Immigration and Naturalization Amendments of 1991

Issue Date: 13 January 2011
Case No.: 2010-LCA-19
In the Matter of
ADMINISTRATOR,
WAGE & HOUR DIVISION
v.
HEARTLAND EMPLOYMENT SERVICES, INC.
d/b/a HCR MANORCARE, and
PAUL A. ORMOND, PRESIDENT/CHIEF EXEC. OFFICER
Respondents.
DECISION AND ORDER APPROVING SETTLEMENT
AGREEMENT AND CONSENT FINDINGS
This proceeding arises under the H-1B provisions of the Immigration and Nationality Act
of 1952, as amended by the Immigration Act of 1990, the Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991, and the American Competitiveness and
Workforce Improvement Act of 1998, found at 8 U.S.C. §§ 1101, et seq., 8 U.S.C. § 1101
(a)(15)(H)(i)(b) (hereinafter referred to collectively as the “INA”), and its implementing
regulations, which are located at 20 Part 655, Subparts H and I. The Prosecuting Party,
Administrator, Wage and Hour Division, United States Department of Labor (“Administrator”),
determined that Heartland Employment Services, LLC, doing business as HCR ManorCare, and
Paul A. Ormond, President and Chief Executive Officer, Respondent (“Heartland Employment
Services” or “Respondent”), failed to pay wages as required for productive work and
nonproductive time; misrepresented a material fact on the Labor Condition Application; failed to
provide notice of filing of the LCA’s as required; failed to accurately specify on the LCA, and
required and attempted to require a penalty for ceasing employment prior to an agreed date. On
March 26, 2010, the Administrator’s representative issued a Determination to Respondent,
Heartland Employment Services, detailing its findings with respect to the above violations. The
Respondent filed a timely request for hearing on April 9, 2010. Jurisdiction over these
proceedings is vested in the Office of Administrative Law Judges by INA § 212(n), 8 U.S.C. §
1182(n) and 20 CFR Part 655.800, et. seq., with respect to Respondent’s request for a hearing
concerning the alleged violations of the provisions of § 1182(n) of the INA.
A Notice of Hearing and Pre-Hearing Order was issued on May 13, 2010 setting this case
for hearing on October 5, 2010 in Cleveland, Ohio. On September 9, 2010, an amended Notice
of Hearing and Pre-Hearing Order was issued resetting the hearing for November 9, 2010, and
on October 13, 2010 an Order was issued rescheduling the hearing for January 5, 2011. On
- 2 -
January 3, 2011, the parties submitted a Settlement Agreement and Consent Findings. The
agreement is signed by Sandra Kramer, counsel for the Prosecuting Party, and by J. Neil
Grindstaff, counsel for Respondent, Heartland Employment Services. In the Consent Findings,
the parties have accepted certain obligations and agreed to specific actions which resolve all
existing issues.
ORDER
Upon review of the record and the terms of the parties’ consent findings, I find that the
terms of the settlement are fair and reasonable. Accordingly, IT IS HEREBY ORDERED that:
1. This Decision and Order shall have the same force and effect as one made after a
full hearing on the merits.
2. The entire record on which this Decision and Order is based consists solely of the
Administrator’s Determination Letter and the Settlement Agreement and Consent
Findings executed by the parties.
3. The parties are hereby deemed to have waived any further procedural steps before
the undersigned or the Secretary of Labor, as appropriate, regarding the matters
which are the subject of their Settlement Agreement.
4. Any rights to challenge or contest the validity of this Decision and Order entered
into in accordance with the Settlement Agreement and Consent Findings are
hereby waived.
5. The Determination Letter, and the parties’ Settlement Agreement and Consent
Findings, together with this Decision and Order, shall constitute the final
administrative findings and order in this case.
6. The hearing scheduled for January 5, 2011 in Cleveland, Ohio was cancelled.
A
JOSEPH E. KANE
Administrative Law Judge

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The enforcement of an H-1B Labor Condition Application

1
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
2
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:
3
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
4
(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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CHILDS v. MICROSOFT CORPORATION

Issue Date: 11 January 2011
UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
BOSTON, MASSACHUSETTS
Case No.: 2010-LCA-00033
____________________________
In the matter of:
RUSSELL J. CHILDS, Complainant/Prosecuting Party,
v.
MICROSOFT CORPORATION, Respondent.
____________________________
Before: Colleen A. Geraghty, Administrative Law Judge
Appearances:
D. Jeffrey Burnham, Esq., Johnson, Graffe, Keay, Moniz & Wick, LLP, Seattle, WA for
Complainant/Prosecuting Party
Angelo Paparelli, Esq. and Stacy Shartin , Esq., Seyfarth Shaw, LLP, Irvine, CA for Respondent
DECISION AND ORDER
I. Statement of the Case
This matter arises under the Immigration and Nationality Act (“INA”), 8 U.S.C. §1101,
as amended by the American Competitiveness and Workforce Improvement Act of 1998, 8
U.S.C. §§1101(a)(15)(H)(i)(b), 1182(n), and the implementing regulations found at 20 C.F.R.
655, subparts H and I (“H-1B program”). The INA and the regulations establish an H-1B Labor
Condition Application (“LCA”) program for aliens who come to the United States temporarily to
perform services in a “specialty occupation,” as defined in section 214(I)(1) of the INA. See 8
U.S.C. §1101(a)(15)(H)(i)(b).
On January 24, 2010, Dr. Childs, the Complainant/Prosecuting Party (“Complainant‟)
filed a complaint with the Administrator of the United States Department of Labor‟s Wage and
Hour Division (“Administrator”) alleging Microsoft Corporation violated the INA and several of
the implementing regulations with regard to his wages and benefits. On July 1, 2010, the
Administrator determined Microsoft violated 20 C.F.R. § 655.731(c)(3), by failing to offer
medical benefits to an H-1B visa employee, Dr. Childs, equal to what it offered its American
employees. The Administrator made no findings regarding other violations of the INA and its
implementing regulations related to wages as alleged by Dr. Childs. The Administrator did not
assess a civil money penalty for the one violation he found.
Dr. Childs filed a timely request for a hearing on July 8, 2010, contending additional
violations of the INA and its regulations occurred. The initial hearing date was continued at the
parties‟ request. A formal hearing in this matter was held on November 22, 2010, in Seattle,
Washington.
The Complainant and the Respondent appeared represented by counsel.1 Prior to the
hearing date, the parties submitted amended stipulations (“A. Stip.”) and joint exhibits (“JX”) AU
which were admitted at the hearing. TR 5-7.2 In addition, Respondent‟s Exhibits (“RX) 1-3
were also admitted.3 TR 85-86, 211. The official documents were admitted as Administrative
Law Judge Exhibits ALJX 1-15. TR 7-11.
II. Findings of Fact
1. Parties‟ Stipulations
The parties have stipulated to the following facts:
1. In order for Microsoft Corporation (“Microsoft”) to employ the Complainant
lawfully in an H-1B Specialty Occupation at its headquarters in Redmond,
Washington at an annual salary of U.S. $80,000, on March 24, 2008, Microsoft
filed an H-1B Petition on U.S. Citizenship and Immigration Services (USCIS)
Form I-129 (with a supporting letter from Microsoft) requesting classification of
Complainant as an H-1B nonimmigrant worker (Receipt # WAC-08-139-50336)
(the petition and letter are attached, respectively, as Exhibits A-1 and A-2). JX A-
1 and A-2.4
2. The underlying Labor Condition Application (LCA) for the H-1B Petition (ETA
Case No. I-08077-3998197, attached as Exhibit B) also reflected an offered wage
rate of U.S. $80,000 per year. JX B.
