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By Bruce Buchanan, Sebelist Buchanan Law
An Administrative Law Judge (ALJ) of the Department of Labor (DOL) reversed DOL’s efforts to conduct an expansive investigation. Initially, one employee, Sergey Nefedyev, filed a charge with the DOL alleging he was not paid for one and one-half months when he was working for Volt Information Sciences on a H-1B visa. The parties resolved the case for $12,000 in back pay.
But, the DOL decided to expand this single complaint on a H-1B visa violation to cover 80 other employees and sought $330,000 in back wages.
The ALJ cited to a recent decision of the 8th Circuit Court of Appeals in Greater MO Medical Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015). In so doing, he followed the reasoning of the 8th Circuit which stated:Rather than authorize an open-ended investigation of the employer and its general compliance without regard to the actual allegations in the aggrieved-party complaint, § 1182(n)(2)(A) expressly ties the Secretary’s initial investigatory authority to the complaint and those specific allegations “respecting [an employer’s alleged] failure to meet a condition specified in [a labor condition application] or [an employer’s] misrepresentation of material facts in such [a labor condition application]” for which the Secretary finds “reasonable cause to believe” the employer committed the alleged violation. Read naturally, 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.
Thus, the ALJ found the DOL had overstepped its bounds in this case.
It will be interesting to see if this analysis is used in other settings as often Wage and Hour and the National Labor Relations Board will expand the scope of its investigation beyond the contents of the charge.
By: Bruce Buchanan, Sebelist Buchanan Law
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a part of the Justice Department, reached a settlement agreement with Barrios Street Realty Inc., a company in Lockport, Louisiana. The agreement resolves claims that the company and its agent, Jorge Arturo Guerrero Rodriguez, engaged in a pattern or practice of citizenship discrimination against U.S. workers by preferring to hire foreign workers under the H-2B visa program.
The OSC’s investigation found in July 2014, Barrios Street Realty and Guerrero Rodriguez failed to consider or improperly rejected 73 U.S. workers who applied for positions as sheet metal roofers or laborers, and then solicited foreign workers to fill these positions. The OSC determined the company’s applications for foreign workers falsely claimed that its earlier efforts to fill the sheet metal and laborer positions failed to identify qualified U.S. workers. Refusing to consider or hire qualified U.S. workers because of their citizenship violates H-2B regulations and the Immigration and Nationality Act’s (INA) anti-discrimination provision.
Under the settlement, Barrios Street Realty must create a back pay fund of $115,000 to compensate U.S. workers, pay $30,000 in civil penalties and be subject to monitoring for a three-year period. In addition, Barrios Street Realty acknowledged that its misuse of the H-2B visa program constituted valid grounds for debarment from the program and agreed to a voluntary debarment prohibiting it from seeking H-2B visa workers or any other classification of non-immigrant visa workers from the Department of Labor’s Employment and Training Administration for a period of three years.
The settlement agreement also requires Barrios Street Realty to provide the OSC, upon its request, a copy of every job application/resume submitted to Barrios Street Realty and a record of action on that job application. Furthermore, Barrios Street Realty’s HR employees must attend training sessions conducted by OSC on the INA’s anti-discrimination provision, the company must revise its immigration compliance practices in regards to non-discrimination, and submit any proposed changes to the OSC for their approval.
This represents the first time the OSC has obtained a voluntary debarment as a remedy for violating the INA’s anti-discrimination provision.
By Bruce E. Buchanan @ Sebelist Buchanan Law
A U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) ordered Florida-based Government Training LLC, which provides training and publishing for government agencies, to pay back wages of about $48,000 to a nonimmigrant H-1B worker, Duneet Sharma, an Indian National, whom it underpaid. See Administrator, Wage and Hour Division v. Government Training, LLC, 2015-LCA-5 (DOL OALJ 2016).
