USDOL v. Vibex, Inc., 2003-LCA-9 (ALJ Mar. 25, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

Issue Date: 25 March 2003

Case No. 2003-LCA-00009

In the Matter of

U.S. Dept. of Labor - West Covina, CA,
Administrator, Wage & Hour Division,
    Prosecuting Party,

    v.

Vibex, Inc.,
    Respondent.

The Administrator moved to dismiss this matter on the ground that Vibex, Inc. failed to request a hearing within the 15 calendar day period prescribed by 20 C.F.R. § 655.820(d). Vibex filed no opposition to the motion, either by affidavits controverting the facts established by the Administrator's declarations and exhibits, or by submitting points and authorities in response, under 29 C.F.R. § 18.6(b). Without a response, no oral argument is necessary. 29 C.F.R. § 18.6(c). The Administrator's motion is well supported. I dismiss the proceeding as one filed out of time, basing my findings on the motion and its attachments.

Vibex filed a labor condition application with the Secretary of Labor seeking authority to employ non-immigrant aliens under the H-1B visa program. Granting the application permitted Vibex to import and employ temporarily non-immigrants admitted into the United States to fill specialized jobs not filled by U.S. workers under H-1B visas issued by the Immigration and Naturalization Service. Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(15)(H)(I)(b), § 1182(n), and § 1184(c). The INA requires an employer to pay an H-1B worker the higher of the "actual wage" or the prevailing wage for the position to be filled. This requirement eliminates any economic incentive or advantage which employers could obtain by hiring temporary foreign workers instead of American workers, and protects wages of U.S. workers from unfair competition in the domestic labor market for wages from foreign workers willing to accept lower wages. The Administrator of the Wage and Hour Division determined on May 22, 2002 that Vibex had violated two duties it assumed under its application: it failed to provide the required notice of its application, and failed to pay a total of $ 80,545.13 to 6 H-1B non-immigrant workers. No civil monetary penalty was assessed. (Exhibit 2).

The determination was sent on May 22, 2002 to the address which the Administrator had for Vibex, using Federal Express. It was returned as undeliverable, without any forwarding address or telephone number. [Exhibit 1 (Declaration of Eric Murray) at ¶ 4 through 9; Exhibits 4 and 12]. The Secretary's regulations governing labor condition applications state that determinations are mailed to the employer's "last known address" and that service is complete "upon mailing to the last known address" 20 C.F.R. §§ 655.815(a); 655.830(a). This attempt at delivery was sufficient under the regulations to constitute constructive service, and begin the period Vibex had to request a hearing.

The Administrator made additional efforts to deliver the determination to Vibex. Another determination letter dated June 21, 2002 was sent by certified mail to the same address, which the U. S. Postal Service returned on June 26, 2002, with the notation that Vibex had filed a forwarding order for its mail, but additional postage was needed to send the mail to that address (Exhibit 7). The Administrator re-mailed the letter to this new address on August 20, 2002 (Exhibit 8), but it too was returned (on August 28, 2002) with a notation by the Postal Service that the addressee was not known at that address, and that the addressee had moved, and left no forwarding address (Id.). After exhausting the means of finding Vibex through the U.S. Postal Service, the Administrator searched the records of the California Secretary of State for an address of a registered agent of Vibex for service of process, which yielded a name and address of an agent (Exhibit 9). On December 3, 2002 a copy of the Administrator's determination was sent by Federal Express to that agent (Exhibit 10). This finally elicited a response on December 19, 2002 from a law firm representing Vibex. It claimed a bankruptcy filing stayed the Administrator's determination under § 362 of the Bankruptcy Code, and sought a hearing (Exhibit 11). The 15 day period for receipt of a request for hearing in response to the December 3rd letter would expire on December 18, 2002, but the hearing request was dated December 19th and received on December 20, 2002 (date stamp of the Office of Administrative Law Judges). Even this response would have been out of time.

Federal law, not California law, prescribes the manner in which notice of administrative action to enforce the INA is given. Cf., the Rules of Decisions Act, 28 U.S.C. § 1652 (establishing circumstances in which state law governs). The Secretary's regulation sets a uniform, national method for giving notice of an Administrator's determination, without resort to the various means for serving process used by the several states. The regulations are specific about the address to which a determination must be sent, and when service is complete. Employers filing labor condition applications know or can be held to have notice of these regulations. The service of the Administrator's determination on Vibex was complete on May 22, 2002, and any request for a hearing was due at the office of the chief administrative law judge 15 calendar days later. The Administrator took reasonable but unnecessary steps to find Vibex after the means prescribed by the regulations for serving the determination proved ineffective. The text of the regulations shows that the Secretary considered and resolved the issue of whether the employer had to have actual notice of the determination for service to be complete. It does not. I have no authority to ignore or rewrite the regulation. When an employer whose labor condition application has been granted changes its address, it has the burden to give the Secretary notice of that new address. The Secretary need not search out an errant employer who moves, and leaves no forwarding address, in order to take action and provide relief to H-1B workers. Directing the determination to the registered agent for service of process under California law ultimately resulted in actual delivery of the determination to Vibex, but the Secretary did not prescribe delivery to that person as the means for effectuating service on an employer whose labor condition application had been granted.

If the attempts to deliver the determination to Vibex on one of the later dates was the operative delivery, in no case did Vibex deliver a request for hearing to the chief administrative law judge within 15 days after it was sent. This means that the Administrators determination became "final and not appealable." 20 C.F.R. §§ 655.815 (c)(3); 655.820(a).

It is ordered that this matter is dismissed for failure to file a timely request for hearing. The Administrator's determination has become final.

       WILLIAM DORSEY
       Administrative Law Judge

Notice of Appeal Rights:
Pursuant to 20 CFR §655.845, any party dissatisfied with this Decision and Order may appeal it to the Administrative Review Board, United States Department of Labor, Room S-4309, FPB, 200 Constitution Avenue, NW, Washington, DC 20210, by filing a petition to review the Decision and Order. The petition for review must be received by the Administrative Review Board within 30 calendar days of the date of the Decision and Order. Copies of the petition shall be served on all parties and on the administrative law judge.