U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

ADMINISTRATOR, WAGE

AND HOUR DIVISION, UNITED

STATES DEPARTMENT OF LABOR,

PROSECUTING PARTY,

ARB CASE NO. 2021-0069

ALJ CASE NO. 2018-TAE-00013

DATE: March 31, 2023

WASHINGTON FARM LABOR

ASSOCIATION,

RESPONDENT.

Appearances:

For the Administrator, Wage and Hour Division:

Seema Nanda, Esq.; Jennifer S. Brand, Esq.; Megan E. Guenther,

Esq.; Rachel Goldberg, Esq.; and Shelley E. Trautman, Esq.; U.S.

Department of Labor, Office of the Solicitor; Washington, District of

Columbia

For the Respondent:

Leon R. Sequeira, Esq.; LRS Law; Prospect, Kentucky

Before HARTHILL, Chief Administrative Appeals Judge, and BURRELL

and PUST, Administrative Appeals Judges; BURRELL, Administrative

Appeals Judge, Concurring in Part and Dissenting in Part

DECISION AND ORDER

HARTHILL, Chief Administrative Appeals Judge:

This case arises under the H-2A provisions of the Immigration and

Nationality Act (INA), as amended,1 and the U.S. Department of Labor

(Department) implementing regulations found at 20 C.F.R. Part 655, Subpart B and

29 C.F.R. Part 501 (collectively, the H-2A program).2 The INA’s H-2A program

allows employers to hire foreign, nonimmigrant workers to temporarily fill

agricultural positions in the United States.

On August 25, 2021, a Department Administrative Law Judge (ALJ) issued a

Decision and Order – Affirming in Part and Modifying in Part Administrator’s

Determination (D. & O.). In the D. & O., the ALJ determined that Respondent

Washington Farm Labor Association (WAFLA) was responsible for H-2A program

violations as a joint employer and was liable for civil money penalties (CMPs). For

the reasons set forth below, we AFFIRM the ALJ’s D. & O.

BACKGROUND

WAFLA is an agricultural association that provides H-2A program

assistance, human resources support, and legal compliance functions to its roughly

800 members.3 In May 2013, Sakuma Brothers Farms (Sakuma) engaged WAFLA

to apply for and obtain H-2A workers for hand harvesting and field packing late

season blueberries and blackberries at Sakuma’s farm in Burlington, Washington.4

Sakuma had never before hired H-2A workers and engaged WAFLA based on

WAFLA’s representations regarding its experience with the H-2A program.5

WAFLA prepared and submitted to the Department all required

documentation to obtain H-2A workers for Sakuma, including, among other things,

8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1184(c)(1), 1188.

This case arises under the H-2A regulations that were in effect from 2010 to 2020,

and all cites herein are to the 2010 regulations. 20 C.F.R. §§ 655.100-.185; Temporary

Agricultural Employment of H-2A Aliens in the United States (2010 Final H-2A Rule), 75

Fed. Reg. 6884 (Feb. 12, 2010). The Department proposed new regulations for the H-2A

program in 2019, with new final regulations taking effect in 2020 and 2022.

D. & O. at 7

Id. at 4.

Id.

a master application on ETA Form 9142A and a job order on ETA Form 790.6 In the

master application and job order, WAFLA certified under the penalty of perjury

that it was a joint employer with Sakuma and that it agreed to comply with all

terms and conditions of H-2A employment.7 Based on the documentation submitted

by WAFLA, the Department approved WAFLA and Sakuma to recruit and hire

H-2A workers for the period of August 5, 2013, through October 31, 2013.8 WAFLA

ultimately recruited 69 H-2A workers for Sakuma and facilitated the travel and

logistics of transporting the workers from their homes outside the United States to

Sakuma’s farm.9

In or around August 2013, the Department’s Wage and Hour Division (WHD)

initiated an investigation of Sakuma and its H-2A program compliance.10 On April

7, 2017, the Administrator of the WHD (Administrator)11 sent Sakuma and WAFLA

a Notice of Determination of Back Wages and Assessment of Civil Monetary

Penalties (Notice of Determination).12 The Notice of Determination charged Sakuma

and WAFLA with several violations of the H-2A program regulations and assessed

CMPs of $123,825 against Sakuma and $750 against WAFLA.13 Sakuma and

WAFLA contested the violations and penalties, and the matter was referred to the

Department’s Office of Administrative Law Judges on February 15, 2018.14

On April 25, 2018, the Administrator issued an Amended Notice of

Determination of Back Wages and Assessment of Civil Money Penalties (Amended

Notice of Determination), amending its assessment of CMPs against Sakuma and

Id.

Id. at 7-9; Administrator’s Hearing Exhibit (Adm’r Hearing Ex.) 2 at 7; Adm’r

Hearing Ex. 3 at 2, 7-9.

D. & O. at 4.

Id. at 4.

Id. at 6.

In recognition of the fact that the person holding the position of Administrator has

changed over time, we use plural pronouns when referring to the Administrator in this

decision.

Id. at 2; WAFLA Hearing Exhibit (WAFLA Hearing Ex.) A.

WAFLA Hearing Ex. A. at 1, 6-9. The Notice of Determination also assessed

$9,599.58 in unpaid wages owed to 61 workers. Id. at 1.

D. & O. at 2.

Sakuma and the Administrator subsequently agreed to a settlement of the

CMPs assessed against Sakuma and filed proposed Consent Findings with the ALJ

on October 4, 2018.18 WAFLA was not a party to the settlement or the Consent

Findings.19

The ALJ conducted a formal hearing on the Administrator’s charges against

WAFLA on October 15 and 16, 2018.20 On August 25, 2021, the ALJ issued the

D. & O. The ALJ determined that WAFLA was a joint employer with Sakuma as a

matter of law because it certified itself as a joint employer on its master application

for the H-2A workers. Thus, the ALJ held that WAFLA was legally responsible for

violations of the H-2A program.21

The ALJ also determined that the following H-2A program violations

occurred:

(1) H-2A workers were given preferential treatment over domestic workers in

corresponding employment;

(2) workers were not provided with housing meeting the applicable safety and

health standards;

(3) domestic workers were rejected from employment due to lack of

experience when H-2A workers were employed who did not have any

previous experience;

(4) applicants were not followed up with and workers were rejected because

the farm had inadequate housing; and

(5) transportation was provided to H-2A workers that was not provided to

domestic workers.22

D. & O. at 4.

Id. at 3 n.2, 4. The cases against Sakuma and WAFLA were originally consolidated

with the ALJ. Id. at 3 n.2. In light of Sakuma’s settlement, to enter the proposed Consent

Findings between the Administrator and Sakuma, and to accurately reflect the parties in

the remaining dispute, on November 9, 2018, the ALJ ordered that Sakuma’s case (ALJ No.

