- ARB Finds ALJ Abused Discretion for Dismissal Based on RSOL Failure to Attend Hearing(84 KB - 11/6/2009)
ARB found ALJ abused his discretion in dismissing claim based on RSOL’s failure to attend hearing. ARB distinguished cases where a party is held responsible for counsel deficiencies because here the RSOL was the prosecuting party. Administrator, Wage and Hour Div., Employment Standards Adm., USDOL v. Siliconlinks, Inc. (ARB No. 09-131, 10/28/09).
- ARB Affirms that Wage and Hour Determination is Prerequisite for ALJ Hearing(104 KB - 11/6/2009)
ARB affirmed finding that an investigation and determination by the Wage and Hour Division is a prerequisite for an ALJ hearing. The ARB upheld the finding that the authority to decide to investigate is discretionary and complainant could not appeal a decision not investigate H1-B allegations. Jain v. Empower IT, Inc. (ARB No. 08-077, 10/30/09).
- ARB Finds ALJ Properly Issued Default Judgment Against Respondents and Awarded Back Pay Plus Filing Fees(144 KB - 10/5/2009)
This 08/31/09, Administrative Review Board case affirms the Administrative Law Judge’s decision issuing a default judgment against Respondent which included $30,869 of back pay plus filing fees. Matter of Marco Sifuentes (ARB, 8/06/09).
- ALJ Finds “Benched” H-1B Employee Entitled to Unpaid Wages(224 KB - 5/14/2009)
ALJ found that the employee did not need a SSN to begin work, only evidence of having applied for one, thus was in employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09).
- ARB Finds Failure to Comply with H-1B Wage Requirements was Knowing and Willful(105 KB - 5/8/2009)
DOL Administrative Review Board (ARB) reverses the Administrative Law Judge’s finding that the Administrator failed to meet the burden of establishing that the employer’s conduct was willful so as to warrant civil money penalties. Employer failed to pay employee for non-productive time. Administrator v. Pegasus Consulting Group, Inc. (ARB, 4/28/09).
- DOL ALJ Finds H-1B Employer Liable for Back Wages and Retaliatory Discharge(276 KB - 3/3/2009)
DOL ALJ finds the H-1B employer retaliated against the bene by terminating him after he complained to the DOL. Also finds that the bene is entitled to recover his annual salary and benefits for forbidden benching that violated 20 C.F.R.§ 655.731(c)(7)(i) and the LCA attestation. Huang v. Ultimo Software Solutions, Inc., 2008-LCA-00011 (12/17/08).
- DOL ETA Overturns Michigan SWA's Use of Watson Wyatt for PWD(277 KB - 2/18/2009)
DOL ETA overturns Michigan SWA’s use of the Watson Wyatt private survey, which it used in the first instance without the employer’s request, instead of using OES as required by regulation. ETA remands, mandating use of the OES. Courtesy of Brent Renison.
- NLRB Decision Details VSC Contractor Operations(150 KB - 2/9/2009)
A decision of the National Labor Relations Board relating to a union election provides some insight into mailroom contractor operations at the USCIS Vermont Service Center. Courtesy of Barbara Bower.
- ARB Finds Employer Who Failed to Report Termination of H-1B Employee Liable for Back Wages(121 KB - 1/15/2009)
Board found that the employer failed to report termination of the H-1B employee as required and is liable for back wages. It noted that periods of unproductiveness were not due to unwillingness or unavailability of the employee to work, thus are compensable. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al. (ARB, 12/31/08).
- ARB Finds Notice to INS/Offer to Pay Return Fare Did Not Constitute Termination (137 KB - 8/6/2008)
DOL's ARB finds a lack of effective termination where, although the employer notified INS of an H-1B's termination and sent a letter to the employee offering return fare, the employer continued to act as though a termination never occured, and she didn't receive the letter. Innawlli v. American Information Technology Corp., 04-165 (ARB 9/29/06).
- VA Hospital Cannot Avoid H-1B LCA Obligations, Says DOL ARB (46 KB - 8/7/2008)
DOL's ARB rejects arguments that DOL has no jurisdiction over prevailing wage issues for H-1B employment by a VA hospital. Administrator, Wage & Hour Div. v. Fargo VA Medical Center, 03-091 (ARB 9/30/04).
- DOL ARB Examines Termination of Employment for H-1B LCA Purposes (43 KB - 8/7/2008)
Stating that whether a termination is bona fide does not turn solely on notification of INS, DOL's ARB nevertheless finds that a bona fide termination did not occur, based on the overall circumstances. Administrator, Wage & Hour Div. v. Ken Technologies, Inc. 03-140 (ARB 11/30/04).
