USDOL v. Analytical Technologies, Inc., 94-LCA-12
(ALJ Jan. 31, 1995)
Date: Jan. 31, 1995
Case No. 94-LCA-12
In the Matter of
UNITED STATES DEPARTMENT OF LABOR
Complainant
v.
ANALYTICAL TECHNOLOGIES, INC.
Respondent
BEFORE: DANIEL J. ROKETENETZ
Administrative Law Judge
DECISION AND ORDER
This action arises under a portion of the Immigration and
Nationality Act of 1952, as amended by the Immigration Act of
1990 and the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991
(hereinafter referred to
collectively as the "INA"), 8 U.S.C. § 1182(n), and its
implementing regulations, which are
located at 29 C.F.R. § 507.700 et seq. At issue is the
interpretation and application of certain
regulatory provisions which govern the circumstances under which
non-immigrant aliens may be
issued visas known as H-1B visas.
STATEMENT OF THE CASE
The United States Department of Labor, pursuant to statutory
authority, conducted an investigation of the Respondent,
Analytical Technologies, Inc.
("Anatec"), in order to determine whether Anatec was in
compliance with certain Labor
Condition Applications ("LCAs") it had filed in order to employ
non-immigrant aliens ("NIAs")
in temporary employment in the United States. On July 25, 1994,
the Department of Labor,
through the Administrator, Wage and Hour Division (the
"Administrator"), issued a
Determination Letter
charging Anatec with six violations of the INA and its
implementing regulations. Anatec filed a
timely Request for Hearing, and this appeal followed.
The parties have voluntarily settled their differences
concerning five of the six alleged violations charged by the
Administrator in her Determination Letter. As to the final
alleged violation, violation number
three in the Determination Letter, Anatec does not dispute the
findings of fact made by the
Administrator. The only remaining dispute concerns the remedy
ordered by the Administrator
for violation number three, specifically that Anatec post certain
required notices at all worksites
where its NIA H-1B visa status employees ("H-1B employees")
perform work.
This matter is presently before me on the cross-Motions for
Summary Decision, together with simultaneous briefs, filed by the
parties. Pursuant to an agreement between the parties, the
parties have submitted a stipulated
record, consisting of both stipulations of fact and documentary
evidence. The regulations
governing these proceedings provide, in relevant part:
The administrative law judge may enter summary judgement
for either party if the pleadings, affidavits, material
obtained by discovery or otherwise, or matters officially
noticed show that there is no genuine issue of material
fact and that a party is entitled to summary decision.
29 C.F.R. § 18.40(d). In deciding a motion for summary decision,
the court must consider all the materials submitted by both
parties, drawing all reasonable inferences in a manner most
favorable to the non-moving party. Fed. R. Civ. P. 56(c);
Adickes v. S.H. Kress & Co., 398 U.S.
144 (1970). A court shall render summary judgement when there is
no genuine issue as to any
material fact, the moving party is entitled to judgement as a
matter of law, and reasonable minds
could come to but one conclusion, which is adverse to the party
against whom the motion is
made. See LaPointe v. United Autoworkers Local 600, 8 F.3d 376,
378 (6th Cir. 1993); United
States v. TRW, Inc., 4 F.3d 417, 423 (6th Cir. 1993), cert.
denied 114 S.Ct. 1370 (1994).
ISSUES
The primary issue for determination in this case is whether
the Administrator has the statutory authority to require the
posting of a Notice of Filing of an LCA at the employee
worksites, i.e., the locations where its
H-1B employees are to be physically employed. Assuming that such
power exists, a question is
then presented as to whether the Administrator, upon finding that
such postings were not
properly made prior to the submission of an LCA, may order such
postings to be carried out after
the fact.