2018-TAE-00012) and WAFLA’s case (ALJ No. 2018-TAE-00013) were bifurcated nunc pro

tunc to October 4, 2018. Id.

Id. at 2. Having reached a settlement with the Administrator, Sakuma did not

participate in the hearing. Id. at 3.

Id. at 11-16.

Id. at 22-29, 32. The ALJ determined that violations (4) and (5) were duplicative of

other violations, and, therefore, did not assess any CMPs for those violations. Id. at 29, 32.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of the Department of Labor has delegated the authority to

review this matter to the Board.28 The regulations governing H-2A enforcement

allow a party to appeal to an ALJ for a de novo review of the Administrator’s action,

and appeal to the ARB for review of the ALJ’s decision.29 The ARB, on review from

the ALJ, reviews the record de novo, including the CMP assessments.30

DISCUSSION

On appeal, WAFLA argues that the ALJ erred by concluding it was a joint

employer as a matter of law because it certified itself as a joint employer in its

master application. Despite its sworn certification, WAFLA argues that it cannot be

deemed a joint employer for H-2A program purposes absent adequate indicia of

employment under the common law of agency, which, it asserts, do not exist in this

case. WAFLA also argues that it is entitled to rely on what it alleges to be the

Administrator’s previous interpretation and application of the H-2A statute and

regulations to not hold agricultural associations like WAFLA liable for H-2A

program violations by their members.

Additionally, WAFLA contends that, even if it did jointly employ the H-2A

workers at Sakuma’s farm, it was not involved in, and is therefore not responsible

for, the H-2A program violations committed by Sakuma. WAFLA also argues that

assessing CMPs against both Sakuma and WAFLA for the alleged H-2A violations

constitutes the imposition of an improper double penalty that exceeds the maximum

penalty permitted under the H-2A program regulations. Finally, WAFLA asserts

that the amount of penalties assessed by the ALJ was erroneously calculated and is

grossly disproportionate to the nature of the violations involved.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020).

29 C.F.R. §§ 501.41(b), (d), 501.42.

5 U.S.C. § 557(b); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Three D Farms,

LLC, ARB Nos. 2016-0092, -0093, ALJ No. 2016-TAE-00003, slip op. at 5 (ARB Feb. 12,

2019); see Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Pegasus Consulting Grp., Inc.,

ARB No. 2005-0086, ALJ No. 2004-LCA-00021, slip op. at 7 (ARB Apr. 28, 2009) (citations

omitted); see also Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Elderkin Farm, ARB Nos.

1999-0033, -0048, ALJ No. 1995-CLA-00031, slip op. at 12 (ARB June 30, 2000) (clarifying

that de novo review means the Board may substitute its judgment for the ALJ’s on CMPs).

The Board recently considered and resolved many of these precise arguments

and issues in another case to which WAFLA was a respondent: Administrator, Wage

and Hour Division, U.S. Department of Labor v. Azzano Farms, Inc.31 The material

facts in the instant case and in Azzano Farms are, in many respects, the same. In

that case, WAFLA filed a master application for H-2A nonimmigrant workers for

member farms, including co-respondent Azzano Farms, Inc,32 just as it did with

respect to Sakuma in the present case. In both cases, WAFLA represented that it

was the joint employer of the H-2A workers and swore to comply with the H-2A

program requirements.33 In both cases, the Administrator sought to impose CMPs

against WAFLA as a joint employer for violations of the H-2A program at its

member’s farm.34

Upon considering the history and purpose of the H-2A program and the

language and structure of the H-2A regulations, we concluded in Azzano Farms that

an agricultural association that applies and certifies itself as a joint employer on a

master application will be treated as a joint employer as a matter of law.35 Further,

we concluded that WAFLA was estopped from disclaiming liability as a joint

employer after accepting the benefits of the program, and that WAFLA could not

establish justifiable reliance on the Administrator’s alleged previous interpretation

and application of the H-2A statute and regulations to avoid liability.36 We also

concluded that when an agricultural association is a joint employer under the H-2A

program, the association assumes responsibility to ensure compliance with H-2A

regulations and may, therefore, be liable for CMPs when violations of the H-2A

program occur.37

Consistent with our decision in Azzano Farms, and for the reasons set forth

in that case and discussed more fully below in the present case, we conclude that

WAFLA was a joint employer with Sakuma under the H-2A program. We also

conclude that WAFLA is estopped from disclaiming liability as a joint employer,

cannot establish justifiable reliance to avoid liability, and is liable for the H-2A

ARB No. 2020-0013, ALJ No. 2019-TAE-00002 (ARB Mar. 30, 2023).

Id. at 2-3.

Id. at 2-3, 15.

Id. at 3-4.

Id. at 7-16.

Id. at 16-18.

Id. at 18-19.

program violations identified by the ALJ. Finally, we conclude that the CMPs

ordered by the ALJ are appropriate in the circumstances of this case.

1. WAFLA is a Joint Employer as a Matter of Law

As we explained in Azzano Farms, the H-2A program permits an agricultural

association, like WAFLA, to recruit, solicit, and hire H-2A nonimmigrant workers

on behalf of its member farms.38 When applying under the H-2A program, an

agricultural association must certify whether it is filing as an agent of, or as a joint

employer with, its member farms.39 The agricultural association receives different

benefits and carries different legal responsibilities depending on whether it is an

agent or a joint employer.

As an agent, an agricultural association must file individual Applications for

Temporary Employment Certification on ETA Form 9142A for each member farm.40

The agricultural association’s role as an agent is limited, and it may assist its

member farms navigate the H-2A application process without assuming the

obligations of an employer under the program.41

Alternatively, an agricultural association may file a master application as a

joint employer, which provides additional benefits that are not available for agents.

For example, an agricultural association may file a single master application on

behalf of multiple members, may sign the master application on behalf of its

members, and may transfer workers among the members identified in the master

application.42 To apply using a master application, the agricultural association must

Id. at 8.

Id. at 12; Adm’r Hearing Ex. 3 at 2; 20 C.F.R. § 655.103(b) (defining “agricultural

association” and stating that “[a]n agricultural association may act as the agent of an

employer, or may act as the sole or joint employer of any worker subject to 8 U.S.C. 1188”);

Dep’t of Labor Form, ETA-9142A, H-2A Application for Temporary Employment

Certification, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/eta_form_9142a.pdf. The

agricultural association may also certify that it is filing as a “sole employer” of the H-2A

workers. Adm’r Hearing Ex. 3 at 2; 20 C.F.R. § 655.103(b). Neither party argues that

WAFLA was a sole employer here.

