TABLE OF CONTENTS
ISSUE PRESENTED
STATEMENT OF THE CASE
A. Course Of Proceedings And
Statement Of
Facts
B. ALJ's Decision And Order
ARGUMENT
THE ALJ CORRECTLY
DETERMINED THAT KEN TECHNOLOGIES IS
RESPONSIBLE FOR PAYMENT OF BACK WAGES TO
PRASAD FOR THE PERIOD BETWEEN MARCH 18
AND JULY 16, 2001, DESPITE THE FACT
THAT PRASAD WAS IN A NONPRODUCTIVE
STATUS DURING THIS PERIOD, BECAUSE THERE WAS
NO BONA FIDE TERMINATION OF
PRASAD UNTIL HE RETURNED TO INDIA
ON JULY 17, 2001
A. Standard Of Review
B. Statutory And Regulatory Framework
C. Ken Technologies Failed To Effect A
Bona Fide
Termination Of Prasad's
Employment,
And Therefore Must Pay
Prasad The
Wages Due Under The LCA
CONCLUSION
CERTIFICATE OF SERVICE
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TABLE OF
AUTHORITIES
Cases
Administrator v. Alden Mgmt. Serv., Inc., ARB Case
Nos. 00-020; 00-021 (Aug. 30, 2002)
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137
(2002)
Jones v. EG&G Defense Materials, Inc., ARB Case
No. 97-129 (Sept. 29, 1998)
United
States Dep't of Labor v. Beverly Enterprises,
Inc., ARB Case No. 99-050 (July 31, 2002)
United States
Dep't of Labor v. Dallas
VA Medical Ctr., ARB Case Nos. 01-077; 01-181
(Oct. 30, 2003)
Statutes
Administrative Procedure Act, 5 U.S.C. 551 et seq.
5 U.S.C. 557(b)
American Competitiveness and Workforce
Improvement Act of
1998, Pub. L. 105-277,
112 Stat. 2681,
et seq.
American Competitiveness in the
Twenty-First Century
Act of 2000,
Pub. L. 106-313, 114
Stat. 1251
Homeland Security Act of 2002,
Pub. L. No. 107-296,
116 Stat 2135,
2194-96 (Nov. 25, 2002)
Immigration Act of 1990,
Pub. L. No. 101-649,
104 Stat. 4978
Immigration and Nationality Act of 1990,
as amended, 8 U.S.C.
1101 et seq.
8 U.S.C.
1101(a)(15)(H)(i)(B)
8 U.S.C. 1182(n)
8 U.S.C.
1182(n)(1)
8 U.S.C.
1182(n)(1)(A)
8 U.S.C.
1182(n)(2)(A)
8 U.S.C.
1182(n)(2)(C)(vii)(I)
8 U.S.C.
1182(n)(2)(D)
8 U.S.C. 1184(i)(1)
8 U.S.C. 1184(m)
Immigration Reform and Control Act of 1986,
8 U.S.C. 1301 et
seq.
8 U.S.C. 1324
Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Pub. L. No. 102-232,
105 Stat. 1733
National Labor Relations Act 29 U.S.C. 151
et seq.
Code of Federal Regulations
8 C.F.R.
214.2(h)(11)
8 C.F.R.
214.2(h)(4)(iii)(E)
20 C.F.R. 655,
Subpart H
20 C.F.R. 655,
Subpart I
20 C.F.R. 655.700 et
seq.
20 C.F.R.
655.700(a)(3)
20 C.F.R.
655.730(c)(1)(vi)
20 C.F.R.
655.731(c)(6)
20 C.F.R.
655.731(c)(6)(i)
20 C.F.R.
655.731(c)(6)(ii)
20 C.F.R.
655.731(c)(7)
20 C.F.R.
655.731(c)(7)(i)
20 C.F.R. 655.731(c)(7)(ii)
20 C.F.R.
655.734
20 C.F.R.
655.740
20 C.F.R.
655.810
20 C.F.R. 655.840
Miscellaneous
65 Fed.
Reg.
