Kolbusz-Kijne v. Technical Career Institute, Inc., 94-LCA-10 (ALJ Nov. 4, 1994)

Kolbusz-Kijne v. Technical Career Institute, Inc., 94-LCA-10 (ALJ Nov. 4, 1994)

DATE: November 4, 1994

CASE NO. 94-LCA-00010

In the Matter of

EVA KOLBUSZ-KIJNE

Complainant

v.

TECHNICAL CAREER INSTITUTE, INC.

Respondent

and

ADMINISTRATOR, WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR

Intervenor

Appearances:

Dr. Hugo Kijne, Lay Representative
For Complainant

Janet A. Savrin, Esquire
For Respondent

Marc Sheris, Esquire
Diane Wade, Esquire
For the Administrator

Before: Robert D. Kaplan
Administrative Law Judge

DECISION AND ORDER

This proceeding arises under the Immigration and Nationality
Act, 8 U.S.C. §§1101(a)(15)(H)(i)(b), 1182(n), and 1184
(the Act)
——————————————————————————–[PAGE 2]
and the regulations promulgated thereunder which are found at 29
C.F.R. §507. Under the Act, an employer may hire workers from
“specialty occupations” to work in the United States as a non-
immigrant. These workers are issued a H-1B visa by the Department
of State. §507.700(b). Respondent, Technical Career
Institute, employed H-1B visa holders to teach English as a second
language at its New York, New York facility. Complainant, Eva
Kolbusz-Kijne, alleges that Respondent, who is her employer, failed
to properly notify its teachers’ collective bargaining
representative (trade union) of the filing of certain Labor
Condition Applications (LCA) prior to renewing the H-1B visas of
its employees. See §507.730(h)(1)(i). Complainant
further alleges that since filing her complaint against Respondent
she has been the object of improper intimidation by Respondent.
See §507.800.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. FACTUAL AND PROCEDURAL HISTORY

This case involves Complainant’s second complaint against
Respondent under the Act. The first complaint was filed with the
Wage and Hour Division of the Employment Standards Administration
on April 29, 1993. After investigation by the Administrator, on
August 10, 1993, a formal hearing was held before Administrative
Law Judge Charles P. Rippey (Case No. 93-LCA-00004). On October
14, 1993, Judge Rippey found that Respondent had failed to properly
notify the union of two LCAs filed on January 12, 1993 and February
19, 1993. Judge Rippey also found that no violation occurred with
respect to an LCA dated January 9, 1992 because the LCA was filed
prior to the effective date of the Regulations which govern the LCA
application process. Considering the factors set forth in
§507.810(c)(1)-(7), Judge Rippey concluded that a civil money
penalty of $500.00 should be imposed for each violation for a total
civil money penalty of ,000.00.

Complainant, Respondent, and the Administrator all sought
review by the Secretary of Judge Rippey’s Decision and Order.

On February 23, 1994, while the case heard by Judge Rippey was
being reviewed by the Secretary, Complainant filed the second
complaint. (A 1)[1] In the instant complaint, Complainant
attached a list obtained from the Department of Labor which seemed
to indicate that 35 LCAs had been issued covering a total of 47
employees. Complainant referenced Judge Rippey’s Decision and
Order and requested a full investigation and an accounting for the
remaining LCAs for which no notice had been provided to the union.

——————————————————————————–[PAGE 3]
On June 10, 1994 the Administrator issued a determination
letter which found that Respondent had failed to properly post
several LCAs. (C 1) However, it is impossible to determine from
the determination letter which LCAs were considered. As a remedy
for Respondent’s failure to properly post the LCAs, the
Administrator ordered Respondent to repost the LCAs at issue. The
Administrator further determined that since these violations were
neither “substantial” nor “willful” no notification to the Attorney
General under §507.855 was warranted.

On June 24, 1994, Complainant requested a formal hearing
before the Office of Administrative Law Judges and on July 8, 1994,
I issued a notice scheduling a hearing.

On July 18, 1994, the Secretary affirmed Judge Rippey’s
decision but determined that a lesser civil money penalty of
$250.00 per violation was warranted, for a total civil money
penalty of $500.00. Applying the criteria at §507.810(c)(1)-
(7), the Secretary found that the following factors warranted a
lesser civil money penalty:

Respondent has no history of violations, a minimal number
of workers were potentially affected by the violation,
there was no financial gain to Respondent and no
demonstrated financial loss or injury to any other party
as a result of the failure to notify of the union of the
labor condition applications, and Respondent has
committed to future compliance.

(Secretary, D & O, p. 16).

A formal hearing in the instant case was held before me on
September 20, 1994 in New York, New York. After the hearing, the
record remained open for submission of the affidavit of Mary Pat
Dodds and the parties’ briefs. Dodds’ affidavit has been filed and
is received into evidence as A 5. The parties have filed briefs.

II. THE INSTANT CASE

A. Failure to notify of filing of labor condition
applications

Under §507.730(h)(1)(i), where there is a collective
bargaining representative in the occupational classification in
which H-1B visa holders will be employed, an employer is required
to provide written notice to the bargaining representative “on or
before the date the labor condition application is filed.” In the
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instant case, Complainant alleges that such notice was not provided
to the bargaining representative in a timely fashion. The
Administrator and Respondent state that while notice may have been
given later than prescribed in the Regulations, no additional
action is required to bring Respondent into compliance and there is
no need to assess additional penalties against it.