See 20 C.F.R. § 655.131(a).

Id. § 655.103(b) (defining “agent”).

8 U.S.C. § 1188(d)(2) (“If an association is a joint or sole employer of temporary

agricultural workers, the certifications granted under this section to the association may be

used for the certified job opportunities of any of its producer members and such workers

certify that: (1) it is a joint employer with each of its members identified in the

application; (2) it will comply with specific H-2A program obligations, including

those identified as being violated in this case; and (3) it will “comply with applicable

Federal, State and local employment-related laws and regulations.”43

As we explained in Azzano Farms, “associations must choose one status or

the other, and that choice controls.”44 In that case, we conducted a thorough review

of the H-2A statute, regulations, and implementing materials, and explored in

depth the history and purposes of the H-2A program.45 From this review, we

ultimately concluded that, by operation of law, an agricultural association like

WAFLA which elects to file a master application on behalf of one or more members

accepts the designation of, and certifies itself as, a joint employer.46 In doing so, it

incurs the incumbent responsibility of any other joint employer under the H-2A

program.47

The facts presented in the instant case are materially identical to those

presented in Azzano Farms. As in Azzano Farms, here WAFLA filed a master

application on behalf of its member. WAFLA certified on the H-2A program

application, Form ETA 9142A, that it was a “Joint Employer” with its member for

purposes of the H-2A program, identified itself in the section for “Employer

may be transferred among its producer members to perform agricultural services of a

temporary or seasonal nature for which the certifications were granted.”); 20 C.F.R. §§

655.103(b) (defining “master application”), 655.130 (“An association filing a master

application as a joint employer may sign on behalf of its employer members. An association

filing as an agent may not sign on behalf of its members but must obtain each member’s

signature on each [ETA Form 9142A].”), 655.131(b) (“An association may file a master

application on behalf of its employer-members. The master application is available only

when the association is filing as a joint employer. An association may submit a master

application covering the same occupation or comparable work available with a number of

its employer-members . . . .”).

20 C.F.R. § 655.103(b) (defining “master application”); Adm’r Hearing Ex. 3 at 2, 7-9.

Azzano Farms, ARB No. 2020-0013, slip op. at 9.

Id. at 7-12.

Id. at 14-15; see also 8 U.S.C. § 1188(d)(2); 20 C.F.R. §§ 655.103(b) (defining “master

application” and “agricultural association”), 655.131(b) (setting forth the requirements for

filing a master application, including that it is “available only when the association is filing

as a joint employer”); Temporary Agricultural Employment of H-2A Aliens in the United

States (2009 Proposed H-2A Rule), 74 Fed. Reg. 45906, 45916 (proposed Sept. 4, 2009); 2010

Final H-2A Rule, 75 Fed. Reg. at 6917, 6918.

Azzano Farms, ARB No. 2020-0013, slip op. at 14-15, 19.

Information,” and included its own employee’s information as the “Employer Point

of Contact.”48 Likewise, WAFLA’s representative signed the form under the

“Employer Declaration” section.49 In an addendum to the master application,

WAFLA also identified itself as the “Main Employer” of the requested H-2A

workers.50

With its application in this case, as in Azzano Farms, WAFLA also filed an

ETA Form 790, known as a “job order,” which includes all the relevant and required

information about the temporary agricultural job, including job duties, working

hours, and housing and transportation information.51 Like was done with respect to

the ETA Form 9142A, a WAFLA employee signed under the “Employer’s

Certification” section of the ETA Form 790.52 Likewise, in the addendum to the ETA

Form 790, WAFLA reiterated that it was filing “an association application . . . on

behalf of its member(s), using the joint employer format,” and that “Employer” as

repeatedly used therein “refers collectively to the association and the member(s).”53

The ALJ regarded WAFLA’s use of a master application, in which it

repeatedly certified its status as a joint employer with Sakuma and its

acknowledged responsibility to ensure compliance with the H-2A program

requirements, as “dispositive” and, in and of itself, “sufficient . . . to find that

[WAFLA] was a joint employer.”54 The ALJ conducted a thorough, thoughtful, and

well-reasoned analysis that is consistent with Azzano Farms. Based on this

analysis, the ALJ found that WAFLA was a joint employer as a matter of law by

virtue of its use of the master application and self-identification and certification as

a joint employer therein.

Despite the foregoing, WAFLA contends that it cannot be a joint employer

with Sakuma, regardless of its certifications or use of the master application, unless

Adm’r Hearing Ex. 3 at 2.

Id. at 9. In contrast, WAFLA left the “Attorney or Agent Declaration” fields blank.

Id.

Id. at 10.

Adm’r Hearing Ex. 2; Dep’t of Labor Form, ETA-790, Agricultural Clearance Order,

https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_Form_790.pdf.

Adm’r Hearing Ex. 2 at 6.

Id. at 7.

D. & O. at 14.

it satisfies the definition of “employer” under the common law of agency.55 In

support of this proposition, WAFLA primarily relies on the regulatory definitions of

employer and joint employment, which incorporate common law agency principles.56

We considered and rejected this same argument in Azzano Farms. As we

explained there, and as the Administrator and the ALJ recognized in the instant

case, the common law of agency, as adopted by the regulatory definitions cited by

WAFLA, provide an independently sufficient basis to find that an agricultural

association is a joint employer for purposes of the H-2A program, in addition to, but

separate from, the agricultural association’s use of, and certifications in, a master

application.57 Stated another way, while an agricultural association may be found to

be a joint employer under the common law of agency, it will also be considered a

joint employer for H-2A purposes as a matter of law when, like WAFLA, it uses a

master application and designates and certifies itself as a joint employer.58

For these reasons, we agree with the ALJ that WAFLA was a joint employer

with Sakuma as a matter of law for purposes of the H-2A program.

2. Estoppel Prevents WAFLA from Disclaiming Joint Employer Liability

As we did in Azzano Farms, we also conclude that principles of estoppel

preclude WAFLA from disclaiming its status as a joint employer. As we explained in

that case, “[t]he Board has long held that entities cannot take advantage of the

benefits of temporary workers and subsequently claim that they are not liable for

the consequences of their violations, even when they may have erroneously been

granted the benefits of the program to begin with.”59 By certifying itself as a joint

employer with Sakuma and using a master application, WAFLA benefited from the

H-2A program by being approved to recruit nonimmigrant workers for its member,

WAFLA’s Brief in Support of Petition for Review (WAFLA Br.) at 7-11.

Id. at 12-13.

Azzano Farms, ARB No. 2020-0013, slip op. at 14-15.