1The Administrator was not a party to the proceedings before the undersigned.
2The amended joint stipulations and joint exhibits were also admitted as Administrative Law Judge Exhibits (ALJX
8 and 9).
3At hearing, the Complainant offered a legible copy of Exhibit J which had been included as an attachment to the
parties‟ amended stipulations. The parties agreed that this document would simply be substituted for the illegible
copy of the same document (Exhibit J) attached to the stipulations, rather than marking the document as
Complainant‟s exhibit at hearing. TR 6-7.
4The stipulations did not designate the attached corresponding exhibits as a Joint Exhibit. However, for ease of
reference I will cite the exhibits the parties included with the amended stipulations as JX in referring to the specific
exhibit.
3. On April 24, 2008, USCIS approved Microsoft‟s H-1B Petition for Nonimmigrant
Worker, with a period of petition validity granted from October 1, 2008 to
September 12, 2011, as confirmed on Form I-797 Notice of Action (attached as
Exhibit C). JX C.
4. On March 28, 2008, Complainant signed an employment agreement with
Microsoft Canada CO. (“MCC”) for employment as a Software Design Engineer
(“SDE”), Level 61, at MCC‟s facility, the Microsoft Canada Development Centre,
(“MCDC”) in Richmond, British Columbia, Canada at an annual salary of
Canadian (“CDN”) $98,000 per year, exclusive of standard benefits (attached as
Exhibit D). JX D.
5. On May 12, 2008, Complainant commenced employment at MCDC.
6. On July 25, 2008, Microsoft provided Complainant with the original Form I-797
Notice of Action (approval notice) for his H-1B Petition for a Nonimmigrant
Worker. On the same day, Complainant signed attestations, attached as Exhibit E,
acknowledging his receipt of the original Form I-797 approval notice, a copy of
the Form I-729, and a copy of the underlying labor condition application. JX E
7. On October 8, 2008, Complainant electronically signed Microsoft‟s offer letter,
(attached as Exhibit F), accepting employment in the position of Software Design
Engineer (SDE”) II, Level 61, at a salary of $97,000 annually. JX F.5
8. On November 1, 2008, Complainant lawfully entered The State of Washington
from Canada pursuant to the previously approved and unexpired H-1B visa
petition sponsored by Microsoft, and was admitted to the U.S. in H-1B status by
U.S. Customs and Border Protection.
9. On November 3, 2008, Microsoft hired Complainant in Redmond, Washington as
an SDE II, Level 61, at an annual salary of U.S. $97,000 per year, exclusive of
standard benefits. Microsoft did not pay Complainant in US dollars for the period
November 3, 2008 (Complainant‟s first day at NEO [New Employee Orientation]
in Redmond, Washington) to February 15, 2009 (date of first pay cycle after
Complainant signed his employment agreement).
5The offer letter was an offer of employment with Microsoft in the United States at its Redmond, Washington
location. JX F.
10. On November 3, 2008, Complainant participated in New Employee Orientation
(“NEO”) and completed and signed Section 1 of the USCIS Form I-9
(Employment Eligibility Verification), confirming his identity, his foreign
citizenship and his temporary authorization for employment in the United States.
11. Prior to attending the NEO, Complainant received information and access to an
on-line tool available on the password-protected Microsoft intranet portal which
would provide him with the ability to review and electronically sign the standard
Microsoft employment agreement, (attached as Exhibit G), applicable to all Level
61 SDEs. JX G.
12. On November 18, 2008, Microsoft‟s headcount Operations Analyst Christine
Olson wrote and sent to a named group of Microsoft employees including the
Complainant an email, attached as Exhibit H. JX H.
13. On November 18, 2008, Complainant responded to Ms. Olsen by email, attached
as Exhibit I. JX I.
14. On December 22, 2008, Complainant wrote an email to David Jackson, a
Microsoft Human Resources representative, attached as Exhibit J. JX J.
15. On January 29, 2009, David Jackson wrote an e-mail to Complainant, attached as
Exhibit K. JX K.
16. On January 29, 2009,6 Complainant responded to Mr. Jackson by e-mail, attached
as Exhibit L. JX L. On February 2, 2009, Complainant provided an additional
response to Mr. Jackson by e-mail, attached as Exhibit M. JX M.
17. From November 1, 2008 to December 31, 2008, MCC paid the Complainant the
gross amount of CDN $16,333.32 and a net amount of CDN $12,029.48 after
subtracting authorized deductions of CDN $4,303.84 equivalent to US $13,312 (at
an average exchange rate of 1:1.22698 for U.S. dollars to Canadian dollars, based
on the currency conversion chart attached as Exhibit N). JX N. From November
1, 2008 to December 31, 2008, Complainant worked in the United States and not
Canada.
18. The said sums paid to Complainant by MCC on behalf of Microsoft from
November 1, 2008 to December 31, 2008, were distributed in four equal
6The stipulation incorrectly states the date for this email as January 29, 2010. The e-mail itself reflects that it was
sent on January 29, 2009.
installments, according to the normal semi-monthly payroll scheduled for
employees of MCC, as reflected in MCC payroll records from Complainant,
attached as Exhibit O. JX O. These payments by MCC to Complainant on behalf
of Microsoft represent an annualized gross salary of CDN $98,000, exclusive of
standard benefits – equivalent, at then-current exchange rates, to an annualized
gross salary of approximately U.S. $79,870.90 per year (at an average exchange
rate of 1:1.22698 for U.S. dollars to Canadian dollars).
19. On February 2, 2009, Complainant signed and submitted an employment
agreement with Microsoft, attached as Exhibit P. JX P.
20. On February 27, 2009, Microsoft paid Complainant a lump sum, in Redmond,
Washington of $31,261.25, as reflected in the attached Exhibit Q, for the period
from November 3, 2008 (Complainant‟s first day at New Employee Orientation in
Redmond, Washington) to February 15, 2009 (date of the first pay cycle after
Complainant signed his employment agreement). JX Q.
21. On March 5, 2009, Microsoft paid Complainant gross amount of U.S. $4,041.67
for his employment from February 16, 2009 to February 28, 2009. Dr. Childs
subsequently continued to receive a gross payment of U.S. $4,041.67 twice per
month in accordance with Microsoft‟s standard payroll cycle for the duration of
his employment with Microsoft.
22. Complainant‟s employment with Microsoft was terminated on August 7, 2009.
On August 14, 2009, Microsoft paid Complainant a gross amount of U.S.
$6,046.52, comprised of $1,616.67 in base salary and U.S. $4,429.85 in accrued
vacation time.
23. In calendar year 2008, Complainant was compensated a total of CDN $63,204.04
in “Employment income” as reported in Box 14 of Complainant‟s Form T4
Statement of Remuneration Paid, issued by the Canada Revenue Agency, attached
as Exhibit R. JX R.
