Friday, January 8, 2016

8TH CIRCUIT GREATLY CURTAILS DOL INVESTIGATORY AUTHORITY IN LCA INVESTIGATIONS

The Greater Missouri Medical Pro-Care Providers H-1B case is the most noteworthy H-1B since the 2000 decision, Defesnor v. Meissner.  The latest decision in Greater Missouri greatly curtails the DOL’s investigative powers and significantly reduces liability concerns for H-1B employers.
                                                                 
The DOL has traditionally used any H-1B employees’ complaint to investigate a company’s entire H-1B program.  I have personally defended H-1B employers in about a dozen matters where the DOL has used this technique to extract significant fines from H-1B employers for technical alleged violations.  In most of these instances, the H-1B employer has paid off the DOL instead of spending considerable fees and time defending itself.  With this latest decision, this DOL method should stop.

The 8th Circuit held that the underlying Congressional statue, “expressly ties the [DOL’s} initial investigative authority to the complaint and those specific allegations.”  (Page 10 of the decision, linked above).  The DOL must have “reasonable cause” to extend the scope of an investigation. 

It is illustrative to understand what happened in Greater Missouri.  The H-1B employer, GMM, hired several Physical and Occupational Therapists.  In June 2006, one of the H-1B Therapists filed a Complaint that eventually found its way to the DOL.  In response to this Complaint the DOL open a company-wide investigation and requested documentation on every H-1B employee on GMM’s roster.  Based on this documentation, the DOL ordered GMM to pay $382,890 in back wages to H-1B employees.

The case meandered through the administrative courts for years.  The case found its way to the Administrative Review Board, which issued a decision in January 2014.  In that decision, the ARB confirmed that that the DOL’s investigative authority could include all H-1B employees, however “if the H-1B violation underlying the claim occurred more than 12 months before a complaint was filed, any remedies for that violation are barred.”  This finding reduced the back wage fine to $106,786.   

A dissent by one of the three ARB judges opined that the DOL’s investigative authority was limited to just the Complainant’s allegations.  This dissent was referenced by the 8th Circuit in the most recent decision.

If this decision holds firm, the DOL’s investigative powers will be constrained to the matter at hand.

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