STIPULATIONS
The parties submitted an agreed entry containing the
following stipulations:
1. Analytical Technologies, Inc. (Anatec) is a computer
consulting company that is engaged in the business of
providing systems integration, software services and
business process consulting services to governmental
and business entities;
2. The 90% stock owner and Chief Executive Officer of
Anatec is Al Schornberg. The 10% stock owner and President of
Anatec
is James Barbour. Anatec had an annual dollar volume of
business of $16,000,000 for 1993 and has an estimated annual
dollar volume of business of $21,000,000 for the fiscal year
1994;
3. Anatec has a principal place of business located at
30200
Telegraph Road, Suite 200, Bingham Farms, Michigan 48025;
4. Anatec has four branch offices at the following loca-
tions: (1) 20515 SH 249 No. 330, Houston, Texas 77070; (2)
888
Keystone Crossing, Suite 1300, Indianapolis, Indiana 46250;
(3) 8400 Normandale Lake Boulevard, Suite 920, Bloomington,
Minnesota 55437; and (4) a branch office at the same
location
as the main office: 30200 Telegraph Road, Bingham Farms,
Michigan 48025;
5. Anatec employs computer analysts to perform software
services for customers either in-house, at its principal
place
of business and branch offices, or at customer worksites
located in various cities within the United States;
6. Anatec has customers such as Chrysler Corporation with
various Detroit area locations and Compaq Computer Company
which has work locations in Houston, Texas;
7. Anatec employs H-1B employees to work as computer
analysts performing software services in-house and at
different job sites of customers of Anatec (these are customer
worksites);
8. H-1B employees employed by Anatec perform work at
customer worksites located in such states as Michigan and
Texas;
9. Anatec employs approximately 250 to 260 employees;
10. Approximately 240 of the 260 employees are computer
analysts;
11. Approximately twenty-three (23) of the 240 computer
analysts are H-1B employees for whom Anatec submitted LCAs
to
the Department of Labor;
12. These H-1B employees constitute approximately 10% of
Anatec's workforce;
13. During the period June 14, 1993 to June 14, 1994,
Anatec submitted LCAs to the Employment and Training Administration
(ETA) of the Department of Labor to employ approximately 28
NIAs under the H-1B program;
14. Anatec did not post a notice containing the statement
"Complaints alleging misrepresentation of material facts in
the labor condition application and/or failure to comply
with
the terms of the labor condition application may be filed
with
any office of the Wage and Hour Division of the United
States
Department of Labor" for various of its LCAs in two or more
conspicuous locations at the customer worksites where H-1B
employees employed by Anatec actually worked; and,
15. Anatec posted LCAs at its four branch offices listed
above. These LCAs did not contain the statement "Complaints
alleging misrepresentation of material facts in the labor
condition application and/or failure to comply with the
terms
of the labor condition application may be filed with any
office of the Wage and Hour Division of the United States
Department of Labor."
Due to the fact that the parties have submitted stipulations
as to the factual background of the case, together with a
stipulated record, I find that there is no genuine issue as to
any
material fact. Therefore, based upon the record developed by the
parties, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Meaning of "Place of Employment":
At its core, the disputed issue between the parties to this
case concerns the proper interpretation of the phrase "place of
employment." The parties agree that the INA and its implementing
regulations require an employer to post a Notice of Filing of an
LCA at the place of employment. Due to the nature of Anatec's
business, however, many of its computer analysts, including some
H-1B employees, although employed by Anatec, actually perform their
work on a permanent basis at the place of business of various of
Anatec's customers (Stip. 5-8, supra). The Administrator
contends
that as a result of Anatec's employment scheme, Anatec must make
the required postings at each job location where the H-1B
employees
actually perform their work. To the contrary, Anatec contends
that
it need only make the required postings at Anatec establishments,
i.e., its headquarters and branch offices, regardless of whether
the H-1B persons its seeks to employ will work at those
locations,
or solely and exclusively at the site of an Anatec customer.
The relevant statutory provision provides as follows:
No alien may be admitted or provided status as a
nonimmigrant . . . in an occupational classification
unless the employer has filed with the Secretary of Labor
an application stating the following:
* * *
(C) The employer, at the time of filing the application--
(i) has provided notice of the filing . . . to the
bargaining representative (if any) of the employer's
employees in the occupational classification and area for
which aliens are sought, or
(ii) if there is no such bargaining representative,
has posted notice of filing in conspicuous locations at
the place of employment.
8 U.S.C.A. § 1182(n)(1) (Supp. 1994).
The statute further provides that the Secretary of Labor
shall be responsible for ensuring that employers submitting LCAs
fulfill all conditions specified in the LCA, and that such LCAs do not
contain material misrepresentations of fact. Id. at
§ 1182(n)(2)(A). If the Secretary finds that an employer has
substantially failed to fulfill the statute's notice of filing
requirements, he or she is required to notify the Attorney
General
of his finding. The Attorney General shall then, in turn, deny
the
employer's applications to employ certain alien employees for a
period of at least a year. Id. at § 1182(n)(2)(C). In
addition, the statute also grants the Secretary the power to
impose
"such other administrative remedies (including civil monetary
penalties in an amount not to exceed ,000 per violation) as the
Secretary determines to be appropriate." Id.
In carrying out his statutory enforcement duty, the
Secretary
has promulgated a series of implementing regulations. These
regulations closely track the statutory language, providing, in
part, that:
Where there is no collective bargaining representative,
the employer shall, no later than on or before the date
the labor condition application is filed with the ETA,
provide a notice of the labor condition application to
its employees by posting a notice in at least two
conspicuous locations at the place of employment.