At the outset of the hearing Complainant listed LCAs that she
alleged should have been considered by the Administrator. These
LCAs are dated October 19, 1993, April 26, 1993, May 20, 1993, June
23, 1993, and January 11, 1994. (TR 12) In addition, Complainant
stated she believed, based on her reading of other documents
obtained from the Department of Labor, that additional LCAs were
filed on or before May 20, 1993, May 26, 1993, and July 16, 1993.
(TR 19-20)

Complainant withdrew from consideration the LCAs of October
19, 1993 and January 11, 1994 because they related to non-union
positions. (TR 19) After considering the witnesses’ testimony at
the hearing, Complainant also withdrew from her complaint the LCAs
filed on or before May 20, 1993, May 26, 1993 and July 16, 1993,
whose existence has not been established. (TR 232) Although
initially contested, Complainant also acquiesced in the
Administrator’s determination that another LCA dated May 20, 1993
was a forgery which had been filed without Respondent’s consent,
and she withdrew it from consideration. (TR 227)[2]

Therefore, the remaining LCAs to be considered are those of
April 26, 1993 and June 23, 1993. Complainant
contends that the Act was violated because Respondent failed to
notify the union about these LCAs until Respondent sent the union
a letter dated August 5, 1993. (C 1)[3]

Mary Pat Dodds, an investigator with the Wage and Hour
Division, testified that she conducted the investigations in both
the case that was heard by Judge Rippey and the instant case. (TR
65) Dodds testified that the Administrator felt that additional
remedial action for the LCAs in question in the instant case would
be “redundant” to the fines already imposed by Judge Rippey in the
prior case. (TR 102) Dodds reiterated the Administrator’s opinion
that the additional violations found by Dodds were neither willful
nor substantial.

Dodds testified at the hearing that she met with
representatives of Respondent on two occasions in 1993 and at those
times explained the requirements of the Act and Regulations to
Respondent’s representatives. (TR 112, 141) In her post-hearing
affidavit Dodds revised her testimony and stated that she met with
——————————————————————————–[PAGE 5]
representatives of Respondent in connection with her investigation
in the prior case on only one occasion, June 15, 1993. (A 5)

Despite Dodds’ face-to-face meeting with Respondent to explain
the requirements of the Act and Regulations on June 15, 1993, the
only document evidencing notice to the union is Respondent’s letter
to the union dated August 5, 1993. (C 1) Dr. Henry Moss,
Respondent’s president during the time in question and currently
vice president for academic affairs, testified that he recalled
giving notice to the bargaining representative with respect to the
June 23, 1993 LCA — apparently prior to the letter of August 5,
1993 — but he was unable to find a copy of the notice. (TR 168-
173) Dr. Moss further testified that after meeting with Dodds,
Respondent took steps to improve its control over the LCA process.
(TR 169) Dr. Moss stated that the August 5, 1993 letter was sent
to the bargaining representative to “clean up our files” and bring
Respondent into compliance. (C 1)

As Ms. Dodds correctly testified, “[t]he burden falls to the
firm to maintain a record of the notification that they’ve given
and there was no such record. The earliest record I have is of the
August notification.” (TR 98); See also §507.705(c)(5).
I agree, and find that the union was not sent notice of the filing
of the April 26, 1993 and June 23, 1993 LCAs until August 5, 1993.

During her testimony, Dodds continually characterized the
August 5, 1993 notice to the bargaining representative as
“untimely” but “proper,” thereby — Dodds stated — extinguishing
the need for any further action against Respondent by the
Administrator. (TR 134-135)

Dodds testified that she spoke to the bargaining
representative, Sue Lyons, and that Lyons “indicated to me that she
had no objection at all to the filings of the LCAs and indicated
that there were no ramifications of their not having been timely or
properly notified.” (TR 144) Lyons’ deposition testimony is
consistent with that of Dodds on this subject. (C 2, pp. 20, 22-23)
Dodds further stated that Lyons’ representations were a “major
factor” in the determination reached by the Administrator.
However, I find no provision in the Act or Regulations which
permits a union’s waiver of the requirement to be notified to be
considered in determining whether a violation has occurred.

The facts presented in this case are more clear than those
decided by Judge Rippey. In Judge Rippey’s case, notice of the
January 12, 1993 and February 19, 1993 LCAs was provided in a
letter dated March 11, 1993. In the instant case, proper notice of

——————————————————————————–[PAGE 6]
the April 26, 1993 and June 23, 1993 LCAs was not provided until
August 5, 1993. Furthermore, the June 23, 1993 LCA was filed just
eight days after Dodds had explained the LCA filing and
notification process to Respondent. Yet it was not until almost
six weeks later, on August 5, 1993, that Respondent gave proper
notice to the union.

Based upon my reading of the Secretary’s decision in the
previous case, I find that the failure to properly notify the
bargaining representative is a “substantial” failure under the
Regulations. See Secretary D & O, p. 16.

Section 507.810 provides that upon determination that the
employer has committed any violation described in §507.805(a),
the Administrator may assess a civil money penalty not to exceed
,000.00 per violation. In determining the amount of civil money
penalty to be assessed, the Administrator shall consider the type
of violation committed and other relevant factors. The factors
which may be considered include, but are not limited to:

1. Previous history of violation, or violations by the
employer under the INA and subparts H or I;

2. The number of workers affected by the violation or
violations;

3. The gravity of the violation or violations;

4. Efforts made by the violator in good faith to comply with
the provisions of 8 U.S.C. 1182(n) and subparts H and I;

5. The violator’s explanation of the violation or viola-
tions;

6. The violator’s commitment to future compliance; and

7. The extent to which the violator achieved a financial
gain due to the violation, or the potential financial
loss, potential injury of adverse effect with respect to
the other parties.

§507.810(c).

In his decision, the Secretary assessed a civil money penalty
of $250.00 for each of the two violations adjudicated before Judge
Rippey. In the instant case, an increased penalty is warranted for
several reasons. First, these two additional violations increase
——————————————————————————–[PAGE 7]
the total violations committed by Respondent to four. Second, as
I have already found, Respondent ignored the advice and guidance
provided by the Wage and Hour Division’s investigator and failed to
provide notice to the bargaining representative for an LCA filed
eight days after being apprised of the proper filing procedure.
Finally, although Respondent has stated that it is committed to
future compliance, it has failed to demonstrate that its attempts
at compliance have been effective. Based upon the following
factors, as well as those that have not changed since the final
decision of the Secretary, I assess a civil money penalty of
$500.00 for each of the two violations, for a total civil money
penalty of ,000.00.[4]

B. Intimidation

During the pendency of the appeal of Judge Rippey’s Decision
and Order, Complainant submitted a letter brief to the Secretary
which argued, inter alia, that Respondent’s Vice
President, Edward Leff, committed perjury in his testimony before
Judge Rippey.

