would be arguably impossible for the Respondent to meet the clear and convincing evidence burden. Benjamin v. CitationShares Management, LLC , 2010-AIR-1 (ALJ Mar. 7, 2014).]
On appeal, the ARB noted that the Employer repeatedly stated that the attempted recording was the reason for the adverse employment actions. The company’s chief pilot testified that it was his decision to terminate the Complainant’s employment and that he did so based on the Complainant’s attempt to record a conversation without his consent and subsequently lying about it. The ALJ found that the protected activity of attempting to record the meeting and the subsequent lie were inextricably intertwined under the facts of the case. The ARB stated that "[w]e understand the ALJ’s ruling to mean that the subject of the lie and the timing makes the recording and the lie inseparable," found that this was a reasonable conclusion, and affirmed the ALJ’s finding. The ARB was not persuaded by the Respondent’s contention that the Complainant could not show any other motive for the termination because the Complainant’s burden under AIR21 did not include showing pretext.
ALJ’S REFUSAL TO GRANT NEW HEARING ON REMAND FOUND NOT TO BE AN ABUSE OF DISCRETION WHERE AMPLE TESTIMONY AND EVIDENCE HAD BEEN SUBMITTED AT THE ORIGINAL HEARING, ALJ PERMITTED SUBMISSION OF ADDITIONAL EVIDENCE, AND NO SPECIFIC ABUSE BY THE ALJ WAS RAISED
In Benjamin v. CitationShares Management, LLC , ARB No. 14-039, ALJ No. 2010-AIR-1 (ARB July 28, 2014), the ARB had remanded the case to the ALJ to permit the Respondent to present clear and convincing evidence, if any, to avoid damages on the Complainant’s AIR21 claim, by showing that it would have terminated the Complainant’s employment absent the protected activity. On appeal from the ALJ’s decision on remand, the Respondent contended that it should have been granted a hearing to present evidence on the issues on remand. The ARB found that the ALJ did not abuse his discretion in this regard. The regulation at 29 C.F.R. § 18.54(c) provides that once the ALJ closes the record, "no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record." The ALJ found that evidence had been taken at the original hearing, with every decision maker having testified at length, and a great deal of documentary evidence having been submitted. The ALJ did allow the parties to submit additional documentary evidence and to respond to evidence offered by the opposing party. The ARB noted that the Respondent had not raised any specific abuse of discretion by the ALJ.
Clark v. Hamilton Hauling, LLC
, ARB No. 13-023, ALJ No. 2011-STA-7 (ARB July 24, 2014)
Order Denying Motion for Panel Reconsideration PDF
[STAA Digest II I]
CRITERIA FOR DETERMINING WHETHER MOVANT HAS SHOWN GROUNDS FOR ARB'S PANEL RECONSIDERATION
In deciding a motion for panel reconsideration, the ARB generally will consider whether the movant has shown:
(i) material differences in fact or law from that 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, and (iv) failure to consider material facts presented to the Board before its decision.
Clark v. Hamilton Hauling, LLC , ARB No. 13-023, ALJ No. 2011-STA-7 (ARB July 24, 2014), USDOL/OALJ Reporter at 2, citing Friedman v. Columbia Univ. , ARB No. 12-089, ALJ No. 2012-ERA-008, slip op. at 2 (ARB Jan. 22, 2014) (Order Denying Reconsideration). In Clark , the ARB found that the Complainant's failed to show that the panel decision warranted reconsideration.
Clark v. Hamilton Hauling, LLC
, ARB No. 13-023, ALJ No. 2011-STA-7 (ARB July 24, 2014)
Order Denying Request for En Banc Review PDF
ARB denied Complainant's request for en banc review of panel decision.
Levi v. Anheuser Busch Inbev
, ARB No. 13-047, ALJ No. 2012-SOX-39 (ARB July 24, 2014)
Final Decision and Order PDF
COLLATERAL ESTOPPEL DOES NOT PREVENT ADJUDICATION OF ISSUE OF PROTECTED ACTIVITY WHERE, ALTHOUGH THAT ISSUE HAD BEEN LITIGATED REGARGING PRE-DISCHARGE ACTIVITY, THE INSTANT COMPLAINT WAS BASED ON POST-DISCHARGE COMPLAINTS FILED WITH OSHA
ADVERSE ACTION; WHERE PENSION BENEFITS HAD BEEN CALCULATED CONSISTENT WITH PENSION PLAN CRITERIA, SOX COMPLAINT WAS DISMISSED FOR FAILURE TO ESTABLISH ADVERSE ACTION ELEMENT
In Levi v. Anheuser Busch Inbev , ARB No. 13-047, ALJ No. 2012-SOX-39 (ARB July 24, 2014), the Complainant filed a SOX complaint alleging that a pension plan determination that set the termination date for calculation of his pension on the final day he was actually paid, rather than the later effective date of his termination, constituted retaliation for his earlier whistleblowing activity against the Respondent. The ALJ dismissed the complaint for two reasons: (1) that collateral estoppel barred the Complainant from re-litigating whether he engaged in protected activity, and (2) the Complainant failed to offer evidence that he suffered an adverse personnel action when receiving his pension determination. The ARB found that the ALJ correctly determined that the complaint was precluded under collateral estoppel to the extent that the complaint was based on protected activity that occurred prior to the Complainant’s discharge, an issue that had previously been litigated between the parties. The ARB, however, found that the Complainant had also asserted that his post-discharge filing with OSHA of whistleblower complaints constituted protected activity. The ARB found that this allegation of protected activity was not barred by collateral estoppel.