Id.; see also id. at 32-34 (Burrell, J., concurring in part, dissenting in part). We do

not intend this decision, or our decision in Azzano Farms, to suggest that an agricultural

association that elects to file as an agent on ETA Form 9142A will never be held liable as a

joint employer for H-2A program violations. An agricultural association that files an ETA

Form 9142A as an agent may nevertheless be a joint employer for H-2A program purposes

under the common law of agency.

Id. at 16 (citations omitted).

Sakuma.60 WAFLA charged Sakuma for these services, receiving $1,200 for each of

the 69 workers it brought from outside of the United States to Sakuma’s farm, for a

total of $82,800.61 Thus, WAFLA clearly benefited from its representations and its

participation in the program. Consistent with our past holdings including Azzano

Farms, we find that WAFLA is estopped from disclaiming its status as a joint

employer after reaping the benefits of the H-2A program.

WAFLA insists that it should not be estopped from disclaiming its status as a

joint employer because it could have received similar benefits, including

participation in the H-2A program, by filing as an agent of Sakuma on an individual

ETA Form 9142A instead of as a joint employer on a master application.62 WAFLA

has not identified any legal support for the proposition that its ability to receive

similar benefits through some other means precludes the application of estoppel

principles. The fact remains that WAFLA enjoyed the benefits of its representations

and certifications as a joint employer. Additionally, as we explained above, filing as

a joint employer on a master application offered additional benefits to WAFLA and

Sakuma that would not have been available had WAFLA filed as an agent. For

example, agricultural associations filing as joint employers are able to file a single

master application on behalf of multiple members,63 transfer workers among the

members identified in the master application,64 and sign the master application on

behalf of its members.65 Thus, we find no basis to alter our conclusion in Azzano

Farms that WAFLA is estopped from disclaiming its status as a joint employer.

See id. at 16-17.

D. & O. at 4.

WAFLA’s Reply Brief (WAFLA Reply Br.) at 4.

8 U.S.C. § 1188(d)(2); 20 C.F.R. §§ 655.103(b) (defining “master application”),

655.131(b).

8 U.S.C. § 1188(d)(2); 20 C.F.R. §§ 655.103(b) (defining “master application”),

655.131(b).

20 C.F.R. § 655.130(d). WAFLA asserts that because Sakuma was the only member

identified on the master application in this case, it could not have enjoyed the benefit of

filing on behalf of, and transferring employees between, multiple member farms. WAFLA

Reply Br. at 4-5. Even so, it is undisputed that, at the very least, WAFLA enjoyed the

additional benefit of signing on behalf of its member, which it could not have done had it

filed as an agent. See 20 C.F.R. § 655.130(d). WAFLA discounts this benefit as a mere

“administrative convenience,” but it is a convenience and benefit for WAFLA and its

member nonetheless. WAFLA Reply Br. at 5.

3. Justifiable Reliance is Insufficient to Avoid Liability

WAFLA next argues that it cannot be held liable for violations of the H-2A

program because it had a “cognizable reliance interest in the Administrator’s

longstanding prior interpretation and application of the H-2A statute and

regulations to not hold associations liable for the conduct of their members.”66 We

rejected this same argument in Azzano Farms, and we do so again in the instant

case.

As it did in Azzano Farms, WAFLA accuses the Administrator of adopting a

“convenient litigating position” to hold an agricultural association responsible for

H-2A program violations when they certify themselves as a joint employer.67

According to WAFLA, the “Administrator was unable to produce any evidence

demonstrating any time in the entire history of the H-2A program prior to March

2018, that she had ever articulated or applied the H-2A regulations in such a way

as to assert an association was liable for violations by its members.”68

To the contrary, we agree with the ALJ that the Department “has

consistently—in writing—placed associations filing master applications as joint

employers in a position of responsibility for ensuring compliance with the terms of

the program by their members.”69 When the Department sought to promulgate new

H-2A regulations in 2009, it stated in the notice of proposed rulemaking:

The Department proposes to retain the long-standing

requirement that a master application may be filed only by

an association acting as a joint employer with its members;

the Proposed Rule reiterates this joint responsibility by

requiring that the association identify all employermembers that will employ H-2A workers. The Application

WAFLA Br. at 23.

Id. at 25.

Id.

D. & O. at 16. Conversely, WAFLA did not produce any evidence that the

Department or the Administrator announced that agricultural associations that certify

themselves as joint employers on a master application would or could never be held

responsible for violations of the H-2A program requirements.

must demonstrate that each employer has agreed to the

conditions of H-2A eligibility.[70]

Thus, as we stated in Azzano Farms, “the Department was clear that the proposed

rule would continue the ‘long-standing’ requirement that associations filing a

master application do so as a joint employer and agree to the H-2A program’s

requirements.”71

Upon subsequently issuing the final H-2A regulations in 2010, the

Department again reiterated that an agricultural association utilizing a master

application as a joint employer is jointly responsible with its members for

compliance under the H-2A program:

In addition, the Final Rule continues to require a single

date of need as a basic element for a master application, as

well as a longstanding requirement that master

applications may only be filed by an association acting as a

joint employer with its members. The Department

highlights joint responsibility of the association and its

employer-members by requiring that the association

identify all employer-members that will employ H-2A

workers.[72]

The Department went on:

The Department proposed to continue allowing

associations to file on behalf of their members. The [notice

of proposed rulemaking] clarified the role of associations as

filers (sole employer, joint employer or agent), in order to

assist the association and employer-members in

understanding the obligations each party is undertaking

with respect to the Application. As in the past, an

association will be required to identify in what capacity it

is filing, so there is no doubt as to whether the association

2009 Proposed H-2A Rule, 74 Fed. Reg. at 45916 (emphasis added).

Azzano Farms, ARB No. 2020-0013, slip op. at 10.

2010 Final H-2A Rule, 75 Fed. Reg. at 6918 (emphasis added).

is subject to the obligations of an agent or an employer

(whether individual or joint). This requirement is a

continuation from both the 1987 Rule and 2008 Final Rule

that required an association of agricultural producers to

identify whether the association is the sole employer, a

joint employer with its employer-members, or the agent of

its employer-members.[73]

Thus, dating back to at least 2009—four years before WAFLA elected to file a

master application as a joint employer with Sakuma, eight years before the

Administrator issued its Notice of Determination, 12 years before the ALJ issued

the D. & O., and 14 years before we issued this decision—the Department has

proclaimed, in writing associated with formal rulemaking, its long-standing position

that an agricultural association filing a master application as a joint employer is

subject to joint responsibility with its members for compliance with the H-2A

program requirements.74 WAFLA fails to address these repeated, consistent

statements as to the Department’s position on an agricultural association’s

responsibility as a joint employer, which undercut the assertion that the

Administrator “change[d] its interpretation and application of the regulations” as a

Id. at 6917.

