ARB CASE NOS. 00-020
00-021
ALJ CASE NO. 96-ARN-3
DATE: August 30, 2002
In the Matter of:
U.S. DEPARTMENT OF LABOR,
ADMINISTRATOR, WAGE & HOUR
DIVISION, EMPLOYMENT STANDARDS
ADMINISTRATION,
COMPLAINANT,
v.
ALDEN MANAGEMENT SERVICES, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances
For the Complainant:
Ellen R. Edmond, Esq., Paul L. Frieden, Esq., Steven J. Mandel, Esq., U.S. Department of Labor, Washington, D.C.
For the Respondent:
Neil P. Stern, Esq., Laner, Muchin, Dombrow, Becker, Levin & Tominbert, Ltd., Chicago, Illinois
DECISION AND ORDER OF REMAND
This case arises under the Immigration Nursing Relief Act of 1989 (INRA or the Act), 8 U.S.C. §§ 1101(a)(15)(H)(i)(a) and 1182(m) (West 1999). We are asked to decide significant additional issues to those recently addressed in U. S. Department of Labor v. Beverly Enterprises, Inc., ARBNo. 99-050, ALJ No. 98-ARN-3 (ARB July 31, 2001). The Respondent, Alden Management Services, Inc. (hereinafter AMS or Alden), has filed a Petition for Review, which requests this Board to examine the ALJ's Decision and Order (D. & O.) of November 19, 1999. This Order incorporated an earlier Interlocutory Order Granting in Part Administrator's Motion for Summary Judgment (I.O.). The Administrator, Wage and Hour Division, U. S. Department of Labor (Administrator) also has petitioned for review of the Decision and Order. The Administrative Review Board (Board) affirms the ALJ's holdings that the Department of State telegram is a "complaint," that the Department of State is an "aggrieved person or organization," that AMS is a "facility," and that the Administrator had "reasonable cause" to investigate AMS. We also affirm the ALJ's decision that the Secretary of Labor has the authority to conduct "directed investigations" and that prosecution of this case was not barred by the 180-day limitation for investigation and determination. Moreover, the Board concurs in the ALJ's holding that AMS must pay its H-1A nurse employees the wage rate for similarly employed registered nurses at its facilities. However, we reverse the ALJ's decision that the period for calculating the back wages owed to the nurses is limited to one year, and, we therefore remand this case for further proceedings consistent with this decision.
[Page 2]
BACKGROUND
The Administrator and AMS filed "Joint Stipulations" (JS) consisting of seventy-nine paragraphs. We shall refer to this exhibit by paragraph number. The record also contains twenty-five exhibits ("Ex" marked "A" through "Y"). Depositions are also part of this record. We proceed to summarize the factual background underlying this dispute.
Alden Management Services, Inc. is an Illinois corporation in the business of furnishing services to nursing homes. Alden provides financial services and support, payroll and accounting assistance, regulatory and licensing advice, and insurance claim processing. It also provides nursing, dietary and maintenance personnel, and advice in employment matters such as recruiting, hiring, and discipline. JS 1,4.
This matter involves Alden's relationship with seven Illinois nursing homes ("facilities" or "affiliates" of AMS) to which it provides the above-mentioned services. Each of the affiliates is licensed in Illinois to provide skilled nursing care to the resident patients at their nursing home facilities. Five of the facilities are separately incorporated nursing homes but owned by AMS. AMS President Floyd Schlossberg and Secretary /Vice President Joan Carl are also President and Secretary, respectively, of each of the seven facilities. Each facility executed a written contract with AMS. JS 7-12.
In 1992, AMS became aware of the H-1A program for the temporary importation of foreign nurses to alleviate the national shortage of registered nurses. In order to participate in the program, AMS filed "Health Care Facility Attestations" with the United States Department of Labor, Employment and Training Administration in 1992, 1993, 1994, and 1995. AMS recruited nurses from the Philippines with the assistance of its agent, Fely Balabagno, and entered into contracts with the nurses. JS 16-27; Ex C, D, E, F, G. After AMS filed Petition[s] for Nonimmigrant Worker[s] with the U.S. Immigration and Naturalization Service, visas were issued for the nurses and they came to work at the seven Alden facilities from 1992 through 1995. JS 28-32; EX H, I. However, until each nurse received a license to practice registered nursing in Illinois, they were employed at the facilities as Certified Nurses Aides ("CNAs"), and/or Registered Nurses License Pending ("RNLPs"). They were paid less than the hourly rate earned by registered nurses ("RNs") at the facilities until they received the Illinois license. JS 33, 41-45; Ex L.
In April 1995 the U. S. Department of Labor, Wage and Hour Division, received a telegram from the U. S. Department of State ("State Department") with information concerning Alden's H-1A activities. Ex J. The telegram was referred to Wage and Hour's Chicago District Office and an investigation regarding Alden's compliance with INRA's attestation process was started. JS 34-37, 69-75. On April 3, 1996, the Administrator issued a "Determination Letter" stating that a basis existed for a
1 The Administrator's determination was based on a finding that Alden did not meet the first sentence of the definition of facility contained in 20 CFR § 655.302. We find , as set forth infra, that Alden did, however, fit within the second sentence of the regulatory definition. We also find that Alden was a facility for additional reasons discussed infra.
2 Although this section of the INRA regulations still refers to review by the Secretary of Labor and requires documents to be filed with the former Office of Administrative Appeals, Secretary's Order No. 2-96 delegated authority to the Board to act for the Secretary on petitions for review under INRA. Secretary's Order No. 2-96, § 4c (20); 61 Fed Reg. 19978 (May 3, 1996).
3 We believe the Administrator's April 3, 1996 Determination Letter, Ex K, mistakenly confuses an attestation dated April 22, 1994 (not April 24, 1994 as specified in the Determination Letter) with an attestation dated June 2, 1994 (Ex E). The latter document supplemented the earlier attestation, which appears to have been filed with but not accepted by ETA. Other than the dates indicating Carl's signature, the documents are identical. See JS 22.
4 We reject the NLRB analogy offered by AMS, but also note that it would be logical and reasonable for the Administrator to read the telegram's allegations that (contrary to its attestation) AMS did not have RN vacancies, and to infer that therefore AMS was employing the alien nurses in non-RN positions and might not be paying them RN wages.
5 In addition to awarding back pay, the Secretary may impose civil monetary penalties of up to $1000 per violation in cases in which she has found a facility has failed to meet a condition of its attestation or misrepresented a material fact therein. 8 U.S.C.A. § 1182(m)(2)(E)(iv). The parties have stipulated as follows: "The parties agree the civil money penalty assessed against AMS, Inc. by the Administrator in the Determination Letter shall be amended to $40,000.00. AMS, Inc. agrees to pay this penalty amount if the decision with respect to its liability for the violations found by the Court's Order is upheld after concluding its legal appeals." The ALJ accepted the stipulation. Decision and Order dated November 19, 1999 at 2. Therefore, issues pertaining to civil money penalties are not before the Board.]
6 The regulation is entitled to deference, and is dispositive of this issue. However, we also note that even if the regulation did not exist, we would reject Alden's argument because it is inconsistent with the purpose and requirements of INRA. INRA's purpose was to relieve the shortage of RNs in the United States. Only RNs could be admitted under its provisions. The Act required the alien to "be fully qualified and eligible … to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States" 8 U.S.C.A. § 1101(a)(15)(H)(i)(a); 8 U.S.C.A. § 1182(m)(1)(C). As a consequence, it would be unreasonable to interpret "similarly employed" as pertaining to employment in non-RN positions.