29 C.F.R. § 507.730(h)(1)(ii).
Anatec cites BLACK'S LAW DICTIONARY, which defines the term
"employ" as "to engage in one's service; to hire" (Respondent's
Brief, at 8). Based upon that definition, Anatec further argues
that the "plain meaning" of the term "place of employment" is
where
the employee is hired, rather than where the work is actually
performed. Anatec's argument, however, overlooks a number of
more
specific and relevant references which indicate just the
opposite.
The most obvious such reference is contained in the regula-
tions themselves. The pertinent definitional section of the H-1B
regulations provides that the phrase "place of employment" "means
the worksite or physical location where the work is performed."
29
C.F.R. § 507.715. This definition makes it clear that the
Secretary intended to require an employer to post the required
notice at the location or locations where its employees actually
perform their everyday work.
A second such reference is contained in the regulations
which
further address the posting requirement. That section provides
that "[t]he notice shall be of sufficient size and visibility,
and
shall be posted in two or more conspicuous places so that the
employer's workers at the place(s) of employment can easily see
and
read the posted notice(s)." 29 C.F.R. § 507.730(h)(1)(ii)(A).
The
Secretary's use of the plural "place(s) of employment" reveals
that
he intended the phrase to include more than simply a single
location where an employee's hiring took place.
More generally, BLACK'S LAW DICTIONARY also contains a
definition of the phrase "place of employment", which it defines
in
part as: "a place where active work, either temporary or
permanent,
is being conducted in connection with a business for profit."
BLACK'S LAW DICTIONARY 1034 (5th ed. 1979). To the extent such a
definition is relevant to this determination, it stands to reason
that the definition of the exact phrase at issue is to be
preferred
over the definition of a related, but distinct, word.
Finally, the interpretation urged by the Administrator is
more
consistent with the purposes of the H-1B statutory scheme, one of
which is to protect the wages and working conditions of American
workers from being adversely affected by the employment of H-1B
workers. See 57 Fed. Reg. 1,316 (1992). In situations
where employees are permanently assigned to work at customer
worksites, and rarely, if ever, travel back to the employer's
main
headquarters, posting notice of the LCA filing would be of little
use or effectiveness.
Anatec's main problem with the posting requirements placed
upon it by the Administrator seems to be the potential for
employee
unrest, in light of the fact that H-1B NIA computer analysts at
Anatec are apparently paid more than their American counterparts.
While unfortunate from a business standpoint, Congress
undoubtedly
considered such consequences in crafting the complaint-driven
system by which employers' compliance with the terms of its LCAs
is
monitored. Effective notice to similarly-situated employees is
critical to such a system. For all of these reasons, I find that
the interpretation of the phrase "place of employment" urged by
the
Administrator is correct.
II. Limits of the Secretary's Authority:
Essentially, the balance of Anatec's contentions fall into
two
main categories. First, Anatec contends that the Secretary lacks
the authority to require the posting of LCA's at the worksites
themselves, particularly where such worksites are located on the
property of Anatec's customers. Secondly, Anatec contends that
even if the Secretary's interpretation is valid, the Secretary
lacks the remedial authority to order the LCA's to be posted, and
that any attempt to do so constitutes an unlawful attempt to
apply
regulations retroactively.
The first of these arguments is, at base, a challenge to the
regulations promulgated by the Secretary. As noted above, the
definition of "place of employment" contained in the regulations
is
not vague. Its explicit reference to the "worksite" clearly
reflects an intent to adopt the interpretation of "place of
employment" urged by the Administrator in this case. This being
the case, I affirm the Administrator's finding of a violation on
the part of Anatec.
As to Anatec's more general challenge to the regulatory
definition of "place of employment" adopted by the Secretary, I
find that such a challenge is not appropriate at this level. The
Supreme Court, in Chevron, applied a two-step procedure
for
making such determinations:
First, always, is the question of whether Congress has
directly spoken to the precise question at issue. If the
intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.
If, however, the court determines Congress has not
directly addressed the precise question at issue, the
court does not simply impose its own construction on the
statute, as would be necessary in the absence of an
administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency's answer
is based on a permissible construction of the statute.
Chevron v. Natural Resources Defense Counsel, 467 U.S.