80110, 80170-71
(Dec. 20, 2000)
H.R. Rep. No. 106-692, 106th Cong., 2d Sess. (2000);
2000 WL 825659
West Interpreter Releases, 80 Interrel 1244 (No. 34, Sept. 8, 2003)
ADMINISTRATIVE REVIEW
BOARD
UNITED STATES
DEPARTMENT OF LABOR
WASHINGTON, DC
* * * * * * * * * * * * * * * * * * * *
In the Matter of:
ADMINISTRATOR, WAGE AND HOUR
DIVISION, U.S.
DEPARTMENT OF LABOR,
ARB Case No. 03-140
Prosecuting Party, ALJ Case No. 03-LCA-15
v.
KEN TECHNOLOGIES, INC.,
Respondent.
* * * * * * * * * * * * * * * * * * * * *
STATEMENT OF THE
WAGE AND HOUR ADMINISTRATOR
IN RESPONSE TO
PETITION FOR REVIEW
Pursuant
to the Notice of Intent to Review issued by the Administrative Review Board
("Board") on September
11, 2003, the Administrator of the Wage and Hour Division, through
counsel, responds to the brief filed by Petitioner, Ken Technologies, Inc. The Administrator seeks affirmance of the
Decision and Order of Administrative Law Judge ("ALJ") Janice K.
Bullard, issued on July 18, 2003, in this case arising under the Immigration
and Nationality Act of 1990, as amended ("INA"), 8 U.S.C.
1101(a)(15)(H)(i)(B), 1182(n), and the applicable regulations at 20 C.F.R. 655,
Subparts H and I.
ISSUE PRESENTED
Whether
the ALJ properly determined that Ken Technologies is liable for $15,233.81 in
unpaid wages because it failed to pay its employee, Jorige Chandrasekhar
Prasad, the wages due under the terms of a Labor Condition Application
("LCA"), as provided in 20 C.F.R. 655.731(c)(7), during a period when
Ken Technologies did not assign Prasad any work and did not effect a bona fide
termination of his employment.
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STATEMENT OF THE
CASE
A.
Course Of
Proceedings And Statement Of Facts
Ken
Technologies, a New Jersey
corporation, is a computer consulting business (ALJ Decision and Order ("D&O")
3). In May 2000,
Ken Technologies petitioned the Immigration and Naturalization Service
("INS")
for approval of a petition for the employment of Prasad as a program analyst at
a prevailing rate of $45,700 per year, according to the LCA filed with and
certified by the Department of Labor pursuant to 8 U.S.C. 1182(n)(1), 20 C.F.R. 655.700(a)(3)
and 655.740 (see Administrator's Exhibits ("AX") 1, 2).
Prasad
arrived in the United States
on February 18, 2001,
and he left the country to return to India on July 17, 2001. During this entire period, Prasad was not given
any work assignment, lived in a guest house owned by Ken Technologies, and was
paid a total of only $350 (AX 5).
Based on a July 5,
2001 complaint by Prasad that he was not paid the wages to which he
was entitled for the period of his alleged employment, despite its consisting of
nonproductive time, the matter was investigated by Wage and Hour. On February 3, 2003, the Administrator issued a Determination
Letter in which she found that Ken Technologies had committed two violations of
the H-1B requirements -- failure to pay proper wages to Prasad and failure to
provide notice to its employees that it had filed an LCA.
A
hearing, requested by Ken Technologies, was held on March 31, 2003. Neither Prasad (who was in India) nor Ken Technologies'
president, Arun Jain, was present at the hearing. In an affidavit dated March 20, 2003, Jain stated that he
was an employee of Ken Technologies, and was involved in the recruitment and
hiring of Prasad in India
(D&O 2; Respondent's Exhibit ("RX") 10, ¶ 2). The affidavit stated that during the
interview process, Prasad had "falsely represented" to Ken
Technologies that he had certain training which was deemed necessary by the
company, and he was hired based on that representation (D&O 4; RX 10, ¶ 3). According to Jain's affidavit, it was learned
soon after Prasad's arrival in the United States
that he did not have the training he had claimed to have, and therefore he was
terminated and asked to leave the country (Id.; RX 10, ¶ 5). The affidavit further stated that Prasad
continued to live in Ken Technologies' guest house as an "intruder" (Id.; RX 10, ¶ 6).
