Administrator v. IHS, Inc., 93-ARN-1 (ALJ Mar. 18, 1996)
[Date entered: March 18, 1996]
IN THE MATTER OF:
ADMINISTRATOR, EMPLOYMENT STANDARDS
ADMINISTRATION
WAGE AND HOUR DIVISION,
Complainant,
v. Case No.: 93-ARN-1
INTERNATIONAL HEALTH SERVICES, INC./
NAVAL HOSPITAL,
Respondent.[1]
APPEARANCES:
JONATHAN M. KRONHEIM, ESQ.,
Senior Trial Attorney, Fair
Labor Standards Division
For the Complainant
DOUGLAS FREIFELD, ESQ.,
Corbett & Kane
Attorneys-at-Law
For the Respondent
BEFORE:
JAMES GUILL
Associate Chief Administrative Law Judge
DECISION AND ORDER
This proceeding arises from a complaint alleging violations
of the Immigration Nursing Relief Act of 1989, 8 U.S.C. §
1101 et seq.,[2] as amended ("INRA" or "Act"), and the
Secretary of Labor's regulations provided at 29 C.F.R. Part
504.[3] In this matter of first impression, Respondent filed
attestations in December of 1990 and 1991 for employment of
nonimmigrant H-1A nurses at the Naval Hospital in Oakland,
California (hereinafter "Naval
[PAGE 2]
Hospital," "Oakpark," or "Oak Knoll"). Based upon complaints
alleging violations of the Act's attestation provisions, and an
ensuing investigation, the Administrator of the Wage and Hour
Division ("Administrator" or "Complainant") concluded that IHS
failed to comply with the Act's prevailing wage, antidiscrimina-
tion, and posting requirements. As a result, he seeks civil
monetary penalties in the amount of $33,500.00 and ordered the
payment of backwages to the nonimmigrant nurses totalling
$394,406.74. A Request for Hearing on Administrator's
Determination was filed by Respondent on March 22, 1993 and the
matter was assigned to me for adjudication. Hearings were held
in San Francisco, California during the months of July and
October of 1993 and in Washington, D.C. in August of 1993.
I. The Act and Its Purpose
The Immigration Nursing Relief Act of 1989 is the product of
Congress' desire "to assist in alleviating the national shortage
of registered nurses by allowing for the adjustment of status of
certain nonimmigrant registered nurses currently in the United
States and by establishing conditions for the admission of
foreign registered nurses during a five year period."[4] In
opening this avenue of entry into the Nation's workforce,
Congress was cognizant of its potential economic ramifications,
such as depressed wages and working conditions in the domestic
nursing workforce and a concomitant lockout of U.S. nurses by
facilities seeking to reduce operating costs.
To this end, Congress developed the "attestation" process
requiring, for purposes here, that each facility seeking to
employ nonimmigrant nurses file an attestation with the Secretary
of Labor[5] confirming that (1) the facility will pay "the alien
the wage rate for registered nurses similarly employed," (2)
"employment of the alien will not adversely affect the wages and
working conditions of registered nurses similarly employed," and
(3) "[a]t the time of the filing of the petition for registered
nurses under section 101(a)(15)(H)(i)(a), . . . notice of the
filing has been provided to registered nurses employed at the
facility through posting in conspicuous locations."[6]
As a check against abuses of the attestation process, the
Secretary is further empowered to investigate and dispose "of
complaints respecting a facility's failure to meet conditions
attested to or a facility's misrepresentation of a material fact
in an attestation." 8 U.S.C. § 1182(m)(2)(E)(ii).
Considering the complaint-driven nature of investigations under
the Act, the Secretary implemented 29 C.F.R § 504.400(d) to
provide that "[n]o
[PAGE 3]
facility shall intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any manner discriminate against any person"
because such person has, under the Act, filed a complaint, sought
advice from a legal assistance program, testified in any
proceeding or related proceeding, or asserted his or her rights
under the Act.
Under the Act's enforcement provisions, in the event that
the Secretary determines that a facility has failed to meet the
elements of its attestation, civil monetary penalties may be
assessed and an employer is required to pay any backwages owed.
The provisions at § 1182(m)(2)(E)(iv) and (v) read as
follows:
(iv) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that a facility (for which
an attestation is made) has failed to meet a condition
attested to or that there was a misrepresentation of
material fact in the attestation, the Secretary shall
notify the Attorney General of such finding and may, in
addition, impose such other administrative remedies
(including civil monetary penalties in an amount not to
exceed ,000 per violation) as the Secretary
determines to be appropriate.
(v) In addition to the sanctions provided under clause
(iv), if the Secretary of Labor finds, after notice and
an opportunity for hearing, that a facility has
violated the condition attested to under subparagraph
(A)(iii) (relating to payment of registered nurses at
the prevailing wage rate), the Secretary shall order
the facility to provide for payment of such amounts of
back pay as may be required to comply with such
conditions.
8 U.S.C. § 1182(m)(2)(E).
II. Issues Presented for Adjudication
The Administrator seeks payment of backwages in the amount
of $394,406.94 as well as civil monetary penalties in the amounts
of (1) $13,500.00 for failure to pay the prevailing wage rate to
the alien nurses, (2) $19,000.00 for attempts to intimidate and
threaten the nurses, and (3) ,000.00 for failure to post the
two required notices of the attestation filings as well as a
failure to post the visa petitions for the nonimmigrant
nurses.[7]
[PAGE 4]
Respondent maintains that it paid the prevailing wage rate such
that no backwages are owed to the nurses and, therefore, no civil
monetary penalties should be assessed on this ground. Moreover,
it maintains that no other civil monetary penalties are warranted
as the nurses were not harassed or intimidated in an attempt to
thwart complaints regarding compliance with the attestation, nor
was IHS required by the Act or the regulations to post notice of
the attestation filings at the Oak Knoll facility.
III. Case Background
Under authority of the newly enacted INRA, Respondent
contracted through Foundation Health Services to supply
Australian nurses to the Oak Knoll Naval Hospital. The terms of
hire between Respondent and the H-1A nurses provided for payment
of an hourly wage rate less deductions for airfare, vacation and
sick leave, shift differentials, a cash advance and end-of-
contract bonus, and housing. Upon commmencement of their
employment, the alien nurses expressed disatisfaction with the
terms of their employment contracts; namely, the base wage rate
received was not the same as that of similarly employed U.S.
nurses. Disputes between Respondent's staff and the nurses
ensued which resulted in the investigation by Complainant of
alleged violations of the prevailing wage, attestation posting,
and antidiscrimination provisions of the INRA and its
implementing regulations.
Formation of IHS
1. Charles V. Rice was, at all times relevant to these
proceedings, the Chairman and Chief Executive Officer of IHS.
Hearing Transcript (Tr.) at 1425. By way of background,
Mr. Rice is a formally educated engineer and previously served as
a "troubleshooter" for the military. Tr. at 1426.
Eventually in his career, he worked for the Whitaker Company. He
testified "almost my entire career had been involved in going
from one troubled spot to another . . .." Whitaker had 140
companies and it seemed at any point in time a third of them were
in trouble, so I was put from one company to the other to fix
it." Tr. at 1429. The Whitaker Company "had major
contracts in the Middle East for health care." Tr. at
1427. Mr. Rice left Whitaker in 1982 "except for an advisory
role" where, for the ensuing three years, he continued to manage
their hospitals and clinics for which he "recruit(ed) foreign
health care specialists." Tr. at 1428.
[PAGE 5]
2. Mr. Rice testified that "IHS was incorporated in 1983 as a
company to provide consultancy (sic) services for overseas health
care management and that consultancy (sic) service included
recruitment, joint venture establishment to go in and bid, win
contracts and manage hospitals outside of the United States."
Tr. at 1434. The company was "reincorporated" in 1989 and
its new focus was to recruit nurses for domestic hospitals as
there was a shortage of nurses in the United States. Tr.
at 1435. Mr. Rice recalls that IHS was in demand because
hospitals "didn't have the infrastructure to handle visas and
couldn't cope with the cultural differences between the American
system and theirs" and "[t]hey didn't have the staff to go find
housing, they didn't have staff to take care of personal
problems." Tr. at 1436.
3. Since September of 1989, Kenneth Lewis, who possesses an
accounting degree, has served as the Vice President of Sales and
Marketing for IHS. Tr. at 1170. His responsibilities
"are to seek out new business in terms of facilities that require
the services, the nursing services that we provide, and to
present ourselves and what we do and ultimately to sell our
services to them." Tr. at 1171. He "sold the contract to
Foundation Health" and was responsible for recruitment of the
Australian nurses as well as the "meet-and-greet" function upon
their arrival in the United States. Tr. at 1171.
4. Mr. Lewis testified that, as early as July or August of
1990, he tried to determine how the Act would affect IHS since it
required payment to H-1A nurses of "the prevailing wage in the
geographical area" to similarly employed nurses. Tr. at
1172. He noted that, prior to the passage of the Act, "[w]e
supplied nurses, foreign graduate nurses, on a long-term basis to
acute care facilities in response to the tremendous vacancy and
shortage that was going on in this country." Tr. at 1174.
Moreover, he recalled that "[w]e would go through a different
process of going through INS and requesting their visa
applications; no attestation was required" and IHS did not have
to obtain and pay the prevailing wage rate. Tr. at 1174
and 1188.
Arrival of the nurses -- INRA complaints
5. Nurses from Australia arrived in the United States to begin
their employment at Oakpark Naval Hospital in September and
October of 1991. Tr. at 20.
6. Commander John Shore, at the time of the hearing, served as
"the assignment officer for primary care physicians for the
Bureau of Naval Personnel in Washington, D.C." Tr. at
1055.
[PAGE 6]
From June of 1989 through June 1992, he worked at Oak Knoll, "I
did most all of the outreach programs where we were interfacing
with the civilian community to bring doctors or nurses . . . into
the facility to help augment the staff." Tr. at 1057.
The Naval attestation was prepared by Lt. J.G. Mark Stevenson who
worked for Commander Shore. Tr. at 1057. Commander Shore
testified that, in October of 1991, he was contacted by Mr. Leban
of the Department of Labor regarding a complaint received on the
attestation and "requested a copy of the attestation form" at
which point Commander Shore contacted Mr. Lewis at IHS.
Tr. at 1058-59 and 1070. Commander Shore advised Mr.
Saum, who served as the Technical Representative for the nursing
contracts, to refer any complaints from the nurses to IHS, "Our
only interface was to make sure that one, they met the credential
requirements, and also to make sure that (they had) any CEUs
(continuing education units)." Tr. at 1064. He stated
that the Navy was "not in a place to try to tell IHS how they
should do their contracts with the nurses." Tr. at 1075.
7. Mr. Saum recalled that, in October and November of 1991, the
nurses "were concerned about the amount of pay that they were
getting" and that this "was probably the most predominant
complaint that we heard in the nursing office." Tr. at
877. Mr. Saum stated that he told the Australian nurses that "a
foreign nurse had to be paid similarly to the American nurses
that they're working with, but that the Navy could not intercede
to correct their wage problems and then I referred the complaints
to Ms. Fusco, IHS' Director of Project Management and Human
Resources, by telephone." Tr. at 919-20 and 922.
8. Mr. Lewis recalled that, shortly after the nurses' arrival,
IHS received several complaints regarding pay and transportation.
Tr. at 1232. He further noted that the nurses "decided
shortly after they got there that they would prefer to have more
money, more actual cash in their paycheck rather than the $3,000
end of contract payment" and it appeared that "the whole group"
wanted the bonus "brought forward to their pay." Tr. at
1235. Thus, the October 31, 1991 letter advised them that the $
3,000 end-of-contract bonus would be folded into their biweekly
checks as well as the cost of their airfare. Tr. at 1236-
37; Cx. 19. Specifically, with regard to the airfare, IHS
estimated the cost of airfare from Australia to the United States
cost $580.00 and gave the nurses a $2,200.00 airfare allowance
such that ,620.00 would be brought forward into their
contracts. Tr. at 1240.
The September 1, 1992 meeting[PAGE 7]
9. Mr. Rice recalls that he was first contacted in August of
1992 in regard to IHS' H-1A attestations by Ms. Pringels, an
investigator with the Department of Labor, "[T]he overall feeling
that was projected immediately was that she had found us guilty
in a number of areas on violation of INRA." Tr. at 1542.
She addressed the issues of the wage rates being paid to the
nurses as well as allegations of intimidation. Tr. at
1543.
10. Ms. Pringels first met with IHS representatives to discuss
potential violations of the Act at a September 1, 1992 meeting.
Present at the meeting were Kenneth Lewis and Charles Rice of IHS
as well as Tim Emert of the law firm of Corbett & Kane, who
represented IHS. Tr. at 131-32. Ms. Pringels stated that
she had IHS' payroll records prior to this meeting and the
potential backwage, posting, and harassment violations were
discussed at the meeting. Tr. at 135, 139, and 159. She
recalled that "[a]t that point in time I did tell them that a
credit towards the prevailing wage rate would be allowed for the
. . . cost of housing." Tr. at 40 and 166.
11. Ms. Pringels stated that, at the meeting, she "asked the
company to communicate with the nurses" and requested that it
"rescind the second stage warning, that I did view that as a
chilling effect on the employees to feel free to go to
governmental agencies . . . and to purge their personnel files of
the second stage warning on that letter." Tr. at 169.
With regard to the wage rate issues, Ms. Pringels stated that she
obtained prevailing wage information from the California state
employment security agency, Alien Labor Certification.
Tr. at 162. Specifically, Ms. Pringels recalls that, for
the 1990 attestation year, an entry level rate of $15.88 an hour
and experienced rate of $17.00 an hour were applicable.
The Administrator Issues a Determination
12. By Determination dated March 18, 1993, the Administrator
found Respondent in violation of the Act and implementing
regulations and requested payment of backwages owed to the
nonimmigrant nurses in the amount of $394,406.74 as well as civil
monetary penalties totalling $33,500.00 for violations of the
prevailing wage, antidiscrimination, and posting requirements of
the Act.
Respondent Requests a Hearing
13. On March 22, 1993, Respondent filed a timely Request for
Hearing in compliance with the provisions at 29 C.F.R. §
504.420.
[PAGE 8]
IV. "Facility" Defined
Because the Act and regulations are replete with references
regarding the conduct of a "facility" in the attestation process,
it is necessary to first determine whether IHS meets the
definition of a "facility" and is, therefore, subject to the
Act's proscriptions. The regulations at § 504.302 define
the term "facility" and reads, in pertinent part, as follows:
Facility means a user of nursing services with
either a single site or group of contiguous locations
at which it provides health care services. "Facility"
includes an employer of registered nurses which
provides health care services in a home or other
setting, such as a hospital, nursing home, or other
site of employment, not owned or operated by the
employer (e.g. a visiting nurse association or a
nursing contractor).
29 C.F.R § 504.302. Moreover, the phrase "nursing
contractor" is defined as "an entity that employs registered
nurses and supplies these nurses, on a temporary basis and for a
fee, to health care facilities or private homes." 29 C.F.R
§ 504.302.
Indeed, the regulations at § 504.310 provide that
"[a]ny entity meeting the definition of "facility" in §
504.302 of this part may submit an attestation" and that:
A nursing contractor that seeks to employ nonimmigrant
nurses shall file its own attestation (including
Form ETA 9029 and supporting information) as
prescribed by this section, and, as part of its own
attestation, shall attest that it shall refer H-1A
nurses only to facilities that . . . have current and
valid attestations on file with ETA. Subparts D and E
of this part (consisting of the attestation
requirements and enforcement provisions) shall apply
both to the nursing contractor and to the worksite
facility.
29 C.F.R. § 504.310(a).
The scope of this language is neither ambiguous nor
uncertain. The Act and regulations intended that an independent
contractor, which supplies nonimmigrant nurses to a U.S.
hospital, comply with the attestation provisions as a "facility."
To hold otherwise would undermine the H-1A program by permitting
circumvention of the attestation requirements by a nursing
supplier. The record evidences that IHS was under contract with
[PAGE 9]
Foundation Health which, in turn, was under contract with Oak
Knoll Naval Hospital to provide nonimmigrant nurses for that
facility. Testimony of the witnesses and a review of the nurses'
employment contracts establish that IHS "employed" them and was
directly responsible for their compensation. Moreover, because
the regulations provide that only a "facility" may file
attestations and seek approval for H-1A visas under the Act, the
fact that IHS filed such an attestation evidences its acceptance
that it is a "facility." It is determined, therefore, that, as a
facility, IHS was required to comply with all of the H-1A
attestation requirements.
VI. The Prevailing Wage RateA. Defined
First acknowledged in the Davis-Bacon Act of 1931, the
"prevailing wage rate" concept was designed to require the
federal construction industry to support local marketplace wages
of similarly employed mechanics and laborers. As stated in the
Senate Report to the Act's 1964 Amendments:[8]
Congress has extended the prevailing wage standards
from time to time to insure that public money is not
spent to depress the locally prevailing wage structure.
Although recognizing that fringe benefits had taken root in
several industries by the time the Amendments were proposed,
Congress cautioned that those benefits which are "contingent" in
nature or which have not been established as "prevailing" in the
locality could not be included in the prevailing wage
determination. In the Senate Report to the Amendments[9] , it
noted:
Because of the act's requirement that wages be paid
unconditionally, fringe benefits that are contingent in
nature cannot now be included in the wage determina-
tions.
. . .
Before a fringe benefit could be included in a wage
determination for a particular area, it would have to
be found prevailing.
Utilizing the Davis-Bacon prevailing wage concept, the
[PAGE 10]
implementing regulations to the INRA define it as "the average
wage paid to similarly employed registered nurses within the
geographic area." 29 C.F.R. § 504.302. Section 504.302
provides that the term "similarly employed" is defined as
"employed by the same type of facility (acute care or long term
care) and working under like conditions, such as the same shift,
on the same days of the week, and in the same specialty area."
29 C.F.R. § 504.302.
The Act's prevailing wage rate requirements present the most
contentious issues of this case; namely, who sets the rate, how
is it determined, when and to whom does it apply, and what does
it include. These issues strike at the core of one of the
material elements of the Respondents' attestations.[10] The Act
requires that an employer certify in an official capacity that
alien nurses will be paid "the wage rate for registered nurses
similarly employed by the facility" and that employment of H-1A
nurses will "not adversely affect the wages and working
conditions of registered nurses similarly employed." 8 U.S.C.
§ 1182(m). It is clear from the language of the Act and its
history that Congress intended to reduce the shortage of nurses
in the Nation's hospitals without sacrificing domestic nursing
wages and working conditions. Thus, while the Act does not
mandate that alien nurses receive a windfall of benefits,[11] it
does align the wages and working conditions of nonimmigrant
nurses with prevailing standards of the domestic nursing market,
which Congress seeks to maintain and promote.
B. Determination of the Prevailing Wage Rate --
Alien Labor Certification and the CAHHS SurveyFormation of Alien Labor Certification's H-1A Program
1. Carolyn Frank is the employment program supervisor at the
State of California Alien Labor Certification Office ("ALCO" or
"Alien Labor Certification") where applications for permanent
employment are processed and wage determinations for H-1A, H-1B,
and F1 programs are issued. Tr. at 446-47. Ms. Frank
recalled that the Department of Labor published its interim
regulations under the Act on December 6, 1990 at which time Alien
Labor Certification learned of its responsibilities under the H-
1A program. Tr. at 453. She further testified that, if a
request for a wage determination was submitted in December of
1990, "[w]e would advise them that the request would have to be
made in writing and submitted to our office." Tr. at 453.
Ms. Frank further testified that "[w]e also would advise them
that we
[PAGE 11]
would . . . provide a prevailing wage determination, but we could
not give them a date as far as in which we could provide them at
that point in time." Tr. at 453.
2. Upon receipt of potential prevailing wage determinations for
the nurses at Oak Knoll, Ms. Frank chose the survey conducted by
the California Association of Hospitals and Health Services
(CAHHS) as the prevailing wage determination for that facility.
Tr. at 448 and 643; Cx. 15, p. 3.
Implementing the New Act
3. At the time of filing its first attestation in December of
1990, Mr. Rice testified that IHS initially attempted to obtain
prevailing wage information from the state job security agency
but, because the agency did not have the information, IHS
collected its own data. Tr. at 1450. He stated that Mr.
Lewis found that $14.00 to $14.50 an hour was the applicable rate
for nurses at the Naval Hospital. Tr. at 1452. According
to Mr. Rice, Mr. Lewis went to Australia in February of 1991 and
discovered that one of IHS' competitors paid higher wage rates
which, in turn, resulted in a wage increase by Respondent to
$15.29 an hour during its recruitment in April and May of 1991.
As noted by Mr. Rice, "Market conditions drove our Australian
recruitment program to over $15.00." Tr. at 1452-53 and
1458-59. Mr. Lewis' testimony with regard to arriving at the
wage rate paid by IHS was similar to that of Mr. Rice.
4. The interim regulations for wage rates were published on
December 6, 1990 and, in response to his request, Mr. Lewis
received a facsimile from Sally Yadao of the Labor Market
Information Division (LMID) at the U.S. Department of Labor on
December 7. Therein she quoted hourly wage rates of $9.00 to
$16.00 for entry level nurses, rates of $9.00 to $16.80 an hour
for those with experience and "new to firm," and $12.00 to $18.00
an hour "after three years with firm." Tr. at 1181-83;
Cx. 28. Additionally, Mr. Lewis sought wage rate data
from hospitals in Alameda County where Oak Knoll is located.
Based upon information obtained, Mr. Lewis concluded that hourly
rates of $14.00 to $14.50 were appropriate for the 1990
attestation year at the Oak Knoll hospital facility. Tr.
at 1183-84; 1453-54.
5. Mr. Lewis contacted the Department of Labor's Solicitor's
Office and scheduled a meeting to discuss the initial
attestation. Tr. at 1194. The meeting was held on
December 11, 1991, and was attended by Mr. Biro, Chief of the
Employment and Training Administration of the Department of
Labor, Mr. Alter of
[PAGE 12]
the Solicitor's Office, Mr. Lewis, and Mr. Rice who participated
by telephone. Tr. at 1195. According to Mr. Lewis, IHS
was instructed to file a single attestation to cover all of the
facilities at which H-1A nurses would be employed and IHS was
advised that it had to comply with all of the attestation
requirements. Tr. at 1196. IHS filed its first
attestation on December 13, 1990. Tr. at 1180; Cx.