Drake v. Fed. Aviation Admin., 291 F.3d 59, 67-68 (D.C. Cir. 2002) (recognizing “the

basic principle that an agency’s interpretation of one of its own regulations commands

substantial judicial deference,” and deferring to an interpretation that was consistent with

the position the agency took in its notice of proposed rulemaking (citations omitted)); cf.

Halo v. Yale Health Plan, Dir. of Benefits & Records Yale Univ., 819 F.3d 42, 52 (2d Cir.

2016) (stating that since Congress, through the Administrative Procedure Act, directs

agencies to incorporate preambles into regulations, “‘it does not make sense to interpret the

text of a regulation independently from its’” preamble) (quoting Kevin M. Stack,

Interpreting Regulations, 111 MICH. L. REV. 355, 361 (2012)); Kevin M. Stack, Preambles as

Guidance, 84 GEO. WASH. L. REV. 1252 (2016). Judge Burrell, in his opinion concurring in

part and dissenting in part in the instant case (Concurring and Dissenting Opinion),

construes the Department’s statements in the preambles to the proposed and final 2010 H2A regulations that associations and members are “jointly responsible” for H-2A program

compliance to mean that each association and each member is responsible only for its own

conduct and bears no responsibility for violations that can be attributed to the actions of the

other. Concurring and Dissenting Opinion at 48-49. We believe this ignores the ordinary

meaning of the word “joint,” defined as “common to or shared by two or more persons or

entities.” BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added). Because of this joint

or shared responsibility, both the association and the member are responsible when a

violation occurs.

“convenient litigating position” for the first time for purposes of the litigation here

and in Azzano Farms.75

WAFLA Br. at 25-26. Judge Burrell agrees with WAFLA that there was a “change in

interpretation or agency practice in the late 2017 or early 2018 time frame.” Concurring

and Dissenting Opinion at 46. In support of their position, WAFLA and Judge Burrell rely

on cases in which the Supreme Court and other federal courts analyzed the deference to be

given to agency interpretations of statutes or regulations that were different from or

conflicted with prior interpretations, or which constituted new and novel interpretations on

issues which did not reflect the “fair and considered” judgment of the agency. E.g., Kisor v.

Wilkie, 139 S.Ct. 2400, 2417-18 (2019) (explaining that deference may not be appropriate

“when an agency substitutes one view of a rule for another”); Encino Motorcars, LLC v.

Navarro, 579 U.S. 211, 217-18, 221-23 (2016) (declining to defer to a new agency

interpretation where the agency abandoned its “decades-old” interpretation and “said

almost nothing” about the reasons for the change); Fed. Commc’n Comm’n v. Fox Television

Stations, Inc., 556 U.S. 502, 517 (2009) (deferring to a new agency interpretation even

though it “broke[ ] new ground”); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158,

170-71 (2007) (deferring to an agency interpretation although “the Department may have

interpreted these regulations differently at different times in their history”); Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988) (declining to give deference to a new

agency interpretation that was “contrary to the narrow view of that provision advocated in

past cases,” and was “wholly unsupported by regulations, rulings, or administrative

practice”); Nat’l Org. of Veterans’ Advoc., Inc. v. Sec’y of Veterans Aff., 48 F.4th 1307, 131416 (Fed. Cir. 2022) (declining to defer to a new agency interpretation that conflicted with

past interpretations set forth in cases decided by the Board of Veterans’ Appeals); Romero

v. Barr, 937 F.3d 282, 296 (4th Cir. 2019) (declining to defer to a new agency interpretation

that broke from decades of precedential agency decisions interpreting the regulations

differently); United Farm Workers of Am. v. Chao, 227 F. Supp. 2d 102, 107-08 (D.D.C.

2002) (concluding that the agency’s new interpretation was “at odds with the governing

statute and regulation,” and conflicted with past comments accompanying the regulations

and the agency’s handbook).

These cases are inapposite in the context and circumstances of the instant case.

Unlike the cases cited by WAFLA and Judge Burrell, the Administrator did not change

their interpretation or offer a new and novel interpretation in this case, nor did the

Administrator’s decision to enforce the H-2A program rules come as an unreasonable and

unfair surprise to WAFLA. For the reasons explained herein and in Azzano Farms, the

Administrator’s position on WAFLA’s responsibility for H-2A program violations is

consistent with the text of the H-2A program regulations, the long-standing position

reaffirmed by the Department during formal rulemaking, and the certifications and

obligations to which WAFLA committed itself on the master application. See Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994) (“While it is true that an agency’s

interpretation of a statute or regulation that conflicts with a prior interpretation is entitled

to considerably less deference than a consistently held agency view, that maxim does not

apply here because petitioner fails to present persuasive evidence that the Secretary has

interpreted the [provision at issue] in an inconsistent manner.” (internal quotations and

citations omitted)). Indeed, Judge Burrell appears to acknowledge at times in his

Additionally, WAFLA’s own attestations on its H-2A application materials

show that WAFLA swore to comply with H-2A program requirements as an

“employer” of the workers hired under the job order. On its master application, after

repeatedly declaring and certifying itself as an “employer” of the nonimmigrant

workers it sought to recruit, WAFLA swore to “comply with all applicable Federal,

State and local employment-related laws and regulations, including health and

safety laws.”76 WAFLA committed itself to similar responsibilities in the ETA Form

790 job order, stating that “[t]he Employer (Association and Member collectively)

agrees to abide by the assurances provided at 20 CFR Part 655, Subpart B, and 20

CFR 653.501, including the employer obligations set forth at 20 CFR 655.135.”77

WAFLA also certified in the master application that it would meet various

obligations and conditions of employment required of employers by the H-2A

program, including that:

•

“[t]he job opportunity is and will continue to be open to any qualified U.S.

worker,”

•

“[t]here are no U.S. workers available in the area(s) capable of performing

the temporary services or labor in the job opportunity,”

Concurring and Dissenting Opinion that, at most, the issue in this case is whether the

Administrator changed their enforcement policy regarding agricultural association liability,

and not that they changed their entire interpretation of the H-2A program regulations as

was the case in many of the decisions upon which WAFLA and Judge Burrell principally

rely. Concurring and Dissenting Opinion at 46 (“Central to this dispute is whether there

was a change in WHD’s enforcement policy.” (emphasis added)).

Adm’r Hearing Ex. 3 at 8.