Initially, the DOL issued findings that Government Training had violated the Immigration and Nationality Act (INA) by not paying Sharma either the actual wage or the prevailing wage specified in two LCAs. Thus, the DOL concluded that Sharma was owed back wages. The employer appealed the findings, sending the case to an ALJ. In October, the DOL filed for a summary decision, saying that the facts backing its initial findings were not in dispute.
Under the INA, employers who want to hire nonimmigrants to work in specialty occupations in the U.S. under the H-1B program must first obtain certification from the DOL by filing a labor condition application, or LCA, which sets the worker’s wage levels and working conditions. After getting an LCA as well as approval from the U.S. Department of Homeland Security, the H-1B nonimmigrant is issued a visa and may begin work.
Before the ALJ, Government Training sought the case to be dismissed and raised these issues: whether the employer was not liable for back wages due to lack of work, and whether Sharma was provided with a car, a cellphone and health insurance that should have been considered part of his wages.
The ALJ found that Government Training routinely underpaid Sharma, who was employed as a computer programmer from 2010 until 2013, from the amounts it had listed in its LCAs. The ALJ said the LCAs in Sharma’s case promised to pay him $65,000 per year for the position of software engineer, and set the prevailing wage at close to $56,000. The ALJ noted that Government Training admitted that it did not pay Sharma the required wages under the LCAs, and rejected the company’s arguments that it should be excused from not paying those required wages.
The ALJ also pointed out that although the health insurance, car and phone that Sharma received could be considered as benefits that are provided as compensation, Government Training didn’t submit any documentation to show how much those items cost or that they were ever reported on Sharma’s payroll or to the IRS as required; thus, the ALJ declined to find these benefits offset some of the back pay.
By: Bruce Buchanan, Sebelist Buchanan Law
The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached a settlement with Freedom Home Care, Inc. resolving allegations that Freedom discriminated against its employees in violation of the Immigration and Nationality Act (INA).
The OSC’s investigation found that Freedom Home Care had a practice of rejecting work authorization documents from non-U.S. citizens while accepting them from U.S. citizens. The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship or national origin when verifying an employee’s authorization to work.
Under the settlement agreement, Freedom Home Care will pay $832 in back pay and $400 in civil penalties to the United States to compensate the Charging Party for the discrimination.
The settlement agreement also requires Freedom Home Care to undergo compliance monitoring for one year, all HR personnel and managerial employees shall join OSC’s e-mail distribution list and attend a webinar conducted by OSC on the INA’s anti-discrimination provision.
This settlement is one of the lightest punishments that an employer has received from the OSC in the last year.
Updated 02-11-2016 at 12:17 PM by BBuchanan
By Bruce Buchanan, Siskind Susser P.C.
Two companies have recently agreed to settle wage and hour claims involving immigrant employees for between $300,000 and $500,000. In one case, Kevin Corriveau Painting Inc. and three owners or officers settled with U.S. Department of Labor by agreeing to pay $437,300 in wages and damages to employees, many of whom were immigrants, plus a $62,700 civil penalty. Additionally, Corriveau Painting agreed to stop intimidating employees with threats to report them to immigration authorities.
In a separate case, U.S. District Judge Robert Blackburn approved a $305,000 settlement between Carniceria y Verduleria Guadalajara, a Mexican butcher shop and grocer ( located in Denver), and workers - who were mainly immigrants, concerning the employer’s alleged failure to pay minimum wage and overtime. The plaintiff, Mancia Rivera, who worked at Guadalajara from 2009 to 2013, sued through a class action accusing the store of routinely working employees more than 40 hours a week, but not paying them minimum wage, or time-and-a-half for overtime, as the law requires. The workers received $173,701 to compensate them for wage losses, lead plaintiff Rivera received an additional $7,500 incentive award, and the plaintiffs’ attorneys received $100,000 with the remaining $25,000 going toward administrative expenses.
Although Guadalajara did not commit any immigration violations, often employers, such as Corriveau Painting, who hire immigrants, undocumented and documented workers, also violate wage and hour laws.