16.
6. The nurses began arriving in the United States in September
of 1991. Tr. at 1079.
7. On August 3, 1992, Ms. Frank sent Margaret Pringels a
listing of the prevailing wage rates for nurses at the Naval
Hospital. Cx. 17, p. 1. On the cover of this facsimile
is an entry dated August 7, 1992 by Ms. Pringels that "[p]er Ms.
Frank, the PWR is the weightedaverage."
Cx. 17, p. 215 (emphasis in original). Ms. Pringels
further recorded that, according to Ms. Frank, if the "weighted
average" was not available, then the "mean" or "average" wage
would be stated, in that order of preference. Cx. 17, p.
217. Also contained in this packet of information was the
following letter:
In response to your letter of 7/31/92, enclosed are
copies of the 1991 and 1992 RN salary surveys which we
have utilized. Our office did not provide prevailing
wages for RN's for the year 1990. We started as of
January 1st, 1991.
Cx. 17, p. 216.
8. Ms. Frank testified that, with respect to the wage rate
issued, "We are only supposed to be quoting, . . . the actual
base wage rate, we do not utilize wages that have included any
additional compensation and/or benefits." Tr. at 451.
She stated that the wage determinations issued by Alien Labor
Certification do not include housing, travel, vacation and sick
leave, or shift differentials because not every employer will pay
them. Tr. at 451, 452.
9. Ms. Frank testified that she confirmed, with Mr. Luevano,
the President of CAHHS, that the CAHHS survey rates did not
include vacation and sick pay, housing, or travel, "What I asked
was, is this . . . an actual hourly base rate or are you adding
in . . . additional benefits and/or compensation. And the
statement was, back to me, no, that's just base salary."
Tr. at 496.
[PAGE 13]
10. She noted that wage determinations for nurses in the Oakland
area were initially provided on March 27, 1991, at $15.88 an hour
for an entry level nurse and $17.00 an hour for an experienced
nurse, and these rates were "in effect until we received the
CAHHS on April 17, 1991." Tr. at 454 and 466. Under the
CAHHS survey, in the following attestation year, the entry level
rate was $18.00 an hour and, for experienced nurse, the rate of
pay was $20.47 an hour, and this survey remained in effect until
March 12, 1992. Tr. at 456-57; Cx. 17. Ms. Frank
noted that the wage rate determinations could be challenged
pursuant to 20 C.F.R. Part 658. Tr. at 474. She
acknowledged that multiple prevailing wage rates could apply to
the same facility depending upon the time the rate request is
received by Alien Labor Certification and processed. Tr.
at 678.
The Naval Hospital Receives a Wage Determination
in April 1991
11. By letter dated February 22, 1991, Commander Shore requested
the "prevailing wage for nurses in the Oakland, California
geographic area" to ensure the Naval Hospital's compliance with
its attestation. Cx. 18, p. 227. By response dated April
1, 1991, Louis Gotan of Alien Labor Certification advised
Commander Shore that the prevailing wage rate for a
medical/surgical nurse at the entry level was $15.88 an hour and
$17.00 an hour was the prevailing rate for an experienced nurse.
Cx. 18. p. 228.
IHS Advised of the April 1991 Wage Determination
12. Commander Shore sent a copy of the April 1, 1991 prevailing
wage determination which he received from Ms. Gotan along with
the Naval Hospital's attestation to Mr. Lewis at IHS. Tr.
at 1199. Mr. Lewis noted that he "was surprised" at receiving
the wage determination as he "couldn't find anybody at EDD to
direct me to a division that would produce such a document, (he)
was surprised upon receipt." Tr. at 1200. At this point,
Mr. Lewis contacted Ms. Gotan. Tr. at 1200.
13. According to Mr. Lewis, Ms. Gotan stated that Alien Labor
Certification used "surveys from established organizations within
California" and that, in fact, the survey for the nurses at the
Naval Hospital was that of the California Association of
Hospitals and Health Systems (CAHHS). Tr. at 1200;
Cx. 17, p.3.
IHS Retains its Prior Wage Determination
14. Knowledge of the existence and contents of Alien Labor
[PAGE 14]
Certification's wage determination did not, however, result in an
increase in wages by IHS to its nurses because, according to Mr.
Lewis, the 1990 attestation was still in effect at the wage rates
of $14.00 to $14.50 an hour. Tr. at 1206. He did note
that IHS increased its rates to $15.29 an hour during that
attestation year due to "[t]he competition, and we wanted to
assure that we were ahead of the competition in the marketplace."
Tr. at 1207. Indeed, the Facility Compensation
fact sheet of February 1991, which was filed with IHS'
attestation, listed a rate of $15.29 an hour for a nurse with no
experience whereas after three months of "post-entry" experience,
the rate was $16.29 an hour and $17.79 an hour after six months
of "post-entry" experience. Cx. 16, p. 46. The October
1991 Facility Compensation fact sheet for the second
attestation year listed hourly rates of $15.86 for nurses with no
experience and $16.86 and $17.86 for nurses with three and six
months of "post-entry" experience respectively.
15. Mr. Lewis stated that IHS declined to pay $15.88 an hour for
an entry level nurse during the 1990 attestation year:
Because the prevailing wage, as Ms. Gotan had explained
that she came up with, actually was in effect during
1991 and would have been valid through all of '91.
That rate was not the prevailing wage that would have
affected us. By regulations, the one that would have
affected us would have been the one valid for 1990."
Tr. at 1208.
16. The following is a sample breakdown of the elements of the
wage of a "U.S. Licensed Nurse" which was filed with IHS' 1991
attestation package:
Description Hourly rate Annual rate
+-------------------------------------------------------+
|Original base rate | 10.10 | 21,008.00
+-------------------------------------------------------+
|Adjustment for | 0.25 | 520.00
|expatriation airfare | |
|to adjust for | |
|difference between | |
|cost and ,100.00 | |
+-------------------------------------------------------+
|Adjustment to | 0.53 | 1,100.00
|incorporate | |
|repatriation airfare | |
|allowance of ,100.00 | |
|into the base pay rate | |
+-------------------------------------------------------+
[PAGE 15]
|Adjustment to | 1.44 | 1,100.00
|incorporate $3,000.00 | |
|end-of-contract bonus | |
|into the base hourly | |
|rate | |
+-------------------------------------------------------+
|Adjusted base | 12.32 | 25,628.00
|hourly rate | |
+-------------------------------------------------------+
The list then contained "Compensation not included in base
hourly rate" as follows:
+-------------------------------------------------------+
|Housing/Furniture | 2.88 | 6,000.00
|($500.00/month or | |
|$6,000.00 a year) | |
+-------------------------------------------------------+
|Expatriation remaining |0.28 | 580.00
|airfare | |
+-------------------------------------------------------+
|Shift differentials | 0.96 | 2,000.00
+-------------------------------------------------------+
|Holiday, vacation, | 0.87 | 1,800.00
|sick pay | |
+-------------------------------------------------------+
|Arrival bonus of | 0.48 | 1,000.00
|,000.00 | |
+-------------------------------------------------------+
|Total compensation | 17.79 | 37,008.00
+-------------------------------------------------------+
Cx. 3, p. 261.
IHS Seeks Approval of Its Wage Rate
17. John Leben has worked at the Department of Labor since 1983
and currently serves as a Senior Analyst. Tr. at 1573-74.
During the time at issue, he worked as an analyst and his job
duties included giving advice, at times over the telephone, "My
instructions were to provide the most accurate information I
could, but that information that I was providing was not binding
on the Department of Labor." Tr. at 1576-77. He served
as Ms. Pringels' contact person in the National Office.
18. Mr. Leben testified that he was contacted by Mr. Lewis on
October 25, 1991, "I described for Mr. Lewis the basic
requirements of the program, and after that he asserted to me
that the firm was in compliance and he asked me to take a look at
their compensation package to see if it comported with the
requirements of the regulation." Tr. at 1606-07. In his
notes, Mr. Leben states that Mr. Lewis "[a]sserts firm (sic) is
in compliance with pay requirement of INRA (and) he will FAX
summary of pay/compensation package for me to look at."
Cx. 23. On October 29, 1991, Mr. Leben noted that he
received a facsimile
[PAGE 16]
from Mr. Lewis regarding IHS' pay package and, on that date, he
advised Mr. Lewis via facsimile that he did not have enough
information to determine whether IHS was in compliance with the
Act. Tr. at 1607; Cx. 23.
19. On October 30, 1991, Mr. Leben discussed the requirements of
the Act with Mr. Lewis and states that he "did emphasize to him
that the prevailing wage requirement is geographically specific
and determined by the SESA, and I did explain to him the total
compensation package requirement as well." Tr. at 1609;
Cx. 23. At this point, Mr. Leben also advised Mr. Lewis
"that housing payments are not a part of the prevailing wage,
unless the SESA includes it when they do their computation."
Tr. at 1610-11. Mr. Leben provided three reasons as to
why housing was not included as part of the prevailing wage rate:
The first reason is that the regulations draw a
distinction between the prevailing wage and housing and
other perquisites. The second reason is that typically
the SESAs do not include housing or other perquisites
in their calculations towards prevailing wage. And the
third reason is that unlike the Fair Labor Standards
Act, INRA doesn't contain any FLSA 3(m) type of
equivalent. So there is no real basis for allowing it.
Tr. at 1611.
20. Mr. Lewis asked that Mr. Leben provide a letter to Commander
Shore indicating that IHS was in compliance with the Act which he
declined to do. Tr. at 1617-18. However, upon receiving
a facsimile from Mr. Lewis stating that IHS would comply with the
Act, Mr. Leben telephoned Commander Shore, "I indicated to
Commander Shore that International Health Services represented to
me that they understood the program requirements and that they
were in compliance" but he did not advise Commander Shore that
IHS would have to raise its wage rates. Tr. at
1621. Moreover, Mr. Leben stated that, contrary to Mr.
Lewis' representations, he did not advise him that the entry
level rates paid to the nurses had to be raised but that the
experienced level rates offered by IHS were acceptable.
Tr. at 1649.
21. By letter dated October 31, 1991 to Mr. Leben, Ken Lewis
stated the following:
Thank you for taking the time to review the
International Health Services, Inc. compensation
packages.
[PAGE 17]
In light of your review and comments, I have reviewed
our compensation package with the International Health
Services, Inc. management. In an effort to remain
clearly consistent with the attestation regulations,
International Health Services, Inc. will immediately
and retroactively increase the entry level compensation
to $15.88 per hour.
As I understand that this will satisfy the prevailing
wage standards, I would appreciate your notifying
Commander John Shore at Oakland Naval Command of our
compliance.
Thank you again for your timely review.
Sincerely,
/s/
Kenneth J. Lewis
Vice President
Sales and Marketing
Cx. 16, p. 61.
22. With regard to Ms. Pringels, Mr. Leben stated that he "had
numerous conversations with her, but (that he) did not give her
the green light" to include housing payments as part of the
prevailing wage rate. Tr. at 1663. Rather, in late
October of 1992, Mr. Leben advised Ms. Pringels that housing
could not be included. Tr. at 1669. In arriving at this
conclusion, he noted that "we were relying upon information
provided to us by the Employment and Training Administration,
i.e. that most SESAs do not include housing as part of the
prevailing wage rate." Tr. at 1674. Mr. Leben stated
that he did not specifically check with Alien Labor Certification
to ascertain whether its wage determination included housing.
Tr. at 1674.
Discussion and Conclusions of Law
Significant testimony was heard regarding IHS' attempt to
determine the prevailing wage rate for nurses at the Oak Knoll
facility prior to filing the December 1990 attestation.
Requiring payment of the prevailing wage rate under the Act
visited new concerns upon IHS, a company which had supplied
domestic health care facilities with foreign nurses without such
wage prescriptions since 1983. In determining the appropriate
wage rate under the Act, the regulations provide, in part, as
[PAGE 18]
follows:
(i) State employment security determination.
The facility does not independently determine the
prevailing wage. The State employment security agency
(SESA) shall determine the prevailing wage for
similarly employed nurses in the geographic area.
29 C.F.R § 504.310(e)(1)(i).
Alien Labor Certification is California's designated State
employment security agency (SESA) for purposes of providing
prevailing wage rate data under the Act. It is apparent from the
testimony of record that the formation of Alien Labor
Certification on January 1, 1991, nearly two weeks after IHS
filed its December 1990 attestation, and an additional delay of
three months in the SESA's ability to provide prevailing wage
data for the Oak Knoll facility (March 31, 1991) promoted an
atmosphere of miscommunication and unenlightened guidance prior
and subsequent to the filing of the first attestation. While
IHS' pursuit of prevailing wage data prior to filing the
attestation is noted, the regulations are specific in that such
data must emanate from the State's employment security agency and
cannot, under any circumstances, be self-determined.
Indeed, both counsel agreed, at the hearing, that after the
Act was passed, Employer was required to seek prevailing wage
rate information from the state job security agency. Tr.
at 1188 and 1190. Consequently, hourly rates of $14.00 to $14.50
relied upon by IHS during its first attestation year are
immaterialfor reasons discussed infra.
According to the Administrator, the prevailing wage rates
provided by Alien Labor Certification for IHS' first attestation
year (from December 1990 through December 1991) were $15.88 an
hour for entry level nurses and $17.00 per hour for those nurses
with experience. Cx. 16, p. 72. For the 1992 attestation
year, the SESA determined prevailing wage rates were $18.12 per
hour for entry level nurses and $20.47 an hour for non-critical
care, experienced nurses. Tr. at 455-57; Cx. 17,
p.3. Consequently, these wage determinations, which are based
upon surveys conducted by the CAHHS, are controlling in this
case.
C. When is the Prevailing Wage Rate
Applicable?Documentary and Testimonial Evidence[PAGE 19]
1. Ms. Pringels stated that, with regard to facilities seeking
H-1A visas, "[t]he regulations state that they are to request the
prevailing wage rate prior to submitting the attestation" and
that each facility must request its own wage rate from Alien
Labor Certification. Tr. at 22 and 25. Ms. Frank, of
Alien Labor Certification, agreed. Tr. at 464. In this
vein, Ms. Pringels noted that "International Health Services did
not request a prevailing wage rate prior to (the December 1990)
attestation or the next year's attestation." Tr. at 225.
IHS used the same wage rate for the second attestation year as
Alien Labor Certification had provided for the first year.
Tr. at 24.
2. Moreover, Ms. Pringels noted that IHS was not permitted to
rely on the request and wage determination of another facility.
Tr. at 228. This was confirmed by Ms. Frank who,
according to Ms. Pringels' notes of August 14, 1992, stated that
"Int[ernational] Health Serv[ices] couldnot use
the rates provided to the Navy via 4-1-91 letter"; rather, Ms.
Frank "stated the attesting facility must make the
request, and cannot use a different employer's PWR issued."
Cx. 18, p. 226 (emphasis in original). Moreover, Ms.
Pringels' notes contain the following statement:
Ms. Frank stated Ken Lewis requested from her just 2
days ago the PWRs for the pastyear. Ms.
Frank refused stating that she told Lewis he had to
request PWRs priortofilingtheattestation and not after the filing
of the attestation. She denied his request and refused
to release the PWRs for the past.
PWRs used before survey completed are the ones issued
to Navy in letter dated 4-1-91, including critical-care
RN.
Cx. 18, p. 227 (emphasis in original).
3. With regard to the April 1, 1991 letter from Ms. Gotan to
Commander Shore stating that the prevailing wage rate for entry
level nurses was $15.88 an hour and $17.00 an hour for those with
experience, Mr. Rice declared that he "had no reaction to this
document" stating further that the "document didn't mean a lot to
me." Tr. at 1457.
Discussion and Conclusions of Law
IHS maintains that the prevailing wage rates of $15.88 and
$17.00 an hour issued by Alien Labor Certification were
[PAGE 20]
inapplicable during the December 1990 attestation year.
Specifically, IHS asserts that its rate of, at most, $14.50 an
hour was applicable for the entire attestation year and, based
upon Ms. Gotan's alleged representation that the April 1991 Alien
Labor Certification wage rates provided to the Navy were valid
for one year, IHS applied these SESA rates ($15.88 an hour for
entry level nurses and $17.00 an hour for those nurses with
experience) to the second attestation year.
The Administrator, on the other hand, argues that IHS should
have obtained a prevailing wage rate prior to filing each of its
attestations. He further submits that IHS is not permitted to
utilize self-determined wage rates, the prevailing wage
determination obtained by another facility, namely the Naval
Hospital, or wage rates obtained in the course of a prior
attestation year.
The regulations at § 504.310(e)(1) require that an
employer attest to the following:
(1) Wages. To meet the requirement of no
adverse effect on wages, the facility shall attest that
it shall pay each nurse at the facility at least the
prevailing wage rate for the occupation in the
geographic area.
29 C.F.R. § 504.310(e)(1). The attestation form (ETA-9029)
submitted by IHS on December 13, 1990 required only that IHS
attest that "[t]he employment of the alien(s) will not adversely
affect the wages and working conditions of registered nurses
similarly employed" and that "[a]lien(s) employed by the facility
will be paid the wage rate for registered nurses similarly
employed by this facility." Cx. 16, p. 3. Neither the
regulation nor the attestation form contains a requirement that
the prevailing wage rate be established prior to filing the
attestation.
Rather, under the language of the Act and regulations, and
consistent with their intent, it is problematic, but not fatal,
that IHS did not have a prevailing wage rate from Alien Labor
Certification prior to filing the December 1990 attestation.
Ideally, IHS should have obtained a prevailing wage rate before
attesting that such would be paid to the Australian nurses, yet
the function of the "attestation" filing and its acceptance by
the Administrator is not one of investigation and verification;
rather, it constitutes Employer's written affirmation, under
oath, of compliance with the Act's requirements which
[PAGE 21]
circumscribe Employer's conduct while participating in the H-1A
program. Thus, it is reasonable to find that compliance, or lack
thereof, with the attestation element requiring that the alien
nurses "shall be paid" the prevailing wage rate as set by the
SESA, be determined from the date on which the nurses commenced
employment under their H-1A contracts.
In this case, although prevailing wage rate data was not
obtainable from Alien Labor Certification prior to filing the
December 1990 attestation, IHS was obliged, in complying with its
attestation, to obtain such data from the SESA as soon as it
became available which, in this case, was March of 1991. IHS,
however, had actual notice via Commander Shore of the
availability of such prevailing wage data from the SESA as early
as April of 1991, six months in advance of the September and
October 1991 arrivals of the alien nurses.
Just as the Naval Hospital submitted a written request with
the SESA for prevailing wage rates at Oak Knoll, IHS should also
have inquired as to the applicable prevailing wage rate in its
first attestation year. Respondent was required to utilize the
prevailing wage rates provided by Alien Labor Certification. If
IHS had submitted its own request for wage rates prior to
commencement of the nurses' employment in the first attestation
year, that rate would have been $15.88 per hour for entry level
nurses and $17.00 per hour for those nurses with experience.
Further, the April 1991 SESA wage rate was applicable to IHS
for only the remainder of the 1990 attestation year. Section
504.310(n) provides as follows:
Effective date and validity of filed attestations.
An attestation becomes filed and effective as of the
date it is accepted and signed by the Chief, Division
of Foreign Labor Certifications, USES/ETA, and accepted
thereby for filing. Such attestation is valid for the
12-month period beginning on the date of acceptance for
filing . . .. The filed attestation expires at the end
of the 12-month period of validity.
29 C.F.R. § 504.310(n). When IHS filed its second
attestation in December of 1991, the prior attestation had
expired. Thus, it was incumbent upon the facility to request a
current prevailing wage determination from the SESA before the H-
1A nurses commenced employment under the second attestation.
Specifically, each subsequent attestation requires a new oath
that every H-1A requirement will be met during that attestation
year. There is
[PAGE 22]
no statutory or regulatory provision permitting usage, under any
circumstances, of prevailing wage determinations applicable to
prior attestations in support of those which follow.
As § 504.310(n) specifically provides that an
attestation "expires" upon passage of 12 months from the date of
its filing, the applicable wage data, upon which Employer's oath
must be based, likewise expires. Although Respondent asserts
that it relied on Mr. Leben's and Ms. Gotan's representations
that the SESA's prevailing wage determination was valid for one
year, such does not allay Respondent of its regulatory
responsibility to request a wage rate from the SESA for purposes
of ensuring the truthfulness and accuracy of its attestation
oath. This holds true even where the supporting data remains
unchanged from one attestation year to the next. No assertions
have been made that Mr. Leben, Ms. Gotan, or any other government
official advised IHS to dispense with obtaining prevailing wage
rate data in support of its second attestation. IHS' assumption
that filing such a request was unnecessary despite a regulatory
mandate to the contrary is to its own detriment. By the second
attestation year, Respondent was well aware of the existence of
the SESA, the statutory and regulatory requirements that it
obtain wage data from the SESA, and the SESA's ability to provide
the necessary data. The Act gives no quarter in permitting
reliance upon the data of a prior attestation, but explicitly
provides that such attestation expires after 12 months. Thus,
Respondent cannot, of its own volition, decline to comply with
the Act's requirements.
In sum, without supporting wage data from the SESA procured
specifically by IHS for the second attestation, a finding of "no
adverse impact" on the wages of domestic nurses cannot be made.
Indeed, the record reveals that domestic marketplace wages for
experienced nurses surged to $20.47 an hour in that time period
which militates against a finding of no adverse impact where
Respondent paid approximately $17.43 an hour to such nurses in
the second attestation year.
D. What is the Applicable Prevailing Wage Rate? --
Entry v. ExperiencedDocumentary and Testimonial Evidence
1. Margaret Pringels, who has been an investigator at the
United States Department of Labor Wage and Hour Division since
1985, testified that Respondent had a contract with Foundation
Health "to provide in-house medical care at the Naval Hospital in
[PAGE 23]
Oakland to CHAMPUS recipients." Tr. at 15 and 18.
2. In seeking to fulfill its contractual obligations to
Foundation Health, IHS sought qualified Australian nurses to work
at the Naval Hospital via the H-1A nursing provisions of the Act.