24. In calendar year 2009, Microsoft compensated Complainant in the amounts
reported in Complainant‟s Form W-2 Wage and tax Statement, reported to the
Internal Revenue Service, attached as Exhibit S. JX S.
25. Attached as Exhibit T are copies of Complainant‟s paystubs for calendar year
2009 provided by Complainant. Copies of Complainant‟s paystubs for calendar
year 2009 provided by Respondent are attached as Exhibit U. JX T and U.
Amended Pre-Trial Stipulations and JX A-U. TR 5-7, 9. As I find that substantial evidence in
the record supports the stipulations, I accept the stipulations.
2. Hearing Testimony
In addition to the amended stipulations, Dr. Childs, Mr. Sommerfield and Mr. Jackson
testified at the hearing.
a. Russell Childs, Ph.D
Dr. Childs holds a PH.D from the University of Birmingham, United Kingdom in particle
physics. TR 41. Previously in his career, Dr. Childs worked for the United Kingdom‟s Ministry
of Defense where he was required to sign the Official Secrets Act of the United Kingdom
associated with his work. Dr. Childs testified that he initially began working for Microsoft
Canada on March 28, 2008. TR 39, 44. When he began work with Microsoft Canada, Dr.
Childs signed the employment agreement with Microsoft Canada and attached a list of items, he
claimed an intellectual property interest in, to his employment agreement. TR 45. Microsoft
Canada had permitted him to do so and that company countersigned the document. TR 44-45; A.
Stip 4; JX P. The matters Dr. Childs‟ claims an intellectual property interest in included matters
he worked on at the Ministry of Defense as well as other aspects of his own research over a
period of years. TR 43-44; JX D.
In early October 2008, Microsoft asked Dr. Childs to come to the United States to work
for Microsoft in Redmond, Washington and he agreed to do so. TR 46. 7 Dr. Childs received a
letter from Microsoft on October 6, 2008 offering him a position in Redmond, Washington. TR
46. The offer letter indicated the salary was $97,000 annually and set out other terms of
employment. JX F. The offer letter instructed that Dr. Childs was to indicate his acceptance of
the employment offer by electronically signing the acceptance letter and the Microsoft
Corporation Employee Agreement (included in the list of Offer Documents) prior to his start
date. JX F and G. Further, the offer letter informed Dr. Childs he had been scheduled for New
Employee Orientation on or about November 3, 2008. JX F. Dr. Childs electronically signed
the acceptance letter on October 8, 2008, but he did not sign the employment agreement. JX F.
Dr. Childs said he did not sign the employment agreement as he had some concerns regarding
the terms of the employment agreement related to intellectual property. TR 45-48. He entered
the United States and attended new employee orientation on or about November 3, 2008.
Soon after arriving in the U.S. and beginning work, Dr. Childs did not receive his wages
in the normal payroll cycle at Microsoft and Microsoft realized Dr. Childs had not signed the
employment agreement. TR 48. It became apparent that Dr. Childs and Microsoft disagreed
over his efforts to modify the terms of the employment agreement pertaining to intellectual
7As noted above, on March 24, 2008, Microsoft submitted an H-1B application to the United States Citizenship and
Immigration Services (USCIS) including Form I-129 and a Labor Condition Application seeking to hire Dr. Childs
at a wage of $80,000 annually. A. Stip. 1-2. The H-1B petition was approved on April 24, 2008. A. Stip. 3.
property and to include a list of items to which he asserted an intellectual property interest. TR
45-48, 51-54; JX H, I, J and K. In the period between November 3, 2008 when Dr. Childs
entered the United States to work for Microsoft in Redmond, Washington and the third week of
December 2008, he and Microsoft were attempting to resolve the dispute over intellectual
property. Dr. Childs consulted an independent intellectual property attorney regarding his
concerns with the Microsoft employment agreement as it related to intellectual property and he
sought modifications to the terms of the employment agreement. TR 68, 70-71, 73, 76; JX H.
In this period, Dr. Childs was working for Microsoft in the United States but he did not receive
wages from Microsoft. TR 48-49; 55 JX H. Dr. Childs raised the wage issue with several
Microsoft officials and employees. TR 48-49, 55; JX H. Sometime near the end of December
2008, Dr. Childs was instructed to check his Canadian Bank account and he then learned that
Microsoft Canada had paid him under the Canadian employment agreement for the period
November 3 through December 31, 2008. Id.8
The controversy over Dr. Childs‟ signing the employment agreement and, attaching the
list of items he claimed as his intellectual property, went on for several weeks. TR 48, 50-53. In
addition to the list of inventions, Dr. Childs wished to include language to the effect that
Microsoft agreed it would not assert an interest in any work itemized on Dr. Childs‟ list. TR 48,
75-76. 9 Microsoft was willing to accept the list, but was unwilling to accept the additional
language Dr. Childs sought, or to countersign his list of inventions. TR 58-59, 62, 70-84; R -2.
After several weeks of back and forth telephone meetings and e-mails in which the parties were
unable to reach an amicable agreement regarding the claimed intellectual property issue,
Microsoft informed Dr. Childs that if he was unwilling to sign the employment agreement and
attach the list of claimed intellectual property items as Microsoft agreed to accept it, Microsoft
would consider his non-execution of the employment agreement as a rejection of its offer of
employment and would begin the repatriation process back to Dr. Childs‟ country of origin. TR
50-52; JX L. Dr. Childs said he signed the employment agreement on February 2, 2009 and
attached the list of inventions under pressure and without the additional language he sought. TR
62-63, 67-69; JX P.
Although Dr. Childs was in the United States working for Microsoft in Redmond,
Washington as of November 3, 2008, he was not paid by Microsoft U.S. for the period
November 3, 2008 through February 15, 2009 until February 27, 2009. However, Dr. Childs
maintains the check was further delayed reaching him as it was directed to an old address. TR
61, 93; JX Q. This meant that during the months of January and February he did not receive any
wages from Microsoft. TR 60-61. JX Q. Thereafter, Dr. Childs received wages from Microsoft
at regular intervals in the normal payroll cycle. JX T.
8During this period Dr. Childs said he was concerned that being in the United States working, without being paid,
might place him in violation of the H-1B regulations. TR 59-60; JX L.
9Although Dr. Childs initially stated that he was simply attempting to have Microsoft allow him to attach the same
list of claimed intellectual property items that Microsoft Canada had permitted him to attach to the Microsoft
Canada employment agreement, he acknowledged on cross-examination that he made the list presented to Microsoft
more comprehensive. TR 45-46, 48, 68, 75-76. A careful review of the intellectual property list and the language
Dr. Childs added to the list and presented to Microsoft, demonstrates that the two lists were not the same and that the
added language Dr. Childs sought to have Microsoft accept was more expansive than the document attached to the
Microsoft Canada employment agreement. TR 75-76; 79-83; RX 1.
