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DOL Can Investigate All H-1B Employees Based on a Single Aggrieved Party Complaint

On January 29, 2014, the Administrative Review Board (the “Board”) decided Administrator, Wage and Hour Div. v. Greater Missouri Medical Pro-Care Providers, Inc., in which it addressed two issues related to the scope of an H-1B investigation by the DOL Wage and Hour Administrator (ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014)). The Board upheld the ALJ’s finding that the Administrator has authority on the basis of a single aggrieved party complaint to investigate potential INA violations of H-1B workers of the same employer who have not filed an H-1B complaint. However, Board reversed the ALJ’s finding that the INA allows the Administrator to investigate H-1B violations that occurred more than twelve months prior to the filing of the compliant that serves as the basis of the investigation.

Investigation of employees not party to the complaint

The Board held that the Administrator can conduct an investigation of all H-1B employees based on a single aggrieved party complaint against the employer. Alena Gay Arat, an H-1B employee of Greater Missouri Medical Pro-Care Providers filed a single aggrieved party complaint alleging that Greater Missouri had (1) failed to pay her the wages required under her LCA, (2) illegally made deductions from her wages, and (3) required her to pay an illegal penalty for ceasing employment prior to the previously agreed upon date.

The Administrator notified Greater Missouri that it was initiating an investigation and would need to review “all public access documentation required by the Federal Regulations, Part 655.760,” including the LCAs for all H-1B employees (Greater Missouri, ARB No. 12-015 at 7). After its investigation, the Administrator found that Greater Missouri had committed numerous violations, not only related to Arat’s complaint but also to over forty other H-1B employees and included additional violations such as (1) failing to maintain documentation as required by the regulations and (2) liability for ongoing violations.

After a hearing before the ALJ, at which the ALJ confirmed the Administrator’s authority to investigate all H-1B employees, Greater Missouri requested a hearing before the Board, arguing that “there is no statutory or regulatory authority for this matter to extend beyond the specific aggrieved complaint here,” and that “the Administrator and ALJ only had the authority to address the specific matters raised by Arat in her complaint” (Greater Missouri, ARB No. 12-015 at 6) (citing D. & O. at 94).

The Board rejected Greater Missouri’s argument and agreed with the ALJ. It based its ruling on the fact that the INA provides LCA investigations to be conducted in a number of ways including (1) receipt of an aggrieved party complaint, (2) receipt of credible information from a source likely to have information under 8 U.S.C.A. § 1182(n)(2)(G)(ii),(iv), (3) reasonable cause, and (4) random investigation of a willful violator of 8 U.S.C.A. § 1182(n)(2)(F).

The Board’s holding effectively states that the receipt of a single aggrieved party complaint equates to “reasonable cause,” allowing for a full-scope H-1B investigation. It stated that the “statutory provisions nowhere restrict the scope of H-1B investigations to allegations contained in a single aggrieved-party complaint. Nor do the Secretary’s implementing regulations dictate the scope of an investigation by the Wage and Hour Division determines that reasonable cause exists to initiate such an investigation” (Greater Missouri, ARB No. 12-015 at 8).

Twelve month statute of limitations on violations

The Board however reversed the ALJ’s holding that the Administrator can investigate alleged INA violations that occurred more than twelve months prior to the filing of the complaint on which the investigation is based. In Greater Missouri, the Administrator investigated H-1B matters well over a year before Arat filed her complaint.

The Board found that the INA strictly limits investigations to a twelve month time frame and therefore LCA violations that occurred more than one year before the complaint was filed are not actionable. It states that “[n]o investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively” (id. at 15 (see8 U.S.C.A. § 1182(n)(2)(A)). The Board also noted that it has upheld the 12-month time frame in case law precedent.

Takeaway points

Greater Missouri indicates that employers should review their H-1B policies and ensure compliance with regulations. It is a harsh reminder to employers that even a single individual complaint could spur an all-encompassing H-1B investigation. However, this case also serves as a reminder to the Administrator that violations are subjected to a twelve-month statute of limitations.

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