In a letter dated December 15, 1993, Mr. Leff responded to
Complainant’s allegation by stating:

Your appeal letter to the Secretary of Labor (case # 93-
LCA-0004) dated November 10, 1993 contains untrue and
libelous statements meant to defame me personally. To
wit, in paragraph 2A you state that if the information
you received from Dr. Moss is correct “Mr. Leff committed
perjury”. Before you use a term such as perjury, I
suggest you consult a dictionary.

We have tried to maintain a level of professionalism in
dealing with you, but you are resorting to personal
attacks which are undignified.

Unless you retract these statements, in writing, to the
Secretary of Labor and issue a written apology to me
within 30 days, I will take the appropriate legal action
against you.

Very truly yours,
/s/ Edward Leff

(A 1)

In a reply letter dated December 20, 1993, Complainant
responded to Leff’s demand for a written apology by stating that
——————————————————————————–[PAGE 8]
her statement was “conditional” and therefore not libelous.
Complainant also reiterated the basis for her original statement.
(A 6)

By letter dated January 5, 1994,[5] Complainant filed a
complaint with the Administrator stating that Leff’s letter was an
attempt to intimidate her. (A 1)

In a letter dated January 6, 1994, Respondent’s counsel sent
Complainant a letter which states in part:

As Mr. Leff correctly stated, your accusation that Mr. Ed
Leff committed perjury during the August 10th hearing is
a libelous statement. I wish to inform you that perjury
is a “willful and corrupt sworn statement made without
sincere belief in its truth.” Even if, as you say in
your letter, that your accusation is “conditional”, it is
libelous. You will have to prove that Mr. Leff did not
believe his statement to be the truth at the time that he
said it in order to have a defense against your libelous
statement. I suggest that you retract this accusation in
writing to Mr. Leff, with a copy to the Labor Department,
and refrain from any further libelous statement against
my client.

The Administrative Law Judge has rendered a decision, and
Petition for Review has been filed. I strongly recommend
that you discontinue any personal correspondence to Mr.
Leff or [Respondent] asking for clarification or
additional information to satisfy your curiosity in
regard to any LCAs. This matter is appropriately before
the Secretary of Labor, who will review the record and
render a decision.

(C 1)

Section 507.800(d), states that “No employer shall intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against any person” because that person has engaged in
certain protected activities. The Act itself contains no specific
“whistleblower” protection.

As this is a case of first impression with respect to the
“whistleblowing” provision of the Regulations, I must borrow from
other statutes in order to define the elements which Complainant
must establish.

In Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 365 (8th
Cir. 1994), the United States Court of Appeals set forth a “three-
——————————————————————————–[PAGE 9]
pronged framework for analysis” of adverse action claims under the
Occupational Safety and Health Act, 29 U.S.C. §651, et
seq.; See also Brock v. Casey Truck Sales,
Inc., 839 F.2d 872, 876 (2nd Cir. 1988)(employing same test in
Fair Labor Standards Act cases); Passaic Valley Sewerage Com’rs
v. Department of Labor, 992 F.2d 474, 480 (3d Cir. 1993)(Clean
Water Act); Lockert v. Department of Labor, 867 F.2d 513,
519 (9th Cir. 1989)(Energy Reorganization Act and National Labor
Relations Act).

Under the three-pronged test, Complainant must first set forth
a prima facie case by “showing participation in a
protected activity, a subsequent adverse action by the employer,
and some evidence of a casual connection between the protected
activity…and the adverse action.” Id. (quoting Schweiss
v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir. 1993)).
Once Complainant has established her prima facie
case, the burden then shifts to Respondent to “articulate an
appropriate non-discriminatory reason for its action.” Id.
Finally, if Respondent overcomes this burden, Complainant must then
demonstrate that the proffered reason is pretextual.
Id. This general framework has
been applied by the Secretary to cases adjudicated under 29 C.F.R.
Part 24. Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec’y,
April 25, 1983); See also Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248 (1981).

While Complainant herself did not testify about the alleged
intimidation, Dodds testified that in addition to investigating the
second complaint regarding LCAs, she investigated Complainant’s
allegations of intimidation. Dodds testified that during the
course of her investigation she discussed the letters with
Complainant. Dodds recalled, “I should say she said that she was
upset, she was upset, physically upset by the [Respondent's]
letters.” (TR 126)

Dodds stated that based on her discussion with Complainant, “I
determined that there was no harm to [Complainant] and she suffered
no adverse affect at her work or no adverse affect on either her
pay, her performance evaluations, or in any way that had anything
to do with her work situation.” (TR 77) Dodds further testified
that “I didn’t feel that it [the threat of a law suit] was
something that fell within our jurisdiction under this law or
within that section of the Regulations.” (TR 77) Dodds later
suggested that the letters were not related to any protected
activity. (TR 120-121)

While the Administrator stipulated that Complainant’s
allegations of intimidation were incorporated into the
Administrator’s determination letter of June 10, 1994, the letter
——————————————————————————–[PAGE 10]
is silent on this issue. (TR 54)

Other than the letters themselves and the brief testimony by
Dodds, Complainant introduced no evidence with respect to the
intimidation claim.

With respect to Complainant’s prima facie case,
I find that Complainant has established the first element by
showing that she
engaged in several protected activities including the filing of a
complaint with the Administrator and by filing an appeal to the
Secretary. §507.800(d)(1).