On cross-examination, Dr. Childs acknowledged that within two weeks of employment
with Microsoft US and, during the period of the dispute over the employment contract and list of
inventions, he was told by Microsoft officials that he could not be put on the Microsoft payroll
until he signed the employment agreement. TR 86-89; JX H. Dr. Childs also acknowledged that
he was paid his salary under the Microsoft Canada employment agreement for the period
November 1, 2008 through December 31, 2008. TR 96-97. Dr. Childs agreed that he was later
paid his salary under the Microsoft U.S. employment agreement for this same November 1, 2008
through December 31, 2008 period. Id.10 He conceded that for the period November 1, 2008
through December 31, 2008 he was paid salary by both Microsoft Canada and Microsoft in the
United States. TR 97.
b. Testimony of Daniel Sommerfield
Daniel Sommerfield is employed as a development manager at Microsoft in Redmond,
Washington. TR 109. Mr. Sommerfield was employed in that position during the period
November 2008 through February 2009. TR 109-110. Dr. Childs‟ supervisor, Navin Joy,
reported to Mr. Sommerfield. TR 109-110. Mr. Sommerfield testified that he was involved in
efforts to have Dr. Childs sign the Microsoft employment agreement. Mr. Sommerfield
described his role as passing Dr. Childs‟ inquiries to the proper officials within Microsoft, that is,
to the human resources and legal departments and, at times, conveying responses from those
departments back to Dr. Childs. TR 111-116. Mr. Sommerfield recalled that there were multiple
e-mail exchanges with Dr. Childs regarding Microsoft‟s policy of not changing the terms or
language in the standard employment agreement. TR 115-117. He referred Dr. Childs to
Microsoft‟s in-house intellectual property attorney, Mr. Zeiger. TR 114-116. Mr. Sommerfield
participated in a telephone call with Dr. Childs and David Jackson from the human resources
department, and possibly others, on or about December 18, 2008, in which Dr. Childs raised
concerns about the items of intellectual property and Mr. Jackson told Dr. Childs that Microsoft
does not alter the employment agreement. TR 118. Mr. Sommerfield stated that during that
telephone conference Mr. Jackson indicated the options or consequences of Dr. Childs either
signing or not signing the employment agreement. TR 119. Mr. Sommerfield sent an e-mail to
Dr. Childs the next day reiterating Mr. Jackson‟s message regarding the implications of Dr.
Childs‟ decisions with regard to signing or not signing the employment agreement. TR 120-121.
Mr. Sommerfield stated there was another meeting on these issues in mid-January 2009. TR
123-125.
Mr. Sommerfield acknowledged that he was aware that Dr. Childs was told that if he did
not sign the employment agreement he could not continue to work at Microsoft. TR 130. He
also conceded that he was aware of a number of complaints from Dr. Childs during the relevant
period of time that he was having difficulty getting an apartment and seeing a physician. TR
131-132. He stated he attributed those difficulties to getting the employment agreement signed
and he forwarded Dr. Childs‟ concerns to Mr. Jackson in the human resources department. TR
132. Mr. Sommerfield claimed that although he knew there was an issue with Dr. Childs‟
benefits because he had not signed the employment agreement, and he knew that there was an
issue with his “status,” he did not know Dr. Childs was not getting paid. TR 134.
10Dr. Childs was paid by Microsoft U.S. for the period November 1, 2008 through February 15, 2009 in one lump
sum check issued on February 27, 2009. TR 97; JX T.
c. Testimony of Mr. Jackson
Mr. Jackson was a Senior Human Resources Business Partner at Microsoft during the
relevant periods. TR 140. He was responsible for human resources issues for the Core Search
Team headed by Mr. Joy and, for which Dr. Childs worked. Mr. Jackson first became involved
in efforts to have Dr. Childs sign the Microsoft US employment agreement sometime in mid-
November 2008. TR 141. Mr. Jackson recalled that Dr. Childs expressed concerns related to
intellectual property he had developed and he wished to protect that property. TR 142, 144. Mr.
Jackson stated that he told Dr. Childs that the employment agreement permits for a declaration to
be attached to the employment agreement, and once those provisions were satisfied, Dr. Childs
could be fully processed into Microsoft. TR 142-143. Mr. Jackson testified that initially he
believed the issue was simply following up on a routine process to obtain the signed employment
agreement. TR 142-143, 156-157. Mr. Jackson acknowledged that as he discussed Dr. Childs‟
concerns with him through November, he realized Dr. Childs was very concerned with
protecting his intellectual property and Dr. Childs wanted to be sure Microsoft could not take
anything he had developed. TR 142-143. Mr. Jackson indicated that in attempting to resolve Dr.
Childs‟ concerns he got the legal department, both intellectual property and immigration areas,
involved in an attempt to sort out any differences between the Microsoft Canada employment
agreement and the Microsoft employment agreement. TR 144-145, 155-156. Mr. Jackson also
stated that he told Dr. Childs that signing the employment agreement is a condition of
employment with Microsoft. TR 145.
Mr. Jackson described a telephone meeting on December 18, 2008, with Dr. Childs. He
recalled that other Microsoft officials participating in the telephone conference included, Lisa
Hanna, a Microsoft attorney, Mr. Sommerfield, and perhaps Mr. Joy, and Leonard Smith, an
intellectual property attorney for Microsoft. TR 147. Mr. Jackson said that there was further
discussion of Dr. Childs‟ concerns regarding his intellectual property and that Microsoft officials
told him that signing the employment agreement was required for him to work for Microsoft and
that the company did not negotiate the terms of the employment agreement. TR 149-151. Mr.
Jackson stated that Dr. Childs indicated he would sign the agreement, but that when the
documents were presented to Microsoft, material changes had been made to the employment
agreement or list of inventions. TR 173-176. He indicated there were further e-mail exchanges
with Dr. Childs on this issue with both parties essentially sticking to their respective positions.
TR 153-154.
On or about January 14, 2009, a further telephone conference was arranged with Dr.
Childs in an effort to resolve the issues and have the employment agreement signed. TR 153.
Following the conference, Mr. Jackson said that Microsoft‟s attorneys reviewed the Microsoft
Canada and Microsoft employment agreements, as well as the addendum Dr. Childs attached to
the Microsoft Canada agreement, and the changes he sought in the Microsoft employment
agreement. TR 151. Specifically, in addition to attaching a list of intellectual property projects
to the Microsoft employment agreement, Dr. Childs sought amendments to the agreement‟s
language, he sought to have Microsoft agree not to assert a claim on items included on the list,
and he requested Microsoft to countersign each page. TR 152-153.
Mr. Jackson recalled that following review, Mr. Smith, a Microsoft attorney, wrote a
legal opinion concluding that the documents were not the same and advising that Microsoft
would not accept Dr. Childs‟ changes to the employment agreement‟s language nor would it
accept the language Dr. Childs wished to add to the list of intellectual property projects. Id. Mr.
Jackson was asked to share Microsoft‟s position with Dr. Childs. TR 152-153,179-180. On
January 29, 2009, Mr. Jackson sent a lengthy e-mail to Dr. Childs laying out Microsoft‟s position
explaining that the company would permit Dr. Childs to attach the list of intellectual property
items to the employment agreement, but it would not agree to the language changes Dr. Childs‟
desired in the employment agreement or to the additional language he sought to attach to the list
of claimed intellectual property items. TR 153, 159-160; JX K. The e-mail informed Dr. Childs
that in order to move forward with his employment with Microsoft, the company needed to
receive his signed employment agreement by February 2, 2009. TR 160-162; JX K. Once the
signed agreement was received, Microsoft could complete his employee on-boarding. Id. Mr.
