Al-Soufi v. Alpha Corp., 1999-LCA-2 (ALJ Dec. 8, 2000)

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Al-Soufi v. Alpha Corp, 1999-LCA-2 (ALJ Dec. 8, 2000)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Date Issued: December 8, 2000
Case No.: 1999-LCA-2

In the Matter of

MR. SAMI AL-SOUFI
Prosecuting Party

ALPHA CORPORATION
Respondent

and

    ADMINISTRATOR,
    WAGE AND HOUR DIVISION
       Party in Interest

APPEARANCES:
Mr. Sami Al-Soufi, Pro Se

Mr. Jeffrey E. Gonzalez-Perez, Attorney
On Behalf of the Respondent

Ms. Melonie McCall, Attorney
On Behalf of the Party in Interest

BEFORE: Richard T. Stansell-Gamm
Administrative Law Judge

REMAND ORDER

On October 23, 2000, I issued to the parties an Order to Show Cause on whether a remand of this case was appropriate for jurisdictional reasons in light of my denial of Alpha Corporation's appeal of a wage rate determination in the companion case, 2000-JSA-1. Both Mr. Al-Soufi, the prosecuting party, and Ms. Taylor, the representative for the Party in Interest, have responded to the Show Cause Order. Counsel for the respondent did not provide any comment.

[Page 2]

Background

Mr. Sami Al-Soufi began working as an engineer for Alpha Corporation on March 3, 1993. On August 18, 1994, Alpha filed an H-1B visa petition with the U.S. Immigration and Naturalization Service ("INS") on behalf of Mr. Al-Soufi. Similarly, Alpha filed H-1B petitions for two other foreign engineers on September 7th and 24th 1995.¹ As required, Alpha included a certified Labor Conditions Application ("LCA") with each H-1B visa petition. In February 1996, the three engineers filed complaints alleging violations of the respective LCAs. Pursuant to 20 C.F.R. § 655.805, the Administrator of the Wage and Hour Division of the Employment Standards Administration ("Administrator') investigated the wages used by Alpha in the LCAs, obtained a wage determination from the state of Virginia, and issued a determination on October 28, 1997 that Alpha, among other violations, had not paid the engineers adequate wages and owed them back-pay. On November 10, 1997, pursuant to 20 C.F.R. § 655.820, Alpha filed a timely appeal with the Office of Administrative Law Judges ("OALJ") of the determination. The case was captioned 1998-LCA-1. Having been assigned to render a decision in that case, I scheduled a hearing for February 6, 1998. However, I subsequently continued the hearing so Alpha could challenge the prevailing wage determination through the Job Service Complaint System ("JSCS").

As a result of Alpha's February 1998 appeal through the JSCS, the Virginia Employment Commission ("VEC"), on July 16, 1998, issued a new decision setting forth a revised, and reduced, prevailing wage for Level I engineers (as opposed to the Level II salary it had originally used to determine the prevailing wage). Accordingly, the Administrator issued a revised determination, dated October 14, 1998, which replaced the Administrator's original October 1997 determination. According to the new Administrator's determination, Alpha still had violated some LCA provisions and owed reduced back wages to the two foreign engineers. At the same time, the reduced prevailing wage determination essentially eliminated any pay violation concerning Mr. Al-Soufi and eliminated his back-pay.

On November 2, 1998, Alpha requested a formal hearing with the OALJ pursuant to 20 C.F.R. 655.820 because the Administrator still found wage violations regarding the other two engineers. Consequently, in December 1999, I established a new hearing date of February 9, 1999. About the same time, December 1999, I discovered an appeal by Mr. Al-Soufi, dated October 24,1998, to the OALJ. Since Mr. Al-Soufi was adversely affected by the October 14, 1998 Administrator's LCA determination of no wage violation in his case, he requested on October 24, 1998 a hearing with OALJ pursuant to 20 C.F.R. § 655.820.² Mr. Al-Soufi argued that the recent wage determination was erroneous because it was based on a Level I engineer's salary; whereas, based on his credentials and experience, he was a Level III engineer. After a conference call with all three parties about Mr. Al-Soufi's appeal, I decided his case should be tried separately because the revised Administrator's wage determination had eliminated all back pay to Mr. Al-Soufi. His separate, distinct case was then captioned 1999-LCA-2.

[Page 3]

On February 8, 1999, Alpha and DOL settled the wage dispute concerning to the other two foreign engineers in 1998-LCA-1. As a result, I closed 1998-LCA-1. However, in regard to Mr. Al-Soufi's separate complaint, 1999-LCA-2, I set a hearing date of February 11, 1999. In the hearing notice, I pointed out that under 20 C.F.R. § 655.820(b)(1), Mr. Al-Soufi, as the prosecuting party, bore the burden of proof.

At the February 1999 hearing, Mr. Al-Soufi contested three issues: prevailing wage, actual wage, and back-pay. Regarding the prevailing wage, Mr. Al-Soufi asserted that the Administrator erroneously calculated his prevailing wage based on a Level I employee's salary, when, in fact, he was a Level III engineer when the LCA was filed. Regarding the actual wage, Mr. Al-Soufi argued that many engineers similarly situated at Alpha received actual wages higher than the prevailing wage for Level I. And, concerning the back-wages, Mr. Al-Soufi alleged he was not paid from May 29 through June 9, 1995, although he was available and willing to work.

