USDOL v. Yano Enterprises, Inc., 2001-LCA-1 (ALJ Feb. 16, 2001)
U.S. Department of
Labor
Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904
Date: February 16, 2001
Case No. 2001-LCA-0001
In the Matter of
ADMINISTRATOR, WAGE AND
HOUR DIVISION,
Prosecuting Party
v.
YANO ENTERPRISES, INC., d/b/a
SHOGUN JAPANESE STEAK HOUSE,
Respondent
Appearances:
Rafael Batine, Esq., for Prosecutor
Robert H. Grizzard, II, Esq., for Respondent
Before:
Richard E. Huddleston
Administrative Law Judge
DECISION AND ORDER
This matter arises under § 212(n) of the Immigration and Nationality Act of 1990 and amended in 1991, 8 U.S.C. 1182(n) (Act) and the regulations promulgated thereunder at 20 C.F.R. § 655.800, et seq. The Act defines various classes of aliens who may enter the United States for prescribed periods of time and for prescribed purposes under various types of visas. 8 U.S.C. § 1101(a) (15). One class of aliens, known as "H-1B" workers, is allowed entry to the United States on a temporary basis to work in "specialty occupations." 8 U.S.C. § 1101(a)(15)(H)(i)(B); 20 C.F.R. § 655.700. An employer seeking to hire an alien in a specialty occupation on an H-1B visa must obtain certification from the U.S. Department of Labor ("Department") by filing a Labor Conditions Application ("LCA") before the alien is given an H-1B visa by the Department of State.
[Page 2]
An LCA filed by an employer must set forth, inter alia, the prevailing wage rate, working conditions, including hours, shifts, vacation periods, and fringe benefits. 20 C.F.R. §§ 655.731 and 655.732. Upon certification of the LCA by the Department, the employer is required to pay the prevailing wage and implement the working conditions set forth in the LCA. Id.
The instant case arises because an investigation by the U.S. Department of Labor Wage and Hour Division determined that Respondent, Yano Enterprises, misrepresented a material fact on an LCA, willfully failed to pay the required wage rate, substantially failed to comply with notification, failed to make available for public examination the application and necessary documents, and failed to comply with the regulations. A civil money penalty of ,750.00 was assessed and back wages in the amount of $92, 297.00 were ordered paid to one H-1B non-immigrant. The Respondent requested a hearing pursuant to 20 C.F.R. § 655.820.
There is no evidence in the record of a written authorization by Mr. Araque indicating that he agreed to any deduction his salary. To the contrary, Mr. Yano testified that he told Mr. Araque that he could live in the house for free. (Tr at 69.) Even Mr Araque stated, when asked whether he and Mr. Yano had discussed housing,
Yes. I mean, while I was living in Venezuela, I talked by phone and letters about the housing, because I wonder where I was going to live when I move over there was the question. We exchanged our correspondence, but never did say he want to charge me for -- to live in this house. Was one of the conditions, I going to live for free. In fact, when I arrive here in January -- in February, sorry, February 12, 94, he asked me, you going to pay only the electricity and the phone, the phone bill and electricity.
(Tr at 32.)
As there is no evidence of a written authorization to deduct housing expenses from the wages, Respondent is not entitled to any deduction for housing provided to Mr. Araque during his employment under § 655.731(c)(7)(iii).
Thus, I find that Respondent owes back wages to the H-1B non-immigrant, Mr. Araque, in the amount of $102, 797.02.
ORDER
Accordingly, it is hereby ordered that Respondent, Yano Enterprises, Inc. shall pay to the H-1B non-immigrant, Mr. Jose Pasqual Araque, back wages in the amount of $102,797.02, plus interest at the rate specified in 28 U.S.C. § 1961 from this date until paid in full.
2 The reason for initiation of the investigation was not stated.
3 Mr. Yano testified that he actually filled out two application in 1993, one that was rejected and one that was accepted. (Tr at 85.) This is the one that was accepted.
4 § 655.731(c)(7)(iii) provides that in order to be considered authorized, deductions must meet the criteria of subsections (A), (B), (C), (D) and(E).
5 The regulation specifically provides that "(Note: an employee's mere acceptance of a job which carries a deduction as a condition of employment does not constitute voluntary authorization, even if such condition were stated in writing)."