Ms. Pringels stated that "Commander Quinn went to Australia to
interview the nurses to ensure that they met the minimum
qualifications as stated in the contract" and, indeed, all of the
Australian nurses had at least one year of nursing experience
prior to working at the Naval Hospital. Tr. at 30. One
American nurse, Debra Diggs, was hired with less than six months
of experience. Tr. at 30. Moreover, the Australian
nurses obtained a license from the State of Utah, or upon passing
the NCLEX examination, thus permitting them to work at the Oak
Knoll federal hospital facility upon entry into the United
States. Tr. at 20; Cx. 21.
3. Wage rates, according to Ms. Pringels, were based on "the
fact that the contract between International Health and
Foundation Health indicated that they were looking for a minimum
of experienced nurses with one year of experience." Tr.
at 230. With this in mind, she testified that she "continued to
rely on the fact that the Navy was looking for experienced
nurses, and that the Australian nurses did have experience."
Tr. at 242. Further, Ms. Pringels stated that she "knew
that the nurses had either had (sic) passed an exam or had a
license out of the State of Utah." Tr. at 244 and 246.
With this license, the nurses could practice in "Utah or federal
facilities." Tr. at 247.
4. Ms. Frank stated that, with regard to entry level and
experienced rates, Alien Labor Certification did not assess a
nurse's status under these categories but the CAHHS survey
provided that the entry level rate applied to those nurses with
zero to six months of experience whereas the experienced rate
applied to nurses with six months or more of experience.
Tr. at 463.
Interviewing the Nurses
5. Commander Mary Ellen Quinn was deposed on May 27, 1993,
which deposition was submitted in lieu of her testimony at the
hearing as she stated that she would be undergoing "a 14 hour
surgery" during the time of the hearing and her recovery would
take approximately four months. Cx. 60, p. 7. Commander
Quinn testified as to her extensive educational accomplishments,
work history, and background as a nurse recruiter. With respect
to working with IHS, she testified that "[i]n May of 1991, . . .
I
[PAGE 24]
was given temporary additional duty orders by the command to go
to Australia, and to do the interviewing at four different sites
for nurses from Australia for hire through I.H.S. to work at
Naval Hospital Oakland." Cx. 60, p. 27.
6. To prepare for the recruitment trip, Commander Quinn
testified that she "did a literature search to look at the
different types of education that nurses received in Australia,"
spoke to "a professor from one of the universities in Australia,"
and discussed the "different avenues an individual could take to
become a registered nurse in Australia." Cx. 60, p. 31.
Commander Quinn also noted that she spoke with Ms. Pack of the
Utah State Board of Nursing License regarding the track to
becoming a registered nurse in Australia. Cx. 60, p. 31.
Commander Quinn concluded, after this review, that the Australian
nurses "basically, were of equal quality of nurses that our
American nurses were." Cx. 60, p. 32. Moreover, she
noted that, upon talking to Ms. Pack and the Australian
professor, "their practical time exceeded most of our training
programs that we have for nurses in America." Cx. 60, p.
33. She further stated, "[I]n some cases they received probably
nine months to 12 months more actual clinical hands-on training
with patients than the American nurses do." Cx. 60, p.
34.
7. Commander Quinn recalled that Ken Lewis of IHS and Don
McClanahan of Foundation Health joined her on her recruitment
trip to Australia. Cx. 60, p. 35. She testified that the
applicants were interviewed with regard to their background and
skill by both she and Mr. McClanahan and then the applicant
"would go and meet with Ken (Lewis)" and it was her
"understanding he went over the contract with the individual."
Cx. 60, p. 35.
8. Mr. Lewis stated that no job offers were made in Australia
but Commander Quinn did indicate her approval of certain
candidates during the interview process. Tr. at 1218.
For those nurses who were selected, Mr. Lewis made sure that the
nurses had or obtained a valid and updated license through Ms.
Pack of the State of Utah Board of Registered Nursing.
Tr. at 1220; Cx. 8.
9. Commander Quinn testified that, prior to the interviews, she
"was told by the director of nursing . . . to look for . . . is
that the individual had a minimum of one year experience."
Cx. 60, p. 37. In this vein, she noted that "[o]ver all I
was impressed with the clinical expertise that they had" and she
"found their experience and the equipment and the documentation
that was utilized in Australia was like what we use in the
[PAGE 25]
nursing field in America." Cx. 60, p. 38.
The Nurses' Backgrounds
10. Anabel Louise Murray testified via telephone from the United
States Consulate Office in Sydney, Australia. Tr. at 314.
Richard Morrey Sherman of the Consulate Office identified Nurse
Murray, "I have her passport in front of me and I can confirm
that the passport matches with the individual who is sitting
before me." Tr. at 314.
11. Nurse Murray currently serves at Children's Intensive Care
at the Prince of Wales Children's Hospital. Tr. at 315.
She received her three-year nursing diploma in Australia in
December of 1989. Tr. at 320. Before arriving in the
United States to work at the Naval Hospital, Nurse Murray worked
for twenty months at the Royal Alexander Hospital as a Staff
Registered Nurse and, toward the end of her term at the hospital,
she was in charge of the ward. Tr. at 323. Nurse Murray
testified that, at the Naval Hospital, she performed duties
beyond those of a registered nurse. Indeed, she noted that she
served as a charge nurse and was involved in education of other
staff members, such as new nurses and corpsmen, on the ward.
Tr. at 332-33. She would conduct lectures on pediatric
advanced life support. Tr. at 335. Nurse Murray
described the charge nurse function as being managerial, "I would
be accountable for (the nurses') behavior and their nursing
actions." Tr. at 332. She was chosen by Lieutenant
Carter for these additional duties based upon her education and
skill. Tr. at 333.
12. Submitted as an exhibit in this matter is the June 23, 1993
Declaration of Carolyn Whiteoak. Cx. 9. In this
Declaration, Nurse Whiteoak states that, because she would
be travelling in Europe from June 24, 1993 through January of
1994 and would then return to Australia, it was not possible for
her to attend the hearing in this matter. Cx. 9, p. 1.
With regard to her nursing background, Nurse Whiteoak states that
she "obtained a nursing certificate which qualified me as a
registered nurse in 1978" and then "received a B.S. degree in
Nursing from the University of Tasmania in 1990." Cx. 9,
p. 1. Nurse Whiteoak subsequently worked as a nurse at Gosford
Hospital, which is "a large acute care teaching hospital," for
two and one-half years. Cx. 9, p. 1. At Gosford, Nurse
Whiteoak worked in the "med/surg (sic) unit, the operating room
and labor and delivery, where I earned a midwifery certificate."
Cx. 9, p. 1. She then worked at a "small rural hospital
for 6 months where (she) was the charge nurse." Cx. 9, p.
1-2. Finally, Nurse Whiteoak notes that she
[PAGE 26]
spent five and one-half years as Launceston General Hospital
where she served as "a clinical nurse consultant in charge of
cancer patients." Cx. 9, p. 2.
13. Julie Marie Flynn testified that she graduated with a
nursing degree in Australia in 1987 whereupon she "did nine
months at Royal Perth Hospital doing surgical nursing and also
some medical nursing in the gastrointestinal unit" and then she
worked at the Children's Regional Hospital in intensive care and
surgical nursing for six months. Tr. at 531. Between the
time of graduation and her employment with Oak Knoll, Nurse Flynn
stated that she had three years of experience. Tr. at
532-33.
14. Bridgette Laird testified that she received her nursing
diploma in Australia in 1989 and had "three years of hospital
based training" prior to working at Oak Knoll. Tr. at
619. She worked at a registry, which is a mobile nurses agency,
and spent one and one-half years at the acute care facility of
the Gaulburn Valley Base Hospital. Tr. at 620. She then
spent one year in the emergency room of the hospital and eight
months working between the intensive care and surgical/medical
floors at Gaulburn. Tr. at 621. She noted that, by the
second month of her employment, she was "on night duty and was
placed in charge of the ward most of the time." Tr. at
626.
15. Nurse Laird also served as "charge nurse" at Oak Knoll and
described the "charge role" as one who must "organize the ward,
organize the admission and discharges, basically all the staff on
the ward are under you." Tr. at 626. She recalled being
placed in the charge position two times a week. Tr. at
627. On another two days of the week, Nurse Laird stated that
she served as a team leader for the ward. Tr. at 627. A
team leader serves under the charge nurse and oversees one-half
of the ward such that there are two team leaders on each ward.
Tr. at 627. As a team leader, Nurse Laird would oversee
the new registered nurses and corpsmen, organize where patients
would go, and administer the IVs. Tr. at 627.
16. Annabel Dominguez testified that she received her three year
nursing diploma in Australia in 1990 and then worked at St.
Vincent's General Hospital in Sydney. Tr. at 707-08.
Nurse Dominguez was assigned to the "acute gastroenterology ward,
which was medical and surgical and then neurosurgery/neurology
ward, and then in the accident emergency shelter" at St.
Vincent's for two years before arriving to work at the Naval
Hospital. Tr. at 707-08.
[PAGE 27]
17. Elizabeth Williams received her three year diploma of
Applied Science in Nursing Studies in Australia in November of
1990 and subsequently worked for six months at the Prince of
Wales Children's Hospital and worked for one year at the Ryde
District Hospital. Tr. at 749. She stated that she also
worked for six months at acute care facilities and nursing homes.
Tr. at 750. At Oak Knoll, Nurse Williams served as a
charge nurse once or twice a week. Tr. at 758.
18. Peter James received his three year nursing diploma in
December of 1989. Tr. at 776. From January through July
of 1990, he worked at the Western Hospital in the emergency room.
Tr. at 776. He then worked at St. Vincent's Hospital in
Melbourne for a "little over 12 months" in their orthopedics and
cardio-thoracic wards and then spent some time working at the
registry, which is the mobile nurses unit. Tr. at 777-78.
At Oak Knoll, he performed the duties of charge nurse on the
night shift of the orthopedic floor approximately 50% to 60% of
the time. Tr. at 799. He also served as the infection
control and safety officer for the ward and wrote the ward's
orthopedic policy and procedure manual. Tr. at 800.
19. Jennifer Wilson received her nursing diploma in 1989 from
Kerndi College in Sydney Australia. Tr. at 991.
Subsequently, she worked for more than two years at St. Vincent's
Hospital and then worked for short periods of time at other
hospitals. Tr. at 992-93. At the Naval Hospital, Nurse
Wilson testified that she often worked as the charge nurse or
team leader of her ward. Tr. at 1003-4.
20. Juan Larranga testified that he received his nursing diploma
in November of 1990 in Perth, Australia. Tr. at 1031.
From there, he worked for one and one-half years at the
Children's Hospital in Sydney specializing in pediatrics.
Tr. at 1031. At the time of the hearing, Nurse Larranga
was employed on the pediatrics ward and had worked there since he
commenced employment at Oak Knoll. Tr. at 1032. He had
served as the charge nurse and had worked in the team leader
position 80 percent of the time. Tr. at 1033.
The Supervisors' Impressions
21. Robert Saum is employed by the Department of the Navy at Oak
Knoll Hospital as "the contracting officer and Technical
Representative for the Nursing Contracts." Tr. at 850-51.
He possesses both a Bachelor's and a Master's of Science degrees
in nursing and states, "I've completed my doctoral studies up to
my dissertation from the University of San Francisco."
Tr. at 851.
[PAGE 28]
He further testified that he served as "the designated point of
contact or liaison to the IHS contract and Foundation Health."
Tr. at 853. IHS had a contract with Foundation Health to
provide nurses to the hospital. Tr. at 856. The
hospital's agreement with Foundation Health, according to Mr.
Saum, "provides that the nurse that they present to us to work in
a clinical area has one year of experience minimum within the
past three years for the area that they're applying for work in."
Tr. at 860. He further testified, "I don't think that
foreign or domestic experience is any different, and what is the
intention when we write these (contracts) is that the nurse be
experienced within the area that they're going to be working . .
.." Tr. at 863.
22. Mr. Saum noted that "[t]he Australian or the United
Kingdom's nursing training program is the foundation of the
American training program." Tr. at 863-64. Consequently,
he states that the alien nurses "have similar experiences,
similar academic preparation, similar theory, and that was the
intention of why this IHS contract, Foundation contract, was
focusing on nurses that had a similar like in kind background."
Tr. at 864.
23. Mr. Saum stated that one of his job duties was to review
"the credentials of the individuals that are presented to us by
IHS for placement within the hospital" which was "based on
looking at a total picture of the nurse's background, educational
and professional experience that they have, and looking at that
and making determinations where they should be placed
clinically . . .." Tr. at 855 and 857.
24. Mr. Saum testified that he would "make rounds almost daily
on all floors and talk to the division officers to see how (the
nurses) are doing" and he would be "constantly monitoring to make
sure that . . . everything is working out and if we do have a
problem, to preempt it early." Tr. at 869.
25. He concluded that the IHS "contract has done an excellent
job in providing quality nurses in the hospital. Just
outstanding individuals that we've had." Tr. at 869.
26. Commander Daniel Speece agreed with Mr. Saum's assessment.
For the past two years, he has served as the Clinical Consultant
for surgical nursing at the Oak Knoll Naval Hospital. Tr.
at 937. During the time at issue, Commander Speece served as a
Division Officer which entails "a 24 hour a day responsibility
for nursing care on any particular ward" to ensure that nursing
duties are performed correctly, the appropriate paperwork is
completed, and nurses' performances are evaluated. Tr. at
938.
[PAGE 29]
27. Commander Speece testified that nurses, such as the
nonimmigrants in this case, who have one year of experience
should (1) "be able to function in virtually any capacity for
which they are licensed in a calm and effective manner" during
emergencies, (2) know pain management and be sensitive to patient
needs, (3) know the appropriate "post-op course of treatment",
and (4) be able to put a patient at ease and exhibit no
uncertainty. Tr. at 939. On the other hand, Commander
Speece stated that an entry level nurse is not able to deal
effectively with the unexpected and is less able to see the
"whole" patient's needs or identify the important factors in an
individual's care. Tr. at 940-41.
28. This assessment of experienced and entry level nurses was
agreed to by Lieutenant Commander Melissa Clifford who currently
serves as the evening supervisor of the hospital which requires
that she coordinate the nursing activities on all of the wards
and serve as the resource person for "junior personnel."
Tr. at 950 and 954. During the time in question,
Lieutenant Commander Clifford served as the Division Officer in
the "multiservice surgical unit" where she held overall
responsibility for "staffing of the unit, supply, budgets,
teaching, (and) orientation of staff." Tr. at 951. In
this role, she supervised Nurses Maxine Watts, Susan Daniels,
Steven Gill, Joanne Teasdale, and Lisa McElroy. Tr. at
955.
29. Lt. Commander Clifford described Nurse Watts as a "superior
nurse" who was "[e]qual, above, and beyond what you would expect
from a one year nurse. She was very, very good." Tr. at
955. Indeed, Lt. Commander Clifford equated Nurse Watts to a
United States nurse with five years of experience, "She was a
take charge (nurse), excellent teacher, very good clinical
skills." Tr. at 955.
30. Likewise, she assessed Nurse Gill as having three to four
years of experience, "[C]linical skills were up to date, good
teaching abilities." Tr. at 956. Nurse Daniels was,
according to Lt. Commander Clifford, an excellent nurse with the
equivalent of four years of experience stating that "[h]er
clinical skills were excellent" and she served as the "patient
contact representative for the ward." Tr. at 956.
31. With regard to Nurses Teasdale and McElroy, Lt. Commander
Clifford noted that they had the equivalent of one year of
experience but were very "homesick" and were terminated because
of "falsification of timecards." Tr. at 956-58.
[PAGE 30]
32. Commander Speece stated that the Australian nurses with whom
he worked, including Nurses Nichols, James, Burge, and Gray, were
"definitely experienced." Tr. at 943. Specifically, with
regard to Nurse Nichols, Commander Speece testified that "[s]he
was far beyond one year of experience" and she conducted herself
as "[v]ery calm, cool, collected. Knowledgeable, extremely
knowledgeable person." Tr. at 943.
33. Lieutenant Commander Robert Morrison currently serves as the
Division Officer for the surgical cardio-thorasic intensive care
unit." Tr. at 960. He noted that, because he supervised
the "intensive care, critical care unit", he sought nurses with
one year of intensive care experience. Tr. at 961-61.
Lt. Commander Morrison noted that Nurse Douglas "had significant
ICU experience before he came" as did Nurse Hurley and both of
these individuals worked independently after a six-week
orientation period and could take "more complicated patients."
Tr. at 964-65. Nurse Flynn, on the other hand, had no
intensive care training, and so Lt. Commander Morrison trained
her for six months "[w]hich is typical." Tr. at 965-66.
34. Commander Knute Meeker currently serves as "the department
head for psychiatric, surgical, and alcohol rehab nursing" at the
Naval Hospital and is vested with overall supervision of the
department, "not direct, hands-on supervision." Tr. at
970. He agrees with Commander Speece's assessment of an
experienced versus entry level nurse. Tr. at 970.
35. Commander Meeker supervised Nurses Dominguez, Gill, Winscow,
Ferdovich, and Diggs. He noted that Nurse Dominguez possessed
the clinical skills of "a medical/surgical nurse that had several
years of experience, approximately, maybe as far as four years of
experience." Tr. at 974. He further testified that,
"following a short orientation period of about four to six weeks
. . . (she) immediately went into not only direct patient care,
but also team leading assignments." Tr. at 975.
36. With regard to Nurse Gill, Commander Meeker noted that he
had "very good clinical skills" equivalent to that of a nurse
with two to three years of experience. Tr. at 975-76 and
980.
37. Commander Meeker described Nurse Winscow as "overqualified."
Tr. at 977. He testified as follows:
RN Winscow has a very unique background specific to
alcohol rehab and psychiatry that we were interested in
doing. Upon her reporting to me, it was very obvious
[PAGE 31]
that she had a much broader knowledge than I did of the
area, and we immediately put her in an independent role to
function in a significant independent role of nursing within
a specific unit of alcohol rehab.
Tr. at 977. Nurse Winscow had the equivalent of three to
four years of experience. Tr. at 977.
38. Nurse Ferdovich was, according to Commander Meeker, a
"skilled clinician who is rapidly proving her abilities in the
med/surg arena." Tr. at 981. He noted that she "easily"
had the equivalent of six to eight years of experience.
Tr. at 981. Finally, with regard to Nurse Diggs,
Commander Meeker described her as "[e]xcellent", "she's a very
skilled clinician" who is "always looking for more challenges."
Tr. at 982-83.
IHS Discounts Foreign Nursing Experience
39. Upon investigation, Ms. Pringels testified that Mr. Rice
informed her that "foreign experience was never counted in an
American hospital." Tr. at 250 and 403. Ms. Pringels
stated that she contacted Ms. Dodd, of a labor organization and
Ms. Harris, of a hospital organization, to verify Mr. Rice's
statement. Tr. at 404. Ms. Dodd "stated that usually the
hospital made a decision as to whether or not foreign experience
would be counted" and "she also indicated that her experience was
that the hospitals would give a year's experience towards a
foreign nurse's experience, even if she had more years than one
year experience." Tr. at 404; Cx. 5. Mr. Rice, on
the other hand, denies making the statement that foreign
experience is "never" counted towards domestic experience;
rather, he states that it has "never" been that a direct "one-
for-one credit" is given, but that "some credit is given in some
cases." Tr. at 1460.
Possessing a State Nurse's License
40. Ms. Pringels testified that nurses were paid at disparate
rates based upon whether they possessed a U.S. license as opposed
to a "non-U.S. license" from Utah. Tr. at 33. For
example, Nurse Burge, who possessed a license from the State of
Utah, was paid $10.39 an hour whereas Nurse Roach, who obtained a
California State license, was paid $12.32 an hour. Cx. 2.
Mr. Saum testified that the Naval Hospital did not distinguish
between nurses with Utah licenses and those with a California
license, "Any Federal installation, whether it be Department of
Defense or Veterans Administration, only requires that the
[PAGE 32]
practitioner have a current U.S. license or District of Columbia
or its territories and properties." Tr. at 875.
41. Mr. Rice, in regard to whether the nurses received a higher
rate of pay upon obtaining a license, stated the following:
Well, let me state our policy so its clear. Our policy
is that if you receive a nursing license, U.S. license,
you sit for the Boards after you come into your
employment, post sign-up and post employment, that you
would go to the higher rate. That was our policy at
the time. And that should have happened, yes.
Tr. at 1563. He noted that if a nurse did not receive the
increase, then he or she was already at the higher rate of pay or
did not deserve the increase. Tr. at 1564.
The NCLEX Examination
42. Nurse Murray testified that, while working at Oak Knoll, she
took the National Council Licensure Examination ("NCLEX") and
passed. Tr. at 355. She recalled receiving $10.39 an
hour and was "in charge of nurses with less experience than
myself." Tr. at 357. She further stated that she was
told that she would get $15.88 an hour and would be paid "in line
with my American RN peers." Tr. at 358.
43. Nurse Flynn took the NCLEX exam in July of 1992 and passed.
Tr. at 591. She received the results of the exam on
August 10, 1992 and her contract with IHS ended on October 10,
1992. Tr. at 592-93. Nurse Flynn stated that she did not
receive an increase in pay as a result of passing the NCLEX exam
as she was told by Ms. Fusco that "it wasn't included in my
contract that I earn more money because of passing the NCLEX."
Tr. at 594.
44. Nurse James took the NCLEX exam in July of 1992 and passed.
Tr. at 802.
45. Nurse Larranga took the NCLEX exam, passed, and received his
California nursing license in April of 1993. Tr. at 1033.
He subsequently called Mr. Shapalis of IHS to request an increase
in pay based upon receiving the California license and Mr.
Shapalis advised that he would transmit the information to the
accountant. Tr. at 1034. Nurse Larranaga then stated that
the accountant contacted Mr. Shapalis to state that he was not
entitled to a raise because his contract was already signed.
Tr. at 1034. Consequently, he did not receive a pay
increase based upon
[PAGE 33]
obtaining a California State license. Tr. at 1034.
46. Ms. Pringels spoke with Ms. Pack, who is the Executive
Administrator of the Utah State Board of Nursing, and who stated
that "nurses from Australia had what they referred to as a
reciprocal situation where the education, the testing given and
the actual practice of nursing closely paralleled the United
States education and actual practice, and that was why she was
able to issue a Utah license." Tr. at 406.