In response, Alpha disagreed that Mr. Al-Soufi's prevailing wage should be based on a Level III engineer salary. Additionally, Alpha proposed that Mr. Al-Soufi should be afforded the opportunity to appeal through the JSCS system as Alpha did - appealing the Administrator's decision first before the VEC and Regional Administrator of the Employment and Training Administration ("RA"). The counsel for the Administrator, Ms. McCall, agreed, reasoning that Mr. Al-Soufi was not afforded the opportunity to participate in Alpha's challenge to the prevailing wage. So, in the interest of justice and fairness, he should be allowed to challenge the prevailing wage under the JSCS before appealing to OALJ. Even though I recognized, as did the Administrator's representative, that the regulations only allow an employer to challenge a prevailing wage, I yielded to the parties' arguments and continued 1999-LCA-2 to permit Mr. Al-Soufi to receive a determination through the JSCS as to his engineering level and the applicable prevailing wage.

On April 21, 1999, the VEC responded to Mr. Al-Soufi's request for a determination of the level of his engineering job while employed with Alpha.³ The VEC found that Mr. Al-Soufi's job description, which included a list of duties certified by Alpha, contained tasks that are more complex and diverse than those of an entry-level engineer. Consequently, the VEC concluded that Mr. Al- Soufi was a Level III engineer while employed by Alpha. Additionally, the VEC found the prevailing wage for a Level III engineer is $46,904. Predictably, on May 14, 1999, Alpha appealed the VEC's determination that Mr. Al-Soufi was a Level III engineer. After the RA upheld the VEC's determination, Alpha submitted an appeal to this office on August 30, 1999. By Notice of Hearing dated September 3, 1999, I set a hearing date of October 5, 1999.

The October 5, 1999 hearing was essentially a procedural proceeding to determine the status of Alpha's appeal of the Level III engineer wage determination. Ultimately, I determined that Alpha's appeal of the latest prevailing wage determination relating to the Level III engineer wage fell under the provision of the JSCS as set out in 20 C.F.R. § 658. As a result, Alpha's appeal needed to be resolved in a separate hearing prior to continuing the hearing on Mr. Al- Soufi's case, 1999-LCA-2. I designated Alpha's appeal case "2000-JSA-1."

[Page 4]

On November 5, 1999, I conducted a hearing concerning Alpha Corporation's appeal of the wage determination in 2000-JSA-1. Subsequently, on October 11, 2000, I issued a Decision and Order denying Alpha's appeal of the RA's prevailing wage determination that Mr. Al- Soufi was a Level III engineer, with an associated prevailing wage of $46,904, at the time Alpha's submission of an August 18, 1994 LCA.

Discussion

Mr. Al-Soufi opposes a remand. He first comments that he initially raised three issues concerning prevailing wage, actual wage, and unpaid wages in his appeal of the Administrator's October 14, 1998 determination. According to Mr. Al-Soufi, my decision in 2000- JSA-1 resolves the prevailing wage issue and sets the annual prevailing wage for a Level III engineer at $46,904. Concerning the other two issues, Mr. Al-Soufi urges that I resolve the disputes in those two areas rather than remand the case.

Based on a review of the relevant regulations and the present procedural position of the case, Ms. Taylor indicates that remand "of this case for further investigation by the Administrator is the appropriate course of action."

Under the applicable regulation, 20 C.F.R. §655.820 (a), any interested party may request an administrative hearing "on an determination issued pursuant to §§655.805 and 655.815." I held the initial February 11, 1999 hearing based on Mr. Al-Soufi's request for an administrative hearing relating to Administrator's October 14, 1998 determination, issued pursuant to 20 C.F.R. §655.805, that Alpha Corporation's August 18, 1994 LCA concerning Mr. Al-Soufi did not contain a wage violation.

The Administrator based the October 14, 1998 determination on Mr. Al-Soufi's status as a Level I engineer. Since I effectively decided in the October 11, 2000 denial of Alpha Corporation's appeal, 2000-JSA-1, that Mr. Al-Soufi was a Level III engineer at the time of the August 18 , 1994 LCA, the Administrator's October 14, 1998 determination is no longer valid. In the absence of a valid determination issued pursuant to the provisions 20 C.F.R. §655.805, no party has the ability to invoke the hearing provisions of 20 C.F.R. §655.820 (a). Consequently, I lack jurisdiction to proceed with 1999-LCA-2.

Even if I had somehow retained jurisdiction to adjudicate this claim, a remand is still the better course of action. While I fully recognize the delay associated with a remand, I find on balance, that a remand is the better and more comprehensive course of action. By remanding the case, I am providing the Administrator with an opportunity to fully investigate the issues of prevailing wage, actual wage and unpaid wages relating to Alpha's August 18, 1994 LCA in light of Mr. Al-Soufi's qualifications as a Level III engineer.

[Page 5]

ORDER

Accordingly, I remand this case to the Administrator for further administrative investigation relating to Alpha Corporation's August 18, 1994 LCA in light of my determination in 2000-JSA-1 that Mr. Al-Soufi performed the duties of a Level III engineer with an associated prevailing wage of $46,904.

SO ORDERED:

Richard T. Stansell-Gamm
Administrative Law Judge

Washington DC

[ENDNOTES]

¹Apparently, these two engineers only had student visas when they started their employment at Alpha.

²Mr. Al-Soufi's timely request for a hearing did not come to my attention until the first week in December when I received a copy of it in a monthly progress report submitted by the parties. On December 17, 1999, Mr. Al-Soufi's original letter was discovered in OALJ docket section - apparently, it had been misfiled. Since I found the original of Mr. Al-Soufi's appeal misfiled in the docket section, I determined his appeal was timely

³The VEC accepted Mr. Al-Soufi's request under 20 C.F.R. §§ 655.731 and 658.