The second element for a prima facie case is
that Complainant must show that she has been subjected to an
adverse action by Respondent. Although not clearly articulated by
Complainant, I infer from her brief the argument that the threat of
a libel suit if she did not suspend her efforts had a chilling
effect on her continuing to pursue this matter before the
Department of Labor. However, no testimony or other evidence was
introduced on this point. In fact, Moss testified that the
“paperwork,” (i.e., correspondence) from Complainant, “kept
coming” after Respondent’s letters were sent. (TR 213)

I disagree with the argument of Respondent and the
Administrator that the letters did not coerce or intimidate
Complainant because she continued to press forward with her
actions. Such an analysis makes the violation turn on the
subjective response of the “victim.” Rather, I find that a threat
to file a defamation lawsuit against the complaining individual
unless she ceases her protected activity has an implicit chilling
effect and therefore would be prohibited by §507.800(d).[6]
However, I find no support in the Act for the “whistleblower”
regulation. Whereas in other statutes Congress has enacted
whistleblower protection, it has not done so here. This provision
is solely the creation of the Secretary and, I find, as such the
Secretary has usurped the authority of Congress to make
legislation.

In Malpass v. General Electric Co., 85-ERA-38 and 39
(Sec’y Mar. 1, 1994), the Secretary recently recognized such a
limitation on his authority to promulgate regulations empowering an
administrative law judge to issue subpoenas or impose sanctions in
the absence of specific legislation providing for these actions.
In Malpass, the Secretary stated, “I do not believe the
Secretary can assume powers not delegated to him by Congress simply
by incorporating provisions, such as the Federal Rules of Civil
Procedure, in departmental regulations.” Slip. op. at 22. In the
——————————————————————————–[PAGE 11]
instant case, the Secretary has impermissibly attempted to create
a whole new body of substantive rights and violations not expressly
contemplated by Congress. Consequently, it would not be
appropriate to find that Respondent’s letters to Complainant
constitute a remediable violation.

C. Debarment

Under §507.855 the Administrator is required to notify
the Attorney General upon a finding of a violation by the
Administrator, an Administrative Law Judge, or the Secretary even
though an appeal might be pending. Upon receipt of this
notification, the INS will debar the violator from the H-1B visa
program for a certain period of time, even though an appeal might
be pending. §507.855(c). In the instant case, Respondent is
ineligible to participate in the H-1B visa program from January 26,
1994 to January 25, 1995 based on the determination by Judge
Rippey. See Secretary D & O, p. 5.

Despite language in Judge Rippey’s Decision and Order in which
he directed the Administrator to forbear from notifying the
Attorney General until his Decision and Order could be reviewed by
the Secretary, the Administrator informed the Attorney General of
Judge Rippey’s decision and Respondent was debarred prior to review
by the Secretary. As the meaning and application of the Act are
still in the formative stage, I too believe it is best that
debarment be stayed until the final agency action takes place.
ORDER

It is HEREBY ORDERED that:

1. Respondent, Technical Career Institute, is ordered to pay
a civil money penalty of $500.00 for its failure to
properly notify the bargaining representative of the
filing of the labor condition application dated April 26,
1993.

2. Respondent, Technical Career Institute, is ordered to pay
a civil money penalty of $500.00 for its failure to
properly notify the bargaining representative of the
filing of the labor condition application dated June 23,
1993.

3. Complainant’s complaint against Respondent for
intimidation is DISMISSED.

It is further ORDERED that application of this Decision and
Order to debar Respondent pursuant to §507.855(a)(2) is stayed
for thirty (30) calendar days. Further, if Respondent files a
timely petition for review with the Secretary, the stay of
debarment shall remain in effect until the Secretary issues a final
determination.

ROBERT D. KAPLAN
Administrative Law Judge

DATED: November 4, 1994
Camden, New Jersey

NOTICE TO THE PARTIES: The Administrator of the Wage and
Hour Division or any other party to this proceeding desiring review
of this Decision and Order may petition the Secretary of Labor to
review this Decision and Order. To be effective, such petition
shall be received by the Secretary within 30 calendar days of the
date of this Decision and Order. Copies of the petition shall be
filed with the Secretary at the Office of Administrative Appeals,
U.S. Department of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Ave., NW, Washington, DC 20210. Copies of the
petition shall be served on all parties and on the Administrative
Law Judge. Provisions regarding review rights are set forth at 29
C.F.R. §507.845.

[ENDNOTES]

[1] The following references will be used herein: “A” for
Administrator’s exhibits; “C” for Complainant’s exhibits; “R” for
Respondent’s exhibits; and “TR” for references to the hearing
transcript.

[2] Based upon my review of the record as a whole, except for
the October 19, 1993 and January 11, 1994 LCAs, I agree that no
chargeable violations occurred with respect to the withdrawn
LCAs. With respect to the October 19, 1993 and January 11, 1994
applications, insufficient evidence was submitted to determine
whether proper notice was or was not given. Therefore no
determination is made regarding these two applications.

[3] Complainant also posits that Respondent’s employment of H-1B
visa holders is an attempt by Respondent to gain control over the
union. According to Complainant, those members of the union that
are H-1B visa holders are obligated to their employer for
providing the opportunity to work in the United States. (TR 10,
186-187, 190-191) However the deposition testimony of Susan
Lyons, secretary of the affected union, indicates that in her
estimation only 10 of 280-300 union members are non-immigrant
visa holders. (C 2, p. 12) Therefore, I conclude that there is
insufficient evidence to support Complainant’s theory.
Furthermore, I fail to see how the Act is applicable to these
allegations.

[4] Contrary to the Administrator’s assertion, these violations
are separate and distinct from those adjudicated by Judge Rippey
and ultimately the Secretary. Therefore the imposition of
additional civil money penalties for these violations is not
“redundant.”