Jackson‟s e-mail also stated that if Dr. Childs elected not to sign the employment agreement,
Microsoft would consider that a rejection of the offer of employment and would begin the
repatriation process back to Dr. Childs‟ country of origin. Id. Mr. Jackson testified that the
repatriation process includes giving the employee an airline ticket home and at some point
certifying that Dr. Childs was not an employee of Microsoft. TR 162, 201.
Mr. Jackson acknowledged that he knew that the failure to sign the employment
agreement was precluding Dr. Childs from enrolling in benefits, but he claimed he did not know
there were any issues with Dr. Childs receiving pay until sometime in January 2009. TR 155,
183-185, 187. Mr. Jackson also denied knowing that Dr. Childs was having difficulty obtaining
accommodations due to the lack of a paycheck. TR 185-186.
Mr. Jackson said that all Microsoft employees are required to sign the employment
agreement. TR 163-165. He explained that if a U.S. citizen were offered employment with
Microsoft and refused to sign the employment agreement, the offer of employment would have
been rescinded. TR 164.
III. Issues
By stipulation the parties have narrowed the disputed legal issues. The legal issues are
(1) whether Microsoft violated the regulations at 20 C.F.R. 655.731(c)(2), 655.731(c)(4) and
655.731(c)(6) and (2) if the violations are established, were the violations willful pursuant to 20
C.F.R. 655.810(b)(2)(i). JX.11
IV. Discussion
A. Statutory and Regulatory Framework
Under the INA, an employer may hire nonimmigrant alien workers in “specialty
occupations” for prescribed periods of time. 8 U.S.C. §§ 1101 (a)(15)(H)(i)(B).12 These workers
are commonly referred to as H-1B nonimmigrants. Administrator v. Kutty, ARB No. 03-022,
ALJ Nos. 01-LCA-010-25 (May 31, 2005). To employ H-1B nonimmigrants, the employer must
first complete a Labor Condition Application (“LCA”). 8 U.S.C § 1182(n). In the LCA, the
11The claim initially included a claim for discrimination, pursuant to 20 C.F.R. § 655.801, which the parties have
now elected to pursue in an alternate proceeding. See A. Stip. at 7.
12A “specialty occupation” is one that requires theoretical and practical application of highly specialized knowledge
and attainment of a bachelor‟s degree or higher in the specialty. 8 U.S.C. § 1184(i); 20 C.F.R. § 655.715.
employer must represent the number of employees to be hired, their occupational classification,
the actual or required wage rate, the prevailing wage rate, and the source of such wage data, the
period of employment and the date of need. 20 C.F.R. §§ 655.730 -734; 8 U.S.C. § 1182(n). The
employer then obtains certification from the Department of Labor that it has filed the LCA with
Department of Labor. After it secures the certified LCA, the employer submits a copy to the
United States Citizenship and Immigration Services (“USCIS”) and petitions for an H-1B
classification for the nonimmigrants it wishes to hire. Upon USCIS approval, the United States
Department of State issues H-1B visas to the nonimmigrants. 20 C.F.R. § 655.705(b).
If the visa is approved, the employer may hire the H-1B worker.
The implementing regulations at 20 C.F.R. § 655.731 set forth the requirements
employers must meet in employing nonimmigrant workers in specialty occupations. Section 20
C.F.R. § 655.731(c) titled “Satisfaction of required wage obligation” provides, in relevant part:
…the required wage must be paid to the employee, cash in hand, free and clear,
except that deductions [permitted by law, union contract, etc.] may reduce the
cash wage below the level of the required wage.…”
Section 20 C.F.R. § 655.721(c)(2) defines “cash wages paid” as payments meeting the
following criteria:
(i) Payments shown in the employer‟s payroll records as earnings for the employee,
and disbursed to the employee, cash in hand, free and clear, when due…
Section 20 C.F.R. § 655.731(c)(4) addresses wages for salaried employees and provides:
For salaried employees wages will be due in prorated installments (e.g. annual
salary divided into 26 bi-weekly pay periods where employer pays bi-weekly)
paid no less often than monthly….
Section 20 C.F.R. § 655.731(c)(6) directs that the H-1B nonimmigrant shall receive the
required pay beginning on the date when the nonimmigrant “enters into employment” with the
employer.
(i)…..the H-1B nonimmigrant is considered to “enter into employment” when
he/she first makes him/herself available for work or otherwise comes under the
control of the employer, such as….reporting for orientation or training….
(ii) the employer that has had an LCA certified and H-1B petition approved for
the H-1B nonimmigrant shall pay the nonimmigrant the required wage beginning
30 days after the date the nonimmigrant first is admitted into the U.S….
B. Did Microsoft Violate the Regulations At 20 C.F.R. §§ 655.731(c)(2),
655.731(c)(4) and 655.731(c)(6)? 13
The Administrator made no finding that Microsoft violated the regulatory
provisions at issue herein.14 The evidence is undisputed that Dr. Childs entered the
United States on or about November 1, 2008 under the Labor Certification Application
Microsoft obtained for him and pursuant to the employment offer from Microsoft. Dr.
Childs presented himself for New Employee Orientation on November 3, 2008 at
Microsoft‟s Redmond, Washington facility even though he had not yet signed the
employment agreement. Microsoft allowed him to work for the company out of the
Redmond, Washington facility beginning on that date. Microsoft continued to have Dr.
Childs work even after the company became aware that the employment agreement had
not been signed.15 It is undisputed that Microsoft failed to pay the Complainant wages
in U.S. funds for the period November 3, 2008 through December 31, 2008.16
Additionally, Microsoft did not pay the Complainant wages at all for the period January
1, 2009 through February 15, 2009. Microsoft issued a check in U.S. dollars to Dr.
Childs on February 27, 2009 which included wages for the period November 3, 2008
through February 15, 2009, but this check did not reach Dr. Childs until sometime in
March 2009. On these undisputed facts, it is clear that Microsoft violated 20 C.F.R. §§
655.731(c)(2), (c)(4) and (c)(6). \
I find that Microsoft violated 20 C.F.R. § 655.731(c)(2) as it failed to pay Dr.
Childs wages in U.S. funds when the wages were due for the period November 3, 2008 to
February 15, 2009. These same facts establish Microsoft violated 20 C.F.R. §
655.731(c)(4) because it did not pay Dr. Childs the wages due at least monthly for the
period November 3, 2008 through December 31, 2008, or for the period January 1, 2009
through February 15, 2009.
13I decline Microsoft‟s invitation to reconsider the Order denying Microsoft‟s motion to dismiss the proceedings for
lack of standing. M. Br. at 9-11. As discussed in the Order itself, Dr. Childs is an aggrieved party as his interests
were adversely affected by Microsoft‟s violations of the regulations pertaining to the payment of wages. The
Complainant is certainly interested in a finding that Microsoft violated the regulatory provisions at issue. Moreover,
the Complainant is entitled to interest on the delayed wage payments. As discussed herein, Microsoft Canada‟s
wage payment to Complainant for the period November 3, through December 31, 2008, is not an interest payment
by Microsoft.
14As noted, the Administrator‟s investigation found that Microsoft failed to offer either equal benefits or equal
eligibility for benefits or both in violation of 20 C.F.R. § 655.731(c)(3). As a remedy, the Administrator directed the
Microsoft to comply with 20 C.F.R. § 655.731 in the future and did not assess a civil monetary penalty.