A
number of e-mails were entered into evidence, including one from Prasad stating
that he had completed the requisite QA training before entering this country
(D&O 4; RX 1) and another, sent by a third party named "Shibu,"
which disputed this claim (Id.; RX 2). The record also includes a
"termination" letter addressed to Prasad, dated February 26, 2001 (D&O 5; AX 7). Prasad claimed never to have received that
letter and he remained in Ken Technologies' guest house (D&O 5). The ALJ also set forth the substance of
several e-mail exchanges between Prasad and Jain (entered into evidence by Ken
Technologies) concerning Prasad's problems securing work with other employers,
his unwillingness to leave the guest house, and Jain's intimations that Prasad
should vacate the premises (Id.). The ALJ, noting that there was no
"direct evidence" on this point, stated that Prasad's e-mail of July
5, 2001 (12 days before his return to India) "implies" that he had become aware
of his termination (D&O 6; RX 4). That e-mail stated, in full, "How can you
terminate without intimation. Why
you didn't tell me. Without my
[engineering] degree certificate [which Prasad had previously requested of Jain
that it be returned] I don't leave this guesthouse" (Id.).
Also
on July 5, 2001,
Prasad filed his complaint with the Department of Labor (D&O 6; AX 4). In a July 3 statement to Wage and Hour,
Prasad claimed that he had not received any notification of his termination,
that he had been paid only $350 since entering the country (not
directly related to wages for work or lack thereof), and that Ken Technologies
was holding his engineering certificate which he needed in order to return to
India (D&O 6; AX 5; RX 5). Once he
received this certificate, Prasad returned to India on July 17, 2001 (D&O 6; AX 6, 8).
Wage
and Hour investigator John Warner testified about his investigative findings
and explained the H-1B regulatory requirement of payment for idle (i.e.,
nonproductive) periods, because H-1B workers are "not supposed to be in
the United States
unless they're working" (D&O 7; Tr. 15-16). Warner also testified that Ken Technologies
had admitted its failure to notify the INS that Prasad was terminated (D&O 7;
Tr. 18; AX 9). As support for this, Warner
cited a company list of several H-1B employees of Ken Technologies and the
personnel actions taken regarding each (AX 9). Under the name of Prasad, the date of
termination was marked as February
26, 2001, and "copy of termination notice to INS" was
marked "N.A." (not applicable) (D&O 7; AX 9). The investigator further explained the pro
rata basis for his back wage calculations -- $15,233.81 covering the period of March 18, 2001 (30 days after Prasad
entered into this country, see 20 C.F.R. 655.731(c)(6)(ii)), to July 16, 2001 (the day
before Prasad left the country) (D&O 7).
After
the ALJ, by decision dated July
18, 2003, ordered payment of back wages in the amount of
$15,233.81, Ken Technologies timely sought review by the Board on August 15, 2003.
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B. ALJ's
Decision And Order
In
determining that Ken Technologies owes $15,233.81 in unpaid wages to Prasad,
the ALJ cited to the regulation concerning "benching" (i.e., a period
of time after an H-1B worker enters into employment with an employer during
which he is in a nonproductive status due to a decision by the employer) at 20
C.F.R. 655.731(c)(7)(i) (D&O 9). The
ALJ further cited to the regulatory provision at 20 C.F.R. 655.731(c)(7)(ii),
which provides that payment is not required "if there has been a bona
fide termination of the employment relationship" (D&O 9). She stated that the regulations require that
the employer notify the INS that the employment relationship has been terminated
so that the petition applicable to that individual may be canceled (D&O 9). See 20 C.F.R. 655.731(c)(7)(ii);
8 C.F.R. 214.2(h)(11).
The
ALJ concluded that Ken Technologies had not effected a bona fide termination of
Prasad's employment on February 26, 2001, the date that Ken Technologies stated
it provided a termination letter to Prasad, that would relieve it of the
obligation to pay Prasad from March 18 to July 16, 2001, the period of his
nonproductive status as an H-1B worker (D&O 9). Specifically, the ALJ stated that there was
no bona fide termination because the INS was not notified of the termination by
the employer (Id.). The ALJ also noted in this regard that Prasad
remained in Ken Technologies' guest house between February 18, 2001 and July 17, 2001, when he returned to India (Id.). The ALJ stated that, although no bona fide
termination was ever effected in strict conformance with 20 C.F.R.