- DOL ARB Dismisses Appeal as Untimely (46 KB - 8/7/2008)
DOL's Administrative Review Board dismisses an appeal received after the 30-day deadline, finding that a failed attempt to fax it does not show sufficient diligence and that the 30 days do not run from date of receipt. Administrator, Wage & Hour Div. v. Board of Trustees of Indiana Univ. 05-106 (ARB 8/31/05).
- DOL ARB Addresses Entry into Employment in H-1B Portability Context (106 KB - 8/7/2008)
DOL's ARB finds back pay liability for a period prior to the approval of the H-1B petition because the beneficiary made herself available for work subsequent to the filing of the petition and thus fell under the portability provisions of INA 214(n). Chelladurai v. Infinite Solutions, Inc., 03-072 (ARB 4/26/06).
- VA Medical Center Not a Research Institution, Says DOL ARB (43 KB - 8/6/2008)
DOL's Administrative Review Board finds that a Veterans Administration medical center is not a "Governmental research organization" for purposes of determining the prevailing wage. Administrator, Wage & Hour Div. v. Dallas VA Medical Center, 01-077, 081 (ARB 10/30/03).
- DOL ARB Addresses Payment of H-1B wages (41 KB - 8/6/2008)
DOL's ARB finds that payments to an H-1B under a business agreement are not H-1B wages, and thus back wages are due, but finds that a payment under the agreement by the H-1B to the employer was not an unauthorized deduction. Administrator, Wage & Hour Div. v. Prism Enterprises of Central Florida Inc. 01-080 (ARB 11/25/03).
- DOL Administrative Review Board Addresses Start and End of H-1B Employment for LCA Purposes (57 KB - 8/6/2008)
DOL's ARB examines benching issues in the H-1B labor condition context, including the dates that the H-1B's employment would be considered to have started and ended. Payment by the beneficiary of fees, as well as representation by non-attorney/non-USC, also is addressed. Rajan v. International Business Solutions, Ltd., 03-104 (ARB 8/31/04).
- DOL Administrative Review Board Orders Reinstatement for Retaliatory Dismissal (146 KB - 8/6/2008)
DOL's ARB finds that a VA hospital is subject to the anti-retaliation provisions of the H-1B LCA rules, and orders reinstatement of a doctor to his position. Talukdar v. U.S. Dept. of Veterans Affairs, 04-100 (ARB 1/31/07).
- ARB Addresses Statute of Limitations for Benching Claim (8/6/2008)
DOL's Administrative Review Board finds that the limitation on the period in which to file a complaint for a benching violation does not begin running until a bona fide termination takes place, rather than within 12 months of when the first benching occured. Gupta v. Jain Software Consulting, Inc., 05-088 (ARB 3/30/07).
- DOL ALJ Discusses Actual Wage for H-1B LCA Purposes (711 KB - 7/29/2008)
A Labor Dept. ALJ finds that, where there are no other employees in the position at the employer, the actual wage is the amount actually paid to the H-1B employee, even though it was more than the amount stated on the LCA. Other LCA issues, including the date of termination, also are addressed. Mao v. Nasser, 2005-LCA-00036 (5/26/06).
- DOL ARB Affimance of Backpay and Civil Penalties in Kutty (153 KB - 7/25/2008)
DOL ARB affirms that the employer did not pay the required wages, that the employer must reimburse the doctors for J-1 waiver expenses and visa costs and that the employer engaged in discrimination; concludes that the assessment of civil money penalties is reasonable. Wage & Hour Division v. Kutty, ARB No. 06-136, 01-LCA-010-025 (DOL ARB, 5/31/05).
- DOL ALJ Finds Petitioning Company's Owner Personally Liable for Back Pay (561 KB - 7/25/2008)
A DOL Adminstrative Law Judge pierces the corporate veil to find the owner of a medical clinic liable for an H-1B LCA back pay award. Robinson v. Help Foundation of Omaha, Inc., 2005-LCA-00037 (8/29/06).
- DOL ALJ Addresses Benching and Burden of Proof (556 KB - 7/25/2008)
A DOL Adminstrative Law Judge addresses when a beneficiary "entered employment" for benching purposes, what constitutes an absence from work at the employee's request, and the related burdens of proof. Arramreddy v. IK Solutions, Inc., 2006-LCA-00020 (11/15/06).