15Microsoft officials stated repeatedly that Dr. Childs could not be on-boarded until the employment
agreement was signed. Despite denials by both Mr. Sommerfield and Mr. Jackson, I find that Microsoft
officials in the U.S. were aware that Dr. Childs was not receiving his Microsoft wages/salary during the
relevant four-month period.
16Although Dr. Childs was in the United States working for Microsoft in Redmond, Washington during this period,
Microsoft Canada (MCC) paid Complainant in Canadian dollars under his employment contract with MCC. Dr.
Childs‟ testimony that he first learned of these payments to his Canadian account on or about December 20, 2008
was undisputed.
Finally, I find Microsoft violated 20 C.F.R. § 655.731(c)(6) as it did not pay Dr.
Childs the required wages beginning on November 3, 2008, the date he entered into
employment. Additionally, Microsoft failed to pay him the required wages beginning
thirty days after the date he was first admitted into the United States.17
C. Willfulness and the Assessment of Civil Monetary Penalties?
Dr. Childs argues that Microsoft‟s violation of the H-1B regulations was
intentional and willful. C. Br. at 5-7. In support of his assertion, Dr. Childs maintains
that Microsoft does make exceptions to its standard employment agreement, but chose
not to do so for his requested intellectual property concerns, in order to force him to give
up his intellectual property rights. C. Br. at 6. Dr. Childs also contends that informing
him that if he did not sign the employment agreement without changes, Microsoft would
view the non-execution of the employment agreement as a rejection of the offer of
employment, and would begin the repatriation process, was a threat and coercive. Id. In
contrast, Microsoft contends that any violation was not willful and Microsoft argues the
company worked in good faith to resolve the dispute. M. Br. at 16-20.
A civil monetary penalty not exceeding $5000 per violation may be assessed for “a
willful failure pertaining to wages/working conditions (Sec. 655.731)….” 20 C.F.R. § 655.810
(b)(2)(i). Pursuant to 20 C.F.R. § 655.805(c) a “willful failure” to comply with the H-1B
regulations is defined as “a knowing failure or a reckless disregard with respect to whether the
conduct was contrary to sections 212(n)(1)(A)(i) or (ii), or 212(t)(1)(a)(1) or (ii) of the INA, or
§§ 655.731 or 655.732.” See McLaughlin v. Richard Shoe Co., 486 U.S. 128 (1988)); Trans
World Airlines v. Thurston, 469 U.S. 111 (1985). The term “„willful‟… is generally understood
to refer to conduct that is not merely negligent.” McLaughlin, 486 U.S. at 133. The standard of
willfulness adopted by the Supreme Court in McLaughlin is whether “the employer either knew
or showed reckless disregard… [that] its conduct was prohibited by the statute.” Id.18
Under the facts of this case, I find that the Microsoft did not act with reckless disregard.
Therefore, I do not assess a civil monetary penalty.
17Microsoft‟s contention that the undersigned is precluded from finding Microsoft violated the wage regulations if
the company made a good-faith effort to comply, citing 8 U.S.C. 1182(n)(2)(H) of the INA, is unpersuasive. M. Br.
at 14. Failing to pay any wages for four months, while requiring the nonimmigrant to work , cannot be deemed a
mere technical violation of the wage regulations such that clear and unambiguous violations of the regulations are
simply excused without a finding of violation.
18 “In determining the amount of the civil money penalty to be assessed, the Administrator shall consider the type of
violation committed and other relevant factors.” 20 C.F.R. § 655.810(c). The non-exclusive list of factors included
within the regulation are: (1) The previous history of violations by the employer; (2) The number of workers
affected by the violation; (3)The gravity of the violation; (4) The employer‟s good faith efforts to comply; (5) The
employer‟s explanation; (6) The employer‟s commitment to future compliance; (7) The employer‟s financial gain
due to the violation, or potential financial loss, injury or adverse effect to others. See id. Under the statutory scheme,
I have the ability to determine the appropriateness of a civil penalty and I can “affirm, deny, reverse, or modify, in
whole or in part, the determination of the Administrator.” 20 C.F.R. § 655.840(b); see also Administrator v. Itek
Consulting, Inc., 2008-LCA-00046 (ALJ May 6, 2009); Administrator, Wage and Hour Division v. Law Offices of
AnilShaw, 2003-LCA-00020 (ALJ May 19, 2004).
After careful consideration of the evidence, I find that both Dr. Childs and
Microsoft contributed to the events that unfolded. Microsoft‟s offer letter to Dr. Childs
explicitly stated that he was to indicate his acceptance of the offer of employment by
signing the offer letter and the employment agreement prior to his start date. The offer
letter further instructed that he was not authorized to alter the terms of the offer letter or
the employment agreement in any manner and that employment was at-will. Dr. Childs
was aware that acceptance of the employment offer required him to sign the employment
agreement as presented. Nevertheless, Dr. Childs entered the US on the H-1B visa
Microsoft had obtained, attended new employee orientation at Microsoft, and began
working without signing the employment agreement. Knowing he disagreed with
provisions of the employment agreement, knowing that the offer letter indicated he was
to indicate his acceptance of the offer by signing the employment agreement prior to his
start date and knowing that Microsoft‟s offer letter stated the terms of the employment
agreement could not be altered, Dr. Childs‟ action in presenting himself for employment
is puzzling.
For its part, Microsoft could have avoided this entire matter by ensuring that Dr.
Childs, or any employee for that matter, sign the employment agreement before he was
permitted to attend New Employee Orientation and begin working.19 However, once it
was clear that there was a significant disagreement over the terms of the employment
agreement related to intellectual property, Microsoft attempted to work with Dr. Childs to
resolve his concerns. There were several e-mail exchanges and telephone meetings in an
effort to address the concerns, Microsoft encouraged Dr. Childs to consult outside
intellectual property counsel. Additionally, Microsoft attorneys reviewed and considered
the changes Dr. Childs wished to make to the terms of the employment agreement, and
the language he wanted to add to the list of claimed intellectual property items, which
Microsoft agreed could be attached to the agreement. Microsoft determined it would not
accept the changes the language changes Dr. Childs sought. When Microsoft informed
Dr. Childs that it would not accept his changes to the employment agreement and the
additional language he sought to add on the list of intellectual property items, Dr. Childs
had a choice, either, sign the employment agreement as presented and attach a list of
intellectual property items, or decline the offer of employment. He elected to sign the
employment agreement. 20
19One certainly expects that Microsoft has modified its human resources/personnel practices to avoid any future
similar violations of the H-1B compensation regulations.
20The H-1B visa program, by design, deprives employers of economic incentives to prefer nonimmigrant
professional employees, because their wages and benefits must equal those that would be paid to American workers.
20 C.F.R. § 655.731(b). The regulations implementing the H-1B visa program set forth the requirements for
complying with the terms of the LCA underlying the approved H-1B visa. Relevant to this case, the regulation at 20
C.F.R.§ 655.731(c) addresses requirements regarding wages under the LCA for the H-1B visa holder. The
Department of Labor‟s regulations identifying the requirements for an LCA and an employer‟s obligations to the
nonimmigrant employee there under, do not address or consider issues related to potential intellectual property
claims of a nonimmigrant worker. The dispute over the terms of the Microsoft employment contract as it relates to
claimed intellectual property items and issues is beyond the scope of issues relevant to a determination of whether
Microsoft violated the requirements of the LCA and H-1B regulations related to payment of wages for
nonimmigrant workers.