[5] The parties stipulated that the 1993 date which appears on
the letter is a typographical error. (TR 53)

[6] The Regulation does not limit prohibited threats to those
which pertain to an employment relationship between a complainant
and a respondent.

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Requirements for employers using aliens on H-1B visas in specialty occupations; 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n); 20 C.F.R. Part 655, Subparts H and I

U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: July 18, 1994
CASE NO. 93-LCA-0004

IN THE MATTER OF

EVA KOLBUSZ-KIJNE,
COMPLAINANT,

v.

TECHNICAL CAREER INSTITUTE,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER
Before me for review is the Administrative Law Judge’s (ALJ) Decision and Order (D. and O.) issued on October 14, 1993, in this case arising under Section 1101(a) (15) (H) (i) (b) and Section 1182(n) of the Immigration and Nationality Act of 1952, as amended (INA), 8 U.S.C. § 1101 et seq. (1991), and the implementing regulations at 29 C.F.R. Part 507, Subparts H and I (1993).1 In his D. and O., the ALJ assessed a civil money penalty of ,000 against Respondent and remanded the complaint to the Administrator of the Wage and Hour Division, Employment Standards Administration (Administrator) for further consideration of whether the Department of Labor (DOL) has any authority to direct a remedy for Complainant in this case.

Pursuant to the provisions of 29 C.F.R. § 507.845(c) (1993), I accepted review of the ALJ’s D. and O. to consider the following issues: whether the ALJ, based on the record evidence, erred in determining that the employer committed violations requiring that it be barred from participating in the “H-1B” visa program pursuant to 8 U.S.C. §§ 1101(a) (15) (H) (i) (b), 1182(n), 1184(g) (1) (A), and 1184(i); and whether the relief fashioned by the ALJ was appropriate under the circumstances presented. See Notice of Intent to Review issued Feb. 2, 1994.

Complainant, Respondent, the Administrator, and United Auto Workers, AFL-CIO, Local #2110 (Union) have filed briefs before me on the issues presented for review.2 Based on a careful review of the record, the ALJ’s D. and O. and the parties’ briefs, I conclude that Respondent violated the statutory and regulatory requirements governing the filing of labor condition applications for H-1B visas and that such violations must be reported to the Attorney General and the Employment and Training Administration (ETA). Moreover, I find that the applicable provisions of the INA provide no

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[Page 2]
relief to Complainant with respect to her additional allegations that TCI’s hiring under the H-1B visa program resulted in her layoff and have adversely affected other U.S. workers at TCI. These conclusions are discussed more fully herein, following a brief review of the instant facts and the governing statutory and regulatory provisions. Because this is a case of first impression before me, the following discussion is intended to clarify the procedural and substantive requirements of the H-1B visa application process and its enforcement.

Procedural History And Facts
Respondent, Technical Career Institute (TCI), is an educational institution which hires teachers of English as a second language (ESU). Complainant was employed by TCI as an ESU teacher for temporary periods from September 1991 until February 1993, when Complainant was informed that she must be laid off because of a decline in enrollment. See Letter from Edward Leff, Vice-President TCI, dated Feb. 16, 1993. The Union represented the bargaining unit to which Complainant and the H-1B workers belonged. Complainant’s layoff was governed by the seniority provisions of the collective bargaining agreement between Respondent and the Union.

Complainant filed a complaint with the Wage and Hour Division of the Employment Standards Administration (ESA) of the U.S. DOL dated April 29, 1993, requesting that DOL investigate the certification for H-1B visas for nonimmigrant instructors of ESU at TCI, on the grounds that working conditions of U.S. workers had been adversely affected by the employment of H-1B nonimmigrants. Complainant further stated that,

“An additional reason for this request lies in the fact that, according to the union shop stewards, to the best of their knowledge the trade union bargaining representative has not been informed about the employment of nonimmigrants when TCI hired them, nor that these positions have otherwise been made available for U.S. workers.”
Complainant’s letter of April 29, 1993 (attached to Complainant’s June 23, 1993 letter to ALJ).

Upon receipt of the complaint letter, the Administrator conducted an investigation and the District Director of Wage and Hour, ESA, issued the Administrator’s Determination on June 23, 1993, concluding that TCI was operating in compliance with the H-1B provisions of the INA and attaching copies of the labor condition applications (Form ETA 9035) investigated. The labor condition applications in question were signed and dated by Respondent on January 9, 1992, January 12, 1993 and February 19, 1993, and all have marked box (d) (1) indicating that as of that date, notice of the application had been provided to workers employed in the occupations in which H-1B workers would be employed, through notice to the bargaining representatives of these workers. The Union first received documents from TCI concerning applications for H-1B visas in March 1993. CX-1, attachment 4, letter dated July 29, 1993 to Mrs. Kolbusz-Kijne from Union’s Recording Secretary; Tr. at 27-28, 97. Respondent met with the Union in November 1991 to discuss anticipated layoffs of ESL teachers, including H-1B nonimmigrants. Tr. at 20.3

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[Page 3]
Complainant timely requested an ALJ hearing which was held on August 10, 1993. The ALJ issued his decision on October 14, 1993, and Complainant, Respondent and the Administrator petitioned for review of the ALJ’s D. and O. On December 3, 1993, the Administrator advised the Attorney General of the ALJ’s findings, and on January 26, 1994, INS advised that petitions for H-1B visas filed by Respondent would not be approved for a one year period from January 26, 1994 to January 25, 1995.