655.731(c)(7)(ii), Prasad was effectively terminated by Ken Technologies (and
thus was no longer in its employ) because, having returned to India, he was no longer in a
position to be employed (D&O 9 n.9).
As
to Ken Technologies' argument that it would be unfair to require payment to
Prasad because he deliberately misrepresented his qualifications, the ALJ
determined that the evidence did not establish that Ken Technologies relied
upon Prasad's assertions regarding his training before the company employed him
(D&O 9). Rather, the ALJ concluded
that Prasad's hiring was based on a January 22, 2000 employment contract (AX
10), and that, according to a February 10, 2001 e-mail, Jain had arranged for
Prasad to travel to the United States before confirming that the training was,
in fact, completed (D&O 9-10; RX 1).
When Ken Technologies discovered that Prasad had not completed the QA
training, it e-mailed Jain (through Shibu) to remind him of the importance of
ensuring that future hires would have such training before they arrived in this
country (D&O 10; RX 2). The ALJ,
citing 20 C.F.R. 731(c)(7)(ii); 8 C.F.R. 214.2(h)(11); 8 C.F.R.
214.2(h)(4)(iii)(E) (applicable to payment for return transportation), concluded
that even if Prasad had deliberately misrepresented his qualifications, Ken
Technologies was obligated to pay for the nonproductive time because it failed
to notify the INS of any termination of Prasad, who was in the country pursuant
to an LCA filed with the Department of Labor (D&O 10).
The ALJ also rejected the argument that misrepresentations
by an H-1B worker would make the alien an "illegal nonimmigrant worker" (D&O
10). The ALJ distinguished Hoffman Plastic
Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), upon which Ken Technologies
had relied, because in that case the Supreme Court held that the National Labor
Relations Board could not award back pay to an undocumented alien who had never
been legally authorized to work in the United States, whereas in this case
Prasad was legally admitted into the country pursuant to an LCA certified by
the Department of Labor (D&O 10).
The
ALJ thus awarded back pay of $15,233.81 to Prasad for the period between March
18
and July 16, 2001
(D&O 11, 12).
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ARGUMENT
THE ALJ CORRECTLY DETERMINED THAT
KEN TECHNOLOGIES IS RESPONSIBLE FOR PAYMENT OF BACK WAGES TO PRASAD FOR THE
PERIOD BETWEEN MARCH 18 AND JULY
16, 2001, DESPITE THE FACT THAT PRASAD WAS IN A NONPRODUCTIVE
STATUS DURING THIS PERIOD, BECAUSE THERE WAS NO BONA FIDE TERMINATION OF PRASAD
UNTIL HE RETURNED TO INDIA
ON JULY 17, 2001
A. Standard
Of Review
The
Board reviews the ALJ's findings of fact and legal conclusions de novo. See Administrator v. Alden Mgmt.
Serv., Inc., ARB Case Nos. 00-020; 00-021 (Aug. 30, 2002); United States Dep't of
Labor v. Beverly Enterprises, Inc., ARB Case No. 99-050 (July 31, 2002). See also 5 U.S.C. 557(b) ("On
appeal from or review of the initial decision, the agency has all the powers
which it would have in making the initial decision except it may limit the
issues on notice or by rule.").
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B. Statutory
And Regulatory Framework
The
H-1B visa program is a voluntary program that permits employers to secure and
employ nonimmigrants on a temporary basis to fill specialized jobs in the United States. See 8 U.S.C.
1101(a)(15)(H)(i)(b). The INS requires
that an employer pay an H-1B nonimmigrant the higher of its actual wage or the
locally prevailing wage. See 8
U.S.C. 1182(n)(1)(A). The prevailing
wage provisions safeguard against the erosion of United States workers' wages and
temper any economic incentive or advantage in hiring temporary foreign workers. See, e.g., H.R. Rep. No.
106-692, 106th Cong., 2d Sess. (2000); 2000 WL 825659, at *12 (discussion of the
Department's 1996 Office of Inspector General report). Under the INA, as amended,
an employer seeking to hire an alien in a specialty occupation,
or as a fashion model of distinguished merit and ability, must seek and get
permission from the Department of Labor, by submitting an LCA, before the alien
may obtain an H-1B visa from the State Department. See 8 U.S.C. 1182(n)(1).