Nor is Microsoft‟s informing Dr. Childs that if he elected not to sign the
employment agreement, the company would view that as a rejection of the employment
offer, and begin the repatriation process, evidence of willfulness. Rather, that is the
consequence of declining the offer of employment with Microsoft as the H-1B
application indicated Dr. Childs would be employed by Microsoft in Redmond,
Washington and provided that should Dr. Childs be dismissed from employment before
the period of authorized employment, Microsoft would assume liability for reasonable
transportation costs back to his home country. JX A.21
D. Damages
1. Back Wages
Microsoft paid Dr. Childs back wages owed for the period November 3, 2008
through February 15, 2009 in one check issued on February 27, 2009. Thereafter,
Microsoft paid Dr. Childs wages pursuant to the normal payroll cycle. The parties agree
and I find Dr. Childs has received all wages due under the LCA.
2. Interest
The Administrative Review Board has held that, notwithstanding that the Immigration
and Nationality Act does not specifically authorize an award of interest on back pay, interest
shall be paid on awards of back pay, with compound interest to be paid prejudgment. Innawalli
v. Am. Info. Tech. Corp., ARB No. 05-165, ALJ No. 2004-LCA-13 PDF at 8-9 (ARB Sept. 29,
2006); Amtel Group of Florida, Inc., v. Yongmahapakorn, ARB No. 04-087, 2004-LCA-6 PDF
at 12-13 (ARB Sept. 29, 2006) (citing Doyle v. Hydro Nuclear Serv., ARB Nos. 99-041, 99-
042,00-012; ALJ No. 89-ERA-22, slip op. at 18-21 (May 17, 2000)). The ARB went on to order
the employer to pay prejudgment and post-judgment interest on the owed back pay.
Yongmahapakorn, PDF at 12-13. The interest rate used is the Federal Short Term rate plus 3%,
as specified in 26 U.S.C. § 6621. Mao v. Nasser, ARB No. 06-121, ALJ No. 2005-LCA-36 PDF
at 11-12 (ARB Nov. 26, 2008).
Dr. Childs received all wages due from Microsoft for the period November 3,
2008 through February 15, 2009 in a check issued on February 27, 2009. Dr. Childs
maintains he is nonetheless entitled to interest lost during the four month period he was
not paid by Microsoft, at a rate of at 10%, for a total of $280 interest due. C. Br. at 8.
Microsoft argues that Dr. Childs has been overpaid for the period of November 3, 2008
through December 31, 2008 because he was paid by Microsoft Canada during this period.
21At the time Microsoft asked Dr. Childs to come to work in the United States it did not tell him that his position in
Canada was being eliminated. Therefore, Mr. Jackson‟s testimony that Dr. Childs‟ position in Canada no longer
existed once he came to the U.S. is not credible. In light of the fact that Dr. Childs left his position with Microsoft
Canada, moved to the United States, and that Microsoft permitted Dr. Childs to begin work in Redmond without a
signed agreement, and allowed him to work while the dispute continued unresolved for several months, one might
have expected Microsoft to permit Dr. Childs the option of returning to the position he held with Microsoft Canada.
However, Microsoft‟s failure to do so does not elevate its violations of the wage regulations under the H-1B visa
program to willful violations.
Once he signed the employment agreement with Microsoft, that company paid him for
this same period. Microsoft states the overpayment is $13,021.59 in U.S. dollars (the
amount paid by Microsoft Canada converted to US currency) and asserts that Microsoft
did not claim a credit and has never required Dr. Childs to repay the amount to Microsoft
Canada. Microsoft maintains that such overpayment adequately compensates Dr. Childs
for any interest due for the delayed salary payments by Microsoft. M. Br. at 8 n.2.
As Dr. Childs was not paid wages owed under the LCA, when such wages were
due, as required by the regulations at issue, he is entitled to prejudgment interest on the
delayed payments, based upon Federal Short Interest Term rate plus 3%, as specified in
26 U.S.C. § 6621, from the date the wage payments were due until February 27, 2009
when the wages were paid.22
3. 401(k) Contributions
Dr. Childs also contends that he suffered a loss of matching 401(k) contributions
over the four month period and is owed anywhere from $16,164 to $8,082 as a result. C.
Br. at 8. Dr. Childs‟ figures are based upon the assertion made in his post-hearing brief
that he would have contributed between one half and his total salary during for these four
months, to a 401(k) and received the employer match. Dr. Childs‟ argument is
unpersuasive. Other than the argument in his brief there is little evidence that he would
have contributed between one-half and all of his salary during this four month period to a
401(k).23 I simply cannot credit such an assertion especially in the face of Dr. Childs‟
complaints to Microsoft, and his testimony at hearing, as to the significant difficulties he
said he was experiencing getting an apartment, obtaining medical treatment and meeting
responsibilities without his salary. 24
4. Attorney Fees
The Complainant seeks an award of attorney fees asserting that such fees are allowed in
the discretion of the judge, are not specifically prohibited under 20 C.F.R. 655, et seq., and/or are
permissible under the Equal Access to Justice Act. C. Br. at 10 and Pet. For Attorney Fees ¶ 2.
Microsoft did not address attorney fees.
22Microsoft Canada‟s payment of Dr. Childs‟ salary under the Canadian employment agreement during November
and December 2008 does not relieve Microsoft from liability for interest due for its delayed payment of wages for
the period November 3, 2008 through February 15, 2009 when the complainant was working in the U.S.. I express
no opinion as to whether Microsoft Canada has a claim against Dr. Childs for a refund of the significant amounts
paid to him for November through December 2008, when he was working for Microsoft in Redmond, Washington.
23Dr. Childs‟ appears to appreciate the difficulty with his damage claim in this regard as he acknowledges that
Microsoft‟s late payment of February 27, 2009, and his designations for withholding, remedied the 401(k) match for
the period January and February 2009. C. Br. at 9.
24Dr. Child‟s claims loss of Employee Stock Options during the four month period he was not initially paid wages
by Microsoft US. C. Br. at 9. However, there is little evidence to support this claim and Complainant acknowledges
the value of the stock option is unknown. Accordingly, I find the Complainant has failed to establish this element of
his damage claim.
In general, the “American Rule” requires each litigant bear his own attorney fees.
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). Congress has
altered this general rule by specifically providing, in many statutes, for the prevailing party to be
awarded attorney‟s fees as either a matter of right or discretion. See Id. at 254-55.25 Even where
Congress has not specifically authorized an award of attorney fees, in limited circumstances,
such fees may still be available as an equitable remedy through a court‟s inherent powers. There
are three acknowledged categories of equitable exceptions to the “American Rule”: (1) the
“common fund exception;” (2) as sanctions for willful disobedience of a court order; and (3)
where a litigant has acted acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Id
at 258-259; See also, Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991) (citations and
quotations omitted).
