Badhwar v. Clarisoft Corp., 2003-LCA-5 (ALJ Jan. 27, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue Date: 27 January 2003
Case No.: 2003-LCA-00005

................................................................
In the Matter of

HARJEET BADHWAR,
    Complainant,

    v.

CLARISOFT CORPORATION,
    Employer,

and

UNITED STATES DEPARTMENT OF LABOR,
EMPLOYMENT STANDARDS
ADMINISTRATION, WAGE AND HOUR
DIVISION,
    Party-in-Interest.
...............................................................

   This matter arises under the Immigration and Nationality Act, as amended, 8 U.S.C. § 1182(n) (2001) ("INA"), and the implementing regulations at 20 C.F.R. §§ 655.801 through 655.815 (2002). Harjeet Badhwar, Complainant, filed a request for a hearing with the Office of Administrative Law Judges in response to the determination made by the Administrator of the Wage and Hour Division ("Administrator") that Clarisoft Corporation, Employer, owed Complainant back wages in the amount of $3,916.66.

Procedural History

   On November 12, 2002, Complainant filed a request for a hearing in response to the Administrator's determination that Employer owed Complainant his last paycheck in the amount of $3,916.66. On November 18, 2002, the undersigned Administrative Law Judge issued a Pre-Hearing Order instructing the parties to exchange a statement of the issues to be decided and the relief or remedy sought. Employer's responsive brief was received by this Office on December 9, 2002, and Complainant's responsive brief was received on December 11, 2002. On January 14, 2003, this Office received a letter from the Administrator addressing the issues Complainant raised in his pre-hearing submission.

   After due consideration of the issues raised in Complainant's pre-hearing submission, it has been determined that Complainant's request for a hearing before this Office should be dismissed. Assuming the truth of all facts alleged by Complainant in his pre-hearing submission, Complainant fails to state a claim upon which relief can be granted.

Legal Standard

   The Administrative Procedure Act ("APA") states the rules of practice and procedure for administrative hearings before Department of Labor, Office of Administrative Law Judges. 20 C.F.R. § 18.1. The APA states:

(d) The administrative law judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.

20 C.F.R. § 18.40(d); see also Rule 56 of the Fed. Rules of Civil Pro.

Findings of Fact and Conclusions of Law

   The record reveals that Complainant worked for Employer in accordance with the relevant parts of the INA requiring employers to file an application (Labor Condition Application or LCA) that states the employer is offering employment to aliens with H-1B status at the actual wage level paid to other employees similarly employed or the prevailing wage level for the occupational classification at issue, whichever is greater. See 8 U.S.C. § 1182(n)(1)(A). The record also shows that Complainant filed a complaint with the Administrator because he did not receive his last pay check from Employer after Complainant's employment was terminated. The investigation by the Administrator resulted in a determination that Complainant was entitled to a back wage in the amount of $3,916.66. The Administrator also stated in its Notice of Determination that Employer paid Complainant, in full, for the back wage.

   Complainant lists three issues as the subject of his appeal of the Administrator's determination. Complainant's Pre-Hearing Submission. First, Complainant states that he did not receive a copy of the LCA that applies to him. Second, Complainant states that his remuneration was less than the amount stated on his offer letter. Third, Complainant states that his incentives and commissions were not paid as stated on his offer letter. These grievances are addressed herein:

I. Complainant's LCA

   As stated by the Administrator, the LCA that applied to Complainant did not state his name, nor was it required to. Administrator's January 14, 2003 Letter. LCAs are required by statute to state: (1) the occupation title; (2) the number of H-1B nonimmigrants sought; (3) the gross wage rate to be paid to each H-1B nonimmigrant; (4) the starting and ending dates of employment; (5) the places of intended employment; (6) the prevailing wage for the occupation in the area of intended employment; and (7) the employer's status. 20 C.F.R. § 655.730(c)(1)(i-vii). In accord with the statute, the LCAs do not include names of H-1B nonimmigrants. The Administrator's letter explains that Complainant had his own copy of the LCA that applied to his employment position at the time of the investigation. Administrator's January 14, 2003 Letter. Based on the fact that Complainant has been provided a copy of the LCA that pertained to his position with Employer, there is no genuine issue upon which further relief can be granted.

II. Remuneration, Incentives, and Commissions Received Were Less Than Promised in Offer Letter

   The record in this matter contains evidence that Complainant petitioned the Administrator to investigate his complaint regarding the nonpayment of his last paycheck. The Administrator determined that Complainant's last paycheck had been misdeposited to some other account, but that Employer has since rectified this problem by paying Complainant the back wage in full. An employer is required by the INA and its applicable regulations to pay an H-1B nonimmigrant the wages as set forth in their LCA. See 8 U.S.C. 1182 (n)(1)(A)(i); 20 C.F.R. § 655.731(a). The wage requirement is established by ascertaining the higher of the actual or prevailing wage. Id. Administrator states that the amount paid to Complainant was the prevailing wage rate contained on the LCA that pertained to Complainant.¹ Administrator's January 14, 2003 Letter. Therefore, because Complainant received the amount due to him as set forth by the INA and applicable regulations, there is no genuine issue of fact upon which any further relief could be granted.

   Moreover, Complainant's second and third grievances, pertaining to discrepancies between the terms stated in his offer letter and the wages actually received, were not the subject of the investigation by the Administrator. Therefore, even if this matter was under the jurisdiction of the Department of Labor, a petition for a hearing before this Office would have to be dismissed as premature, because Complainant failed to initially file a complaint and prompt a determination from the Administrator with regard to these allegations. For this Office to provide a hearing on an appeal from a determination of the Administrator, there must initially be an investigation by the Administrator. See 20 C.F.R. § 655.630(b) ("Interested partes may request a hearing . . . where the administrator determines after investigation, that there is no basis for a finding that an attesting employer has committed violation(s) . . . ." (italics added)). See also § 655.605(c) which provides that an Administrator's refusal to conduct an investigation precludes a hearing, as the refusal itself can not be the subject of a hearing before an Administrative Law Judge.

    Furthermore, as pointed out by the Administrator, the Department of Labor's enforcement authority arises within the scope of the INA and applicable regulations. The Department of Labor does not enforce private contractual agreements, such as the terms of an offer letter. Complainant's grievances pertaining to alleged discrepancies between promises in his offer letter and what was actually received do not embody a cause of action that is redressable in this forum. Accordingly,

¹The Administrator stated that no actual wage rate was contained on the LCA. Administrator's January 14, 2003 Letter.