In
its LCA application to the Labor Department, an employer attests that:
(A) The employer --
(i) is
offering and will offer [the H-1B worker] during
the period of authorized employment . . . wages that are at least --
(I) the
actual wage level paid by the employer to all other individuals with similar
experience and qualifications for the specific employment
in question, or
(II) the prevailing wage level
for the occupational classification in the area of
employment,
whichever is
greater, based on the best information available
as of the time of filing the application, and
(ii) will provide working conditions for such a nonimmigrant that will not adversely affect
the working conditions of workers
similarly employed.
8 U.S.C.
1182(n)(1)(A) (emphases added).
The
Department of Labor is required to certify the LCA within seven days unless it
is incomplete or contains "obvious inaccuracies." 8 U.S.C. 1182(n)(1). Only after the employer receives the Labor
Department's certification, may the INS approve an H-1B petition seeking
authorization to employ a specific nonimmigrant worker. See 8 U.S.C. 1101(a)(15)(H)(i)(b); 20
C.F.R. 655.700(a)(3).
The
statute also prescribes a framework for enforcement proceedings and sanctions,
directing the Department of Labor to
establish a process
for the receipt, investigation, and disposition of complaints respecting a
petitioner's failure to meet a condition specified in an application submitted
under [this Act] or a petitioner's misrepresentation of material facts in such
an application. Complaints may be filed by any aggrieved person
or organization (including bargaining representatives). . . . The Secretary shall conduct an investigation
under this paragraph if there is reasonable cause to believe that such a
failure or misrepresentation has occurred.
8 U.S.C.
1182(n)(2)(A). The Department of Labor has promulgated
regulations which provide detailed guidance regarding the determination,
payment, and documentation of the required wages. See
20 C.F.R. 655.700 et seq. The
remedies for violations of the statute or regulations include payment of back
wages to H-1B workers who were underpaid.
See 8 U.S.C. 1182(n)(2)(D); 20 C.F.R. 655.810.
Under these regulations, an H-1B worker must receive the required pay beginning
on the date that the nonimmigrant "'enters into employment' with the employer,"
or 30 days after the nonimmigrant is admitted into the country (or 60 days after
he becomes eligible to work if he is already in the country when the petition is
approved). 20
C.F.R. 655.731(c)(6). The nonimmigrant
is considered to have "enter[ed] into employment" when he first "makes
himself available for work or otherwise comes under the control of the
employer, . . . and includes all activities thereafter." 20 C.F.R. 655.731(c)(6)(i).
Once an H-1B nonimmigrant enters into employment, periods of nonproductive
activity, or "benching," must be compensated at a rate no less than the
prevailing wage. See 20 C.F.R.
655.731(c)(7)(i). This regulation
requires payment to an H-1B worker in circumstances where the "H-1B is not
performing work and is in a nonproductive status due to a decision by the
employer (e.g., because of lack of assigned work) . . . ." Id.;
see 8 U.S.C. 1182(n)(2)(C)(vii)(I).
Where there has been a bona fide termination of the H-1B worker's employment,
however, the employer's obligation to continue paying wages to that individual
ceases. The applicable regulation
provides in pertinent part:
Payment [of the required wage] need not
be made if there has been a bona fide termination of the employment
relationship. INS regulations require
the employer to notify the INS that the employment relationship has been
terminated so that the petition is canceled (8 C.F.R. 214.2(h)(11)), and
require the employer to provide the employee with payment for transportation
home under certain circumstances (8 C.F.R. 214.2(h)(4)(iii)(E)).
20 C.F.R. 655.731(c)(7)(ii).
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C. Ken Technologies Failed To Effect A Bona
Fide Termination Of Prasad's Employment, And Therefore Must Pay Prasad The Wages Due Under The LCA.
1. The ALJ correctly determined that there was no
bona fide termination prior to July
17, 2001, the day Prasad traveled back to India, because the record showed
that the INS was not notified and there were no other probative indicia of his
termination. Ken Technologies argues
(Ken Technologies' Brief ("Br.") at 2) that Prasad's employment was
terminated on February 26,
2001 (by a letter of that date), because of Prasad's
misrepresentation of his qualifications which rendered him unqualified to
perform the work for which he had been hired.
