Administrator v. Micronesian Sales Co., Inc., 95-LCA-6 (ALJ July 5, 1995)
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DATE: JULY 5, 1995
CASE NO: 95-LCA-6
In the Matter of
ADMINISTRATOR, WAGE AND HOUR
DIVISION, EMPLOYMENT STANDARDS
ADMINISTRATION
Prosecuting Party
v
MICRONESIAN SALES COMPANY, INC.
Respondent
Before: DONALD B. JARVIS
Administrative Law Judge
DECISION AND ORDER ENTERING CONSENT JUDGMENT
This is an action by the Department of Labor, Employment
Standards Administration, Wage and Hour Division (Wage and Hour)
against Micronesian Sales Co., Inc. ("MSC") brought under the
Immigration and Nationality Act, 8 U.S.C. §§1101,
etseq., as amended by the Immigration Act of 1990
(P.L. 101-649) and the Miscellaneous Technical Immigration and
Naturalization Amendments of 1991 as augmented by 8 U.S.C.
§1182(n)(2) and 29 CFR
§§507.820-840.
This case was set for hearing on May 18, 19, 1995 at Agana,
Guam. On May 1, 1995, the Solicitor filed a Notice of Settlement
and an order removing the case from the calendar was entered on
May 4, 1995. On June 2, 1995, the parties filed a proposed
Consent Judgment with supporting papers.
The Consent Judgment is hereby incorporated by reference and
made a part of this Decision and Order. The Consent Judgment
provides that it does not constitute an admission by MSC of any
of the findings contained in the Determination Letter or of any
other wrongdoing or unlawful act by MSC and neither it nor the
Determination Letter shall constitute a finding of the Secretary
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of Labor of the occurrence of a violation within the meaning of
8 U.S.C. §1182 or 29 CFR §507.855.
The Consent Judgment also provides that neither it nor the
Determination Letter shall constitute a finding of a substantial
failure to meet a condition of paragraphs (1)(C) or (1)(D) or a
willful failure to meet a condition of paragraph (1)(A) of
8 U.S.C. §1182(n).
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Additionally, the Consent Judgment states that all
violations cited in the Determination Letter issued by
Wage and Hour to MSC shall be deemed fully resolved by it.
Generally, the Consent Judgment provides that:
MSC will voluntarily withhold the filing of any new H-1B
labor condition applications ("LCA") and any new H-1B
nonimmigrant visa petitions on behalf of itself or its
subsidiaries until such time as all monies owed pursuant to the
terms of the Consent Judgment are paid in full. In the event of
default, MSC agrees that it will not file, and that the
Employment and Training Administration will not approve, any new
LCA's until the provisions of the Consent Judgment concerning
default have been complied with, and the default cured. The
Consent Judgment does not affect MSC's right to pursue any other
temporary or permanent visa sponsorship options, or to renew
existing LCA's granted prior to its effective date. MSC agrees
to comply in all respects with the Act and applicable regulations
in connection with any future H-1B application or petition. MSC
agrees to provide copies of its LCAs, the prevailing wage, and
the actual wage to all new H-1B employees, their immediate
supervisors, and the payroll authority charged with entering
their wage rate for payroll purposes. MSC will obtain written
verification of compliance with the applicable wage rate for each
H-1B LCA by no later than the end of the first pay period
following the onset of each H-1B's employee's employment with MSC
or its subsidiaries. This verification will be placed in the
public access file relating to the LCA in question. Each future
and current H-1B nonimmigrant employed by MSC will be paid the
higher of: (1) the prevailing wage for the occupation in the
area where he/she actually performs his/her job duties; or
(2) the actual wage paid by MSC to all other individuals at that
location with similar experience and qualifications for the
employment in question. For purposes of meeting this require-
ment, MSC will determine the actual wage paid to other indivi-
duals in accordance with the applicable regulations, 29 CFR
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§507.703(e)(1))(i), i.e. by comparing the salary of the H-1B
worker to that of all domestic workers performing the same
occupation at the same location. MSC will document in its public
access file and in the file of each H-1B nonimmigrant worker the
system which it has used to establish his/her salary.
The Consent Judgement also provides that MSC will pay to
Wage and Hour $82,700.00 in back wages to 15 employees, for the
period from May 1, 1992, through July 31, 1994, as set forth in
an attached Exhibit showing the name of each of the employees and
listing the gross back wage amount for the employee and the
period of employment by MSC which is covered therein for the
employees. MSC will pay $10,500.00 in settlement of the civil
money penalties proposed in the determination letter. MSC agrees
to pay the total amount due in installment payments of $3,500.00
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per month for 26 months and one final payment of $2,200.00
for a total payment of $93,200.00. The installments will be paid
on or before the fifth day of the month, with the first
installment due on or before June 5, 1995.
The Consent Judgment provides for the allocation of the
installment payments and has provisions which would apply in the
event of a default.
The Consent Judgment provides for its immediate entry and
each party waives its right to contest the findings and order
entered. The record shows that MSC submitted the first
installment check for $3,500.00 along with the Consent Judgment.
I have examined the Consent Judgment in the light of the
record and find and conclude that it should be approved.
ORDERIt is Ordered That:
1. The Consent Judgment submitted by the parties which is
attached hereto is adopted and approved and made the Decision and
Order of the Court.
2. The parties shall comply with each and every term of
the Consent Judgment.
3. MSC's request for a hearing in this matter is
dismissed.
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4. Further proceedings in this case are discontinued.
_________________________
DONALD B. JARVIS
Administrative Law Judge
San Francisco, CA
SERVICE SHEET
CASE NAME: In the matter of Micronesian Sales Company, Inc.
CASE NO: 95-LCA-6
TITLE OF DOCUMENT: DECISION AND ORDER ENTERING CONSENT JUDGMENT
I hereby certify that on _______________________, a copy of
the above-entitled document was served on the following parties:
________________________
BARBARA A. GARCIA
Legal Technician
Associate Solicitor Frank Conte
Div. of Fair Labor Standards District Director
Office of the Solicitor U.S. Dept. of Labor
U.S. Dept. of Labor ESA/Wage & Hour Div.
200 Constitution Ave., N.W. 211 Main St., Suite 341
Rm. N-2716 San Francisco, CA 94105
Washington, D.C. 20210
Gary D. Hull
Baumann & Hull
Suite 903
Pacific News Bldg.
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238 Archbishop Flores St.
Agana, Guam 96910
Administrator Regional Solicitor of
U.S. Dept. of Labor Labor
200 Constitution Ave., N.W. U.S. Dept. of Labor
Rm. S-3502 71 Stevenson St.,
Washington, D.C. 20210 Rm. 1110
San Francisco, CA 94105
Attn:Susanne Lewald, Esq.
Thomas Schierling Richard Decima, President
ESA/Wage & Hour Div. c/o Baumann & Hull
U.S. Dept. of Labor Suite 903
200 Constitution Ave., N.W. Pacific News Bldg.
Rm. S-3510 238 Archbishop Flores St.
Washington, D.C. 20210 Agana, Guam 96910