Discussion and Conclusions of Law
The term "experienced" is significant because the wage
determinations of Alien Labor Certification classify nurses
according to those with and without six months of experience. In
common usage, the term "experienced" denotes one who is "skilled
as the result of observation, use, or practice."[12] The
Administrator maintains that a rate of $17.00 per hour should
have been paid to the experienced Australian nurses during the
first attestation period and the nurses should have received the
experienced rate of $20.47 an hour in the second year. The
Australian nurses possessed in excess of one year of experience
as well as a diploma to practice nursing in Australia and
licensure from the State of Utah to practice in that State's
health care facilities or any federal facilities nationwide.[13]
IHS does not dispute the experience, education, and
licensure of the nurses but maintains that, to the contrary,
these facts compel an inapposite conclusion that the nonimmigrant
nurses were entitled only to the entry level wage rate in the
first attestation year. Specifically, it notes that the
SESA categorization of six months of experience necessarily
entails "post-entry" domestic experience or experience at a
JCAHO-approved facility, which is one accredited by the Joint
Commission on Accreditation of Hospitals. Respondent further
maintains that the nonimmigrants' foreign education and clinical
experience is insufficient, in hindsight, to qualify for Utah
State licensure. In support of this argument, Respondent cites
to the de bene esse deposition of Laura Poe, Executive
Director for the Utah Board of Nursing, who stated that the
education and testing of nurses in Australia did not in fact meet
the standards of the State of Utah and these alien nurses should
not have been issued licenses.[14] Cx. 69, p. 12;
Tr. at 1219-21. Moreover, Respondent argues that the
requirement that a nonimmigrant nurse possess a "full and
unrestricted license" to practice nursing necessarily encompasses
licensure to practice in any domestic health care facility as
opposed to only those facilities within
[PAGE 34]
the State of Utah or operated by the federal government.[15]
Respondent also cites to the August 9, 1993 letter of Mr.
Luevano, Vice President for Human Resources and Governance at
CAHHS, who stated that it was his opinion that nurses with less
than two years of experience are deemed "entry" level and that he
has "observed that 'experienced' nurses, those with two or more
years of current, practical experience in the U.S., are normally
hired into a facility at approximately five percent above the
minimum."[16]
Extensive testimony was elicited regarding the Australian
nurses' experience. With the exception of Danielle Ralph who
possessed eight months of experience, the remaining nurses had at
least one year of experience working in Australian health care
facilities. A few nurses had eight to ten years of clinical
experience in overseas facilities. Supervisors at the Naval
Hospital unanimously applauded the nurses' on-the-job performance
and gave significant credence to their education and experience,
often placing them in positions of increased responsibility, such
as the charge nurse or team leader. The skill and ability of the
nurses was exemplary as, with regard to Nurse Winslow, Commander
Meeker testified that he found her to be "overqualified" and
promptly placed her in an independent nursing role to develop the
hospital's alcohol rehabilitation unit. Nurse James was charged
with writing the hospital's orthopedic policy and procedure
manual.
Commander Quinn stated that, prior to interviewing the
nurses, she was under a directive to find nurses with one year of
clinical experience. Moreover, she testified that, upon
preliminary research, the clinical experience and equipment
utilized by the Australian nurses was of "equal quality" to that
of U.S. nurses. Mr. Saum, as the Technical Representative for
the nurses at Oakland, maintained that the Australian and
American educational and clinical programs are similar. He
reviewed the applications of the Australian nurses on behalf of
the hospital and concluded that they met the one year experience
requirement. Mr. Saum classified the Australian nurses as
"outstanding individuals." An experienced nurse, according to
Commander Speece, exhibits the renaissance qualities of being
able to work in any capacity and knows pain management as well as
post-operative courses of treatment. From the testimony of
record, this perception of "experience" was shared by the other
supervisors. Commander Speece found that the Australian nurses
were experienced.
Indeed, from the testimony of record regarding the
[PAGE 35]
nonimmigrants' versatility as well as from consideration of the
enhanced responsibilities placed upon the Australian nurses by
their supervisors, it is apparent that these nurses were highly
regarded in terms of their skills and experience and were viewed
as possessing the equivalent of one year or more of experience.
From the initial contracts with Foundation Health and the Naval
Hospital, through the interview process with Commander Quinn, IHS
was fully cognizant that the hospital sought only the alien with
one year of experience in his or her area of specialty and that
hospital officials found that experience obtained by the
Australian nurses met or exceeded that of domestic nurses. It is
determined that the opinions of Oak Knoll supervisors and
officials that the alien nurses possessed the equivalent of one
year or more experience are highly probative as compared to the
general statement of Mr. Luevano, who did not observe the nurses
on a day-to-day basis and specifically assess the level of
knowledge and skill which they possessed.
Respondent argues that the SESA incorrectly defined the term
"experienced" and, in support of this argument, it states the
following[17] :
As ETA Region Nine certifying officer Paul Nelson
ultimately agreed, the data base used for the CAHHS
surveys consisted entirely of nurses with a minimum of
six months' experience.
. . .
By actual definition, then, wages of new graduate
nurses with no experience were not used in the
survey upon which SESA relied in providing INRA
prevailing wages. The Government's assertion that
entry level (the CAHHS minimum average column) means
new graduate nurses with zero to six months' experience
is accordingly insupportable. Because all nurses in
the survey had at least six months' experience, the
CAHHS 'minimum wage' column plainly does reflect
wages of 'experienced' nurses under SESA's definition
of 'experienced,' that is, nurses with six or more
months' work experience.
As previously noted, challenges to the classifications provided
by the SESA cannot be pursued in this proceeding. In its
response to a request for prevailing wage rate data, the SESA
separated nurses between those with, and those without, six
months or more of experience. Although Respondent challenges the
[PAGE 36]
SESA's definition of "experienced" on grounds that it
misinterpreted the length of time necessary to acquire such a
status, IHS is, in effect, attempting to accomplish through the
back door that which it could not avail through the front. Said
differently, the temporal component of the SESA's wage
determination is definitive in this forum as the procedure for
challenging the SESA's classifications fall under a separate set
of regulatory provisions.[18] The "experienced" prong, however,
is subject to interpretation which, in accordance with the
purpose of the Act and implementing regulations as well as common
usage, it is defined in terms of knowledge, skills, and
abilities.
In the issuance of its prevailing wage determination, Alien
Labor Certification did not specify that rates for experienced
nurses applied only to those with post-entry experience or
experience at a JCAHO-approved facility. This distinction put
forth by Respondent appears to serve no purpose other than to
avoid the experienced prevailing wage liabilities for these
nurses. There is no testimony by the nurses, their supervisors,
or hospital officials to indicate that post-entry
experience or experience at a JCAHO-approved facility subsumes
some elevated level of knowledge or background. IHS offers no
rationale for requiring such post-entry experience prior to
paying experienced rates to the H-1A nurses and, indeed, this
stated distinction with no real substance thwarts the Act's
purpose and permits the hospital to benefit from the recognized
experience of the Australian nurses while pinning their wage rate
to that of nurses with no experience. This, in turn, adversely
affects the wages of U.S. nurses as, based upon fundamental
economic principles, an employer would be more likely to hire an
experienced H-1A nurse at the entry level rate than hire an
experienced U.S. nurse at the experienced rate. As such a result
flies contrary to the Act's requirements, it cannot be
condoned.[19]
On a related point, IHS argues that the Australians who
possessed a license issued by the State of Utah lacked a "full
and unrestricted license" to practice in the State of California
pursuant to 8 U.S.C. § 1182(m)(1)(B) and should not,
therefore, be paid at the experienced rate. Respondent points to
INS' denial of a "Petition for Prospective Immigrant Employee"
status to Sandra Cole for lack of a "full and unrestricted
license" to practice in the state of intended employment.
Cx. 45, p. 2. As a result, IHS argues, "Plainly, if
licensure were immaterial to prevailing wage, Congress would not
have incorporated these licensure requirements (at 8 U.S.C.
§ 1182(m)(1)) as the very premise of INRA coverage."[20]
[PAGE 37]
The Administrator, on the other hand, argues the
following:[21]
Respondent makes much of the statutory requirement that
nurses have licenses in the state of intended
employment. However, that requirement is irrelevant to
the classifications challenged by Respondent.
. . .
Congress clearly wanted to assure that nurses entering
the country be fully qualified to perform their work.
The Act does not require a particular license
for nurses to be eligible for the prevailing wage as
Respondent asserts.
. . .
The fact that the INS admitted the Respondent's nurses
into this country on H-1A visas indicates that INS
determined that the Utah licenses held by the nurses,
together with the State of California's licensing
exception for nurses in federal facilities, met this
requirement for purposes of INRA.
With regard to INS' rejection of Sandra Cole's application, the
Administrator maintains that such decision was "expressly limited
to a determination of the requirements of the permanent program,
found at Section 203(b)(3)(A)(1) of the Immigration and
Nationality Act, rather than the Immigration Nursing Relief Act
and does not, therefore, pertain to the Act's prevailing wage
requirements."
The Act's licensure requirements are contained at 8 U.S.C.
§ 1182(m)(1)(B) and provide, in part, as follows:
The qualifications referred to in Section
101(a)(15)(H)(i)(a), with respect to an alien who is
coming to the United States to perform nursing services
for a facility, are that the alien - (B) has passed an
appropriate examination . . . or has a full and
unrestricted license under State law to practice
professional nursing in the State of intended
employment . . ..
Section 101(a)(15)(H)(i)(a), in turn, states that the H-1A
program requires that an alien:
[PAGE 38]
who is coming temporarily to the United States to
perform services as a registered nurse, who meets the
qualifications described in Section 1182(m)(1) of this
title, and with respect to whom the Secretary of Labor
determines and certifies to the Attorney General that
an unexpired attestation is on file . . . for each
facility . . . for which the alien will perform the
services . . .."
From the plain language of these sections, it is apparent that
the qualification and attestation elements of the
H-1A program are distinct -- each must be satisfied prior to
approval of the H-1A visa.
With regard to the attestation element, it is noted
that § 1182(m)(2)(A)(ii) and (iii) require that an employer
attest to the following:
(ii) The employment of the alien will not adversely
affect the wages and working conditions of registered
nurses similarly employed, and
(iii) The alien employed by the facility will be paid
the wage rate for registered nurses similarly employed
by the facility.
Licensure, on the other hand, is directly related to the
nonimmigrant's qualifications upon entry into the United
States, the approval of which falls within the scope of INS'
authority. Absent the statutorily mandated qualifications,
including licensure, a nonimmigrant would be unable to work for
the U.S. facility upon entry into the country which contravenes
the purpose of the program in providing immediate relief for the
nursing shortage in this country.
Requiring payment of the prevailing wage rate, however,
constitutes part of the employer's burden in the
attestation process where INS approves of the alien's
qualifications and the alien is to commence work at a U.S.
facility. The Act is devoid of language or intent upon which to
find that licensure is required before the nonimmigrant is
entitled to receive the prevailing wage. It is not, as IHS
argues, axiomatic that inclusion of a licensure requirement
elsewhere in the Act compels a finding that such is material to
payment of the prevailing wage rate. Rather, the logical
inference to be drawn from placement of the provisions at issue
is that the nonimmigrant must be qualified to work as a
registered nurse immediately upon entry in
[PAGE 39]
this country having obtained any necessary licensure and that,
once here, the onus is upon Employer, per its
attestation, to pay the prevailing wage rate to
such a qualified nurse. Consequently, the nonimmigrant nurses
should have been paid at the experienced hourly rates during both
the first and second attestation years.
This conclusion is not affected by Ms. Poe's testimony that
the State of Utah should not have issued licenses to the
Australian nurses and that, in order not to disrupt hospital
operations where the nurses were employed, the licenses were not
subsequently revoked. The fact remains that the nurses were
licensed to practice their profession at the Oak Knoll Naval
Hospital, which facility received the benefit of their knowledge,
skills, and abilities, and for which the experienced wage rate
should have been paid.
E. Components of the Prevailing Wage Rate[22]
Documentary and Testimonial Evidence
1. Ms. Pringels testified that the wage rates paid by IHS were
inappropriately low and did not represent the prevailing wage
rate because IHS included the cost of airfare to and from
Australia for the nurses, housing, shift differentials, vacation
and sick leave, arrival advances, and end of contract bonuses.
Tr. at 36, 38, and 51.[23]
2. Mr. Rice testified that Ms. Pringels originally stated that
IHS could take a credit of $2.88 an hour for housing provided to
the nurses. Tr. at 1543. He recalled, however, that she
advised him that bonuses could not be included as part of the
wage rate unless they were part of the employee's weekly or
biweekly checks, "We immediately changed our policies to have
such costs
rolled into the hourly wages." Tr. at 1547-48.
Disparate Packages Offered[24]
3. Ms. Pringels testified that the Act and implementing
regulations required that all nurses receive the same
compensation package, but they did not. Tr. at 91-92 and
190. On November 1, 1992, Nurse Diggs signed a contract
of employment wherein a base hourly rate of $20.00 was listed.
Cx. 32. Specifically, Ms. Diggs received IHS' breakdown
of her wage by a document titled Compensation Package -
Oakland which set forth the following:
[PAGE 40]
+-------------------------------------------------------+
|Compensation Package |Hourly Rate: $20.00
+-------------------------------------------------------+
|Holiday and overtime pay |Holiday and overtime pay, if
| |any, will be computed on the
| |base hourly rate
+-------------------------------------------------------+
|Vacation bonus |A $700.00 bonus is provided
| |at the completion of each
| |six months interval (1040
| |and 2080 hours; a total of
| |,400.00 annually). 100%
| |attendance or a total of
| |1016 hours must be achieved
| |in order to receive the
| |$700.00 for each 6-month
| |period.
+-------------------------------------------------------+
|Insurance |At no cost to the employee,
| |IHS provides coverage for:
| |Medical Insurance (refer to
| |Summary of Benefits for
| |details); Professional
| |Liability Insurance
+-------------------------------------------------------+
|Optional Dental | --
|Insurance Plan |
+-------------------------------------------------------+
|Coverage is provided for | --
|each employee as follows:|
|Federal Social Security |
|Payments and Benefits, |
|California Unemployment |
|Coverage, California |
|Disability Coverage |
+-------------------------------------------------------+
The September 14, 1992 Fact Sheet - Oakland for Nurse
Gray, a nonimmigrant, lists the following compensation package:
+---------------------------------------------------------+
|Compensation Package |Hourly Rate: $17.53
+---------------------------------------------------------+
|Relocation |IHS will reimburse US $580.00
| |one-way economy airfare on
| |commencement of work upon
| |return from holiday.
+---------------------------------------------------------+
|Accommodations |IHS provides a choice to each
| |employee for their individual
| |housing preference. The
| |employee has the option to
| |remain in IHS housing
| |or move out of IHS housing.
| |If you choose to move out of
| |IHS arranged housing, please
| |advise your IHS representative.
| |If you choose to move out of
| |IHS arranged housing, you are
| |responsible to provide IHS a
| |forty-five (45) day notice. Any
| |individual who does not remain
| |in IHS housing will receive a
| |$500 monthly housing allowance.
| |This housing allowance will
| |cease during break periods.
+---------------------------------------------------------+
|Vacation Bonus |A $700.00 bonus is provided at
| |the completion of each six
| |months interval (1040 and 2080
| |hours; a totla of ,400.00
| |annually). 100% attendance to
| |a total of 1016 hours must be
| |achieved in order to receive
| |the $700.00 for each 6-month
| |period.
+---------------------------------------------------------+
|Insurance |At no cost to the employee,
| |IHS provides coverage for:
| |Medical Insurance (refer to
| |Summary for details);
| |Professional Liability
| |Insurance
+---------------------------------------------------------+
|Coverage is provided for | --
|each employee as follows:|
|Federal Social Security |
|Payments and Benefits, |
|California Unemployment |
|Coverage, California |
|Disability Coverage |
+---------------------------------------------------------+
Cx. 38.
Disgruntled Nurses
4. Shortly after receiving their initial paychecks, the
Australian nurses became disgruntled and began voicing their
concerns in receiving a lower hourly wage than was expected. Ms.
Pringels testified that, at some point, "[w]e received a
complaint that the prevailing wage rate was not being paid on the
contract to the nurses." Tr. at 20. With regard to the
December 1990 attestation year, and upon a review of the
contracts and payroll records as well as the letter from Alien
Certification to
[PAGE 41]
the Naval Hospital (Cx. 16, p. 55) setting forth the entry
level wage at $15.88 per hour and the experienced rate at $17.00
an hour, Ms. Pringels computed the prevailing wage rate and
accorded the Australian nurses the experienced rate and Nurse
Diggs, the only U.S. nurse hired, received the entry level rate.
Tr. at 22-24 and 231.
5. Nurse Flynn testified that "we were all asking for more
money and saying that we always believed, when we came over, that
we would be earning $15.00 to $16.00 an hour, plus housing, plus
a bonus, and plus our airfare." Tr. at 540 and 606.[25]
Likewise, Nurse James testified that, at his interview in
Australia, Mr. Lewis "led" him to believe that he would earn
$15.29 an hour in addition to the other expenses such as housing,
airfare, and bonuses. Tr. at 805; Jx. 1.
Airfare
6. Ms. Pringels stated that airfare to and from Australia was
not included as part of the prevailing wage rate. Tr. at
36. Specifically, she noted that airfare was not considered by
Alien Labor Certification as part of the employee's wages;
rather, it was deemed an employer's expense, "I verified that the
prevailing wage rate had no money in it, built into it, for any
such expense . . .." Tr. at 37 and 257.
Housing
7. In April of 1991, Mr. Lewis recalled that IHS signed an
agreement with Foundation Health to provide H-1A nurses to the
Naval Hospital. Tr. at 1212. In accordance with this
contract, he participated in the interview process for Australian
applicants in May of 1991 with Commander Quinn and used a list to
"describe the components of their hourly rate." Tr. at
1215-17; Jx. 1. At that point, housing was offered to the
nurses but such accommodations had not yet been selected.
Tr. at 1217. Mr. Lewis stated, however, that when the
housing was finally selected, Commander Quinn found that it was
"an appropriate housing facility." Tr. at 1217.
8. With regard to housing, Mr. Lewis testified that the nurses
did not have to pay rent for the first month and thereafter they
received a $400.00 a month housing allowance. Tr. at
1234. Because housing cost $500.00 a month, a total of $100.00
was deducted from the nurses' paychecks each month. Tr.
at 1235. IHS calculated that it was entitled to a credit of
$2.88 an hour to the prevailing wage rate for housing. Ms.
Pringels testified
[PAGE 42]
that housing could not be included as part of the prevailing wage
rate as "the wage rate issued by Alien Certification did not have
any money in it representing a housing cost." Tr. at 40.
Ms. Pringels testified that John Leban was her contact person in
the national office and he told her housing was not included.
Tr. at 258. According to her diary notes, Ms. Pringels
recalled that she was advised of the fact that housing could not
be included on October 22, 1992 and so advised Mr. Freifeld,
counsel for Respondent, on December 9, 1992. Tr. at 266-
67. Specifically, she advised IHS that housing and other
perquisites must be paid "above and beyond" the wage rate.
Tr. at 270.
9. The genesis of this position was that "the National Office
had reviewed the regulations and the legislative history and
determined that the amount allotted for housing could not be
credited towards the prevailing wage rate." Tr. at 40.
Ms. Pringels testified that she did not specifically instruct IHS
to correct its pay practices at that time. Tr. at 208.
She did advise IHS, however, that the wage rate should have been
requested prior to filing the attestation and "it had to be
timely in relation to when the attestation was filed."
Tr. at 223. (Cx. 4, pp. 162-91).
10. According to Ms. Pringels, employees did not have to accept
housing, but if they did, they had to commit to six months.
Tr. at 41. If the nurses left IHS housing, they would get
a "cash payment intended to pay for the housing" which Ms.
Pringels still did not include as part of the prevailing wage
rate "because it was money paid to subsidize the nurses'
housing." Tr. at 41 and 45. Ms. Pringels noted that IHS
did retroactively reimburse the nurses for housing costs
initially deducted. Tr. at 288.
Shift Differentials
11. The nurses were also paid "shift differentials" which is
"additional payment for working certain shifts or on the weekend"
and such, according to Ms. Pringels, was not part of the
prevailing wage rate. Tr. at 46. IHS provided a
guarantee that, "at the end of the contract year, if the nurse
had not earned in shift differentials, at least $2,000.00, then
the difference would be paid to the nurse." Tr. at 49.
Ms. Pringels did not consider this to be part of the prevailing
wage rate as "it was considered to be payment over and above the
wages due and it was separately stated in the wage
determination." Tr. at 46 and 49-50.
Vacation and Sick Leave[PAGE 43]
12. With regard to vacation and sick leave, Ms. Pringels noted
that the nurses could not take vacation leave but "were supposed
to be paid for vacation at the end of the contract year."
Tr. at 51. Ms. Pringels determined that money paid for
vacation was not part of the prevailing wage rate as it is
specifically noted in the regulations as being over and above the
wage rate. Tr. at 52. The same was true for sick leave
where the nurses received five days after a 90 day probationary
period. Tr. at 52.
Discussion and Conclusions of Law
Beginning with the experienced level rate of $17.00 an hour
for the first attestation year and $20.47 an hour for the second
year, it is noted that the actual base wage[26] received by the
nurses was less than either of these amounts in either
attestation year. In this regard, IHS asserts that it properly
credited amounts paid for housing, airfare, paid time off, and
shift differentials against the nurses' wage rate.[27]
The Administrator, on the other hand, asserts that the costs
of such non-cash benefits do not satisfy the Act's prevailing
wage requirements as they are deemed "perquisites" which may be
offered in addition to the payment of base wages.[28]
Specifically at issue are credits taken by IHS for airfare,
housing, shift differentials, and vacation and sick leave.
The INRA regulations at § 504.310(e)(1) provide the
following:
(1) Wages. To meet the requirement of no
adverse effect on wages, the facility shall attest that
it shall pay each nurse at the facility at least the
prevailing wage for the occupation in the geographic
area. The facility shall pay the higher of the wage
required pursuant to this paragraph (e) or the wage
required pursuant to paragraph (f) of this section
(i.e. the third attestation element: facility
wage).
