DOL Decision Not To Investigate Employer Not Subject to ARB Jurisdiction
Posted Jul 01, 2005
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The Administrative Review Board (ARB) of the U.S. Department of Labor (DOL) determined on May 31, 2005 that it does not have the authority under law to review the DOL Wage and Hour Division (WHD) Administrator's Decision not to investigate a complaint. The complaint had been filed with the WHD from a person stating that H1B workers were displacing U.S. workers at two companies. Therefore, due to a lack of authority to review the WHD's decision, the ARB dismissed the complaints against the companies.
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The WHD Administrator is responsible for initiating investigations for violations of the terms of H1B Labor Condition Applications (LCA). If the WHD Administrator determines that it is not appropriate to investigate a claim that there has been a violation of the terms of an H1B LCA, the ARB's ruling in the case ends the matter.
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Neither H1B Dependent-Employers nor Willful LCA Violators
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A U.S. worker was laid off from Company A. Company A allegedly subsequently hired H1B employees for the same position that the U.S. worker had held at Company A. The U.S. worker also claimed that Company A put incorrect or false information on some LCAs filed in connection with H1B petitions. The LCAs are issued by the DOL and are a necessary component of each H1B case. The same U.S. worker claimed also that Company B rejected his applications for three separate jobs and hired H1B workers instead of hiring him.
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The U.S. worker sent complaints to the WHD Administrator. The WHD Administrator replied that the claims would not be investigated because neither Company A nor Company B was H1B dependent nor was either company a willful violator under DOL regulations. Both Company A and Company B are major U.S. companies. The additional requirements and attestations in the LCA pertaining to non-displacement of U.S. workers and efforts to recruit U.S. workers only apply to H1B-dependent employers and those that have been found to be willful violators of the LCA requirements. Thus, the allegations, even if true, would not create a basis for a complaint against these employers.
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ARB Cannot Compel WHD to Investigate Cases or Authorize Attorney Fees
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The ARB found that the regulations governing the WHD Administrator do not permit the ARB to review any decisions the Administrator makes prior to completing an investigation. Therefore, the ARB reasoned, it could not compel the Administrator to conduct an investigation or make any findings regarding what the Administrator may have found if the Administrator had chosen to conduct an investigation.
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Company A asked the ARB to force the U.S. worker who filed the case to pay their attorney fees since they did not see a basis for the case to be filed. The ARB also found, however, that there is nothing in the law or regulations that permits the ARB to impose monetary sanctions on the person filing the case.
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Conclusion
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Persons who feel that an employer has violated the terms of an LCA may wish to speak to an attorney who understands the employer's obligations prior to filing a complaint. Employers should always familiarize themselves with the requirements of filing an LCA, as the employer is signing the LCA and attesting that the employer is complying, under penalty of perjury, and may be subject to fines and penalties if all requirements are not met. Although the WHD did not investigate this particular complaint, the DOL routinely investigates LCA violations when it believes it may have jurisdiction or authority to do so under the law.