Adm’r Hearing Ex. 2 at 7. Judge Burrell states that the ETA Forms 9142A and 790

are “one-size-fits-all forms,” and, as a result, he asserts that few conclusions should be

drawn from WAFLA’s self-certification as a joint employer therein. Concurring and

Dissenting Opinion at 49-50. Nothing on the forms compelled WAFLA to certify itself as a

joint employer, and the ETA Form 9142A gave WAFLA the option of instead certifying

itself as an agent of its member. Adm’r Hearing Ex. 3 at 2, 7. Further, WAFLA did not

merely check the “joint employer” box on the forms; instead, it added its own express

language in the addendum to the Form 790 that it was “using the joint employer format,”

that “‘Employer’ refers collectively to the association and the member(s),” and that “[t]he

Employer (Association and Member collectively) agrees to abide by the assurances provided

in” the H-2A program regulations. Adm’r Hearing Ex. 2 at 7. This was not default or onesize-fits-all language automatically populated in the forms.

•

“[t]he job opportunity offers U.S. workers no less than the same benefits,

wages, and working conditions that the employer is offering . . . to H-2A

workers and complies with the requirements at 20 CFR 655, Subpart B,”

•

it “[w]ill provide for or secure housing for workers who are not reasonably

able to return to their permanent residence at the end of the work day that

complies with the applicable local, State, or Federal standards and

guidelines for housing without charge to the worker,” and

•

it “[w]ill provide transportation in compliance with all applicable Federal,

State or local laws and regulations between the worker’s living quarters . . .

and the employer’s worksite without cost to the worker.”78

These are, of course, the precise guarantees and obligations which the

Administrator charged WAFLA and Sakuma with violating. As we stated in Azzano

Farms, the H-2A application process is not one in which “an association could fail

to realize what it was attesting to in the course of correctly completing it.”79

Considering these attestations, WAFLA was not caught unaware when the

Administrator ultimately held WAFLA responsible for violating the obligations to

which it explicitly committed itself by signing the master application.

In support of its argument that WAFLA believed it would not be held

responsible for H-2A violations and that the Administrator adopted a new

interpretation of the H-2A regulations for the first time in the instant case, WAFLA

relies almost exclusively on testimony presented at the hearing before the ALJ.

Specifically, WAFLA points to evidence that the Administrator, in their

enforcement discretion, had previously elected not to pursue CMPs against

agricultural associations for H-2A violations committed by their members.80 In the

circumstances of this case, we hold that evidence of the Administrator’s past

discretionary enforcement choices does not establish a change in the Department’s

position as to agricultural associations’ responsibility as joint employers or create a

reasonable or cognizable reliance interest for WAFLA.

As the Supreme Court has recognized many times over many years, “an

agency’s decision not to prosecute or enforce, whether through civil or criminal

Adm’r Hearing Ex. 3 at 7-8.

Azzano Farms, ARB No. 2020-0013, slip op. at 15.

WAFLA Br. at 24; accord Concurring and Dissenting Opinion at 47.

process, is a decision generally committed to an agency’s absolute discretion.”81 The

Supreme Court explained:

[A]n agency decision not to enforce often involves a

complicated balancing of a number of factors which are

peculiarly within its expertise. Thus, the agency must not

only assess whether a violation has occurred, but whether

agency resources are best spent on this violation or

another, whether the agency is likely to succeed if it acts,

whether the particular enforcement action requested best

fits the agency’s overall policies, and, indeed, whether the

agency has enough resources to undertake the action at

all.[82]

Even if the Administrator had traditionally chosen, in the exercise of their

enforcement discretion, not to seek penalties from agricultural associations signing

master applications as joint employers for violations of the H-2A program occurring

at the associations’ members’ farms, the fact that they did so in the instant case and

in Azzano Farms does not mean that they changed their interpretation or position

on agricultural association responsibility under the H-2A program or that WAFLA

justifiably and reasonably believed it could or would never be held responsible for

such violations.83 Neither WAFLA nor Judge Burrell point to any evidence of any

Heckler v. Chaney, 470 U.S. 821, 831 (1985); accord 5 U.S.C. § 701(a)(2) (precluding

judicial review of agency action “committed to agency discretion by law”); see also Sec’y of

Lab. v. Twentymile Coal Co., 456 F.3d 151, 156-57 (D.C. Cir. 2006) (recognizing the

discretion afforded to the Secretary of Labor with respect to administrative charging and

enforcement decisions for the statutes under his or her purview, which are generally

unreviewable by a tribunal); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538

(D.C. Cir. 1986) (same).

Chaney, 470 U.S. at 831-32; accord Massachusetts v. Env’t Prot. Agency, 549 U.S.

497, 527 (2007) (“As we have repeated time and again, an agency has broad discretion to

choose how best to marshal its limited resources and personnel to carry out its delegated

responsibilities.”). The Supreme Court equated agency enforcement decisions with

prosecutorial decisions in criminal cases, which have long been regarded as committed

solely to the discretion of the Executive Branch. Chaney, 470 U.S. at 832.

See United Airlines, Inc. v. Brien, 588 F.3d 158, 174 (2d Cir. 2009) (recognizing the

“broad discretion [an agency has] in how it enforces statutory and regulatory law,” even

when the agency shifts enforcement policy); cf. Smiley v. Citibank (S.D.), N.A., 517 U.S.

735, 742 (1996) (“The mere fact that an agency interpretation contradicts a prior agency

position is not fatal.”).

written or other express enforcement policy from the Administrator, WHD, or the

Department on this issue, let alone any express indication from the Administrator

explaining the reasons for the Administrator’s past enforcement choices.

As we have emphasized herein, the Department has consistently stated in

writing, in both its preambles associated with formal rulemaking and in the H-2A

application materials themselves, that an agricultural association can be held

responsible for H-2A program violations when it declares and certifies itself as a

joint employer on a master application. These pronouncements provided clear notice

and fair warning to agricultural associations like WAFLA that enforcement actions

are possible, regardless of the discretionary enforcement choices the Administrator

may have made for a myriad of reasons in the past.84

As the ALJ recognized, WAFLA may have subjectively believed, based on its

experiences with past enforcement actions, that it would not be held responsible or

penalized as a joint employer with its members.85 Even so, we agree with the ALJ’s

ultimate conclusion that WAFLA’s subjective belief was unreasonable and does not

give rise to a cognizable reliance interest.86

Judge Burrell asserts that “[i]n light of long-standing practice to the contrary,

regulated agricultural associations like WAFLA require notice that they may be liable for

the full amount of a member farm’s violation regardless of any ownership, knowledge,

participation, or control the association may have had in the violation.” Concurring and

Dissenting Opinion at 58. To the extent such notice is required, the regulatory history and

the H-2A application materials discussed at length herein provide such notice.