Paragraph (f), in turn, provides that an employer attest that
"the alien employed by the facility will be paid the wage rate
for registered nurses 'similarly employed' by the facility." 29
C.F.R. § 504.310(f).
Having determined that the nurses were entitled to the
experienced rates set by Alien Labor Certification for the 1990
and 1991 attestation years,[29] the question now becomes whether
[PAGE 44]
compensation at this rate may only take the form of cash wages
and, if not, what other types of compensation may be credited
towards the prevailing wage rate.
Relevant to this inquiry is the language at
§ 504.310(e)(1)(iii), which reads:
(iii) Total compensation package. The
prevailing wage finding under this paragraph (e)(1)
relates to wages only. However, each item in the total
compensation package for U.S., H-1A, and other nurses
employed by the facility shall be the same within a
given facility, including such items as housing
assistance and other perquisites.
The terms "wages" and "perquisites" are not defined in the Act or
implementing regulations. However, Black's Law
Dictionary[30] defines the term "wages" broadly to state
that it is:
A compensation given to a hired person for his or her
services. Compensation of employees based on time
worked or output of production.
Every form of remuneration payable for a given period
to an individual for personal services, including
salaries, commissions, vacation pay, dismissal wages,
bonuses and reasonable value of board, rent, housing,
lodging, payments in kind, tips, and any other similar
advantage received from the individual's employer or
directly with respect to work for him.
On the other hand, the term "perquisites"[31] is defined as
follows:
A payment or profit received in addition to a regular
wage or salary, esp. a benefit expected as one's due.
The regulatory language at § 504.310(e)(1)(iii), certainly
is not a model of clarity. However, it indicates that the
"prevailing wage" is exclusive of the "perquisites" offered in
the total compensation package. It further provides that each
item in the total compensation package for all nurses
shall be the same.
Initially, it is determined that any fringe benefit for
which Employer seeks a credit against the prevailing wage rate
shall possess three attributes. The benefit must be: (1) non-
contingent and vested; (2) "prevailing" as evidenced by its
[PAGE 45]
inclusion in the SESA determined wage rate; and (3) payment for
services rendered. It is imperative that each of these elements
be satisfied prior to allowing a credit against the prevailing
wage rate in order to assure that employment of the alien nurses
will not have an adverse impact on wages and working conditions
of U.S. nurses.
Reviewing each of the elements independently, it is first
noted that the term "contingent"[32] is defined as:
Possible, but not assured; doubtful or uncertain;
conditioned upon the occurrence of some future event
which is itself uncertain, or questionable.
By definition, "vested"[33] means "[h]aving the character or
given the rights of absolute ownership; not contingent; not
subject to be defeated by a condition precedent." In the context
of this matter, and commensurate with the language and purpose of
the INRA, it would be improper to permit Respondent to take a
credit for any benefits which were contingent or not vested. A
credit for contingent benefits against the prevailing wage rate
would result in a reduction of the nonimmigrant's wages for a
benefit which he or she has not received and for which no right
may be asserted. Such a consequence depresses the overall wage
structure of the nursing market in contravention of the Act and
its purpose.
Second, the fringe benefit must be included in the CAHHS
survey utilized by Alien Labor Certification for the Oak Knoll
facility. As previously discussed, the Act and implementing
regulations clearly place the responsibility of determining the
prevailing wage rate for similarly employed nurses upon the SESA.
A reasonable benchmark that a benefit is "prevailing" is its
inclusion in the CAHHS survey utilized by the SESA in this
matter. Absent this evidential finding, it cannot be presumed
that the benefit is "prevailing" in the sense that similarly
employed nurses in the geographical area receive the benefit such
that the wages and working conditions of U.S. nurses would be
maintained.
Finally, the fringe benefit for which a credit is sought
must be for services rendered. In other words, the prevailing
wage rate is designed as hourly compensation for work performed
by nurses at the facility and is not intended as an offset of
Respondent's overhead costs. A facility receives the benefit of
the nurses' skills and experience, the quid pro quo of
which is compensation in the form of wages. It is reasonable,
therefore, to permit Respondent a credit only for those benefits
which
[PAGE 46]
constitute payment for services rendered.
With these considerations in mind, the credit sought for
paid time off, shift differentials, housing, and airfare by IHS
against the prevailing wage rate for the nonimmigrant nurses will
be reviewed. With respect to paid time off, i.e. vacation
and sick leave, the record demonstrates that such was contingent
upon the length of a nurse's employment at the facility.
Specifically, the nonimmigrants were entitled to a $700.00
vacation bonus at the end of each six month term and could not,
according to Ms. Pringels, take a vacation in the interim.
Likewise, the nurses were entitled to five days of sick leave
after a 90 day probationary period. Credit taken by Respondent
for these contingent benefits from commencement of the nurses'
employment was improper as the nurses had no vested interest in
such paid time off and, therefore, had no "benefit" for which a
credit could be taken.
The same holds true for shift differentials where IHS
contracts provided that a nurse would receive "at least
$2,000.00" in shift differentials at the end of a contract year
if the nurse had not earned such compensation by working weekends
and evenings in the course of the year. The nurses possessed no
right to the unearned shift differentials and could not claim
such monies until the end of each contract year. Thus, it was
improper to credit these amounts against the prevailing wage
rate.
Moreover, even once the requisite length of service is
attained and the nurses have a vested interest in compensation
for paid time off and shift differentials, these amounts cannot
be credited towards the prevailing wage rate as Respondent has
not demonstrated that such benefits constituted part of the wage
rate quoted in the CAHHS survey. Indeed, Ms. Frank of Alien
Labor Certification testified that such benefits were not part of
the survey utilized in this case. Specifically, she noted that
the data provided for the Oak Knoll facility was a "base wage
rate" only and did not include vacation and sick leave nor
did it include shift differentials because, according to her, not
every employer pays such differentials. Ms. Frank further
testified that she confirmed the exclusion of such items with the
President of the CAHHS. Therefore, considering the contingent
nature of these benefits as well as the credible testimony of Ms.
Frank that such items were not included in the CAHHS survey, it
is determined that Respondent is not entitled to credit them
against payment of the prevailing wage rate.
[PAGE 47]
IHS also claims a credit for the cost of air transportation
for the nonimmigrant nurses from the point of hire in Australia
to the United States and their repatriation. This amount,
however, should not have been credited against the prevailing
wage rate as the record does not disclose the inclusion of such
costs as "prevailing" in the CAHHS survey nor do they reflect
compensation for services rendered. Evidence of the
nonprevailing nature of the airfare "benefit" is revealed in the
disparate compensation package of the Australian nurses, who were
charged such transportation costs, and Nurse Diggs, who was not.
It is proper that the costs of transportation be excluded from
the compensation package as they have no relationship to the
services rendered by the nurses but are an element of
Respondent's overhead expenditures in securing the services of
these individuals.
Finally, IHS asserts that it is entitled to a credit of
$2.88 per hour for providing housing to the Australian nurses.
In support of its position, Respondent cites to the Fair Labor
Standards Amendments of 1961, at 29 U.S.C. § 203 et
seq.[34] , and the regulations promulgated thereunder at 29
C.F.R. Part 531[35] wherein housing costs may be credited
towards, or deducted from, an employee's wages to satisfy the
minimum wage standards envisioned by Congress. Moreover,
Respondent asserts that the President of the CAHHS acknowledges
that housing costs are included in the prevailing wage survey in
this case and Respondent cites to a letter from the President of
CAHHS wherein he disputes Ms. Frank's testimony at the hearing
that housing costs were not included in the CAHHS surveys.
It is problematic, however, for Respondent to claim this
credit on behalf of the Australian nurses where it did not do so
in the case of the U.S. nurse, Debra Diggs. The regulations
require that similarly employed nurses at the facility receive
the same compensation package which has not been accomplished
here. Citation to the FLSA does not aide Respondent here as that
Act provides:
Wages paid to any employee includes the reasonable
cost, as determined by the Administrator, to the
employer of furnishing such employee with board,
lodging, or other facilities, if such board, lodging,
or other facilities are customarily furnished by such
employer to his employees:
. . .
[PAGE 48]
Provided further, That the Secretary is authorized
to determine the fair value of such board, lodging, or
other facilities for defined classes of employees and
in defined areas, based on average cost to the employer
or to groups of employers similarly situated, or
average value to groups of employees, or other
appropriate measures of fair value.[36]
The FLSA permits a credit for housing by an employer only if all
of its employees are customarily furnished with the benefit. As
noted, such a practice has not been demonstrated on this record.
Moreover, there are no comparable provisions in the INRA
against which the fact-finder is able to assess the
appropriateness of the amount of credit taken by Respondent in
this case. It is reasonable to conclude that, had Congress
intended that housing be credited toward the prevailing wage
rate, it would have so provided in the INRA. The scope of the
minimum wage requirements of the FLSA is different than that of
the prevailing wage requirements contained in the INRA. As noted
in the Senate Report of the 1961 Amendments to the FLSA:[37]
[T]he declared policy of the act (is) to correct and as
rapidly as practicable to eliminate . . . labor
conditions detrimental to the maintenance of the
minimum standard of living necessary for health,
efficiency, and general well-being of workers.
The prevailing wage rate, on the other hand, serves an elevated
purpose of maintaining the marketplace, as opposed to minimum,
wage standard for a particular occupation. The FLSA minimum wage
standards are, therefore, inapplicable to prevailing wage
requirements. Assoc. Builders & Contractors v. Baca, 769
F. Supp. 1537 (N.D. Cal. 1991) ("virtually by definition a
'prevailing' wage is not a 'minimum' wage"). Inasmuch as: (1)
the INRA does not specifically provide for the inclusion of
housing as part of the prevailing wage rate; (2) Respondent
offered disparate compensation packages to U.S. and Australian
nurses in terms of housing; and (3) the testimony of record is,
at best, conflicting regarding whether housing was included in
the prevailing wage rate provided in the CAHHS survey, it is
determined that a credit for housing against the prevailing wage
rate is not permitted.
Respondent argues that the regulation regarding wages and
perquisites is ambiguous and that it relied upon Mr. Leben's and
Ms. Pringels' initial erroneous representations that housing
[PAGE 49]
costs could be credited against the prevailing wage rate,
"Bluntly put, if the Government had such trouble figuring out
this housing question, enforcement against Respondent in the
manner urged would be arbitrary and capricious.[38]
Specifically, Respondent cites to Prieto v. United States,
655 F.Supp. 1187 (D.D.C. 1987) in support of its estoppel
argument. It argues that Mr. Leben, by his silence after
reviewing IHS' compensation package in October of 1991, and Ms.
Pringels' oral statement at a September 1992 meeting that housing
could be credited against the prevailing wage rate, caused IHS to
offset the prevailing wage rate by $2.88 an hour to its detriment
and, therefore, the government should be estopped from pursuing
backwages on this ground. In its brief, Respondent "respectfully
asks the Court to consider whether these Government agents'
persistent miscues, waffling, and assurances do not in fact
constitute that kind of 'pattern of false promises' recognized in
Mukherjee v. I.N.S., 793 F.2d 1006 (9th Cir. 1986), or
those sort of 'ongoing active misrepresentations' discussed in
S & M Investment Co. v. Tahoe Regional Planning Agency,
911 F.2d 324 (9th Cir. 1990)."[39]
The Administrator argues, however, that estoppel is
inapplicable here as Respondent has not established "affirmative
misconduct" of governmental officials with regard to the housing
issue.[40] In so stating, Complainant cites to Conax Flonder
Corp. v. United States, 824 F.2d 1124, 1131 (D.C. Cir. 1987)
and F.S. Vollner Co. v. Higgins, 23 F.3d 448 (D.C. Cir.
1994) wherein the District of Columbia Circuit Court of Appeals
required that "affirmative misconduct" of a government official
be established, in addition to the other Prieto elements,
before equitable estoppel may lie, thus modifying the
Prieto holding upon which Respondent relies. In this
vein, the Administrator argues that equitable estoppel is
inapplicable as any misrepresentations or miscommunications made
by Mr. Leben or Ms. Pringels did not rise to the level of
"affirmative misconduct."
Equitable estoppel is applied against the government only
under particularly limited circumstances, Heckler v. Community
Health Services, 467 U.S. 51, 60 (1984), and this standard,
which is different than that imposed among private parties,
"springs from the tenet that estoppel would frustrate the
Government's ability to enforce the law and, in turn, the public
interest in full enforcement of the law." United States v.
Boccanfuso, 882 F.2d 666 (2d Cir. 1989).
In Watkins v. United States Army, 875 F.2d 699, 709
(9th Cir. 1989)(en banc), cert. denied, 498 U.S. 957
(1990), the Ninth Circuit set forth the core elements of
traditional estoppel: (1)
[PAGE 50]
the party to be estopped must know the facts; (2) it must intend
that its conduct shall be acted on or must so act that the party
asserting the estoppel has a right to believe it is so intended;
(3) the latter must be ignorant of the true facts; and (4) it
must rely on the former's conduct to its detriment. However, if
a party seeks to estop the government, two additional elements
must be established; namely, that (1) the government official
engaged in "affirmative conduct going beyond mere negligence,"
Wagner v. Director, Fed. Emergency Management Agency, 847
F.2d 515, 519 (9th Cir. 1988), and (2) "the government's act will
cause a serious injustice and the imposition of estoppel will not
unduly harm the public interest." S & M Investment, 911
F.2d at 329. Failure to establish each of these elements
precludes imposition of estoppel against the government.
Although there is contention regarding whether Mr. Leben
advised IHS that housing was creditable against the prevailing
wage rate, it is clear that Ms. Pringels did so advise Respondent
at the September 1992 meeting and that a six week delay occurred
in conveying the government's changed stance on the issue.
Events in this case transpired under auspices of a new
statute. Thus, it cannot be said that Ms. Pringels or, for
argument's sake, Mr. Leben, acted upon any well-established
policy regarding whether the prevailing wage rate under the INRA
could be offset by the costs of housing. Moreover, as Ms.
Pringels' statements that housing could be credited against the
prevailing wage rate were made initially at the September 1992
meeting, it is unconfutable that Respondent could not have
detrimentally relied upon such statements when it filed its
December 1990 or December 1991 attestations. Indeed, Ms.
Pringels subsequently was advised of a change in policy, that
housing could not be credited against the prevailing wage rate,
in late October 1992 and she, in turn, formally advised IHS of
this change in early December 1992.
While a delay of six weeks in transmittal of such
information is less than expeditious, it does not support a
finding of collateral estoppel. Indeed, the United States
Supreme Court, in INS v. Miranda, 459 U.S. 14 (1982),
concluded that "[p]roof only that the Government failed to
process promptly an (immigration) application falls far
short of establishing (affirmative misconduct)." (emphasis
added). In The Bd. of County Commissioners of the County of
Adams, 18 F.3d 1492 (10th Cir. 1994), concealment or
affirmative misrepresentation of a fact is required and the court
held that "[m]ere negligence, delay, inaction, or failure to
follow agency guidelines does not
[PAGE 51]
constitute affirmative misconduct." Notably, in Monongahela
Valley Hosp., Inc. v. Sullivan, 945 F.2d 576 (3d Cir. 1991),
the Third Circuit held that "affirmative misconduct" was not
established on grounds of a change in agency interpretation of a
regulation combined with a failure to advise the affected party
"of this significant change in a timely fashion."
Thus, having dispensed with Ms. Pringels' statements as
constituting neither affirmative misconduct nor the basis for
detrimental reliance, a review of Mr. Leben's alleged conduct
remains. In October of 1991, Mr. Lewis faxed IHS' compensation
package to Mr. Leben for review. Mr. Lewis maintains that Mr.
Leben approved of IHS' package including, by his silence, the
crediting of housing costs against the prevailing wage rate, and
that Mr. Leben advised that the wage rate for entry level nurses
needed to be increased to $15.88 an hour.
A review of Mr. Lewis' October 31, 1991 letter to Mr. Leben,
which is probative as a contemporaneous recordation of the
discussions during this time period, indicates that the $15.88 an
hour wage rate was discussed but that no specific approval of the
elements of the compensation package nor the status of the aliens
as entry level or experienced nurses was accorded IHS by Mr.
Leben. Mr. Leben denies specifically approving of IHS' package;
rather, he maintains that he advised Commander Shore, at the
behest of Mr. Lewis, that IHS had "represented" that it
"understood the program requirements" and would comply with them.
Respondent argues that estoppel lies upon Mr. Leben's "failure to
alert Mr. Lewis that housing would not be allowed."[41] It is
less than obvious that the housing issue was ever presented to
Mr. Leben for consideration in October of 1991 and a mere generic
request for review of a compensation package does not give rise
to an inference that the issue was discussed or that Mr. Leben
engaged in affirmative misconduct by silence. In
Mukherjee, the Ninth Circuit held the following:[42]
[W]e conclude that as a matter of law the government's
actions in this case fall short of the affirmative
misconduct necessary for estoppel. Nothing in the
present case indicates a deliberate lie by the vice
consul or a pattern of false promises. The vice consul
here apparently believed that Mukherjee was exempt from
the two-year requirement, told him so, and indicated
this on the application form. This would undoubtedly
constitute negligence, but it does not reach the level
of misconduct required for estoppel under Supreme Court
and Ninth Circuit law.
[PAGE 52]
Thus, even if it could be said that a single occasion of silence
could give rise to a finding of negligence, which is not found on
this record, it is further determined that no deliberateness or
"pattern of false promises" on the part of Mr. Leben has been
proven. Thus, grounds for estoppel against the government have
not been established in this case.
F. Other Wage Problems
The Administrator maintains that Nurse Roach is entitled to
the prevailing wage rate for the number of hours spent performing
the duties of Nurse Coordinator. Specifically, it is argued
that, because the H-1A visa is afforded only to that individual
who comes to the United States to perform nursing services on a
temporary basis pursuant to 8 U.S.C. § 1101(a)(15)(H)(i)(a),
"[e]mployment in another occupation would be contrary to the
terms of the statute."[43] Consequently, Complainant maintains
that "the work performed as a nurse coordinator must be
considered employment as a registered nurse, for which the
prevailing wage must be paid."[44] Further, Complainant states
that the nurses are entitled to payment of the prevailing wage
rate for four hours of unpaid work time. He maintains that this
includes time spent working beyond scheduled shifts.[45]
At the hearing, however, Respondent countered that the
duties of the Nurse Coordinator were of a clerical or
administrative nature. In this regard, Respondent maintained
that faxing time sheets to the corporate offices, drafting
memoranda, and serving as a liaison between IHS representatives
and the nurses did not warrant payment of the prevailing wage
rate.
Documentary and Testimonial EvidenceWendy Roach - Nurse Coordinator
1. Ms. Pringels testified that Nurse Roach was not paid the
appropriate wages as, in addition to her nursing duties, she also
served as Nurse Coordinator. Cx. 7. According to Ms.
Pringels, Nurse Roach was compensated at a rate of $350.00 per
month. Tr. at 65. She spent seven hours a week
performing the duties of a Nurse Coordinator which included
meeting with nurses on policies and procedures, "meet and greet"
functions, faxing time sheets at the end of each pay period from
California to the Virginia IHS office where payroll was
processed, and writing memoranda. Tr. at 65. Ms.
Pringels noted that she reviewed the job description
[PAGE 53]
for Nurse Coordinator as developed by IHS but, with regard to an
assessment of duties, Ms. Pringels noted that she "really relied
on what Ms. Roach told me." Tr. at 278; Cx. 7.
2. Ms. Fusco states that Nurse Roach spent approximately two
hours a week on her Nurse Coordinator duties. Tr. at
1123. She confirmed that Nurse Roach faxed the time sheets to
IHS' Virginia office as well as to Foundation Health, helped set
up meetings with the nurses, prepared memoranda, assisted in
processing insurance forms when packets were given to new
employees, and participated in some meet-and-greets. Tr.
at 1121-22; 1160-65; Cx. 12; Cx. 7. Ms. Fusco did
recall that Nurse Roach told her that she wanted to resign from
the position of Nurse Coordinator because the job took too much
time but she did not tell me the number of hours spent.
Tr. at 1165; Cx. 52, p.4; Cx. 5.
3. The record contains a letter from Nurse Roach to Ms. Fusco
dated July 23, 1992 wherein she stated that she wanted to resign
as Nurse Coordinator, "I have found the position to be too time
consuming as approximately 10 hours per week are utilized doing
I.H.S. tasks and although the monetary compensation was initially
satisfactory for the amount of time . . . I have found that it is
not acceptable." Cx. 50. Further, she notes, "I have
enjoyed my position for the most part but recently the conflict
has increased and I feel I do not and cannot understand the stand
that IHS has taken to overcome these problems, which has resulted
in this resignation." Cx. 52. In conjunction with Ms.
Roach's statement and after interviewing her, Ms. Pringels
determined that she actually spent seven hours per week
performing the duties of Nurse Coordinator. Tr. at 65.
Unpaid Work Time
4. Another area for which backwages are sought is for unpaid
work time. For example, Jennifer Wilkins testified that she was
not paid for time in which she worked through part of her lunch
hour or past her quitting time. Tr. at 68; Cx. 2,
p. A-29. Ms. Pringels' findings that some nurses were not paid
for working through lunch or worked without breaks was based upon
"[e]stimates of the nurses." Tr. at 281.
5. Nurse Murray testified that she worked extra hours without
compensation. Notably, she stated that she often worked from
6:45 a.m. until 7:30 p.m. and did not always take a lunch break
because "sometimes I would be the only registered nurse on the
ward." Tr. at 337. In Ms. Pringels' interview notes
dated August 16, 1992, Nurse Murray stated that, during the
"(first)
[PAGE 54]
month or so" of her employment, she reported to work at 6:30 a.m.
as opposed to 6:45 a.m. at the request of Lt. Carter so that she
would be ready for the patient report at 6:45 a.m. Cx. 8,
p. 2. She also noted during her interview that she worked
through lunch five or six times without compensation. Cx.
8, p. 2.
