Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002
(856) 486-3800
Issue date: 13Nov2002
CASE NO: 2001-LCA-00029
In the Matter of
ADMINISTRATOR, WAGE AND HOUR DIVISION
Prosecuting Party
v.
PEGASUS CONSULTING GROUP, INC.
Respondent
Appearances:
Roy D. Ruggiero, Esquire
For Respondent
Susan Jacobs, Esquire
For Prosecuting Party
Before: RALPH A. ROMANO
Administrative Law Judge
DECISION AND ORDER
This is a proceeding under the Immigration and Nationality Act (8 U.S.C. 1101), hereinafter "the Act", to enforce compliance with an H-1B Labor Condition Application under
20 CFR §655.700, et.seq.
The matter was tried in New York, New York, on January 22, February 26, and April 2-3, 2002. Briefs were filed by August 20, 2002. References are: "G"- Prosecuting Party (Government) exhibits; "R" - Respondent exhibits1; "Tr." transcript of trial.
1. VEERRAJU9 Alleged wage deficiency - $33,653.90
Period 1/23/99 to 9/19/99 - internal project work
Respondent insists that this individual was never authorized to travel to the United States for employment, but was in this country on vacation visiting relatives.
I find the testimony of this employee credible, and the documentation supporting this testimony contained at G20 more than sufficient to establish his employment with Respondent. Particularly convincing is the evidence that Respondent paid Veerraju's travel expenses (G20 @ E,F), and provided a corporate credit card (id. @I), as well as medical insurance (id. @J). Also significant is the corroboration of his work for Respondent by other employees (Tr. @339; G2@ D; G9@D; G18@D).
The amount due this former employee is found to be $32,653.90 because the Government failed to give credit for two $500.00 salary advances (G20@L, M).
2. SUDESWARAN - Alleged wage deficiency - $11,285.55
Period - 11/29/99 to 3/15/00 - non-productive
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Respondent asserts that this employee was "terminated" in November, 1999. But, Respondent admits that he was rehired in March, 2000 (see also G21 where Respondent notes that this employee was "...on leave without pay" from November, 1999 to March, 2000).
As there is no evidence that any of the exceptions to the preamble to 20 CFR §655, supra., apply, nor any evidence of notification to INS under 8 CFR 214.2, supra., I find that there was no bona fide termination of this individual, and thus, such individual is due the total unpaid wage asserted.
3. THOSECAN - Alleged wage deficiency - $19,437.07
Periods - 6/2/99 to 7/5/99 non-productive
7/6/99 to 12/31/99910 -internal project work
This individual testified, credibly in these following respects only, that upon his termination from Respondent he secured another position with S3
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Consulting, and thereupon transferred his H1-B visa to this new employer. On this basis, I find that no deficiency in wages is owed this individual.
5. MUKUNDA - Alleged wage deficiency - $5,769.24
Period 9/19/99 to 10/31/99
This individual testified, credibly in this following respect only, that he was paid in full all salary to which he was entitled while working for Respondent. Accordingly, I find no wage deficiency as regards this employee.
6. NATHAN - Alleged wage deficiency - $2,884.62
Period - 9/20/99 - to 10/15/99 - non-productive
I find this individual's testimony credible. He was initially assigned to a client project from November, 1998 to August, 1999, and then restarted on another client project in November, 1999. He was not paid any salary from September 20, 1999 to October 15, 1999 (Tr. 394; G21).
Respondent claims that this employee was on voluntary leave during this period when he was not paid, but Mr. Nathan adamantly denies that he ever requested any such leave, and credibly so (Tr. @405). Accordingly, I find a wage deficiency in the full amount alleged to be due.
Despite Respondent's insistence to the contrary (Br. @30), I find that the foregoing testimonial evidence provides an adequate representative basis to establish a pattern and practice of violation of the Act, and, accordingly, the following individuals (who did not testify at trial) are eligible to recover any unpaid wages. R.C. Foss & Son, Inc., WAB Case #87-46 (12/31/90); Martin v. Selker Bros. Inc., 949 F.2nd 1286 (C.A. 3rd 1991).
7. BERI - Alleged wage deficiency - $8,276.07
Period - 5/1/99 to 7/15/99 - non-productive
8. SINGH - Alleged wage deficiency - $34,191.56
Period 3/2/99 to 10/31/99 - productive
(internal project & other)
11/1/99 to 12/31/99 - non-productive
As to each of the foregoing individuals (#10 thru #14), Respondent admits that they were hired, "fired" and then re-hired (see Br. @47,56,59,60,66). As there
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is no evidence that any of the exceptions to the preamble to 20 CFR 655, supra., apply, nor any evidence of notification to INS under 8 CFR 214.2 supra., I find that there was no bona fide termination of these individuals, and thus such individuals are due the unpaid wages as noted.