The ARB, however, found that the uncontroverted evidence of record showed that the effective date of the Complainant’s discharge did not control the amount of the pension benefits; rather, the pension plan calculated benefits based on days actually paid as an employee. The ARB affirmed the ALJ’s finding that the Complainant had not established an adverse action.
One member of the Board concurred. She concluded that the substantive protected activity alleged by the Complainant in his complaint and his amended complaint stemmed from pre-discharge activity, and therefore collateral estoppel and res judicata clearly applied to bar the instant complaint. This member of the Board would not have reached the adverse action issue.
Willibanks v. Atlas Air Worldwide Holdings, Inc.
, ARB No. 14-050, ALJ No. 2014-AIR-10 (ARB July 17, 2014)
Order Granting Petition for Interlocutory Review and Establishing Briefing Schedule PDF
ARB GRANTS INTERLOCUTORY REVIEW OF ALJ ORDER STAYING HEARING AND REQUIRING AIR21 COMPLAINANT TO ARBITRATE PURSUANT TO EMPLOYMENT CONTRACT
In Willibanks v. Atlas Air Worldwide Holdings, Inc. , ARB No. 14-050, ALJ No. 2014-AIR-10 (ARB July 17, 2014), the ARB granted the Complainant's petition for interlocutory review of the ALJ's order staying the hearing on the Complainant's AIR21 complaint and requiring the Complainant to arbitrate her AIR21 complaint pursuant to the arbitration provision of her employment agreement with the Respondent, and the Federal Arbitration Act. The ARB found that the interlocutory appeal met the "exceptional circumstances" standard for entertaining such appeals because, should the ARB delay consideration of the question, "there exists the distinct prospect that not only will Willbanks be precluded from further Department of Labor or court consideration of her AIR21 claim, but we well may be thwarting the underlying purposes and policies Congress sought to achieve by affording whistleblower protection under AIR 21." AIR21, the ARB noted, is more than just a means for vindication of employee rights — it has the underlying purpose of ensuring the safety of the traveling public.
The ARB also found that "the circumstances presented in this case meet the collateral order exception to the finality requirement set out in Cohen v Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949)." Slip op. at 3 (citation omitted). The ALJ's decision conclusively determined the disputed question; the ALJ's decision resolved an important issue completely separate from the merits of the action; and the ALJ's order may become effectively unreviewable if interlocutory review is not granted.
Batyrbekov v. Barclays Capital
, ARB No. 13-013, ALJ No. 2011-LCA-25 (ARB July 16, 2014)
Final Decision and Order PDF
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. 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.
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 EMPOYER 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.
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.
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.
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.
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.
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.
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.
Dubois v. Clark Construction
, ARB No. 14-062, ALJ No. 2014-DBA-15 (ARB July 16, 2014)
Order Granting Motion for Voluntary Dismissal Without Prejudice PDF
Order granting voluntary dismissal without prejudice of Complainant's appeal where ALJ had not yet issued a reviewable final decision.
Fink v. R&L Transfer, Inc.
, ARB No. 13-018, ALJ No. 2012-STA-6 (ARB July 16, 2014)
Order Awarding Attorney's Fees PDF
[STAA Digest IX C]
AWARD OF ATTORNEY'S FEES AND COSTS ORDERED PAYABLE UPON RECEIPT OF ARB'S ORDER
In Fink v. R&L Transfer, Inc. , ARB No. 13-018, ALJ No. 2012-STA-6 (ARB July 16, 2014), the ARB approved the Complainant's unopposed petition for attorney's fees and costs for work before the ARB where the itemization of fees and costs was found to be reasonable. The ARB ordered payment of this award of fees and costs upon receipt of its order.
Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp.
, ARB No. 12-076, ALJ No. 2011-LCA-16 (ARB July 16, 2014)
Final Decision and Order PDF
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).
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. , 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.
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. , 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.
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. , 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.
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
In Administrator, Wage and Hour Div., USDOL v. Xcel Solutions Corp. , 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.
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. , 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.
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. , 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).
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. , 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).
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. , 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.