1994-ARN-1 ADMINISTRATOR V. HCA MEDICAL CENTER HOSPITAL

USDOL v. Secretary v. Nurses PRN of Denver, Inc., 94-ARN-1 (ALJ July 14, 1997)

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U.S. Department of Labor
Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105

DATE: JULY 14, 1997
CASE NO. 94-ARN-1

In the Matter of:

U.S. DEPARTMENT OF LABOR, ADMINISTRATOR, WAGE & HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
Plaintiff,

NURSES PRN OF DENVER, INC., NURSES PRN SUNCOAST, INC.,
Complainants,

v.

HCA MEDICAL CENTER HOSPITAL, LARGO, FLORIDA,
Respondent.

DECISION AND ORDER ON REMAND
This case arises under the Immigration Nursing Relief Act of 1989, 8 U.S.C. §§ 1101(a)(15)(H)(I)(a) and 1182(m)(1994)(INRA) and its implementing regulations, 29 C.F.R. Part 504, Subparts D and E (1995); 20 C.F.R. Part 655, Subparts D and E (1993).
Complainants, asserting that their nurses were entitled to an award of back pay, appealed the decision of Administrative Law Judge Robert Amery, who found in his Decision and Order that Complainants were not parties to the action and therefore not entitled to recovery. The Administrative Review Board affirmed this finding, but remanded the case to “determine whether Respondent failed to pay any of its nurses the prevailing wage (including pay differentials) during the period of its 1993-1994 attestation and, if so, the amounts due.” As Judge Amery has retired, this matter was assigned to the undersigned for disposition. The record was reopened and the parties were directed in my Order on Remand of December 3, 1996, to submit evidence limited to the above issue.

In response to the above order, the Department of Labor on January 17, 1997, moved for permission to reopen its investigation of Respondent and/or to reopen the discovery procedure. On February 4, 1997, a Second Order on Remand issued, granting

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Respondent an extension of time to respond to Plaintiff’s motion. Respondent submitted its opposition on February 24, 1997, arguing that Plaintiff had already conducted an investigation, found no violation with regard to payment of prevailing wages for shift differentials, and had waived the right to investigate further. A Third Order on Remand issued on March 6, 1997, granting Plaintiff time to respond to Respondent’s opposition. Plaintiff responded on March 11, 1997, reiterating its request to conduct an investigation and stating that Respondent agreed to a remand for the purpose of addressing the prevailing wage issue. On March 12, 1997, a Fourth Order on Remand issued, directing Respondent to reply to the Solicitor’s assertions. Respondent replied on March 21, 1997, conceding that it had requested a remand but asserting that Plaintiff was precluded from conducting another investigation. Plaintiff responded on April 1, 1997, that a new investigation was essential to determine amounts due, as directed by the Administrative Review Board. In my Fifth Order on Remand, dated May 21, 1997, I denied Plaintiff’s motion to conduct new discovery and ordered both parties to submit any additional evidence they may have on the issue and briefs in support thereof.

Respondent argues that it complied with the prevailing wage requirements of the Immigration Nursing Relief Act and the applicable regulations during the 1993-1994 attestation period.1 Plaintiff has asserted, and Judge Amery has previously found, that if a state employment security agency has determined that evening or night shift nurses are paid shift differentials, the failure to pay that differential is a violation of the prevailing wage requirement. Plaintiff has provided no new evidence as to whether Respondent failed to pay its nurses the prevailing shift differentials. However, it has directed attention to uncontroverted evidence already in the record regarding the prevailing wages and shift differentials determined by the State of Florida and the shift differentials paid to the four H-1A registered nurses hired by Respondent in 1993-1994. I find that the Florida Department of Labor and Employment Security determined that the base prevailing wage for both registered nurses and progressive care registered nurses in Pinellas County was $11.98 per hour for the 7 a.m. to 3 p.m. shift, with an additional .66 per hour for the 3 p.m. to 11 p.m. shift and additional $2.25 per hour for the 11 p.m. to 7 p.m. shift. (Complainant’s Exhibits 2, D-12a, D-16a)

Of the four H-1A nurses hired in 1993-1994, I find that Lorna Magat and Jasmine Salvadore, classified as “med/surg” registered nurses, each worked from 7 p.m. to 7 a.m. and were each paid differentials of 99 cents per hour between 7 p.m. and 11 p.m. and $2.20 per hour after 11 p.m. Their base hourly rates were $12.48 and $12.96, respectively. I find that Sheila Malacat, a med/surg nurse who was paid a base rate of $12.48 per hour, worked the 7 a.m. to 7 p.m. shift and was paid a differential of 99 cents per hour between 3 and 7 p.m. I further find that Cherry Deolaso, a progressive care nurse who worked the 7 a.m. to 7 p.m. shift, was paid a base rate of $13.08 per hour, an area differential of 60 cents per hour and shift differential of 99 cents per hour from 3 to 7 p.m. (TR 563-564; Respondent’s Exhibit 29)

Based on the above, I conclude that Respondent failed to pay these four

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nurses the prevailing shift differentials in Pinellas County. Plaintiff has failed to demonstrate that Respondent failed to pay the prevailing shift differentials to any of its other nurses.2 In addition, Plaintiff has failed to fulfill its burden of proof as to the amount due these four nurses. Accordingly, because of the failure of Plaintiff to sustain its burden of proof, this matter is dismissed.

It is so ORDERED.

EDWARD C. BURCH
Administrative Law Judge

Dated:
San Francisco, CA
[ENDNOTES]

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