Applying these principles to the instant matter, I note that the INA does not expressly
authorize an award of attorney fees. Nor do the regulations implementing Section 1182(n) of the
INA provide for an award of attorney fees. The regulation outlining remedies which may be
ordered for violations of the H-1B wage regulations, provides that “civil monetary penalties,
back wages, and/or any other remedy determined… to be appropriate are immediately due for
payment…upon the decision of the administrative law judge…” 20 C.F.R. § 655.810(f)
(emphasis supplied). The phrase “any other remedy” authorizes equitable relief. As the statute
at issue herein does not specifically authorize fee shifting, the American Rule applies unless one
of the exceptions to the rule is satisfied. However, here, there has been no willful disobedience
of a court order, nor bad faith on behalf of either party. Furthermore, this is not a circumstance
where the litigation is a benefit for a group of beneficiaries of a common fund (generally
applicable in corporate litigation). Thus, none of the equitable exceptions to the American Rule
are available to support the Complainant‟s request for attorney fees from Microsoft.26
The Complainant‟s suggestion that fees may be awarded under the Equal Access to
Justice Act (“EAJA”) is equally unavailing. The EAJA’s requirement that a government agency
pay attorneys fees and expenses is triggered only when the party seeking to obtain them has been
subjected by the agency to an “adversary adjudication” and has prevailed there against the
agency. 5 U.S.C. § 504. The EAJA defines adversary adjudication as an “adjudication under
Section 554 of the APA in which the position of the United States is represented by counsel or
otherwise ….” 5 U.S.C. § 504(b)(1)(c). Section 1184(n)(2)(B) of the INA provides that hearings
held under that provision are held in accordance with Section 556 of the Administrative
25Under federal fee shifting statutes, attorney fees may be awarded to the prevailing or successful party. Perdue v.
Kenney A., — U.S. –, 130 S.Ct. 1662, 1671 (2010); Hensley v. Eckerhart, 461 U.S. 424 (1983). Richardson v.
Cont’l Grain Co., 336 F.3d 1103, 1106 (9th Cir. 2003). While a party need not obtain monetary relief to prevail for
purposes of such fee-shifting statutes, Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1118 (9th Cir.2000), he must obtain
some actual relief that “materially alters the legal relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). Succeeding
on an issue alone is insufficient; even obtaining declaratory judgment will not result in the award of fees, unless it
causes the defendant’s behavior to change for the benefit of the plaintiff. Rhodes v. Stewart, 488 U.S. 1, 4 (1988)
(per curiam).
26Although not relevant here, under the Federal Rules of Civil Procedure attorney fees may be assessed as a sanction
in appropriate circumstances. See F.R. C. P. 11; F.R. C. P. 37(b).
Procedures Act, (“APA”), 5 U.S.C. § 556. See also 20 C.F.R. 655.825(b). The instant hearing
was not an adversary adjudication within the meaning of Section 504(b)(1)(C)of the EAJA.
Rather, the hearing was held under Section 556 of the APA, which unlike Section 554 of the
APA, is not incorporated by reference in the EAJA. In addition, the Administrator of the
Department of Labor was not a party and did not participate in the hearing before the
undersigned. Accordingly, fees may not be awarded against the Department of Labor in the
present case.
V. ORDER
I modify the Administrator‟s decision and find that Microsoft violated the H-1B
regulations at 20 C.F.R. §§ 655.731 (c)(2), (c)(4) and (c)(6) related to wages for Dr. Childs.
Therefore, I find:
1. Microsoft shall pay pre-judgment interest on the wages that were not timely paid from the
date the wages were due until paid, at the applicable rate of interest which shall be
calculated in accordance with 26 U.S.C. § 6621 and this Decision and Order;
2. The Administrator of the Wage and Hour Division, Employment Standards
Division, DOL, shall forthwith make such calculations as may be necessary and
appropriate with respect to all calculations of interest necessary to carry out this Decision
and Order;
3. This Decision and Order shall supersede the Administrator‟s finding which did not
include a finding of violation with regard to the regulations at 20 C.F.R. §§
655.731(c)(2), 655.731(c)(4) and 655.731(c)(6), and which shall be without further
effect.
SO ORDERED.
A
COLLEEN A. GERAGHTY
Administrative Law Judge
Boston, Massachusetts
NOTICE OF APPEAL RIGHTS: To appeal, you must file a Petition for Review (“Petition”) that is received by
the Administrative Review Board (“Board”) within thirty (30) calendar days of the date of issuance of the
administrative law judge‟s decision. See 20 C.F.R. § 655.845(a). The Board‟s address is: Administrative Review
Board, U.S. Department of Labor, Room S-5220, 200 Constitution Avenue, NW, Washington, DC 20210. Once an
appeal is filed, all inquiries and correspondence should be directed to the Board.
At the time you file the Petition with the Board, you must serve it on all parties as well as the administrative law
judge. See 20 C.F.R. § 655.845(a).
If no Petition is timely filed, then the administrative law judge‟s decision becomes the final order of the Secretary of
Labor. Even if a Petition is timely filed, the administrative law judge‟s decision becomes the final order of the
Secretary of Labor unless the Board issues an order within thirty (30) days of the date the Petition is filed notifying
the parties that it has accepted the case for review. See 29 C.F.R. § 655.840(a).

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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”),
2
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
3
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
4
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
5
(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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This case involves violations of the H-1B provisions of the Immigration and

Issue Date: 21 December 2010
CASE NO.: 2011-LCA-00002
In the Matter of
ADMINISTRATOR, WAGE AND
HOUR DIVISION
Complainant
v.
ATCHISON & ASSOCIATES, P.C.
Respondent
DECISION AND ORDER APPROVING
CONSENT FINDINGS
This case involves violations of the H-1B provisions of the Immigration and
Nationality Act of 1952, as amended by the Immigration Act of 1990, the Miscellaneous
and Technical Immigration and Naturalization Amendments of 1991, and the American
Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”)(Title IV of Pub.L.
105-277, Oct. 21, 1998; 112 Stat. 2681) found at 8 U.S.C. § 1101, et seq.;(“INA”) and 8
U.S.C. § 1101(a)(15)(H)(i)(b). Consent Findings and Order signed by the Parties
(designated as Joint Exhibit 1) has been presented to the undersigned and the parties
have requested that the Consent Findings be approved.
I have carefully considered the facts involved in this case and the difficult legal
and factual questions in dispute, as well as the criteria set forth in 29 CFR §18.9. Upon
careful evaluation of same, I conclude that the Consent Findings are fair, in the best
interest of both parties and were arrived at without duress and only after full exploration
by the parties of all issues in dispute and the difficult legal and factual questions
involved.
- 2 -
ORDER
IT IS ORDERED THAT the Consent Findings are hereby APPROVED.
IT IS FURTHER ORDERED THAT the hearing scheduled for December 28,
2010 in New York City is CANCELED.
A
Ralph A. Romano
Administrative Law Judge
Cherry Hill, New Jersey

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ERISA LAWS
ERISA sets minimum standards for participation, vesting, benefit accrual and funding of employee retirement accounts so funds placed in those plans will be there when they retire.

ERISA FAQS
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FAMILY LEAVE ACT
The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that group health benefits be maintained during the leave. Click here for info on the FMLA.

THE CIVIL RIGHTS ACT OF 1964
Makes it unlawful to refuse to hire, fire or segregate any person from the privileges of employment, because of the individual's race, color, religion, sex, or national origin. 
    
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