USDOL v. Safenet Consulting Inc., 2004-LCA-15 (ALJ Apr. 28, 2004)

U.S. Department of Labor

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

Issue Date: 28 April 2004
2004-LCA-00015

In the Matter of:

UNITED STATES DEPARTMENT OF LABOR
   Complainant

   v.

SAFENET CONSULTING INC, INC.
   Respondent

   This case was brought pursuant to 20 C.F.R. § 655.820 et seq., as amended by the interim final regulations published by the Department of Labor on December 20, 2000, 65 Fed. Reg. 80110 et seq. (2000) to implement the H-1B provisions of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101(a)(15)(H)(i)(B) and 1182(n), and in accordance with 29 C.F.R. Part 18 of the Rules of Practice and Procedure of the Office of Administrative Law Judges. A hearing was scheduled for April 7, 2004. However, on March 15, 2004, I was advised that the parties had agreed to a settlement and that a consent order would be sent to me within thirty days. Accordingly, I cancelled the hearing and allowed the parties until April 17, 2004, to submit the documentation.

   On or about April 12, 2004, the parties submitted a Settlement Agreement and Consent Findings. The parties stipulate, to an entry of findings, as follows:

(1) These proceedings arise under the Immigration and Nationality Act of 1952, P.L. 82-414, 66 Stat. 163, as amended by the Immigration Nationality Act of 1990, P.L. 101-649, 104 Stat. 4978, and the Miscellaneous Technical Immigration and Naturalization Amendments of 1991, P.L. 102-232, 105 Stat. 1733 and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)(Title IV of Pub. L. 105-277, Oct. 21, 1998; 112 Stat. 2681) at 8 U.S.C. § 1101, et seq. and 8 U.S.C. 1101(a)(15)(H)(i)(b). Jurisdiction over these proceedings is vested in the Office of Administrative Law Judges by § 212(n), 8 U.S.C. § 1182(n) and 20 CFR Part 655.800 et seq. with respect to SafeNet's request for a hearing involving alleged violations of the provisions of § 1182(n) of the Act.

(2) The issues resolved by this Settlement Agreement were identified initially during an investigation conducted by Wage and Hour with respect to SafeNet's petitioning for and employing H-1B non-immigrants including, but not limited to, the period encompassing September 9, 2002 through February 14, 2003.

(3) On January 16, 2004, the Administrator's representative issued a Determination letter to SafeNet detailing its findings.

(4) On January 30, 2004, within the time period provided by 20 CFR § 655.820, SafeNet filed a Request for Hearing contesting the findings contained in the Determination Letter.

(5) Pursuant to the parties' agreement, SafeNet shall pay to the Administrator, in full and complete settlement of the monetary issues raised in the Administrator's Determination Letter addressing SafeNet's payment of requisite wages in this proceeding, the sum of $10, 400.00 representing the amended amount of back wages to be paid to the H-1B non-immigrant identified in Appendix A. The parties further agree that no other amendments to the Determination Letter will be made.

(6) The provisions of this Settlement Agreement relative to the payment of back wages shall be deemed satisfied upon the following:

a. Pursuant and subject to Appendix A, SafeNet will issue a separate payroll check to the employee identified and set forth in Appendix A, which shall be made payable to the order of the employee and/or the Wage and Hour Division as alternative payee (e.g. John Doe and/or Wage and Hour Division, U.S. Department of Labor). This payroll check shall be in an amount equal to the gross compensation amount listed opposite such employee's name set forth in Appendix A, less social security taxes, federal, state and/or local withholding taxes and any other legal (if any) bona-fide deductions. The net payroll check referenced herein shall be delivered/sent to the Office of the Solicitor, United States Department of Labor no later than April 30, 2004.

b. The deductions described in Paragraph 3(a) above shall be paid by SafeNet to the appropriate and applicable federal, state or local government unit(s).

c. In conjunction with the submission of the payroll check referenced herein, SafeNet shall furnish to the Administrator a schedule demonstrating the employee name, address, social security number, withholding and social security taxes and

other legal deductions, and the gross compensation amount and the net compensation amount to be paid to such employee. SafeNet shall send this schedule with the net check referenced herein to the Office of the Solicitor, United States Department of Labor no later than April 30, 2004.

(7) The Administrator will distribute the wages referred to in Paragraph 5 hereof, or the proceeds thereof, to the person named in Appendix A attached hereto, less applicable deductions, or to his estate, if that be necessary. Any amount of unpaid compensation not so paid within a period of three years from the date of receipt thereof because of inability to locate the proper person or because of his refusal to accept it shall, by agreement between the Administrator and SafeNet, be covered into the Treasury of the United States as miscellaneous receipts.

(8) Should SafeNet fail to make the aforesaid payment within the time period provided herein, the entire amount of back wages agreed to be paid will be immediately due and payable without further notice or demand by the Administrator to SafeNet. Furthermore, SafeNet shall pay any and all costs and expenses incurred by the Administrator in enforcing the terms and conditions of this Agreement. Any defaulted balance shall be subject to the assessment of interest and penalty interest at rates determined by the U.S. Treasury as required by the Debt Collection Improvement Act of 1996 (Public Law 104-134) published by the Secretary of the Treasury in the Federal Register and other delinquent charges and administrative costs shall also be assessed. In the event of default, the Administrator and/or Secretary intends to pursue enforcement of this agreement and/or any additional collection action that may include, but is not limited to, administrative offset, referral of the account to credit reporting agencies, private collection agencies, and/or the Department of Justice.

(9) This Settlement Agreement resolves all issues raised by the Administrator's Determination Letter of January 16, 2004 with respect to SafeNet. SafeNet agrees to comply with the provisions of the Act and the applicable regulations in the future with respect to SafeNet's petitioning for and employing H-1B non-immigrants.

(10) SafeNet, including any of its officers, agents, servants, employees, and all persons in active concert or participation with them shall not request, solicit, suggest, or coerce, directly, or indirectly, any employee to return or to offer to return to SafeNet or to someone else for SafeNet, any money in the form of cash, check, or any other form, for wages previously due or to become due in the future to said employee under the provisions of this agreement or the Act; nor shall SafeNet accept, or receive from any employee, either directly or indirectly, any money in the form of cash, check, or any other form, for wages heretofore or hereafter paid to said

employee under the provisions of this agreement or the Act; nor shall SafeNet discharge or in any other manner discriminate, nor solicit or encourage anyone else to discriminate, against any such employee because such employee has received or retained money due to him/her from SafeNet under the provisions of this agreement or the Act.

(11) Each party agrees to bear its own costs, attorney's fees and other expenses incurred by such party in connection with any stage of this proceeding to date including, but not limited to, any and all costs and expenses referenced under the Equal Access to Justice Act, as amended.

   I accept these stipulations as findings. In accordance with such Consent Findings, it is:

ORDERED that the terms and conditions set forth in the Consent Findings are affirmed.

   So Ordered.

      DANIEL F. SOLOMON
      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, Frances Perkins Building, 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.