15. KOTEESWARAN - Alleged wage deficiency - $23,323.47
Period 5/1/99 to 11/30/99 - non-productive
16. RUPAKALA - Alleged wage deficiency - $748.85.
Period 12/25/99 to 12/31/99 - non-productive
17. GANGULI - Alleged wage deficiency - $8,273.07.
Period 12/16/99 to 2/13/00 - non-productive
As to these three individuals, the Government has provided no statements or other sufficiently probative evidence underlying the wage deficiencies asserted (G6, G13, G4). The unauthenticated payroll time sheet at G6, the undated employment agreements at G6 and G13, and the
November 18, 1998 H-1B petition letter at G4, fail to establish unpaid and due wages. As no prima facie case is made as to these individuals, I am compelled to find that no wage deficiency is due.
18. INYENGAR - Alleged wage deficiency - $24,120.77.
Periods 7/6/99 to 9/30/99 - productive
10/1/99 to 4/1/00 non-productive
19. SUNDARARAMAN - Alleged wage deficiency - $15,047.40.
Period 5/17/99 to 10/5/99 - non-productive
Respondent avers that both these individuals were terminated (Inyenger in August, 1999, Sundararaman in May, 1999). But, Mr. Inyengar, whose statement I find credible, was placed on a client project in November, 1999, and in January, 2000, was working at the help desk and preparing project proposals for Respondent (G5@E). And, Mr. Sundararaman, whose statement I also find credible, was asked, in May, 1999, whether he was interested in, but never finally offered, work on Respondent's internal project, and up until October 5, 1999, when he returned to India for vacation, in reasonable reliance thereof, held himself available for such work (G17@D). The evidence preponderantly indicates that neither of these employees were terminated as alleged by Respondent, and, at any rate, no notice therefor was ever given to INS under 8 CFR 214.2, supra. Thus, I find the asserted wage deficiencies validly due and owing.
II
CIVIL MONEY PENALTIES-LIABILITY AND AMOUNT
I find that the evidence in this record amply supports the imposition of $40,000 in civil money penalties for willful/knowing violation of the Act. And, Respondent's one sentence, altogether inadequate, response to such imposition (at CONCLUSION - Br.@75), i.e., that the Government failed to meet its burden to provide a basis for the penalties and to demonstrate willfulness, indeed implicitly confirms this finding.
1 Respondent's submission after trial of proposed R 30a (transcript) is not received into this record, as no leave was given therefor and no foundational basis underlying its admission established. The Government's motion to strike R30, admitted at trial, is denied as lacking in merit, see ftn.9, infra.
2 Relative to non-payment of both non-productive, as well as productive, time.
3 Reduced from an initial assessment of $401,228.21.
4 Herein, the alleged unpaid productive time consisted in work on an "internal project", where client billing was unavailable.
5 Commonly referred to as "benching", where an employee is not assigned to a client for billing purposes.
6 There are three exceptions to this rule, not applicable here, specifically noted therein.
7 The first six (6) listed employees testified at trial.
8 All unpaid wage computations are contained at G1@5.
9 A tape recording of a purported conversation between this individual and Paul Parmar, Respondent's president (R30), while admitted into this record, was found entirely not understandable, and thus, of no evidentiary value. (Tr. @853-854-857).
11 This extension of the deficiency period through the end of 1999, and deduction of actual wages paid for the year 1999 ($20,288.48) is entirely unnecessary since these actual wages were paid only for the work while client-assigned (Govt. Br.@38; G19@E).
13 While R24 notes that Mr. Beri was, by e-mail on April 19, 1999, advised to hold off his travel to the United States, this absorption of expenses by Respondent negates the inferentially contrary probative value of this advice. Also, the R24 June 3, 1999 e-mail directive to return to India, sent a month after Beri's arrival in the United States, is insufficient to dissolve the previous authorization to travel to the United States.
14 Mr. Jain (see employee #4 supra.) testified on behalf of Respondent relative to his alleged conversations with several individuals who are the subject of this matter, and his testimony generally is consistent with Respondent's versions of the facts herein. I am compelled, however, to find these portions of his testimony not credible as he is found to be bias in favor of Respondent. He is currently employed at Respondent as a "practice director" upon being promoted to such position, and his legal presence in this country is entirely dependent upon his job/visa status with Respondent (Tr. @810, 838).
15 The Government's calculation of unpaid wages (G-1) fails to credit Respondent $3,400 ($3,000 on 9/20/99 and $400 on 8/17/99) paid to this individual (R-15).
16 The wage due computation (G1@5) fails to give Respondent credit for a $400.00 payment on 8/16/99 (R15).
17 That more than this number of violations may reasonably have been assessed, supra., suggests a more than fair amount of penalties assessed.