- DOL ALJ Addresses LCA Termination, Wage and Retaliation Issues (1052 KB - 7/25/2008)
A DOL Adminstrative Law Judge addresses several H-1B LCA issues, including termination of employment, and accusations of understatement of duties and of retaliation in the form of refusing to pursue an I-140. Administrator, Wage & Hour Div. v. Clean Air Technologies International Inc., 2006-LCA-00009 (6/18/07).
- DOL ALJ Discusses Conversion of Per Diems to Wages for H-1B LCA Purposes (350 KB - 7/25/2008)
A DOL Adminstrative Law Judge addresses when it is appropriate to convert per diem payments to wage payments for purposes of complying with the wage requirements for H-1B labor condition applications. Administrator, Wage & Hour Div. v. Geysers International , Inc., 2006-LCA-00005 (12/11/06).
- DOL ALJ Addresses LCA Wage, Fee Payment, Public Access File Issues (359 KB - 7/25/2008)
A DOL Adminstrative Law Judge addresses several H-1B LCA issues, including termination of employment, profit sharing as wages, the impact of ownership interest by beneficiary, beneficiary's payment of filing and attorney's fees, posting, and the public access file. Administrator, Wage & Hour Div. v. Avenue Dental Care., 2006-LCA-00029 (6/28/07).
- DOL ALJ Looks to H-1B Required Wage (129 KB - 7/24/2008)
Finding that private contract disputes are outside the scope of DOL's authority, an Adminstrative Law Judge bases her back pay decision on the LCA and the prevailing wage, rather than a possible agreement regarding a higher wage. Galal v. Z&A Infotek Corp., 2008-LCA-00010 (5/13/08).
- DOL ALJ Finds Employer Liable for Beneficiary's Payment of Premium Processing and Filing Fees (310 KB - 7/24/2008)
In an apparent misunderstanding of the various fees related to H-1Bs, a DOL ALJ finds an employer liable for the beneficiary paying the premium processing and filing fee. Numerous other LCA issues, including benching, termination and retaliation, also are addressed. Morales Toia v. Gardner Family Care Corp., 2007-LCA-00006 (4/25/08).
- NLRB Judge Dismisses Complaints on Employer Changes in No-Match Policy (112 KB - 5/22/2008)
An NLRB judge, stating that the company had a duty to follow up on no-match letters even before the recent DHS rulemaking, dismisses complaints that employer violated the National Labor Relations Act by refusing to bargain about a more restrictive no-match letter policy. Unite Here Local 26 v. ARAMARK, 1-CA-43486, 657, 658 (NLRB 5/13/08).
- DOL ARB on Termination of H-1B's Employment (126 KB - 10/23/2006)
The Labor Dept. Administrative Review Board addresses what circumstances constitute termination of employment for purposes of the employer's H-1B obligations. Amtel Group of Florida v. Yongmahapakorn, 04-087 (ARB 9/29/06).
- DOL Administrative Review Board Addresses Benching and Related Issues (7/10/2006)
DOL's ARB addresses issues related to benching of H-1B employees, investigation authority in absence of a complaint, effect of delay in bringing action, advance loan as wages, and relevance of immigration status in seeking unpaid wages.
- DOL Administrative Review Board Addresses H-1B Disclosure and Posting Issues (8/3/2005)
DOL's ARB addresses issues related to the posting of notice and the disclosure of wage information in the public access file in the H-1B context. Santiglia v. Sun Microsystems (ARB No. 03-076, 7/29/05).
- Administrative Review Board Declines to Toll Time Limit for Petition for Review (7/26/2005)
Finding that it has the discretion to toll the 30-day limit for filing a petition for review, the ARB concludes that such discretion is not warranted in this case. Administrator, Wage & Hour Division v. Wings Digital Corp., 05-090 (ARB July 22, 2005)
- Administrative Review Board Finds Termination and Rehiring Equal to Benching (7/5/2005)
Employer's termination of H-1B employees without notifying INS and later rehiring them constituted unlawful benching under LCA rules. The violation was found to be willful. (USDOL, Wage & Hour Division, ESA v. Pegasus Consulting Group, Inc.,).
- DOL Decision Finds That "Loan Forgiveness" Violates LCA Regulations (8/12/2004)
DOL's Administrative Review Board finds that a $5,000 "loan" to H-1B employees for relocation expenses, to be forgiven in increments until the employee has completed one year of employment, constitutes a prohibited early termination penalty. Admin, Wage & Hour Div. v. Novinvest (7/30/04).
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