Administrator, Wage & Hour Division v. Kasadel, Inc., 2004-LCA-22 (ALJ May 20, 2004)
U.S. Department of
Labor
Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002
(856) 486-3800
Issue Date: 20 May 2004
Case No.: 2004-LCA-00022
In the Matter of
ADMINISTRATOR, WAGE AND HOUR DIVISION
Prosecuting Party
v.
KASADEL, INC.
Respondent
ORDER GRANTING MOTION FOR SUMMARY DECISION
This matter arises under the H-1b visa program of the Immigration and Nationality Act (The Act), 8 U.S.C. §1101(a)(15)(H)(1)(b) and §1182(n), and the implementing regulations at 20 C.F.R. Part 655, Subparts H and I, 20 C.F.R. §7655.70 et seq. Muhammad S. Khan filed a complaint with the Wage-Hour Division, U.S. Department of Labor (Wage-Labor) alleging that he had worked for Kasadel, Inc. (Respondent) from November 1999 through August 2002 and was owed back wages. Wage-Hour initiated an investigation and subsequently entered into a Back Wage Compliance and Payment Agreement (the Agreement) with Respondent in which, among other things, Respondent agreed to pay Mr. Khan a total of $10, 066.69. Four monthly payments of $2,516.68 were to be made by Respondent beginning on August 20, 2003 and continuing through November 20, 2003. Respondent tendered the first payment as scheduled. However, the check for the payment bounced and Respondent neither re-issued the payment nor tendered the subsequent payments. As per the payment schedule and an acceleration clause contained in paragraph five of the Agreement, Respondent is now liable to Mr. Khan for the entire back wage amount of $10,066.69. On May 14, 2004, the Wage-Hour Administrator (the Administrator) submitted a Motion for Summary Decision asking that I order Respondent to immediately pay Mr. Khan the entire amount agreed to amount. The Administrator noted that Respondent has not contested that it owes this amount but "merely seeks additional, unspecified, time to pay."
An Administrative Law Judge with the Office of Administrative law Judges may enter summary judgment for a party if the pleadings, affidavits, material obtained by discovery, or other materials show that there is no genuine issue of material fact. 29 C.F.R. section 18.40; Federal Rules of Civil Procedure 56(c). The party moving for summary judgment has the burden of establishing the "absence of evidence to support the nonmoving party's case." Celotex Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing a request for summary judgment, I must view all of the evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 262 (1986). I find that there is no genuine issue of material fact regarding the issue of Respondent's liability. Respondent in its February 10, 2004 letter stated that it had "no intention to delay the agreed due payment installments to [Mr. Khan] but severe financial hardships prevented us to (sic) make (sic) the timely payments." Respondent has therefore acknowledged its obligation to pay Mr. Khan the $10,066.69. Although I empathize with Respondent's difficulties following September 11, 2001, my decision in this matter cannot take these difficulties into consideration.
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Accordingly, I hereby GRANT the Administrator's Motion for Summary Decision and ORDER Respondent to immediately pay Mr. Khan the sum of $10, 066.69 in back wages.
IT IS ORDERED that the hearing scheduled for June 3, 2004 in New York City is CANCELED.