6. Similarly, Nurse Laird testified that she had 45 minutes for
lunch but would take only 15 minutes "usually because the staff
on the ward was inexperienced and if I had spent the whole 45
minutes off the ward, I mean I felt when I came back that I had a
lot more work to do to catch up on what happened, than if I only
just took 15 minutes and continued to work." Tr. at 625-
26. Nurse Laird stated that she was told to take her lunch
breaks off of the ward, "But, I mean as a professional, I
couldn't walk off the ward and leave my patients there with
inexperienced staff. I mean basically they didn't have a lot of
direction at that time and just needed a lot of guidance."
Tr. at 628.
7. Nurse Dominguez noted that "[w]hen I first started on 9 -
West I was working through most of my breaks, and I was not
finishing work till sometimes as late as eight o'clock."
Tr. at 717. She stated that this was mentioned to Ms.
Fusco who directed her to take her breaks. Tr. at 717.
Nurse Dominguez then changed the hours on her timecards to
reflect those actually worked but was later advised by IHS to put
the breaks back into the timecards and put down that she worked
from 6:45 a.m. until 7:15 p.m.. Tr. at 718; Cx.
10. Submitted as an exhibit in this matter is a note to Nurse
Dominguez from E.J. Muzzin which reads as follows:
I am writing in regards to your International Health
Service time cards. In the future could you please
write in your lunch break and subtract that amount from
the total number of hours worked. Enclosed is an
example of how we prefer time cards to be completed.
Thank you for your cooperation,
/s/
Cx. 10.
8. Nurse James stated that he arrived for work at 6:30 a.m. but
would sign the timecard for 6:45 a.m. and he signed out at 7:15
p.m. Tr. at 797.
9. Nurse Wilson also worked time beyond that required on her
shift. She recalls meeting with Nurses Dominguez and Forryn and
[PAGE 55]
Ms. Fusco to request compensation for the extra time worked:
I was working on a medical ward at the time, and I was
working from half -- like going from 6:45 and
continuing through 8:00 at night at times without
having breaks, and we were discussing that we weren't
being paid overtime and why weren't we, and we were
told that we were to leave at a quarter past seven no
matter by Deborah Fusco.
Tr. at 999-1000 and 1010. Nurse Wilson advised Ms. Fusco
that such was "totally impossible" but Ms. Fusco was "firm."
Tr. at 1000. Nurse Wilson stated that, while she worked
on Nine West, she worked extra "a good 80 percent of the time"
and noted that she worked "an average of 30 minutes beyond my
shift." Tr. at 1001. When she transferred to the
surgical ward, Nurse Wilson stated that she worked late only 20
percent of the time. Tr. at 1002.
10. Nurse Larranga stated that he worked time beyond that
reported on the timecards, "The majority of the time was between
the month of January and March, when it was our busy period, and
most of the time we worked through lunch and occasionally over --
past quarter past seven." Tr. at 1035. He did not note
the extra time "[b]asically because I knew nothing was going to
be done about it, and I wanted to mind my own business and stay
out of trouble." Tr. at 1035. Nurse Larranga did note,
however, that he "complained to Bob Saum on a couple of
occasions, and he said there was no overtime regardless, no
matter how many times I complained." Tr. at 1036.
11. Commander Speece, who served as a Division Officer of the
hospital, stated that he would verify the hours listed on a
nurse's timecard and sign it. Tr. at 944. He noted that,
at times, the nurses worked through their lunch breaks, and did
not report this or the fact that they worked an extra one-half
hour to transition between shifts or an extra fifteen to twenty
minutes to end a shift. Tr. at 945-47. He recalled that
the nurses "professionally" did not want to leave their shifts,
"You almost had to pry them off -- out of the bedside to get them
to leave." Tr. at 947. Commander Speece stated that he
signed off on inaccurate timecards because "[b]asically they
presented to me as the hours they were claiming, and it agreed
with the time sheet -- the schedule, and that was adequate for
me." Tr. at 948.
12. Lt. Commander Morrison, who was Division Officer of the
[PAGE 56]
intensive care unit, testified that "inevitably" the nurses would
work extra time, "Patient crisis, brand-new admission, somebody
codes right at the end of your shift", but that such was "[n]ot
normal, not usual." Tr. at 966. This extra time,
according to Lt. Commander Morrison, was not reported on the
timecards as these cards were more a reflection of the nurse's
assigned shift and not the actual number of hours worked.
Tr. at 967-68. Third, there was a difference in contracts
between Nurse Laird, who got paid for shift differentials and
vacation and sick leave benefits, as opposed to Nurse Nichols who
did not. Tr. at 90; Cx. 3, pp. 106 and 131.
13. Commander Meeker testified that IHS nurses have worked extra
time beyond their shifts, "[o]n non-routine occasions . . . 15
minutes here, that type of thing, 20 minutes there," but such was
not listed on their timecards. Tr. at 983-84.
14. Ms. Fusco states that only Nurse Grant advised her that he
was working overtime. Tr. at 1120. She maintains that no
complaints were received regarding nurses working through their
lunch hour but three or four nurses did complain that they were
working through their breaks, "[B]asically I told them that if
they wanted to take their breaks they needed to take their
breaks, that they were entitled to their breaks, and to go ahead
and take them." Tr. at 1120 and 1149-50. Subsequent to
this, Ms. Fusco states that she did not receive any more
complaints. Tr. at 1121.
15. Mr. Rice testified that it was IHS' "general policy" to
encourage overtime and "the reporting of it." Tr. at
1537. He noted that the contract at the Naval Hospital was
"unusual" in that it required approval for the payment of
overtime so, if a nurse worked extra time, "[w]e would go back to
the Navy and Foundation . . . (to) get retroactive approval."
Tr. at 1541. He stated that IHS paid overtime to its
employees. Tr. at 1541.
16. Ms. Pringels also determined that the nurses were entitled
to payment for four hours of unpaid meetings which IHS held with
its employees according to Nurse Roach's interview with Ms.
Pringels. Tr. at 60. In this regard, Ms. Pringels stated
that "[m]y determination was that work related issues were
discussed at the meetings." Tr. at 274. She testified
that she "did not pursue whether or not they were mandatory . .
.." Tr. at 274. In arriving at the hours involved, Ms.
Pringels stated that:
Primarily I relied on Ms. Roach's statement that when
the nurses would arrive they would have a meeting of
about three hours to talk about policies and procedures
[PAGE 57]
that the nurses were to follow at the hospital in Oakland. The
rest of it was from various meetings being held in the nurses'
apartments talking about wage rates and the housing provided and
the other benefits to the nurses.
Tr. at 61; Cx. 5.
Discussion and Conclusions
Wendy Roach was hired as a nonimmigrant nurse at the Oak
Knoll facility under the H-1A program and she also served as IHS'
Nurse Coordinator. Respondent argues that, because Nurse Roach's
duties as Coordinator were purely administrative and did not
involve nursing skills, a lesser wage rate is applicable for the
time spent performing these duties. These duties included faxing
time sheets to IHS headquarters, "meet-and-greet" functions, and
drafting work-related memoranda. However, the terms and
conditions of Nurse Roach's employment must be in accordance with
her H-1A contract which necessarily entails a finding that the
wage rates governing her H-1A contract must also apply to time
spent performing her duties as Nurse Coordinator.
On a related point, the nurses are entitled to payment of
the prevailing wage rate for time worked, which includes time
spent working through their lunch hours and breaks or arriving
early or staying late on their designated shifts. It is apparent
from the nurses' testimony that most of them worked beyond their
scheduled hours and did not feel comfortable taking breaks during
the day and leaving patients under the care of less experienced
nurses.
The supervisors acknowledged the professionalism of the
Australian nurses as well as the fact that they worked beyond
their scheduled shifts and, sometimes, without breaks. Moreover,
there is testimony by the supervisors that the timecards which
they approved were merely a reflection of the scheduled shifts
and not the actual number of hours worked. The impression was
left by the supervisors who testified at the hearing that working
through breaks and beyond shifts was, at times, expected of these
H-1A nurses who had been placed in positions of enhanced
authority and responsibility, i.e. as team leaders or
charge nurses. Thus, while the record evidences that the nurses
were requested to complete their timecards to reflect only the
scheduled shift, it was incumbent upon Respondent to compensate
the nurses for the number of hours actually worked. Inasmuch as
it is determined that the nurses' testimony regarding the amount
of time actually worked is credible, backwage computations for
[PAGE 58]
this aspect of their compensation should follow their testimony
and written statements of record.
I am cognizant that the Navy promoted circumstances under
which the nurses worked extra time without pay. Reference is
made to paragraphs 11 through 13, supra, is conclusive
evidence of such and I find the Navy's acquiescence by silence
reprehensible and a contributing factor to the suppression of the
nursing labor market.
VI. Harassment and IntimidationDocumentary and Testimonial Evidence
1. Ms. Pringels testified that complaints were filed alleging
harassment and intimidation by IHS of the Australian nurses.
Tr. at 93. Specifically, these assertions center upon the
October 31, 1991 memorandum from IHS to the nurses wherein the
nurses were admonished for reporting their wage concerns outside
IHS and that such was considered "insubordinate behavior" for
which a "second stage warning" was given. Tr. at 93;
Cx. ; Cx. 19.
2. Nurse Whiteoak recalled that, upon her arrival in the United
States, she was met by Ms. Fusco and Mr. Lewis, "I was told at
that time by Debra Fusco that if there were any problems I could
not discuss them with anyone except IHS" and that "if I discussed
problems with others I could lose my visa." Cx. 9, p. 2.
3. Nurse Whiteoak stated that "[s]hortly after arriving at the
hospital I complained to Debra Fusco about my low pay and the
fact that I was not getting my first month's rent free, as I had
been led to believe I would." Cx. 9, p. 2. She also
recalls that she "complained that (she) had been told that the
hospital would be close to our apartments which was not the
case." Cx. 9; p. 3.
The October 24, 1991 Meeting
4. Debora Fusco served as the Director of Project Management
and Human Resources for IHS from the Winter of 1991 through the
Spring of 1992. Tr. at 1078. In this capacity, she
"[d]ealt with personnel issues, insurance, meet-and-greets,
liaison with the employees, and also liaison with the contact
person at the hospital . . .." Tr. at 1079.
5. The first group of Australian nurses arrived in October of
[PAGE 59]
1991 and, during this month, Ms. Fusco stated that Nurse Whiteoak
phoned to request a meeting. Tr. at 1082. She recalled
that, at the meeting, which was held on October 24, 1991, there
were seven or eight people present and some of the nurses had
been drinking prior to the meeting and she waited for the last
one or two more nurses to arrive. Tr. at 1083.
6. Ms. Fusco testified that the nurses "had it all set up prior
to my arrival kind of in a horseshoe circle with one chair like
in the center of the horseshoe where I was to sit." Tr.
at 1084. The nurses were upset with their rate of pay.
Tr. at 1085. Ms. Fusco recalls that Nurse Whiteoak and
her husband "slammed the contract down" in front of her and that
she "was very upset; very scared." Tr. at 1085. She
advised the nurses "that (she) had to go back to IHS, that it was
not (her) responsibility . . .." Tr. at 1085.
7. She testified that she did tell the nurses that they would
not be receiving the ,000.00 arrival advance but IHS had no
paperwork wherein the nurses relinquished their rights to the
lump sum advance. Tr. at 1146-47. Ms. Fusco denies that
she warned Nurse Flynn not to go to the Department of Labor with
her complaints, "When the meeting was over, I was extremely
upset, and I left immediately." Tr. at 1087.
8. Nurse Whiteoak, recalled the October 24, 1991 meeting to
state that it was held in her apartment "with Debra Fusco and the
other Australian nurses regarding a number of grievances",
including "lack of transportation to the hospital" and "free rent
for the first month." Cx. 9, p. 3.
9. According to Nurse Whiteoak, Ms. Fusco "stated that (the
free month's rent) was only done according to IHS's discretion,
therefore, we were not eligible for free rent." Cx. 9, p.
3. She further stated:
As a result of this meeting Mr. Lewis requested a
private meeting with myself, on the 28th of October,
1991. During the meeting I requested a pay increase.
Mr. Lewis suggested bringing forward my end of year
bonus and return airfare and including those amounts in
my hourly pay rate. I disagreed with this idea
requesting an increase in my actual hourly rate
together with my end of year bonus and return airfare.
On the 31st of October, 1991, Mr. Lewis came to my
apartment with a typed change to the contract. I
[PAGE 60]
refused to sign the change. He also brought a letter which
warned against complaining to anyone.
On the 14th of November 1991, I was visited by Ms.
Fusco in my apartment with another typed sheet
outlining the Australian contract changes. Ms. Fusco
warned me that if I did not sign the contract changes
by the 18th of November, 1991, IHS would assume that I
had resigned voluntarily and therefore would be liable
for recruitment costs, airfare to the United States,
accommodation, and bonus on arrival. During this time
I also received late night phone calls from IHS
demanding to know when I would sign the contract
change.
Cx. 9, p. 3-4. In December of 1991, Nurse Whiteoak signed
a $7,500.00 buy-out with IHS. Cx. 9, p. 4.
10. Mr. Rice asserted that, initially, he could not understand
why there were so many complaints:
[M]y first desire was to find out the -- make sure I
understood the complaint because I heard a lot of
things and so I endeavored to find out first what the
complaint was because if I couldn't define the problem,
I didn't know how to fix it.
Tr. at 1486. With regard to the October 31, 1991 letter
advising the nurses that the end-of-contract bonus would be
folded into their paychecks there were complaints and Mr. Rice
stated that he "was mystified as to how someone could say one day
they wanted something and you could present it to them and the
next day they didn't want it." Tr. at 1487; Cx.
41.
11. Nurse Flynn stated that, in October or November of 1991, Ms.
Fusco singled out Nurses Douglas, Bombardier, and Whiteoak and
"she just basically told us that if they did complain (to DOL),
then they could jeopardize all our positions and this whole pilot
project with the Navy, and then we would have to go back to
Australia if that was the case, because they couldn't promise any
positions." Tr. at 543. Nurse Flynn stated that she
likewise was told by IHS not to complain to the Department of
Labor about her wages because it could jeopardize her visa.
Tr. at 541-42.
12. Nurse Flynn further recalled that, at the October 24, 1991
meeting, there were nine nurses in Sue Daniels' lounge room and
Ms. Fusco told them not to go to the Department of Labor "because
[PAGE 61]
then your immigration status could be revoked and you might not
be able to work in the United States." Tr. at 572. Nurse
Flynn specifically recalled that Ms. Fusco mentioned the
Department of Labor "because I had never heard of the Department
of Labor before that time and she actually had planted the seed
as far as the Department of Labor." Tr. at 576.
13. Nurse James also recalls that three of the nurses were
unhappy with their paychecks at the October 1991 meeting but that
he had not yet received his paycheck. Tr. at 780. He
noted that there were drinks served at the meeting and that he
was one of the last nurses to arrive. Tr. at 781. Nurse
James stated that he had nothing to drink and that the drinking
stopped once the meeting started. Tr. at 782. According
to Nurse James, Ms. Fusco asked those nurses who thought they
would be making $15.29 an hour to raise their hands and all of
the nurses raised their hands except for Shane Grey. Tr.
at 783. He further recalled that Ms. Fusco calculated for the
nurses how the wages went from $15.29 an hour to $8.17 an hour
which is what the nurses were earning." Tr. at 785.
14. Nurse James stated that the next day, he met with Ms. Fusco
in Sue Daniels' apartment along with Nurses Flynn, Daniels, and
Gray, "I can't even remember who called the meeting, but it was
one of the four of us, just to meet and say that, you know, we
wanted to kind of separate ourselves from those three (Whiteoak,
Douglas, and Bombardier)." Tr. at 785-86. Nurse James
stated that they inquired about their paychecks which they
received that day as well as the problems with Nurses Bombardier,
Whiteoak, and Douglas:
[W]ell, they may not be around too much longer anyway.
She called them troublemakers. And, you know, that
this was a pilot project and unless -- if there were
any hitches, you know, it would jeopardize the whole
project. And there was a possibility that if the
project fell through that we'd have to return to
Australia.
Tr. at 787. Nurse James recalled that Ms. Fusco advised
them not to go to any agencies with complaints because they could
be sent back to Australia, "I felt that, you know, just to keep
my mouth shut and let things go, you know; I didn't want to
jeopardize me getting sent back to Australia." Tr. at
789.
15. Ms. Fusco denies telling Nurse James that Nurses Bombardier,
Whiteoak, and Douglas "may not be around too much longer; rather,
[PAGE 62]
Ms. Fusco states that she said "at this point IHS was negotiating
with them." Tr. at 1114-15. Moreover, she recalls
telling Nurse James that "if the pilot project did fail that in
essence, you know, a whole chain of events would occur and
possibly, yes, that he could lose his H-1A status." Tr.
at 1115. She further told him that "[h]e would either have to
return to Australia or obtain another visa, whether it be a
tourist visa or another H-1A through another petitioner" but Ms.
Fusco maintains that she did not tell Nurse James that he would
be deported if he complained to outside government agencies.
Tr. at 1115.
16. Ms. Fusco's recollection of the meeting was that Nurses
Daniels, James, Gray, and Flynn were "scared" and asked "that
they be completely separate from the other group." Tr. at
1089. Ms. Fusco stated that she told the group:
If anything, you know, the project could be in
jeopardy, that if the project was in jeopardy it could
affect IHS or IHS's attestation. They wanted more
information. I went into further detail that if IHS
lost its attestation then it could affect their visas.
Basically, I said for them not to worry, this had
nothing to do with them, but if they had questions
please don't hesitate to come to either myself or Mr.
Lewis, whoever they felt more comfortable with, to
discuss any issues with us.
Tr. at 1090. Ms. Fusco also recalls that she may have
advised the nurses not go complain to the Navy because IHS was
their employer but she denies telling the nurses that they would
be deported for complaining to the Department of Labor.
Tr. at 1091. However, later in her testimony, Ms. Fusco
stated that she did tell some nurses that going to the Department
of Labor could affect IHS' attestation and that, if IHS lost its
attestation, employees, under some circumstances, could be
required to leave the country. Tr. at 1136. Namely, if
"something happened to the attestation", their H-1As would be
affected. Tr. at 1136. Ms. Fusco stated that the nurses
"were very nervous" or "more upset than nervous." Tr. at
1137.
17. Ms. Fusco stated that she held several other meetings with
the nurses to explain personnel issues and contract changes. She
took notes of the meetings and kept a phone log of conversations.
Tr. at 1092-93; Cx. 25 and 26.
18. Mr. Saum recalled that, in October and November of 1991, the
nurses "were concerned about the amount of pay that they were
[PAGE 63]
getting" and that this "was probably the most predominant
complaint that we heard in the nursing office." Tr. at
877. Mr. Saum stated that he told the Australian nurses that "a
foreign nurse had to be paid similarly to the American nurses
that they're working with" but that the Navy could not intercede
to correct their wage problems and the complaints were referred
to Ms. Fusco by telephone. Tr. at 919-20 and 922.
19. Mr. Lewis recalled that, shortly after their arrival, IHS
received several complaints regarding pay and transportation.
Tr. at 1232. He further noted that the nurses "decided
shortly after they got there that they would prefer to have more
money, more actual cash in their paycheck rather than the $3,000
end of contract payment" and it appeared that "the whole group"
wanted the bonus "brought forward to their pay." Tr. at
1235. Thus, according to Mr. Lewis, the October 31, 1991 letter
advised them that the $3,000 end-of-contract bonus as well as the
cost of airfare would be "folded into" their biweekly checks.
Tr. at 1236-37; Cx. 19. Specifically, with regard
to the airfare, IHS estimated the cost of airfare from Australia
to the United States cost $580.00 and gave the nurses a $2,200.00
airfare allowance such that ,620.00 would be brought forward
into their contracts. Tr. at 1240.
Groundwork for the October 31, 1991 Letter
20. Mr. Rice noted that the October 31, 1991 letter was
generated by a newspaper article, which was brought to his
attention, regarding the displacement of U.S. nurses. Tr.
at 1489. He stated the following:
In October, I got other calls about our nurses going to
the newspapers. In fact, I was called specifically and
told by Foundation to do everything I could to keep our
nurses from going to the newspapers and causing
problems because the admiral was very upset as a result
of the prior article I just mentioned. So that was a
complaint that I tried to address by our customer.
Then on top of it we had all the other issues that our
nurses were raising.
Tr. at 1489. He stated that, at the time, "I thought we'd
lose our job" and that "[m]y first concern was, as always, our
survival . . .." Tr. at 1490.
21. Mr. Rice continued to describe his intentions behind the
[PAGE 64]
October 1991 letter:
In my mind, when we wrote this letter, I wanted to keep
it out of the newspapers. That was my number one goal,
to not have our nurses irritate the Navy who in turn
would irritate Foundation which would cause us to lose
(our contract) and the only signal I had ever gotten
from Foundation that was paramount was to do not (sic),
at all costs, do not do anything to cause your nurses
to go to the newspaper.
Now, there were other things that came up during that
process but that was my first concern, was them (sic)
to quit complaining to the Navy, quit causing problems,
quit talking to newspapers, quit going to Foundation,
and don't threaten me with -- I didn't want them
threatening us anymore.
What I wanted to do was solve the problem. That why I
subsequently went out there personally and talked to
every nurse.
Tr. at 1491-92. Mr. Rice stated that, by the Summer of
1992, he was aware that five IHS nurses filed a complaint with
the Department of Labor regarding IHS' pay practices. Tr.
at 1496.
The October 31, 1991 Letter From IHS
22. Mr. Lewis personally distributed a letter signed by him
dated October 31, 1991 to each of the IHS nurses. Cx. 19,
p. 830-32. In this letter, he addressed several of the concerns
of the nurses, including bonuses, housing, transportation, and
airfare. Specifically, Mr. Lewis advised the nurses that the
$3,000.00 end-of-contract bonus "will be brought forward into the
current bi-weekly (hourly) rate" as would the airfare and "IHS
will not deduct any employee housing cost - i.e. an additional
value of approximately ,200.00 for the full 12 month contract
period." Cx. 19, p. 2. However, the following was also
noted in the letter:
Lastly, I stated when I met with each of you, that the
contractual issues were not to be discussed outside of
the company prior to discussion with IHS. I was told
nothing had been discussed. I was subsequently
notified by individuals at Naval Command and Foundation
Health that complaints regarding the contract had been
openly discussed by certain individuals, and went to
[PAGE 65]
the extent of making threats about notification of certain
U.S. government agencies. IHS, Inc. has consistently lived
within the intent as well as the details of our contract and
the regulations of the U.S. government. To imply otherwise,
especially without airing the individual's question or
problem with IHS, is unacceptable and insubordinate behavior
and will not be tolerated. You should consider this letter
as a second stage warning regarding expected behavior.
