Enforcement of an H-1B Labor Condition Application by

Issue Date: 04 November 2010
UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
BOSTON, MASSACHUSETTS
ALJ Case No: 2010-LCA-00036
__________________
ADMINISTRATOR, WAGE & HOUR DIVISION,
UNITED STATES DEPARTMENT OF LABOR
Prosecuting Party
v.
BSST SOFTWARE, INC.
Respondent
__________________
Before: Jonathan C. Calianos, Administrative Law Judge
Appearances:
Christine A. Collins, Esquire, (U.S. Department of Labor, Office of the Solicitor)
Boston, Massachusetts, for Prosecuting Party
Sally L. Adams, Esquire, (The Law Office of Sally L. Adams)
Milton, Massachusetts, for Respondent
__________________
DECISION AND ORDER APPROVING SETTLEMENT
AGREEMENT AND CONSENT FINDINGS
This case arises from a request for hearing filed by the Respondent in the above
captioned matter, which involves the enforcement of an H-1B Labor Condition Application by
the Administrator, Wage & Hour Division, United States Department of Labor (“Administrator”
or “Prosecuting Party”) under section 212(n) of the Immigration and Nationality Act (“the Act”),
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8 U.S.C. §1101(a)(15)(H)(I)(b) and § 1182(n), and the regulations promulgated there under at 20
C.F.R. Part 655, Subparts H and I, 20 C.F.R. §655.700 et seq. On August 24, 2010, the
Administrator, issued a determination that the Respondent violated the Act by willfully failing to
pay wages as required by the Act, failing to make the required displacement inquiry, failing to
post notice of the filing of the Labor Condition Application, and failing to otherwise comply with
the regulations.
The Administrator determined that the Respondent owed back wages totaling $44,710.41
and assessed civil money penalties in the amount of $24,875.00. On September 7, 2010, the
Respondent, pursuant to 20 C.F.R. § 655.820, timely filed a request for review of the
Administrator’s determination. A formal hearing was originally scheduled for October 19, 2010,
in Boston, Massachusetts and was subsequently continued to October 26, 2010. Prior to the
hearing, the patties informed me that they reached a resolution of all disputed issues and I
cancelled the scheduled hearing. On October 22, 2010, the parties filed a document entitled:
Settlement Agreement and Consent Findings (“Agreement”). Upon review of the Agreement, I
find that the terms are fair and reasonable and in substantial compliance with 29 C.F.R. § 18.9(b)
and it is approved.
Pursuant to the Agreement the following order shall enter:
(1) The Agreement is APPROVED and its terms are adopted and incorporated herein
by reference;
(2) The parties shall comply with each and every term contained in the Agreement;
(3) Respondent agrees that it is liable for a total payment of $69,585.41, paid as
follows:
a. Respondent agrees to pay $24,875.00 as an alleged civil money penalty, on or
before November 15, 2010. Respondent shall transmit the total amount in the
form of a certified or bank check or money order for the full amount, made
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payable to the Wage & Hour Division-Labor, noting Reference Number
1545344 and remit the same to:
Northeast Regional Office
Wage & Hour Division, ESA
The Curtis Center, Suite 850 West
170 South Independence Mall West
Philadelphia, PA 19106-3317
b. Respondent agrees to pay the total amount of $44,710.41, less deductions for
the employees’ share of social security and withholding taxes, to the current
or former employees listed on the Summary of Unpaid Wage, attached as
Exhibit A to the Agreement, on or before November 15, 2010.
(4) Respondent agrees that by January 31, 2011, Respondent shall provide the
Administrator with a copy of the payroll and a copy of the cancelled checks (front
and back) used to disburse each payment, or a copy of the electronic transfer as
evidence of payment from the bank of the affected current or former employees,
and a statement attesting to the fact that all payments have been made and that all
legal deductions have been paid by the employer to the appropriate Federal and
State revenue authorities. Such proof of payment shall be transmitted to:
Wage & Hour Divisions
United States Department of Labor,
John F. Kennedy Federal Building, Room 525,
Boston, MA 02203
(5) Any amounts which cannot be distributed to current or former employees listed
on the Summary of Unpaid Wages, attached as Exhibit A to the Agreement,
because of the inability of the Respondent to locate a current or former employee
or because of the current or former employee’s refusal to accept such sum or
because of the failure of a current or former employee’s check to clear through
Respondent’s U.S. bank on or before January 24, 2011, shall be redrafted and a
single check for the total net undistributed amount shall be made payable to the
“Wage and Hour Division – Labor.” Such check shall note Reference Number
1545344 and be forwarded to the Administrator at the address listed in paragraph
(4) above, on or before January 31, 2011 and shall be deemed to satisfy any
obligation of Respondent with respect to such persons. Any sum not distributed
to the employee or to his personal representative after three years because of
inability to locate the employee or because of his refusal to accept such sum, shall
be deposited with the Treasurer of the United States as miscellaneous receipts.
(6) Respondent shall not, under any circumstances, accept and keep any amount
returned to it by a person owed compensation under this Agreement. Any such
amount shall be immediately paid to the Administrator as set forth above, and
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Respondent shall have no further obligations with respect to such returned
monies.
(7) Respondent agrees to comply in all respects with the Act and applicable
regulations in the future;
(8) Jurisdiction, including the authority to issue any additional orders or decrees
necessary to effectuate the terms of the Agreement is retained by the U.S.
Department of Labor, Office of Administrative Law Judges (“OALJ”);
(9) Enforcement Proceedings for violation of the Agreement may be initiated any
time by filing a motion requesting an order of enforcement and sanctions with the
OALJ;
(10) The entire record upon which this Order was issued consists of the
Administrator’s determination, Respondent’s request for a hearing, Respondent’s
Motion to Dismiss and/or for Summary Judgment for Lack of Jurisdiction, and
the Agreement;
(11) The parties waive any further procedural steps before an administrative law judge
and any right to challenge or contest the validity of the Agreement, this Order,
and any other order issued in accordance with the Agreement.
(12) This Order shall fully and finally resolve all outstanding issues between the
parties that were raised or reasonably could have been raised in connection with
the Administrator’s determination letter of August 24, 2010;
(13) The Agreement and this Order shall have the same force and effect as an order
made after a full hearing;
(14) Each party shall bear its own costs, attorney’s fees and expenses;
(15) Nothing contained in the Agreement or this Order, or any records related thereto,
shall be deemed an admission by Respondent of the allegations contained in the
Administrator’s Determination. Respondent seeks to avoid the significant
expense, inconvenience and uncertainty of protracted litigation, and the removal
of any potential for disqualification from approval of petitions is a material part of
the consideration for Respondent to enter into the Agreement; and
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(16) The Agreement and this Order shall comprise my findings of fact and conclusions
of law and shall constitute the full, final, and complete adjudication of this
proceeding.
SO ORDERED.
A
JONATHAN C. CALIANOS
Administrative Law Judge
Boston, Massachusetts

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