In Greater Missouri Medical Pro-Care Providers, Inc., ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014), a divided U.S. Department of Labor (“DOL”) Administrative Review Board (the “Board”) partially reversed the decision of the Administrative Law Judge (“ALJ”) and held that the DOL Wage and Hour Administrator has authority to investigate alleged INA violations involving H-1B workers who have not filed an H-1B complaint with the DOL on the basis of a single aggrieved party complaint, but the Administrator is statutorily limited from investigating any H-1B violations that occurred more than twelve (12) months prior to the filing of an aggrieved party complaint, on the basis of such complaint.

Background

On June 22, 2006, Alena Arat (“Arat”), a physical therapist employed by Greater Missouri Medical Pro-Care Providers, Inc. (“Greater Missouri” or the “Company”) under the H-1B program, filed a complaint with the DOL alleging that Greater Missouri had engaged in H-1B violations under the Immigration and Nationality Act (“INA”). On the basis of Arat’s single aggrieved party complaint alone, the DOL initiated and conducted a full investigation of the Company’s H-1B employees, and ultimately determined that Greater Missouri had committed H-1B violations not only regarding Arat, but also regarding its other H-1B employees. Under the INA, the DOL can initiate an investigation into an H-1B employer following, among other things, the receipt of a complaint filed by an aggrieved person or organization. Greater Missouri was ordered to pay over $300,000 in back wages to more than forty H-1B workers, which included sums for violations occurring more than twelve-months prior to Arat’s complaint.

Greater Missouri appealed the determination and obtained a hearing before an ALJ, but it was unsuccessful in persuading the ALJ that DOL’s authority to investigate violations of the labor condition application requirements was limited to the allegations contained in an aggrieved individual’s complaint and that DOL was barred from imposing back pay and civil money penalties for alleged violations that took place more than 12 months prior to the date of the complaint. On review to the Board, the Company argued that the ALJ’s legal findings were contrary to law and regulation and therefore should be overturned.

The Board’s Determination and its Rationale

As noted above, the majority of the Board affirmed the DOL’s authority to investigate the Company’s H-1B employees other than Arat pursuant to Arat’s aggrieved party complaint, but limited the scope of the investigation to the twelve-month period immediately preceding Arat’s complaint. In making this determination, the majority relied on the statutory language, which is silent as regards the breadth of an investigation conducted under the aggrieved party provision of the INA (i.e., whether such an investigation is limited to just the aggrieved party), as well as, the associated regulations that provide broad authority to an Administrator to determine the scope of his or her investigation. Moreover, the majority held that such interpretation was consistent with Congress’ 1990 amendments to the H-1B program and served public policy, because it both facilitates enforcement and deters abuse. Further, it was also consistent with the Board’s past practice of affirming multiple employee awards arising out of a single aggrieved-party complaint. The majority also adhered to the Board’s precedent regarding the temporal scope of an investigation conducted under the aggrieved party provision and limited the Administrator’s investigative authority to adverse actions that occurred within the twelve-month period immediately preceding Arat’s complaint. In the instant case, the back wage assessments were related to wage deductions taken by Greater Missouri to reimburse the Company for H-1B filing fees that occurred outside the 12-month limitations period. These deductions marked one-time violations, as distinguished from continuing violations of the LCA wage payment requirements that the Board has held can result in back wage assessments for the duration of H-1B employment for all workers employed in such status during the 12-month look back period.

Deputy Chief Administrative Appeals Judge E. Cooper Brown (“Brown”), dissenting, in part, from the majority’s opinion, held that the majority’s opinion was only valid as regards to the H-1B violations suffered by Arat. Specifically Brown argued that the aggrieved party provision only provided the Administrator with authority to investigate the allegations raised in Arat’s complaint, which he interpreted, contrary to the Board, as pertaining to Arat alone and not to Greater Missouri’s other H-1B employees. Further, Brown noted that, while the DOL had authority to investigate Greater Missouri’s other H-1B violations, such authority arose under the DOL’s ability to investigate H-1B violations based on information received from a credible source, and DOL failed to complete all statutory notice and certification requirements associated with this provision prior to conducting its investigation into these additional complaints. 

The Takeaway

Despite Brown’s dissent in this matter, the majority’s opinion indicates that H-1B employers should review their H-1B practices to ensure that they are compliant with H-1B regulations, as even a single individual complaint could spur a widespread DOL investigation of the employer’s H-1B practices.  Nevertheless, this case provides valuable precedent for preventing the Wage and Hour Administrator from overreaching the agency’s authority by ignoring the 12-month statute of limitations.