ALJ’s Decision
After the August 10 hearing on this matter, the ALJ found that Respondent failed to comply with the provisions of the INA and the implementing regulations governing the filing of labor condition applications for H-1B nonimmigrant visas. The ALJ concluded that the 3 challenged labor condition applications in evidence each contained a misrepresentation by Respondent, i.e., attestation that the appropriate bargaining representative had been notified of Respondent’s filing of the labor condition applications for H-1B nonimmigrants under INA Section 1182(n). Accordingly, the ALJ addressed the issue of civil money penalties pursuant to 29 C.F.R. § 507.810. He excused one of the violations of 29 C.F.R. § 507.805(a) (1), finding that the first labor condition application was filed prior to the effective date of the regulations. He then assessed a civil money penalty of $500 for each of the other two violations. Additionally, the ALJ stated that neither the INA nor the applicable regulations provide a remedy for Complainant’s assertion that she was laid off as a result of Respondent’s hiring aliens under these flawed labor condition applications, and he remanded the complaint to the Administrator for further consideration of this issue, and also recommended that the statute should be amended in this respect. Finally, the ALJ informed the parties that pursuant to 29 C.F.R. § 507.855, the Administrator would notify the Attorney General and ETA of the finding that Respondent violated the applicable statutory and regulatory provisions.

Statute and Regulations
The INA of 1952 was amended in pertinent part on November 29, 1990 (Immigration Act of 1990, Pub. Law 101649, 104 Stat. 4978), and again on December 12, 1991 (Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. Law 102-232, 105 Stat. 1733). As amended, the statute defines classes off aliens who are not considered “immigrants” under the U.S. immigration law and who may enter the U.S. for prescribed periods of time and for prescribed purposes under various types or classes of visas. 8 U.S.C. § 1101(a)(15).

One such class of noniimmigrant aliens known as “H-1B” are allowed entry into the U.S. on a temporary basis to work in “specialty occupations,” or as fashion models of distinguished merit and ability. 8 U.S.C. § 1101(a)(15)(H)(i)(b). Specialty occupations for purposes of obtaining an H-1B visa are defined at 8 U.S.C. 1184(i). This is a limited visa program. The total number of aliens who may be issued H-1B nonimmigrant visas during any fiscal year may not exceed 65,000 and the period of authorized admission as such a nonimmigrant may not exceed 6 years. See Section 1184(g). The Attorney General (INS) has the authority to determine whether an alien satisfies the criteria for entry to the U.S. as a nonimmigrant under § 1101(a)(15)(H). See Section 1184(a) and (c).

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[Page 4]
Since the effective date of the 1990 Amendments, intending employers are required to file an application (labor condition application) with the Secretary of Labor under Section 1182(n) (1) as part of the process of obtaining an H-1B nonimmigrant visa, for each alien it is petitioning to employ in a specialty occupation. The statute also provides that,

“Unless the Secretary [of Labor] finds that the application is incomplete or obviously inaccurate, the Secretary shall provide the certification described in section 1101(a)(15)(H)(i)(b) of this title within 7 days of the date of the filing of the application.”
8 U.S.C. § 1182(n)(1). The INA sets out detailed obligations concerning wages and working conditions to be met by intending employers with regard to the H-1B nonimmigrant who is to enter the U.S. to perform services for that employer in a specialty occupation. See 8 U.S.C. § 1182(n) (1) (A).

The Secretary’s implementing regulations, found at 29 C.F.R. Part 507, Subparts H and I, set forth the responsibilities of the DOL in administering the labor condition application (LCA) process and enforcement provisions, and delineate the requirements for employers seeking to employ aliens on H-1B visas. 29 C.F.R. §§ 507.700, 507.705, 507.800. Specific guidelines are provided for employers on filing labor condition applications with ETA, the agency responsible for receiving and making determinations on labor condition applications. 29 C.F.R. § 507.700(a)(3), (a)(4), and (b)(1); § 507.730. The Administrator performs the Secretary’s duty to investigate and resolve any complaints filed with DOL concerning the labor condition application or the employment of the H-1B nonimmigrant as required at Section 1182(n)(2)(A). 29 C.F.R. § 507.705(a)(2); § 507.800 et seq.

An employer who intends to employ an H-1B alien must submit a completed, dated and signed labor condition application (Form ETA 9035) which contains all required information, including specific labor conditions statements: 1) attestation that it will pay the H-1B aliens the required wage rates 2) attestation that it maintain the prevailing working conditions, i.e. hours, vacation, fringe benefits (employment of H-1B nonimmigrants will not adversely affect the working conditions of workers similarly employed); 3) attestation that there is no strike or lockout for the occupational classification at intended place of employment of H-1B alien; 4) attestation that it provided notice of the filing of a labor condition application to the bargaining representative of the employees in the occupational classification in which the H-1B nonimmigrants will be employed, or if no bargaining representative, posted notice of filing in conspicuous locations in the area of intended employment. 8 U.S.C. § 1182(n) (1); 29 C.F.R. § 507.730.

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[Page 5]
The required notice must contain specific details of the application including the number and classifications of nonimmigrant workers, the wages offered arid the period and location of employment, 29 C.F.R. § 507.730(h), and further, notice must have been provided at the time of filing the labor condition application, 29 C.F.R. § 507.730(d)(4).

Merits
The first issue raised before me is whether Complainant had standing to file the instant complaint challenging three labor condition applications filed by Respondent with the intent to obtain, or extend, H-1B nonimmigrant visas for intended employees. Complainant challenged the labor condition applications on the grounds that Respondent misrepresented that it had complied with the notice requirement of the INA. I reject the Union’s argument that Complainant had no standing to file this complaint.

Section 1182(n) (2) (A) states that,

The Secretary shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner’s failure to meet a condition specified in an application submitted under paragraph (1) or a petitioner’s misrepresentation of material facts in such an application. Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively. The Secretary shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.
Here, Complainant was an employee of the employer in the occupational classification and area for which aliens were sought, and the requisite notice was to her bargaining representative. Although investigation may reveal that Complainant suffered no tangible harm from the failure to notify, the regulations make clear that the notice requirement is intended to provide information to the employees in the area where the H-1B nonimmigrants are intended to work. 29 C.F.R. § 507.730(h). Moreover, the regulations require that this notice include a specific statement on the filing off complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application. See 29 C.F.R. § 507.730(h)(1)(i).

