The enforcement of an H-1B Labor Condition Application

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Issue Date: 20 August 2010
UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
BOSTON, MASSACHUSETTS
ALJ Case No: 2010-LCA-00031
__________________
ADMINISTRATOR, WAGE & HOUR DIVISION,
UNITED STATES DEPARTMENT OF LABOR
Prosecuting Party
v.
ALEX KAALI-NAGY DEVELOPMENT CORP.
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
Alex-Kaali-Naghy, President, (Alex-Kaali-Naghy Development Corporation)
New Canaan, Connecticut, 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”),
8 U.S.C. §1101(a)(15)(H)(I)(b) and § 1182(n), and the regulations promulgated there under at 20
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C.F.R. Part 655, Subparts H and I, 20 C.F.R. §655.700 et seq. On June 18, 2010, the
Administrator, issued a determination that the Respondent violated the Act by failing to pay the
required wage rate for productive work, failing to post notice of the filing of the Labor Condition
Application, and failing to maintain documentation. The Administrator determined that the
Respondent owed back wages totaling $48,824.12 and additional back wages of $1,032.64 as a
result of overtime violations under the Fair Labor Standards Act. The Administrator further
found that no additional civil monetary penalty was appropriate in this case. On July 7, 2010, the
Respondent, pursuant to 20 C.F.R. § 655.820, timely filed a request for review of the
Administrator’s determination, alleging back wages were not owed as determined by the
Administrator. A formal hearing was scheduled for August 17, 2010, in New London
Connecticut. On August 11, 2010, the parties informed my office that the case was settled and I
cancelled the scheduled hearing. On August 19, 2010, the partied 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 $25,000 in back wages,
and it shall pay this amount in full as described below;
(4) Respondent shall pay back wages in the amount of $25,000 less deductions for the
employee’s share of social security and withholding taxes, within 90 days of entry
of this Order approving the Consent Findings. Respondent shall transmit a
certified copy or bank check or money order in the net amount of the wages made
payable to: “Jose Mejia Agidelo or Wage-Hour Labor” and remit the same to:
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Wage & Hour Division
United States Department of Labor
135 High Street, Room 210
Hartford, CT 06103
Interest shall accrue on the outstanding balance at the rate of 1% per annum from
the date of entry of these Consent Findings through the date of payment. Nothing
herein shall prevent Respondent from paying the back wages owed sooner than
provided in this Paragraph. The Administrator will distribute the check to the
employee. 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;
(5) Respondent shall comply in all respects with the Act and applicable regulations in
connection with any future H-1B applications;
(6) Respondent’s failure to carry out any portion of the Agreement shall subject
Respondent to statutory penalties for failure to pay wages under 8 U.S.C.
§1182(n) and 20 C.F.R. Part 655;
(7) 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”);
(8) 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;
(9) The entire record upon which this Order is based upon shall consist of the
Administrator’s determination, Respondent’s request for hearing, and the
Agreement;
(10) The parties waive any further procedural steps before the Administrative Law
Judge and any right to challenge or contest the validity of the Agreement and any
Order issued in accordance with the Agreement;
(11) The Agreement shall fully and finally resolve all outstanding issues between the
parties that were raised, or reasonably could have been raised in the
Administrator’s determination of June 18, 2010;
(12) The Agreement and this Order shall have the same force and effect as an order
made after a full hearing;
(13) Each party shall bear its own costs, attorney’s fees and expenses; and
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(14) Nothing contained in the Agreement or this Order shall be deemed to bind any
other governmental agency except the United States Department of Labor; and
(15) 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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