D. & O. at 19.

See id. at 16 (“Reviewing the most relevant case law, it is apparent that the

unwritten exercise of discretion to not enforce elements of a regulation does not create a

cognizable reliance interest as against a written regulation.” (emphasis original)), 19

(stating that WAFLA’s subjective belief “in light of the plain language of the governing

regulations and WAFLA’s own application to bring in the H-2A workers in this case, was

not a reasonable belief, and does not absolve WAFLA of liability” (citations omitted));

Azzano Farms, ARB No. 2020-0013, slip op. at 18 (explaining that WAFLA’s argument that

“the mere fact that it has not been held liable for past violations, despite being party to past

investigations . . . without more, is far from a sufficient ground to find that WAFLA should

be relieved of liability in this case”). As we stated in Azzano Farms, WAFLA’s reliance on

Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012), is misplaced. Azzano

Farms, ARB No. 2020-0013, slip op. at 17-18. In that case, the Supreme Court declined to

give deference to the Department’s interpretation that pharmaceutical sales

representations were not exempt “outside salesmen” under the Fair Labor Standards Act.

Christopher, 567 U.S. at 150-51, 155-56. For decades, the Department had acquiesced in the

pharmaceutical industry’s treatment of pharmaceutical sales representatives as exempt

Aside from the Administrator’s discretionary enforcement choices, the only

other evidence WAFLA cites in support of the notion that the Administrator

changed their interpretation of the H-2A regulations as a “convenient litigating

position” in the instant case is the fact that the Administrator revised their initial

Notice of Determination.87 In the original Notice of Determination, the

Administrator assessed a penalty of $750 against WAFLA for one H-2A program

violation—failure to comply with inbound transportation requirements—and did

not assess CMPs against WAFLA as a joint employer for the other violations the

Administrator sought to enforce against Sakuma.88 In the subsequent Amended

Notice of Determination, the Administrator held WAFLA responsible for the other

H-2A program violations as well and increased the CMPs assessed against WAFLA

to $124,575.89 According to WAFLA, this amendment evidences a “change in [the

Administrator’s] interpretation and application of the statute and regulations.”90

Once again, we conclude that this evidence does not reflect a change in the

Administrator’s or the Department’s interpretation of the H-2A program

regulations concerning agricultural association responsibility. The fact that the

Administrator originally chose, in the exercise of their enforcement discretion, to

not hold WAFLA responsible for H-2A violations which occurred at Sakuma’s farm

does not mean that the Administrator believed WAFLA could not be held

responsible for such violations, or that the Administrator would or could not revise

their position to later hold WAFLA responsible. Indeed, the original Notice of

Determination explicitly stated that the Administrator reserved the right,

consistent with their discretionary authority, to “tak[e] other enforcement action as

under the FLSA, without ever announcing a contrary interpretation until doing so for the

first time in an amicus brief in pending litigation. Id. at 157-58. Even if in the instant case

the Administrator and WHD had not traditionally sought to collect assessments from

agricultural associations for H-2A program violations committed by their members, unlike

in Christopher, “the regulations, statute, and the Department’s statements consistently

support WHD’s position” that agricultural associations can be held responsible and

penalized as joint employers. Azzano Farms, ARB No. 2020-0013, slip op. at 17.

WAFLA Br. at 26; accord Concurring and Dissenting Opinion at 52-53.

WAFLA Hearing Ex. A at 1-3, 6-9.

WAFLA Hearing Ex. B at 5-10.

WAFLA Br. at 26; accord Concurring and Dissenting Opinion at 51 (“The timing,

amount, and financial consequence of the change [from the original Notice of Determination

to the Amended Notice of Determination] clearly weighs against the position that there was

not a change [in the interpretation of the H-2A regulations] underlying the amendment.”).

is deemed appropriate by the Department of Labor, or the additional assessments of

back wages or civil money penalties for violations of the H-2A provisions found at

some future time.”91 The WHD Assistant District Director who issued the Amended

Notice of Determination also testified that he had, on occasion, issued revised

determination letters, just like he did in this case.92

Consistent with this reservation, after initiating the enforcement action

against WAFLA and Sakuma, engaging in discovery, entering into settlement

negotiations with Sakuma, and reexamining the facts of the investigation, the

Administrator ultimately decided to assess additional penalties against WAFLA.93

As discussed above, these are precisely the type of enforcement decisions committed

to the Administrator’s discretion, which tribunals should not second-guess.94

For the foregoing reasons, we agree with the ALJ that WAFLA did not have a

cognizable reliance interest that was violated by the Administrator’s discretionary

decision to hold WAFLA responsible as a joint employer for violations of the H-2A

program at Sakuma’s farm.

4. Joint Employer Status Renders WAFLA Liable for CMPs

WAFLA next argues that, while the ALJ found it to be a joint employer of the

H-2A nonimmigrant workers at issue here, several of the violations for which the

ALJ held it responsible only affected domestic workers employed by Sakuma.95

WAFLA Hearing Ex. A at 2.

Hearing Transcript (Tr.) at 207-11; accord id. at 108-10 (WHD District Director

testifying that it was normal for an Assistant District Director to issue a revised

determination letter).

Acting Administrator’s Response Brief (Adm’r Br.) at 41; Administrator’s Post

Hearing Brief in Response at 4 n.4; Tr. at 211-12. Judge Burrell asserts that “the

Administrator has not adequately explained the agency’s decision-making process in the

change from $750 in CMPs to $124,575 in CMPs” and that “[t]here were no new factual

developments stemming from the investigation to explain the 16,500% change.” Concurring

and Dissenting Opinion at 51, 53. To the extent the Administrator needs to justify their

decision to issue the Amended Notice of Determination in light of their broad discretion to

make these types of enforcement decisions, we believe these facts offer sufficient

justification for the decision to amend.

See Chaney, 470 U.S. at 831-32.

WAFLA Br. at 19. Specifically, WAFLA attributes the preferential treatment,

housing safety and health, and unlawful rejection of domestic workers violations solely to

Sakuma’s actions. Id. at 16-17, 20-23.

WAFLA asserts that it had no control over, and therefore had no responsibility for,

violations related to those domestic workers.96

We rejected a similar argument made by WAFLA in Azzano Farms.97 As we

observed in that case, the H-2A regulations provide that employers of H-2A workers

must agree, as part of the application process, “that [they] will abide by the

requirements” of the H-2A regulations, and otherwise “comply with all applicable

Federal, State and local laws and regulations, including health and safety laws.”98

These requirements cover obligations and responsibilities owed not only to the H-2A

nonimmigrant workers covered by the application, but also to the domestic workers

in “corresponding employment.”99 Consistent with the regulations, WAFLA swore in

its application materials filed with the Department that, as a joint employer, it

would ensure compliance with all H-2A program requirements, including those with

respect to domestic workers.100 Specifically, as outlined above, WAFLA committed

itself to ensuring that:

•

“[t]he job opportunity is and will continue to be open to any qualified U.S.

worker,”

•

“[t]here are no U.S. workers available in the area(s) capable of performing

the temporary services or labor in the job opportunity,”

Id. at 19-20.