However, as the ALJ noted, Prasad claimed not to have received any
notification of termination
and, significantly, he remained in residence at Ken Technologies' guest house
until he left for India. None of the e-mails, which were vague,
indicated that the reason Jain was urging Prasad to leave the guest house was
for any reason other than that Ken Technologies was unable to provide work at
the time (see RX 4-9; D&O 5).
Prasad's e-mails about looking for work for which he would be paid
contain no hint that he did not believe Ken Technologies to be his current
employer (Id.).
Even
in its brief to this Board, Ken Technologies has failed to cite any probative
evidence demonstrating that the February 26 notification of termination was
actually sent to and received by Prasad in February, or later. In addition, Ken Technologies does not
dispute that it never notified the INS of the termination of Prasad's
employment.
As
the ALJ recognized, notification to the INS is probably the best indication that
a bona fide termination has taken place, in that it evidences an employer's
decision to no longer sponsor the H-1B worker. See 65 Fed.
Reg. 80110,
80171 (Dec. 20, 2000) ("The Department would not
likely consider it to be a bona fide termination for purposes of this
provision unless INS has been notified that the employment relationship has been
terminated . . . ."). The Administrator, however, does not here argue that there
cannot be a bona fide termination absent notification to the INS.
The regulation at 20 C.F.R. 655.731(c)(7) (quoted above) first
states that "[p]ayment need not be made if there has been a bona fide
termination of the employment relationship," and then separately
states that "INS regulations require the employer to notify the INS that
the employment relationship has been terminated so that the petition is canceled (8 CFR
214.2(h)(11))." The regulation
therefore does not state that a bona fide termination may occur only
upon notification to the INS. In fact, there may be other indicia of a bona
fide termination, at which time an employer's obligation to continue to pay
wages would cease.
For example, termination would be bona fide if the employee ceased working for
the employer and became employed by another employer which had filed a petition
on his behalf. Termination would also be
bona fide where an employee has returned to his home country with no plans to
come back to the job (see, e.g., D&O 9 n.9). Furthermore, there may be situations in which
the evidence is clear that an employer has officially notified an employee of
his termination, and there is no dispute that such notice was received; in such
cases, the Administrator takes the position that the notice may constitute a
bona fide termination ending the obligation on the part of the employer to pay
wages to the H-1B worker. Nevertheless, in
any of these situations, notification to the INS should promptly follow the
action of termination, as the INS regulations provide.
In the present
case, however, there was neither notification to the INS nor, prior to Prasad's
return to India
on July 17, 2001,
any persuasive, clear-cut evidence that a bona fide termination had taken place. Thus, as the ALJ determined,
because Prasad was employed in a nonproductive status and was not terminated in
a bona fide manner in accordance with the regulation at 20 C.F.R.
655.731(c)(7)(ii), he was entitled to receive pay for the period between March
18 and July 16, 2001.
2. Ken Technologies argues that none of its
actions defeated the "intent" behind the requirement of paying H-1B
employees for nonproductive periods -- to protect domestic workers by
preventing the "stockpiling" of H-1B workers (Br. at 3-4). A rationale behind the requirement to pay for
nonproductive time is reflected in the Preamble to the H-1B Interim Final Rule,
where the Labor Department observed that
an H-1B
nonimmigrant is not permitted to be employed by another employer while "benched"
(unless another employer files a petition on behalf of the worker or the worker
adjusts his or her status under the INA), and is without any legal means of
support in the country. In contrast, a U.S.
worker can seek other employment and would be eligible for Federal programs
such as food stamps.
65 Fed.
Reg. 80110,
80170 (Dec. 20, 2000). The significant point, however, is that Ken
Technologies failed to comply with the plain language of the statute and
regulations, to which it had voluntarily agreed as part of participating in the
H-1B program, to pay its H-1B worker for nonproductive time. See 8 U.S.C. 1182(n)(2)(C)(vii)(I); 20
C.F.R. 655.731(c)(7)(i).