The filing of complaints in this scheme is not solely to provide a remedy to the individual aggrieved persons, but to initiate investigations and enforcement by the Administrator where found appropriate to ensure compliance with the law. A broad reading of the relevant statutory language, “any aggrieved person or organization (including bargaining representative),” promotes effective enforcement of the H-1B labor condition application process and helps to achieve the Congressional intent of protecting both U.S. and foreign workers in the H-1B program. See 57 Fed. Reg. 1317, 1323 (January 13, 1992) (Interim Final Rule).

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[Page 6]
The statute provides that the DOL should review labor condition applications only for “completeness and obvious inaccuracies” and should provide certification within 7 days of the date of filing. 8 U.S.C. § 1182(n)(1). The DOL has promulgated regulations which provide for a simple, expeditious review of labor condition applications, but also implement a complaint driven enforcement system for the protection of workers. This is in compliance with the statutory requirement of establishing a system to conduct investigations to determine whether an employer failed to meet a condition specified in the labor condition application or misrepresented a material fact on its application. 8 U.S.C. § 1182(n)(2). The plain language of the statute and the legislative history of the 1991 amendments to the H-1B provisions, reveal that Congress intended to achieve both of these purposes: streamlined application process and effective complaint driven enforcement process for the protection of workers. See 137 Cong. Rec. S18243 (daily ed. November 26, 1991) (statement of Senator Simpson); 137 Cong. Rec. S18245 (daily ed. November 26, 1991) (statement of Senator Kennedy). Consistent with both of these purposes it is important to broadly define who may file complaints, and thereby initiate investigations. See 58 Fed. Reg. 52157 (October 6, 1993) (Preamble to Proposed Rules, on regulatory language pertaining to employee notice, and on defining “Aggrieved” and “Interested” parties).

Next, the Union correctly argues that the complaint is untimely to challenge the labor condition application filed by Respondent on January 9, 1992. Section 1182(n)(2)(A) of the INA states that complaints will not be investigated unless they are filed not later than 12 months after the date of the failure or misrepresentation. See also 29 C.F.R. §507.805(c)(5). In this case the complaint was filed on April 29, 1993, more than 12 months after the labor condition application was filed on January 9, 1992. Accordingly, this allegation of the complaint is dismissed and will not be addressed herein.4

I must now consider whether Respondent complied with the statutory and regulatory requirements for filing labor condition applications for H-1B visas. On review of the evidence and the arguments of the parties on this issue, I agree with the ALJ’s finding that Respondent failed to notify the bargaining representative as required under the Act and regulations and, further, that Respondent’s labor condition statements misrepresented this fact.

The burden is on the employer to develop documentation to prove the validity of its statements in the labor condition application. 29 C.F.R. § 507.705(c)(5). Here, TCI failed to present evidence sufficient to satisfy that burden before the ALJ. At the hearing Vice-President Edward Let f admitted a failure to notify the bargaining representative of the labor condition application filings. T. at 27. Moreover, in a letter dated July 20, 1993, from Edward Leff to the ALJ, he stated that “TCI unknowingly did not notify the collective bargaining unit of applications of H-1B visas….” At the hearing, Respondent’s counsel asserted that Mr. Leff was verbally amending that statement and asserting that there was no violation, Tr. at 59-60, even though Mr. Leff earlier in the same hearing reiterated his failure to notify.

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[Page 7]
Additionally, the Union’s letter of July 29, 1993, drafted by Susan Lyons, Recording Secretary, in response to Complainant’s inquiry states that, “This letter responds to your question about when TCI notified the union of instructors with H1-B visas. To the best of my recollection, we received documents from the College concerning applications for H1-B visas in March of 1993… This was the first time we received such documents.” Union representatives testifying at the hearing consistently indicated no knowledge of labor condition application filings or of hiring of nonimmigrants. Accordingly, despite the Union’s assertions before me now, that Respondent provided sufficient notice of its labor condition applications in meetings in 1991, and that the Union was aware of the H-1B status of employees within TCI and the terms of their employment, I find that Respondent failed to provide the requisite notice of the challenged labor condition applications, and that these labor condition applications contained a misrepresentation of a material fact. Additional evidence and arguments concerning Respondent’s motivation and intent in committing these violations, and the harm which resulted from the violations, are more properly considered in determining appropriate sanctions for the established violations.

Although I agree with the ALJ’s findings that Respondent’s misrepresentations in the latter two labor condition applications violate the Act and regulations governing the H-1B visa program, I disagree with the ALJ’s dicta concerning the purposes of the labor condition application requirements, and the statutory and regulatory framework of the H-1B nonimmigrant visa program.

Addressing Complainant’s allegations that she was laid off because of the improper employment of nonimmigrants under the H-1B visa program, the ALJ made statements concerning the impropriety of employers hiring H-1B nonimmigrants to displace U.S. workers, and the failure of the Act and regulations to provide a remedy for such displaced U.S. workers. The ALJ also speculated that “Respondent stated that the violations were inadvertent, although it seems more likely to me that it knew the union would probably object if it found out about the applications.” R.D. and O. at 4.

Contrary to Complainant’s assumptions, however, the H-1B visa program does not require an employer to show that U.S. workers are not available for the positions which the nonimmigrants are being hired to fill.5 The intent of the labor condition application provisions was to protect the wages and working conditions of H-1B workers, and thereby, also protect the wages and working conditions of U.S. workers similarly employed. These provisions do not prohibit or prevent employers from hiring H-1B workers where U.S. workers are available and are not intended to remedy Complainant’s layoff.6 Accordingly, this case need not be remanded to the Administrator for further consideration of remedies available to this individual Complainant.

