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.