Cx. 19, p. 2-3.
23. Nurse Flynn recalled that the letter was given to her by
Kenneth Lewis in Susan Daniels' apartment and Peter James and
Shane Grey were also in the apartment and received the letter.
Tr. at 546. After some discussion, according to Nurse
Flynn, Mr. Lewis agreed that they had not been "insubordinate"
and so he crossed out those lines and signed the letter.
Tr. at 549; Cx. 19. Nurse James also testified
that because he had not complained to any outside agencies, Mr.
Lewis drew a line through the same language in his letter and
initialled it. Tr. at 793. At this point, Nurse James
decided that he would not jeopardize his job by going to outside
agencies; but that he would pursue any grievances with IHS "of
which there was very little result." Tr. at 795.
24. Later, Nurse Flynn recalled that Ms. Fusco, Mr. Lewis, and
Mr. Rice met with her and Shane Grey in her apartment. Nurse
Flynn recalls that Mr. Rice asked if she liked it in the United
States to which she replied that she did and that she did not
want to go back to Australia, "[H]e said that he didn't want
anyone bad-mouthing International Health Services, that they were
a reputable company and that we -- all the Australian nurses are
ungrateful, they're running off to all these different agencies
and telling everyone around the place . . . which was not in our
contract and we weren't to be bad-mouthing them in any way."
Tr. at 556. Ms. Pringels further noted that "[t]wo of the
nurses (Nurse Flynn and Nurse Murray) told me that they were
specifically told by Ms. Fusco, at the company, that if they went
to the Department of Labor, they would be sent back to
Australia." Tr. at 95-96.
25. Nurse Murray arrived in the United States in November 1991
and was greeted at the airport by Deborah Fusco. Tr. at
324. The day after her arrival, Nurse Murray recalls that she
met with Deborah Fusco and John Grant to review IHS policies and
rules and to sign the employment contract. Tr. at 325.
Nurse Murray testified that, at this meeting, she was advised by
Ms. Fusco
[PAGE 66]
that if "Oak Knoll was unsatisfied with my standard of work, or I
had any difficulty on a particular shift . . . that I should
return to my apartment where I would find Deborah Fusco and my
bags would be packed and I would be escorted back to the
airport." Tr. at 325-26; Cx. 8, p. 6.
26. Nurse Murray further recalled that, on the second day of her
arrival in the United States, she was told by Ms. Fusco not to
associate with "troublemakers" and that she should not lodge any
complaints against IHS with the Department of Labor or the
military "[a]nd that if I did so, that they would telephone the
U.S. Immigration Authority who, on 24 to 48 hours after receipt
of that phone call, could locate me anywhere within the United
States and I would be deported." Tr. at 326; Cx.
8, p. 6.
IHS' Policies and Procedures: Termination
27. The Employee Assignment Policy, containing the
policies and procedures of the company, was distributed to each
of the nurses by IHS. Cx. 13, p. 782-92 (revised
September 24, 1992). Section 14.4, which is titled
Termination of Employment for Cause, reads, in part, as
follows:
The Company reserves the right to terminate the
employee's employment for "cause" without prior notice
and without any liability to continue payment of the
Base Hourly Stipend to any other direct or indirect
compensation . . .. As used herein, the term "Cause"
includes, but is not limited to, . . . insubordination
by the employee, violation by the employee of any duty
or loyalty to the Company . . ..
Cx. 13, p. 790. It is noted that this clause was likewise
present in prior versions of the Employee Assignment
Policy. Cx. 12, p. 499; Cx. 11, p. 509-10.
28. According to IHS' Orientation Guide for U.S. Naval
Hospital Oakland, "[d]iscipline may be initiated for various
reasons, including, butnotlimitedto, violations of any of the Hospital and IHS works rules
and policies, insubordination or poor job performance."
Cx. 14, p. 1020 (emphasis in original). In this vein, the
Guide sets forth the "normal discipline procedure" as (1)
verbal counseling, (2) written warning, which may include
suspension and/or probation; and (3) discharge. Cx. 14,
p. 1020.
The Meeting Between IHS and the Navy[PAGE 67]
29. Mr. Saum testified that IHS held a meeting with
representatives from Foundation Health, the Department of
Defense, and Naval Hospital supervisors at which IHS "gave a
presentation that (the wage) was based on the housing, the
bonuses, the travel, and the vacation that the individuals were
receiving within their contract, and that they (IHS) had
contacted the State Department of Labor and had received an
amount and I believe it was $15.86, and that was the wage that
the individuals should be receiving at that time." Tr. at
879.
30. Mr. Rice stated that, at this meeting, he distributed IHS'
compensation package to each of the individuals present, which
was collected after the meeting so that IHS' competitors would
not see it. Tr. at 1529. He testified that he "went
through each element and explained the elements of the package"
and answered questions. Tr. at 1530. Mr. Rice states
that those at the meeting were "surprised" as they believed that
the nurses were only receiving between $8.17 an hour to $10.17 an
hour "and they realized that they were getting a lot more."
Tr. at 1530.
Letters to IHS
31. By letter dated November 14, 1991, Catherine Porter, who is
counsel for Nurse Bombardier, advised Mr. Rice of the legal
implications of the "second stage warning" contained in the
October 31, 1991 letter and requested that he "remove all
insubordination charges from her personnel file . . .."
Cx. 28, p. 2.
32. On November 18, 1991, Counsel Porter sent a letter to Mr.
Rice on behalf of Nurse Douglas to state that "Mr. Douglas was
told by your company that if he did not sign the new contract by
today, IHS would consider his conduct a 'voluntary resignation'
and that Immigration Services would be contacted immediately as
to his employment status." Counsel Porter further stated that
"[t]his is to inform you that, based on both basic contract
principles and the legal principles concerning the contract
relationship, there is no way that Mr. Douglas' failure to enter
into a new agreement can be considered a voluntary resignation."
Cx. 34.
The December 12, 1991 Meetings
33. Mr. Rice testified that he held meetings with IHS nurses on
December 12, 1991 to discuss the contract changes as he wanted
to:
[PAGE 68]
[F]irsthand inform the nurses of the changes we had
made, the fact that we had met with the Navy, we had
talked to DOL, that we had gotten clearance from the
Department of Labor. And I don't recall why but I
wanted to tell the nurses that they had the same legal
rights that we did, which I told each individual nurse.
Tr. at 1519-20. He stated that he did not intend to
"threaten" the nurses. Tr. at 1521. Rather, he
explained:
The problem was that our nurses were going to Mr. Saum.
. . .
And he was giving them advice that was causing problems
because his advice was not in accordance with our
contract. And by that, I mean he didn't know the
detail of our contract, I don't guess, because if he
had understood our contract he would have known how
much more money they were getting.
Tr. at 1527.
34. According to a memorandum by Ms. Fusco, at the meeting held
at 9:00 a.m., Nurse James inquired as to the status of the legal
action regarding Nurses Douglas, Bombardier, and Whiteoak:
Chuck answered: Question/Issues about the 3 - were
they fired? We can not answer due to confidentiality,
however, the 3 employees have been talking about
everything going on. We stated that we have worked it
out with them.
Explained Chuck's Meeting with Navy.
Cx. 25.
35. Nurse Murray recalled that, at a December 1991 meeting,
Carolyn Whiteoak and other nurses who arrived before, complained
that the pay rate was too low to which IHS responded that the pay
was fair and the issue would be discussed no further. Tr.
at 328.
36. According to the memorandum of the meeting prepared by Ms.
Fusco, a number of issues were discussed including car loans, pay
rates, health insurance, and raises. Cx. 25. It was
noted that a discussion ensued at the meeting wherein IHS advised
that it
[PAGE 69]
had met with the Navy regarding the contract, "Navy happy with us
we pay prevailing rate." Cx. 25.
37. Nurse James recalled that, at some point on December 12,
1991, Kenneth Lewis brought contract changes to him for
signature; these changes would bring the year end bonus and
airfare into the hourly rate. Over the weekend, Ms. Fusco asked
Nurse James if he would sign it and he declined. Tr. at
790. He recalled that Ms. Fusco told him that if he did not sign
the changes, he would need to look for a new employer.
Tr. at 791. After the first night, he felt threatened and
went to his car after the meeting and wrote down his conversation
with Ms. Fusco. Tr. at 814. On the evening of December
12, 1991, Nurse James was then approached by Mr. Lewis, Mr. Rice,
and Ms. Fusco, who told him that if he did not sign, then he
would probably receive very little pay and he did sign, "I didn't
really have a lot of options. There was no way I could survive
on no pay for two pay periods. And I was afraid of losing my job
if I didn't sign." Tr. at 793.
38. Ms. Fusco recalls that she went to Nurse James' apartment
that weekend to have him sign the contract changes and was told
that "he was not going to sign the contract change form" at which
point Ms. Fusco "advised him that Mr. Lewis and Mr. Rice were
downstairs in the car, and I went down to get Mr. Rice and Mr.
Lewis." Tr. at 1142; Cx. 25. Ms. Fusco states
that she did not recall whether Mr. Lewis and Mr. Rice told Nurse
James that he would receive little or no money in his paycheck if
he did not sign the change form. Tr. at 1143. By the
following Monday, Nurse James had signed the contract change
form. Tr. at 1144.
39. The second day after arrival in the United States, Nurse
Laird stated that Ms. Fusco and Wendy Roach met with her and
Natalie Patricevic and Carolyn Winschool to go over IHS' policies
and rules and to sign the "blue book." Tr. at 622;
Cx. 64. According to Ms. Fusco, the Orientation
Guide was received by some nurses early in the hiring process
but that this Guide was eventually replaced by the
Policies and Procedures Manual. Tr. at 1124. On
the Saturday following their arrival, Ms. Fusco would go to the
apartment of the new arrivals, review the "blue book" and sign
the contracts. Tr. at 1134-35. She stated that she did
not advise the nurses that the meetings were mandatory or not
mandatory. Tr. at 1135.
40. Mr. Rice testified that Nurses Douglas, Whiteoak, and
Bombardier received the $7,500.00 buyouts but this was not
because they did not accept the contract changes nor were they
[PAGE 70]
considered "fired." Tr. at 1497.
Contract Changes
41. At their interviews, nurses were promised a ,000.00
arrival advance by IHS but, according to Ms. Pringels, "The
company wanted them to agree to a contract change rather than pay
that as a lump sum when they arrived, to pay that as part of
their hourly rate over the year contract." Tr. at 99-100.
Five of the nurses did not agree to this change, and "the company
-- I believe it was Ms. Fusco -- told them if they did not agree
to the change that they would be sent back to Australia."
Tr. at 99-100; Cx. 6.
42. Nurses Dominguez, Forryan, Moore, Williams, and Wilson wrote
a letter to Ms. Fusco dated August 25, 1992 which stated the
following:
As a group of 5, we are writing to confirm the receipt
of our "Arrival Bonus" which ended up totalling
$610.22, however stated in our contract as ,000.00.
We would also like to correct you, concerning the
statement made in the letter dated 31st July. We never
mutually agreed to the Bonus being placed in our
salary. Some of us were told in Australia and others
knew nothing of the matter until arriving in America.
How you could say we mutually agreed is totally
incomprehensible, as you yourself stated within 48
hours of our arrival the contract had been changed and
if any of the 9 New Australians wanted to debate it,
you would put them on a plane back home to Australia as
soon as possible[.] [T]his statement was heard by all
9 Australians and stated while our liaison Mrs. Wendy
Roach was in the room.
We therefore believe we are still within our right to
request any interest owing, and since we never mutually
agreed we feel any charges to accommodate this process
should be the responsibility of I.H.S. NOT its
employee's. (emphasis in original)
Cx. 6. Ms. Fusco did not recall her response to this
letter. Tr. at 1149.
43. Nurse Murray confirms this as she recalls that Ms. Fusco
[PAGE 71]
told her, at a meeting the day following her arrival in the
United States, that she had to sign the contract changes, whereby
her "year end bonus and airfare would be folded into her hourly
wage." Tr. at 344. Nurse Murray states that Ms. Fusco
"implied" that I would be sent home if I did not sign the
changes. Tr. at 344. She was "stunned" at the comments
made by Ms. Fusco and signed. Tr. at 345. Ms. Fusco
denies that she warned Nurse Murray that she would return her to
Australia if she did not sign the contract changes. Tr.
at 1108. She did, however, advise Nurse Murray that if her work
at Oak Knoll was unsatisfactory, she would be terminated.
Tr. at 1109. Ms. Fusco stated that she did not recall
whether she told Nurse Murray that she was difficult to deal with
when she gets angry. Tr. at 1111. According to Ms.
Pringels' interview notes dated August 16, 1992, Nurse Murray
stated that Ms. Fusco advised her that "if there was any trouble
with my work, I'd come home and she'd have me packed and ready to
go to the airport." Cx. 8, p. 6.
44. Moreover, Ms. Fusco denies telling the nurses not to
associate with certain other nurses and she did not use the word
"troublemakers"; rather, she testified that "I think I used the
term 'unhappy campers' or 'disgruntled employees,' that as their
employer we wanted to advise them or we wanted them to hear it
from us, and basically that if they had any questions or any
problems whatsoever please come directly to IHS as their
employer." Tr. at 1109-10. Ms. Fusco further stated that
"[i]n fact, that became part of the meet-and-greet in the sense
to advise them that there were problems [sic]." Tr. at
1110.
45. Nurse Dominguez recalled that shortly after arriving in the
United States, Ms. Fusco met with her and nine other Australians
to sign their contracts at which point "we were told that the
contract had been changed and that we wouldn't be receiving our
thousand dollar arrival bonus." Tr. at 710. Nurse
Dominguez stated that Ms. Fusco "told us that . . . the contract
had been changed because the other Australians said that they
would like that thousand dollars incorporated into their hourly
rate. And that if we had any problems with that . . . we could
get on the first plane back to Australia." Tr. at 710.
46. Nurse Dominguez testified that she was "shocked" and a group
of nurses wrote to Mr. Lewis to request the bonus and, at a later
point, they received $610.00, which constituted the amount of the
bonus after taxes. Tr. at 712. As she noted, "I saw it
as a bit of a threat, but I was just a bit concerned because it
was basically the first, one of the first meetings that we had.
Since it was the first meeting since we'd arrived in the country,
[PAGE 72]
and we hadn't really started anything and it wasn't a good sign
to go by the first thing." Tr. at 743. Ms. Fusco denied
telling Nurse Dominguez that, if the contract changes were not
signed, she would be sent back to Australia. Tr. at 1112.
47. On the evening of Nurse Williams' arrival, she met with Ms.
Fusco and Wendy Roach to discuss the contract and sign it.
Tr. at 748. At this point, she was advised of the
contract change of receiving the ,000.00 arrival advance as
part of her hourly wage as opposed to a lump sum and Ms. Fusco
told her that if she had any complaints, she would be sent back
to Australia. Tr. at 752. Nurse Williams stated, "I
didn't think it was a very professional thing for someone to say"
and "[i]t kind of made me feel a little bit off." Tr. at
752. She was one of the nurses who signed the letter to Mr.
Lewis requesting the ,000 arrival advance as a lump sum which
she received. Tr. at 767. Ms. Fusco denies telling Nurse
Williams that she would be sent back to Australia if she did not
sign the contract changes. Tr. at 1114.
48. Nurse Wilson recalled that, upon arriving in the United
States, she met with Ms. Fusco and the nine other nurses in Nurse
Gill's apartment to review the "blue book" policies and rules.
Tr. at 995. The meeting lasted one or two hours.
Tr. at 995. Nurse Wilson stated, "We were told by Deborah
Fusco that the arrival bonus had been changed and it was
incorporated into our hourly rates rather than giving it to us as
an arrival bonus. And we were told that if we requested it, we
would be on the next plane home to Australia." Tr. at
996. Nurse Wilson recalls that, although she was informed of the
change before she left Australia, she felt "shocked." Tr.
at 996 and 1022. By letter dated July 20, 1992, Nurse Wilson
requested her arrival advance:
We are requesting from you our long overdue ,000
arrival bonus. As stated by you, this ,000 will
exclude taxes and drop our hourly rate to $10.40 per
hour. We requested this money be delivered within the
next five working days.
Current interest rates in lending institutions are 12%,
we are only asking 10%. Your failure to discuss this
issue is reflective of your handling of the entire
matter. We feel we are being taken advantage of on
this matter, and hope that it is merely through
oversight on your part and not intentional. We
appreciate your time and efforts in this matter.
Respectfully,
[PAGE 73]
/s/
Jennifer Wilson
Cx. 58.
49. Nurse Larranga testified that he signed the contract changes
when they were presented to him. Tr. at 1039.
The November 5, 1992 Letter From IHS
50. Mr. Rice distributed a letter to IHS nurses dated November
5, 1992, more than one year after distribution of the October
1991 letter:
On October 31, 1991, we sent a letter to IHS nurses at
Oaknoll in response to questions regarding their
contracts. In that letter, we expressed concern that
some nurses had gone to the Navy to discuss problems
with their contracts. Our Policies state that all
complaints and concerns with regard to your employment
conditions be brought to the attention of IHS and not
to the government agency where you are working. We
advised nurses that they should not complain to the
Navy or to other governmental agencies with whom we are
contracting.
IHS does not have any policy or practice prohibiting
nurses from exercising a legal right to contact
governmental agencies which enforce applicable statutes
and regulations. No discipline will ever be imposed in
such situations.
Cx. 20, p. 567.
51. Mr. Rice testified that the November 5, 1992 letter to the
IHS nurses was distributed in order to address Ms. Pringels'
concerns regarding intimidation. Tr. at 1551; Cx.
20.
Discussion and Conclusions of Law
The regulation at 29 C.F.R. § 504.400(d) contains the
antidiscrimination provisions to the Act and reads as follows:
A facility subject to subparts D and E of this part
shall at all times cooperate in administrative and
enforcement proceedings. No facility shall intimidate,
threaten, restrain, coerce, blacklist, discharge, or in
[PAGE 74]
any manner discriminate against any person because such person
has:
(1) Filed a complaint or appeal under or
related to section 212(m) of the INA (8
U.S.C. § 1182(m)) or subpart D or E of
this part;
(2) Testified or is about to testify in any
proceeding under or related to section 212(m)
of the INA (8 U.S.C. § 1182(m)) or
subpart D or E of this part;
(3) Exercised or asserted on behalf of
himself or others any right to protection
afforded by section 212(m) of the INA (8
U.S.C. § 1182(m)) or subpart D or E of
this part.
. . .
In the event of such intimidation or restraint as are
described in paragraphs (d)(1), (d)(2), (d)(3), and
(d)(4) of this section, the Administrator may deem the
conduct to be a violation and take such further actions
as the Administrator considers appropriate.
The language and intent of this regulation, i.e. to
protect the employee against discrimination or harassment by an
employer for raising workplace concerns, is similar to that of
the environmental employee protection statutes which fall under
the jurisdiction of this Office and are adjudicated pursuant to
the implementing regulations at 29 C.F.R. Part 24. Hence, it is
reasonable to conclude that ubi eadem ratio, ibi idem jus
- where there is the same reason, there is the same law and,
therefore, for the sake of consistency, the Secretary's analysis
in the environmental employee protection case of Dartey v.
Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983) should be
applied to this case.
In Dartey, the Secretary adopted the burdens of
production and persuasion delineated Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248 (1981) and Mt. Healthy
School Dist. Bd. of Education v. Doyle, 429 U.S. 274 (1977).
Under this line of authority, it is incumbent upon the employee
to present a prima facie case that he or she: (1) engaged
in protected conduct; (2) of which the employer was aware; and
(3) for which the employer took adverse action against the
employee. Burdine, 450 U.S. at 253; Dartey, slip
op. at 7. Additionally, as part of the prima
[PAGE 75]
facie case, an employee "must present evidence sufficient to
raise the inference that . . . protected activity was the likely
reason for the adverse action." Cohen v. Fred Mayer,
Inc., 686 F.2d 793 (9th Cir. 1982).
If a prima facie case is successfully mounted, a
presumption of disparate treatment is invoked and the burden
shifts to the employer to produce evidence that such was
motivated by legitimate, non-discriminatory reasons. It is
noteworthy that, at this juncture, the employer bears only the
burden of evidence production; the ultimate burden of persuasion
rests with the employee. Burdine, 450 U.S. at 254-55;
Dartey, slip op. at 8.
By recent decision in St. Mary's Honor Center v. Hicks,
113B S. Ct. 2742 (1993), the Supreme Court further held that a
fact-finder's rejection of the employer's asserted legitimate,
nondiscriminatory reasons for its conduct does not entitle the
employee to judgment as a matter of law; rather, the mere
production of evidence of nondiscriminatory reasons, whether
believed or not, rebuts the presumption of intentional
discrimination.
Consequently, the burden again shifts to the employee who
possesses:
[T]he opportunity to demonstrate that the proffered
reason was not the true reason for the employment
decision . . .. [The employee] may succeed in this
either directly by persuading the court that a
discriminatory reason more likely motivated the
employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence.
Id. at 256 (citation omitted). Therefore, the trier-of-
fact may conclude that the employer's proffered reason is: (1)
legitimate; (2) pretextual; or (3) motivated both by prohibited
and legitimate reasons, i.e. that "dual motives" were
involved. If the case involves "dual motives", then under the
Supreme Court's decision in Mt. Healthy the employer
possesses the burden of proof to demonstrate by a preponderance
of the evidence that it would have reached the same decision even
in the absence of the protected conduct.
The present case contains a plethora of credible evidence
that Respondent attempted to intimidate the nurses for engaging
in protected activity. Based upon the testimony and
documentation of record, lines of communication between the
nurses and IHS representatives were decidedly antagonistic. It
[PAGE 76]
is clear that the nurses were highly dissatisfied with the terms
of their wages and working conditions upon arrival in the United
States and that such concerns were articulated, verbally and in
writing, to IHS, the Navy, and the Department of Labor. IHS
responded to these concerns by maintaining that it was in
compliance with the terms of the employment contracts and the
letter of the law.