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[Page 8]

Remedies
Under Section 1182(n) (2) (C) of the INA, the Secretary may impose penalties as follows:

If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1) (B), a substantial failure to meet a condition of paragraphs (1) (C) or (1) (D), a wilful failure to meet a condition of paragraph (1) (A), or a misrepresentation of material fact in an application– (i) the Secretary shall notify the Attorney General of such finding and may in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed ,000 per violation) as the Secretary determines to be appropriate, and (ii) the Attorney General shall not approve petitions filed. ” (emphasis added)
The implementing regulations on remedies are found at 29 C.F.R. §507.810, and state that upon determining that the employer has committed any violation(s) described in 507.805(a) of this part, the Administrator may assess a civil money penalty not to exceed $ 1,000 per violation. In the instant case, it has been determined that Respondent violated Section 507.805(a)(4), “Substantially failed to provide notice of the filing of the labor condition application as required in 507.730(h) of this part” and Section 507.730(a)(1), “Filed a labor condition application with ETA which misrepresents a material fact.”

Considering the nature of the two violations in this case and the other relevant factors enumerated at 507.810(c), I am persuaded to reduce the amount of the civil money penalty assessed against Respondent. As the ALJ found, Respondent has no history of violations, a minimal number of workers were potentially affected by the violation, there was no financial gain to Respondent and no demonstrated financial loss or injury to any other party as a result of the failure to notify the union of the labor condition applications, and Respondent has committed to future compliance. Additionally, it is plausible that Respondent acted without the intent to violate the provisions at issue here. In light of these factors, and considering the misunderstanding of the ALJ and Complainant as to the nature of the Act and its purposes at the time of the hearing, I find that a $250 civil money penalty for each violation is appropriate in the circumstances presented here. Ameliorating factors notwithstanding, effective enforcement of the Act is essential to ensure the effectiveness of the labor condition application process and the H-1B visa program. Accordingly, although a civil money penalty is not mandatory, I believe it is appropriate to ensure the viability of the complaint process and future compliance with the Act. Respondent is ordered to pay a total of $500 for the violations committed.

Section 507.855 governs “Notice to Employment and Training Administration and the Attorney General.” Pursuant to 8 U.S.C. § 1182(n)(2)(C) and 29 C.F.R. § 507.855(a)(2), the Administrator properly notified the Attorney General and ETA of the ALJ’s finding of a violation by Respondent.7 Under 507.855(b), the Attorney General upon receipt of such notification, shall not approve petitions filed with respect to that employer during a period of at least one year. Under 507.855(c), ETA shall suspend the employer’s labor condition applications upon such notification.

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[Page 9]
Accordingly, for the reasons discussed herein, the allegation concerning the labor condition application of January 9, 1992 is dismissed, and Respondent must remit a civil money penalty in the amount of $500 by certified check made payable to the “Wage and Hour Division, Labor.”

SO ORDERED.

ROBERT B. REICH
Secretary of Labor

Washington, D.C.

[ENDNOTES]
1The Secretary’s regulations are also found at 20 C.F.R. Part 655, Subparts H and I (1993).

2 The documentary evidence filed before me (submitted as attachments to the parties’ respective briefs), which was not presented at the ALJ hearing, is not evidence in the formal record in this case. Additional arguments raised in the parties’ briefs before me, however, will be addressed.

3 The Union’s Brief in Opposition to the ALJ’s Decision, dated March 14, 1994, asserts that the Union had “substantial de facto notice of the elements which would have been included in such notices. . . the salaries being paid to the H-1B workers and their working conditions. . . .” In support of this contention the Union has submitted, attached to their brief, a copy of a January 11, 1994 letter from the Union’s Recording Secretary to Dr. Leff of TCI. Although the letter tends to support the Union’s position, it is not a part of the formal record in this case. In any event, it would not alter my finding on the issue of whether Respondent provided the required notice to the appropriate bargaining representative.

4 Because the ALJ concluded that no penalty was warranted with respect to this allegation, any error in considering this violation was harmless.

5 Other INA visa programs governing the hiring of foreign workers do contain such a requirement, e.g. H-lA visa for foreign nurses, and H-2B for foreign agricultural workers. Both the Union arid Respondent correctly point out that the ALJ and Complainant apparently confuse the labor condition statement requirements for H-1B visas and the labor certification requirements imposed in other INA employment based visa programs. The labor certification requirement necessitates a finding that sufficient U.S. workers are not available for the position. No such requirement was included in the H-1B program.

6 I make no findings herein as to whether Complainant’s layoff resulted from new hiring of H-1B nonimmigrants or the extension of H-1B nonimmigrant visas, as this issue is irrelevant to the matter properly before me for consideration, i.e. violation of the notice requirement of labor condition application procedures.

7 Review of the comments made by Senators Kennedy and Simpson on November 26, 1991, in presenting their amendments to the H-1B visa program, while supportive of the position urged by the Union and Respondent that debarment is too harsh a sanction, do not persuade me that this result is incorrect. Both Senators comments on the need to distinguish between an employer’s wilful failure and an inadvertent, good faith failure, when determining remedies, specifically refer to wage rates and working conditions in subparagraphs (1) (A) (i) or (ii). 137 Cong. Rec. S18243-S18245 (daily ed. Nov. 26, 1991) (statements of Senators Simpson and Kennedy). These comments are not inconsistent with my reading of the plain language of the INA and the regulations which dictate the result reached herein.

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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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[Page 2]
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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[Page 3]
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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  • services sprite 1994 ARN 1 ADMINISTRATOR V. HCA MEDICAL CENTER HOSPITAL
  • services sprite 1994 ARN 1 ADMINISTRATOR V. HCA MEDICAL CENTER HOSPITAL
  • services sprite 1994 ARN 1 ADMINISTRATOR V. HCA MEDICAL CENTER HOSPITAL
  • services sprite 1994 ARN 1 ADMINISTRATOR V. HCA MEDICAL CENTER HOSPITAL

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
Click here for answers to frequently asked and answered Employee Retirement Income Security Act of 1974 (ERISA) Law questions.

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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