837, 842-43 (1984). The Administrative Procedure Act ("APA") places
the
authority to make such determinations in the "courts of the
United
States", but only after final agency action has been taken. 5
U.S.C.A. §§ 704, 706(2)(C) (1990). With this limitation in mind,
the regulations governing these proceedings provide that "[t]he
Administrative Law Judge shall not render determinations as to
the
legality of a regulatory provision or the constitutionality of a
statutory provision." 29 C.F.R. § 507.840(d). Therefore, any
challenge to the regulations themselves at this stage in the
proceedings is premature.
The remaining contentions of Anatec relate to a portion of
the remedy ordered by the Administrator in response to her
finding
that the LCA postings made by Anatec were inadequate.
Specifically, the Administrator ordered Anatec to re-post the required
notices for a period of ten days at each place where a NIA whose
H-1B LCA is at issue is currently employed. SeeStipulated
Record, Exhibit A. Anatec's argument on this point is based,
in large part, upon a recently published proposed rule which
would
amend the H-1B regulations with a specific provision addressing
the
posting of LCA notices at "job contractor worksites." See
58 Fed. Reg. 52,156 (1993). Anatec contends that the
Administrator
is attempting to retroactively apply the proposed regulation to
the
instant case.
To the contrary, nowhere in the materials submitted to the
undersigned does the Administrator attempt to justify a finding
of
violation, or a proposed remedy, upon the proposed regulations.
Rather, the Administrator has argued, and I agree, that Anatec's
failure to post notice of the LCA filings at the various
worksites
constitutes a violation of the regulations as they currently
exist.
Anatec's argument places undue significance on the fact that
changes to the existing regulations have been proposed. The
Secretary's proposals are aimed at clarifying any uncertainty in
the regulations as they currently exist. Such an attempt,
without
more, does not establish that present regulations fail to require
posting at the H-1B employee worksites.
If the regulations currently in effect did not require
posting
at employee worksites, and the Administrator attempted to order
such postings based upon the proposed regulations, Anatec's
retroactivity argument would have merit. Such is not the case
here, however. The Administrator's finding, affirmed herein by
the
undersigned, that the posting performed by Anatec was
insufficient
to comply with the regulations as they currently exist, raises no
issue of retroactivity.
Concerning the Administrator's re-posting order, I note
initially that the INA provides that where the Secretary finds a
"substantial" failure on the part of the employer to comply with
the posting requirements, he or she shall notify the Attorney
General of such finding, and, in addition, may "impose such other
administrative remedies . . . as the Secretary determines to be
appropriate." 8 U.S.C.A. § 1182(n)(2)(C) (Supp. 1994).
Seealso 29 C.F.R. § 507.810(d). Anatec
contends that since no such re-posting remedy is explicitly
mentioned in the regulations, any attempt to order such posting
in
this case would be retroactive in nature.
Like statutes, regulations, by their nature, cannot possibly
address every one of the innumerable possible factual variations
which may arise in their administration. Consequently, Congress
explicitly chose to allow the Secretary some discretion in
fashion-
ing remedies for violations of the H-1B regulations. As a result
of Anatec's failure to post the required notices at the actual
worksites of its employees, many of its similarly-situated
employees failed to receive notice of the filing of the LCAs at
issue. The Administrator's re-posting remedy attempts to remedy
that shortcoming, and arises out of the discretion delegated by
Congress to the Secretary, and in turn, to the Administrator.
Anatec argues that since the goal of the posting requirement
is to notify persons who may wish to file a complaint, an order
requiring re-posting where there has already been a complaint
would
be an "illogical redundancy" (Respondent's Brief, at 5).
However,
such an argument fails to address Congress' desire that
all
potentially aggrieved parties receive notice of the filing. If
an
employer could simply partially comply, and thereby preclude
having
to engage in full notification as a result of any subsequently
filed complaint, many of the affected employees would remain
permanently without notice of the filing.
To the extent Anatec contends that the Administrator's re-
posting remedy exceeds the authority granted to the Secretary by
Congress, such a challenge is beyond the jurisdictional authority
of an administrative law judge, and must await determination
after
final agency action has been taken. 5 U.S.C.A. § 704
(1990).
Therefore, in evaluating all of the materials submitted by
the
parties in connection with their Motions for Summary Decision, I
find that there exists no genuine issue as to any material fact,
and that the Complainant is entitled to judgement as a matter of
law. In light of the foregoing,
IT IS HEREBY ORDERED that the Complainant's Motion for
Summary
Decision is GRANTED. The Respondent's Motion for Summary
Decision
is hereby DENIED.
IT IS FURTHER ORDERED that the determination of the
Administrator concerning the sole remaining issue contested by
the
parties is AFFIRMED. The portions of the Administrator's
determi-
nation which has not been contested remain in effect, except to
the
extent they have been previously modified by mutual agreement of
the parties.