Borne of this rift was the contemporaneous October 31, 1991
"second stage warning" letter containing Respondent's
acknowledgement of these complaints and its perspicuous reaction
thereto; namely that any vocalized implication of IHS'
noncompliance with the contract terms or the law was deemed
"unacceptable" and "insubordinate behavior." A review of IHS'
policies and procedures disclose that a written warning for
"insubordination" serves as the precursor to termination.
Respondent argues that it did not "retaliate" against the
nurses as "[n]o employees were terminated, suspended, or
otherwise disciplined" and that "[t]he October 31, 1991 letter
was not in reaction to suspected employee's reports to the DOL,
but rather their airing contractual issues with Foundation and
the Navy."[46] The antidiscrimination provisions of the
regulations, however, are premised upon broader ground than the
actual termination or suspension of an employee for voicing
concerns to the Department of Labor. Rather, to accord the
regulation the full force and effect which it is due, namely to
prohibit any threatening conduct by Employer designed to impinge
upon an employee's freedom to express concerns under the Act,
actual termination or suspension is not required. The mere
threat of such imminent sanction or retaliation, which the
October 31, 1991 letter indubitably conveys, is sufficient.
Further, the argument that these concerns were raised with
officials of IHS, Foundation Health, and the Navy as opposed to
the Department of Labor is not outcome determinative as an
employee should be no less free to assert the right to protection
afforded by the Act in these forums. In Bassett v.
Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 29, 1993),
the Secretary concluded that internal complaints constituted
protected activity. In this vein, it was determined that an
employee who attempts to follow the chain of command in
expressing concerns to the employer, thus permitting their
correction prior to any governmental intervention, should be
accorded no less protection than the employee who complains to an
outside entity. Moreover, an employee who registers his or her
concerns with a federal entity, such as the Naval Hospital,
[PAGE 77]
rather than through official governmental channels, i.e.
the Department of Labor, is likewise afforded the protection of
the antidiscrimination provisions as having engaged in protected
activity of which Respondent was clearly aware. See Scerbo v.
Consolidated Edison Co., 89-CAA-2 (Sec'y Nov. 13, 1992).
Further, although Respondent couches the problems presented by
the nurses as "contractual" in nature, thereby implying a right
to suppress their expression, payment of the proper wages strikes
at the core of the attestation program, which is to ensure that
domestic wages and working conditions are not adversely affected
by employment of the nonimmigrants. As such, the complaints of
the nurses constitute precisely the type of activity which the
regulations seek to protect.
Therefore, IHS's issuance of a "second stage warning" letter
contemporaneous with complaints regarding wages and working
conditions voiced by the alien nurses of which Employer was fully
aware, coupled with the oppressive atmosphere to which the nurses
were subjected, leads only to the conclusion that Complainant has
established a prima facie case of attempted intimidation
in contravention of § 504.400(d).
The burden now shifts to Respondent to articulate
legitimate, nondiscriminatory reasons for its conduct. In this
regard, Respondent argues that the October 1991 letter was not
written "to warn nurses that they had better not go to the
Department of Labor with any of their complaints about IHS";
rather, "[t]he chief concern, by contrast, was to ensure the
continued smooth working relationship between Respondent and its
client (the Naval Hospital)."[47] Respondent sought to prevent
the nurses from using "the media to broadcast their complaints"
or take "their grievances to the embassies." I find such reasons
to be nothing less than an attempt by IHS to silence the nurses
by intimidation so that it could continue its payroll practice.
Specifically, such reasons are neither legitimate nor
nondiscriminatory.[48] I further find that this letter, by
design, created a prohibited chilling effect regarding the
reporting of concerns to any entity, including the Department of
Labor. As noted earlier, Congress intended that investigations
under the Act be complaint-driven in nature. An important
consequence of this arrangement is that discourse regarding wages
and working conditions be permitted with impunity. As such
discourse without threat of retribution has not been accomplished
in this case, and pretext is examined only upon the articulation
of any legitimate, nondiscriminatory reasons for Employer's
conduct, I find that Complainant has sustained his burden of
demonstrating unlawful retaliation by a preponderance of the
evidence in violation of
[PAGE 78]
§ 504.400(d) of the regulations.
VII. The Posting RequirementsDocumentary and Testimonial Evidence
1. Ms. Pringels stated that she assessed a ,000.00 civil
monetary penalty for IHS' failure to post as required by the Act
and implementing regulations at 29 C.F.R. § 504.300 et
seq. This constitutes an assessment of $500.00 for each
attestation year. Tr. at 105. She testified that "[t]he
company did not post at the work site, which was the hospital,
the fact that they had an attestation on file and that they had
requested H-1A visas for nurses." Tr. at 105.
2. Ms. Pringels stated that "[a]s far as I know, there was no
posting at all." Tr. at 185-86. The Navy had posted
notice that an attestation was filed but the Naval Hospital,
according to Ms. Pringels, is not a "facility" for posting
purposes; rather, it is the "work site facility." Tr. at
186 and 189.
On cross-examination, Ms. Pringels stated:
[T]he posting requirement is that when a facility
submits an attestation, they are required to do the
posting. In this case, the Navy and International
Health Services were both required to file an
attestation, and as such, they were both required to
comply with the posting requirements (at
§ 504.310(i)(2)).
Tr. at 376.
3. In its Response to Complainant's First Set of
Interrogatories dated May 28, 1993, IHS stated, in response
to Interrogatory Number 6, "IHS did not at any time post its
attestation at U.S. Navy Hospital Oakland, because it was
informed by Navy Hospital Oakland that they had posted their
attestation and, therefore, IHS concluded that it was not
necessary to post an independent IHS attestation." Cx.
27, p. 10.
4. On the December 1990 and November 1991 attestations, IHS
checked box 7a to state that it was a "Nurse contractor intending
to petition for H-1A nurses." On the same attestation, IHS
checked boxes (f)(ii), "[N]otice of this filing has been
provided to registered nurses employed at this facility through
posting in conspicuous locations," (emphasis added), as well as
box (g)(i), "H-1A nurses shall be referred only to facilities
which themselves have valid and current attestations."
Cx. 16. However, in its supporting documentation,
IHS stated that "[n]otice of this filing will be provided to
nurses employed by this facility by posting at conspicuous
locations at the corporate" and "[i]n addition each network
hospital should have posted or notified the appropriate
representatives at the network hospital according to federal
regulations." Cx. 16, p. 13.
Discussion and Conclusions of Law
The Administrator asserts that "[i]t is uncontroverted that
IHS did not post notice of the filing of its attestations or its
visa petitions at Oakland Naval Hospital" as required by the Act
and implementing regulations.[49] IHS offered no opposing
argument in its brief but, at the hearing, it asserted that
notice of the attestations and visas were posted at its
"facility" or corporate headquarters. IHS further maintained
that it was unnecessary to post notice at the hospital as the
Navy had already posted attestations at the hospital facility and
any additional postings would be duplicative.
The regulations at 29 C.F.R. § 504.310(i)(2) provide,
in part, the following:
If there is no bargaining representative for nurses at
the facility, when the facility submits an attestation
to ETA, and each time the facility files an H-1A visa
petition with INS, the facility shall post a written
notice at the facility (and, in addition, at the
worksite facility, if at a different location, such as
in the case of nursing contractors), . . ..
This regulation is intended to implement the Act's mandate that
"notice of the filing has been provided to registered nurses
employed at the facility through posting in conspicuous
locations."[50]
Upon review of the legislative history to the Act, it is
noted that Congress envisioned the posting requirement as a means
of providing notice to the domestic nursing workforce, to
wit:[51]
The Committee believes that notice of filing is an
important element of the new procedure, particularly in
view of the fact that this is one of two mechanisms
available for U.S. nurses to monitor the admission of
foreign nurses and its possible effect on their
employment situation.
Respondent determined, of its own volition, that it was
unnecessary to post notices at the hospital as such would
constitute effort duplicative of the Naval Hospital, which had
already posted its notices at the worksite.
The regulations, however, explicitly provide that an
independent contractor must post notices of its attestation
filing at its facility location as well as the worksite
facility. There is no exception to this requirement nor is the
language discretionary. Separate postings at the worksite
facility serve the important functions of (1) notifying the
public of the fact that the hospital is utilizing nonimmigrant
nurses under the program, and (2) identifying the independent
contractor, if one is involved, as the source of this labor at
the worksite. The public is then aware of, and able to review,
the attestation materials of both facilities, which is integral
to its oversight of the program and ensures stability of the
wages and working conditions in the domestic nursing market.
VIII.Propriety of the Civil Monetary Penalties
Civil monetary penalties in the aggregate amount of
$33,500.00 were assessed against IHS for violation of the
prevailing wage, posting, and antidiscrimination provisions of
its attestation at Part 504 of the regulations. Maximum
penalties of ,000.00 per violation have been assessed for
violations of the antidiscrimination provisions. With regard to
the prevailing wage violations, Ms. Pringels stated that
she assessed only $500.00 per employee because this matter
constituted a "first time investigation under a new law."
Tr. at 102. On the other hand, she computed that IHS owed
approximately $394,000.00 in backwages which she deemed a serious
violation. Tr. at 104. Likewise, she assessed a $500.00
penalty for each of the attestation years in which IHS failed to
post at the worksite facility.
The regulations at 29 C.F.R. § 504.410 set forth the
parameters under which a civil monetary penalty is assessed and
provide, in part, as follows:
(a) The Administrator may assess a civil monetary
penalty not to exceed ,000 for each affected person
with respect to whom there has been a violation of the
attestation or subpart D or E of this part and with
respect to each instance in which such violation
occurred.
. . .
(b) In determining the amount of civil monetary
penalty to be assessed for any violation, the
Administrator shall consider the type of violation
committed and other relevant factors. The matters
which may be considered include, but are not limited
to, the following:
(1) Previous history of violation, or
violations, by the facility under the Act and
subpart D or E of this part;
(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 attestation or the
State plan as provided in the Act and
subparts D and E of this part;
(5) The violator's explanation of the
violation or violations;
(6) The violator's commitment to the future
compliance, taking into account the public
health, interest or safety; and
(7) The extent to which the violator
achieved a financial gain due to the
violation, or the potential financial loss or
potential injury or adverse effect upon the
workers.
It is no small cause for concern that IHS, of its own
volition, utilized self-determined wage rates, failed to seek or
apply the SESA determined rates for either of the attestation
years, and improperly offset the wage rate for certain "fringe
benefits." This adversely affected 27 H-1A employees and
resulted in financial gain of over $300,000.00 to Respondent and
loss of same to the alien nurses. Add to this a more egregious
violation, namely the continual intimations of early repatriation
for those nurses who jeopardized the program and the October 1991
"second stage warning" letter in which IHS attempted to
circumscribe the nurses' concerns to protect its relationship
with its "client," the Naval Hospital. Not to be forgotten,
these professional nurses, on the representations of IHS, came to
the U.S. where they had no support group and were "enslaved"
through duress. Though punishment for such action is not
provided for in the statute and regulation, such conduct is not
inferentially condoned.
In weighing these factors, the penalties assessed are
reasonable. Penalties in the amount of ,000.00 per violation
of the antidiscrimination provisions is necessary to deter
conduct which is damaging to the implementation of the Act. Open
discussion of potential problems is critical to protecting the
domestic nursing market to permit the employment of alien nurses
in domestic facilities without sacrificing the wages and working
conditions of U.S. nurses.
Penalties of $500.00 for each violation of the prevailing
wage requirements properly balance the confusion and less-than-
artful draftsmanship of some of the regulatory provisions against
the watershed financial gain and broad adverse consequence in the
wages and working conditions of foreign and domestic nurses in
the wake of IHS' largely self-determined conduct. Moreover,
penalties in the amounts of $500.00 for each attestation year in
which Respondent failed to post notices at the worksite facility
are reasonable as such is violative of the plain language of the
regulations.
ORDER
IT IS HEREBY ORDERED that the Administrator's Determination
is affirmed as modified by this Decision. Accordingly, IT IS
FURTHER ORDERED that Respondent shall pay all backwages owed as
determined by the Administrator pursuant to the findings and
conclusions contained in this Decision and shall pay to the Wage
and Hour Division, U.S. Department of Labor, civil monetary
penalties totalling $33,500.00.
Entered on this date, March 18, 1996, by:
_________________________________________
James Guill
Associate Chief Administrative Law Judge
[ENDNOTES]
[1] The Administrator's Determination dated March 18, 1993,
from which this proceeding arises, contains findings that
International Health Services, and not the Naval Hospital,
violated the Act. Pursuant to 29 C.F.R. § 504.440, the
scope of this proceeding is limited to consideration of the
propriety of the Administrator's Determination. Consequently,
the inclusion of the Naval Hospital in the caption of this case
is for the purpose of identifying the particular facility for
which the attestations at issue were filed by Respondent.
[2] The specific provisions of the Act relating to attestations
for utilizing nonimmigrant nurses are codified at 8 U.S.C.
§§ 1101(a)(15)(H) and 1182(m). SeeImmigration Nursing Relief Act of 1989, Pub. L. 101-238,
83 Stat. 2099 (1989). For legislative history, see H.R.
3259, 101st Cong., 2d Sess., 135 Cong. Rec. 1894 (1989)(enacted).
[3] The regulations governing this proceeding are those issued
on December 6, 1990 at 55 Fed. Reg. 50511. The Secretary
subsequently amended these regulations with the most recent
revisions dated January 4, 1994 at 59 Fed. Reg. 882 and 898. Due
process mandates that, absent specific congressional
authorization permitting retroactive application of the law, the
statutory and regulatory provisions in force at the time the
alleged violations occurred control the outcome of a case.
See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988);
Miller v. United States, 294 U.S. 435, reh'g den.,
294 U.S. 734 (1935) (a regulation is not retroactively applied
without express congressional directive). To hold otherwise
would deprive Respondent of adequate notice regarding the content
of the material elements of its attestation. See Oil,
Chemical and Atomic Workers' Intern. Union v. N.L.R.B., 842
F.2d 1141 (9th Cir. 1988) (subsequent regulatory revisions were
outside scope of original intent of parties). Upon review of the
Act and regulations, it is determined that there is no express or
implied authority to retroactively apply their amended versions
to this case.
[4] H.R. 3259, 101st Cong., 2d Sess., 135 Cong. Rec. 1894
(1989).
[5] 8 U.S.C. § 1101(a)(15)(H). Pursuant to 29 C.F.R.
§ 504.310(b), the Secretary directed that attestations be
filed with the Chief of Foreign Labor Certifications at the
Employment and Training Administration in Washington, D.C.
[6] Acceptance of attestations by the Department of Labor for
filing does not constitute governmental approval of the
truthfulness and accuracy of the representations made therein,
only that the proper representations are set forth. Said
differently, the Act places an onus upon the employer to submit a
complete and truthful attestation and Congress did not envision
an elaborate screening and investigative process at the time of
filing the attestation:
The bill provides that the attestation shall be filed
with the Department of Labor and the approval of a
petition by the Attorney General is based on that
document on file. The Committee notes this is a
streamlined process and does not anticipate lengthy
review of the documentation prior to the Secretary of
Labor's approval. In fact, the very nature of the
penalty structure . . . contemplates maximum
flexibility for the admission of aliens under the pilot
program and severe penalties for those who fail to meet
the terms of the attestation.
H.R. Rep. No. 101-253, 101st Cong. 2d Sess., 135 Cong. Rec. 1897-
98 (1989). Consistent with Congress' intent, the regulations at
29 C.F.R. § 504.310(m)(1)(ii) provide that "DOL is not the
guarantor of the accuracy, truthfulness or adequacy of an
attestation accepted for filing."
[7] See Administrator's Post-Trial Brief at pp. 55 and
56.
[8] See Public Buildings, Etc. - Wage Rates, S. Rep.
963, 88th Cong., 2d Sess., 110 Cong. Rec. 2339 (1964)(enacted).
[9] See Public Buildings, Etc. - Wage Rates, S. Rep.
963, 88th Cong., 2d Sess., 110 Cong. Rec. 2341-42
(1964)(enacted).
[10] It is outside the purview of this proceeding to determine
whether the benchmark wage rate utilized by the Administrator for
each attestation year is appropriate. Rather, any challenges to
the prevailing wage rate established by the state employment
security agency must be lodged pursuant to the regulations at 20
C.F.R. Part 658. The items for which an employer may claim as a
credit against the wage rate paid to achieve the prevailing wage
rate, however, are properly considered in this proceeding.
[11] It is noteworthy that the Act requires that an attesting
employer take "a significant step reasonably designed to recruit
and retain (domestic) registered nurses" which may include
"[p]aying registered nurses wages at a higher rate than currently
being paid to registered nurses similarly employed in the
geographical area." 8 U.S.C. § 1182(m)(2)(B)(iii).
[12] The American Heritage Dictionary, Second College
Edition (Houghton Mifflin Co.)(Boston, 1982).
[13] See Administrator's Post-Trial Brief at pp. 32-38.
[14] See Respondent's Post-Hearing Brief at p. 20.
[15] See Respondent's Post-Hearing Brief at pp. 9-22.
[16] Id. at 13.
[17] Respondent's Post-Hearing Brief at pp. 12 - 13.
[18] See footnote 10, supra.
[19] Respondent also argues that the collective bargaining
agreements of the unionized hospitals reflect a "career ladder"
approach with wage step structures which "demonstrate the
appropriateness of applying the 'entry level' rate." See
Respondent's Post-Hearing Brief at 15. However, the
regulations at 29 C.F.R. § 504.310(e)(1) provide that either
the SESA prevailing wage determination or the collectively
bargained wage rate for a particular facility controls the issue
of what wage rate applies. This case is bound by the SESA
determination as the Oak Knoll facility did not offer a
collectively bargained wage agreement from which a prevailing
rate could be determined. Consequently, the "ladder" approach
taken in such agreements is not material to this inquiry.
[20] Respondent's Post-Hearing Brief at p. 19.
[21] Administrator's Reply Brief at p. 9.
[22] There are two attestation periods at issue in this case,
from December 1990 through December 1991 and from December 1991
through December 1992. Because the conclusions in regard to this
issue are applicable to both attestations, the findings from the
first attestation period will be analyzed here unless otherwise
noted.
[23] Mr. Leben testified that, with regard to the ,000.00
arrival advance and the $3,000.00 end-of-contract bonus, such
payments "would be considered other perquisites and not
includable towards meeting the prevailing wage obligation."
Tr. at 1684. He stated that, unless the state job
security agency included the perquisites as part of the
prevailing wage rate, they could not be credited in this case.
Tr. at 1684. However, it is noted that Complainant
withdrew its assertion that such payments could not be credited
against the prevailing wage rate. Tr. at 161-62.
Consequently, the appropriateness of these fringe benefits items
will not be further examined in this Decision.
[24] These compensation packages were offered during the second
attestation year, but are recited here purely as a reflection of
the types of benefits offered to Australian nurses as compared to
that of the U.S. nurse, Debra Diggs.
[25] Nurse Flynn recalled that Ms. Fusco said that "maybe they
could increase our wages after three months, that that was really
up to her, and she was the one that would decide that so we would
have to be nice to her." Tr. at 541. Ms. Fusco did not
recall making this statement to Nurse Flynn and stated that "[i]f
I did ever say anything like that it was probably in a jest or a
joke." Tr. at 1112.
[26] The term "base wage" is used in this Decision to refer the
actual cash wages received by the nurses.
[27] See Respondent's Post-Trial Brief at pp. 22 - 28.
[28] See Administrator's Post-Trial Brief at pp. 22 -
32.
[29] The experienced rates for 1990 were $17.00 per hour and
$20.47 per hour for 1991.
[30] Black's Law Dictionary 290 (5th ed. 1979).
[31] The American Heritage Dictionary 925 (2d ed. 1982).
[32] Black's Law Dictionary 290 (5th ed. 1979).
[33] Id. at 1401.
[34] The specific FSLA provisions relating to costs associated
with housing are found at 29 U.S.C. § 203(m) and (t).
See Fair Labor Standards Act Amendments of 1961, Pub. L.
87-30, 75 Stat. 65 (1961).
[35] The regulations initially were promulgated on September
28, 1967 and are found at 32 Fed. Reg. 13575.
[36] 29 U.S.C. § 203(m).
[37] S. Rep. No. 145, 87th Cong., 1st Sess. 1620 (1961).
[38] Respondent's Post-Hearing Brief at pp. 34 - 37.
[39] Respondent's Post-Hearing Brief at pp. 34 -35.
[40] Administrator's Reply Brief at p. 15 - 17.
[41] Respondent's Post-Hearing Brief at p. 34.
[42] Id. at 1009.
[43] Administrator's Post-Trial Brief at p. 49.
[44] Id. at 49.
[45] Administrator's Post-Trial Brief at pp. 46 - 49.
Citing the implementing regulations of the FSLA at 29 C.F.R.
§ 785.27, the Administrator argues that the nurses were
entitled to payment of the prevailing wage rate for hours spent
at work-related meetings with IHS representatives and that Nurse
Roach is entitled to payment of overtime for time spent
performing the duties of Nurse Coordinator. The Administrator
concedes that issues of overtime are properly considered in his
related action filed under the FSLA, Reich v. IHS, NDCA
Case No. C93-3727SBA. Moreover, a determination regarding
whether particular meetings between the nurses and IHS
representatives qualify as work-related under the FSLA
regulations is likewise properly presented in that forum. If the
meetings are deemed work-related, then the nurses are entitled to
payment of the prevailing wage rate pursuant to the terms of IHS'
attestation.
[46] Respondent's Post-Hearing Brief at p. 30.
[47] Respondent's Post-Hearing Brief at 30.
[48] See especially Mr. Rice's testimony, supra,
at paragraph 21.
[49] See Administrator's Post-Trial Brief at pp. 21 and
22.
[50] 8 U.S.C. § 1101(m)(2)(A)(vi).
[51] See H. Rep. No. 101-288, 101st Cong., 2d Sess., p.
1898 (1989) Cong. Vol. 135.