3. Ken Technologies further claims that Prasad's
own actions in misrepresenting his qualifications rendered him "unable" to work,
and that, therefore, an exception to the requirement of paying for "bench" time
is applicable here (Br. at 5-6). This
argument is without merit. It was entirely Ken Technologies'
decision to decline to assign work to Prasad, thereby placing him in
"nonproductive status" and requiring the payment of wages. See 20 C.F.R. 655.731(c)(7)(i).
The regulation makes clear the kinds of conditions that
place an H-1B employee in a nonproductive status for reasons that are not the
responsibility of the employer, and thus do not require payment -- voluntary
vacations, medical incapacity, caring for a sick relative, and the like.
See 20 C.F.R. 655.731(c)(7)(ii).
Employees, however, who are legally authorized to work, and who make
themselves available for work or otherwise come under the control of the
employer, are improperly "benched" if the employer fails to pay the required
wages for nonproductive time resulting from its decision (e.g., a lack of
assigned work), or a lack of a permit or license. See 20 C.F.R. 655.731(c)(6)(i) and
(c)(7)(i). That Prasad's qualifications
might not be what Ken Technologies sought does not relieve Ken Technologies of
its obligations regarding the payment of wages for nonproductive time under the
statute and regulations.
4. Ken Technologies also mistakenly relies on Hoffman
Plastic, supra, to argue that Prasad was in this country illegally
and therefore is not entitled to back wages (Br. at 7-10). Hoffman Plastic, however, is
inapplicable to this case. Contrary to
Ken Technologies' argument, Prasad was legally authorized to work in this
country under an H-1B visa issued by the INS (pursuant to DOL's approval of the LCA). The Supreme Court in Hoffman
Plastic was concerned with, among other things, the award of back pay to an
illegal alien "for wages that could not lawfully have been earned, and for
a job obtained in the first instance by a criminal fraud." 535 U.S. at 148-49. This simply does not obtain in the present
case. Ken Technologies' recourse for any
misrepresentation by Prasad in regard to his qualifications was to terminate him
in a bona fide manner, something it failed to do. Given the record evidence that the INS was
never notified of Prasad's termination, that the February 26, 2001 letter was
not a bona fide termination because there was no proof that Prasad had received
it, and that Prasad continued to live in Ken Technologies' guest house, Ken
Technologies' obligation to pay wages to Prasad until he returned to India was
manifest. Nothing in Hoffman Plastic
is to the contrary.
5. Finally, Ken Technologies objects to the
Administrator's refusal to agree that its principal, Jain, could testify by
telephone from India (Br. at
11-13). It claims that had such
testimony been permitted, Jain could have testified and been cross-examined
regarding his conversations with Prasad regarding Prasad's pre-employment
training. First, Ken Technologies never
filed a motion with the ALJ seeking to have Jain testify by telephone; thus
there was no request before the ALJ that would have given rise to the issuance
of a Show Cause Order. Second, as argued
above, Prasad's pre-employment training is beside the point here. Rather, the relevant issue is whether there
was a bona fide termination of Prasad's employment, thereby enabling Ken
Technologies to escape responsibility for the payment of his wages while he was
in a nonproductive status. Third, the affidavit submitted by Jain was
accepted into evidence by the ALJ and relied upon as appropriate. Jain was not barred from submitting as
detailed an affidavit as was relevant.
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CONCLUSION
For
the reasons stated, the Board should affirm the Decision and Order of the ALJ
and deny Ken Technologies' Petition for Review in this case.
Respectfully submitted,
HOWARD M. RADZELY
Solicitor of Labor
STEVEN J. MANDEL
Associate Solicitor
WILLIAM C. LESSER
Deputy Associate Solicitor
PAUL L. FRIEDEN
Counsel for Appellate Litigation
___________________________
JOAN BRENNER
Attorney
U.S. Department of Labor
Office of the Solicitor, Room N2716
200 Constitution Avenue, NW
Washington,
DC 20210
(202) 693-5555
CERTIFICATE OF
SERVICE
This
is to certify that on this _______ day of December, 2003, copies of the
foregoing Statement of the Wage and Hour Administrator were sent to:
Paul Mandal, Esq.
Law Offices of Susheela Verma
510 Thornall
St., Suite 385
Edison, NJ 08837
Arun Jain, President
Ken Technologies (USA), Inc.
707 Alexander
Rd., Suite 208
Princeton,
NJ 08540
________________________
Joan Brenner