In Azzano Farms, WAFLA asserted that it had no control over the violations

committed by its member, whereas in the instant case WAFLA argues, more specifically,

that it had no control over the domestic workers whose rights were violated under the H-2A

program. Azzano Farms, ARB No. 2020-0013, slip op. at 18-19; WAFLA Br. at 19-23.

Although the specifics of the arguments differ to a degree, the substance of the

arguments—that WAFLA cannot be held responsible for a violation that resulted from the

actions of its member—is materially the same.

Azzano Farms, ARB No. 2020-0013, slip op. at 19; 20 C.F.R. § 655.135.

20 C.F.R. §§ 655.122, 655.135; cf. 2009 Proposed H-2A Rule, 74 Fed. Reg. at 4590708 (stating that with the 2010 changes to the H-2A program, the Department’s purpose was

to expand protections and incentives for U.S. workers). Domestic workers in “corresponding

employment” are those who engage “in any work included in the job order, or in any

agricultural work performed by the H-2A workers” during the validity period of the job

order. 20 C.F.R § 655.103(b).

100

Id. §§ 655.122, 655.135; Adm’r Hearing Ex. 2 at 7; Adm’r Hearing Ex. 3 at 7-9.

•

“[t]he job opportunity offers U.S. workers no less than the same benefits,

wages, and working conditions that the employer is offering . . . to H-2A

workers and complies with the requirements at 20 CFR 655, Subpart B,” and

•

it “[w]ill provide for or secure housing for workers who are not reasonably

able to return to their permanent residence at the end of the work day that

complies with the applicable local, State, or Federal standards and

guidelines for housing without charge to the worker.”101

These are the precise obligations from which WAFLA attempts to escape legal

responsibility in this case.

As we summarized in Azzano Farms, by virtue of its position as a joint

employer under the H-2A program and its attestations in its application materials,

WAFLA “had an obligation to aid in compliance of its member-farms.”102

Accordingly, even if, as WAFLA argues, several of the violations here resulted from

Sakuma’s actions or concerned the benefits and working conditions provided to

domestic workers, WAFLA violated its own affirmative obligation to ensure the

H-2A program requirements were met and that violations did not occur at Sakuma’s

farm, including those pertaining to domestic workers in corresponding employment.

For this reason, we disagree with WAFLA’s assertion that the “Administrator

simply sought to hold wafla liable for the violations committed by Sakuma,” for

which it had absolutely no responsibility.103 Instead, WAFLA is responsible, and can

be penalized, for its failure to fulfill its own statutory and regulatory compliance

obligations.104

Adm’r Hearing Ex. 3 at 7-8. We agree with the ALJ and the Administrator that,

if WAFLA wished to avoid these obligations, it could have acted solely as an agent for

Sakuma. D. & O. at 25; Adm’r Br. at 31. Having instead elected to file as a joint employer

with Sakuma, it was incumbent on WAFLA to ensure that it had the ability to fulfill the

compliance obligations to which it committed itself, including through appropriate

oversight of the H-2A program at Sakuma’s farm.

101

102

Azzano Farms, ARB No. 2020-0013, slip op. at 19.

WAFLA Br. at 17; accord Concurring and Dissenting Opinion at 48, 50 (expressing

concern with what Judge Burrell believes to be the undue imposition of “strict” or

“vicarious” liability on an association for a violation resulting from the actions of one of its

members).

103

To be clear, the fact that WAFLA can be held responsible and penalized for

violations that it alleges can be attributed to the actions of its members does not mean that

WAFLA’s alleged lack of “culpability” is irrelevant. See Concurring and Dissenting Opinion

104

In support of its position that it cannot be assessed CMPs for violations that

resulted from Sakuma’s actions, WAFLA also cites to the H-2A statutory and

regulatory provisions concerning debarment from the H-2A program.105 WAFLA

observes that the statute and regulations circumscribe when an agricultural

association may be debarred for violations that resulted from the actions of its

members. Specifically, an agricultural association may only be debarred if it

“participated in, had knowledge of, or reason to know of, the violation.”106 WAFLA

contends that, as with debarment, an agricultural association should only be

assessed CMPs for violations that resulted from a member’s actions if it

participated in, or had knowledge of, the violation.107

WAFLA’s reliance on the debarment provisions is misplaced. Unlike the

debarment provisions, the H-2A statutory and regulatory provisions granting the

Administrator the authority to impose CMPs do not limit association liability only

to those situations in which the association participated in, knew of, or reasonably

should have known of, the violation.108 The conspicuous absence of limiting

at 59-60 (discussing the role Judge Burrell believes the association’s culpability should have

in the CMP analysis). As we stated in Azzano Farms, and as discussed in Section 6.b.i,

infra, to the extent WAFLA disputes its level of culpability given its role (or lack thereof)

with respect to the violations, that is an issue addressed in the analysis of the appropriate

amount of penalties to be assessed under the mitigation factors identified in 29 C.F.R.

§ 501.19(b). See Azzano Farms, ARB No. 2020-0013, slip op. at 16 n.62, 19.

WAFLA Reply Br. at 10-14; accord Concurring and Dissenting Opinion at 48; see

also 8 U.S.C. § 1188(b)(2); 29 C.F.R. § 501.20. WAFLA raised its argument concerning the

debarment provisions for the first time in its Reply Brief. Accordingly, WAFLA waived this

argument. Palisades Urban Renewal Entp., ARB No. 2007-0124, ALJ No. 2006-DBA-00001,

slip op. at 8 (ARB July 30, 2009). However, we granted the Administrator the opportunity

to file a sur-reply, and have considered WAFLA’s argument for the sake of completeness.

105

8 U.S.C. § 1188(d)(3)(A) (emphasis added); accord 29 C.F.R. § 501.20(f). The

statutory and regulatory provisions similarly provide that a member will not be debarred

for an agricultural association’s violations of the H-2A program requirements unless it

“participated in, had knowledge of, or reason to know of, the violation.” 8 U.S.C.

§ 188(d)(3)(B)(i); accord 29 C.F.R. § 501.20(h).

106

107

WAFLA Br. at 11-13.

See 8 U.S.C. § 1188(g)(2); 29 C.F.R. § 501.19. WAFLA appears to suggest that the

Administrator may not have the authority to assess monetary penalties at all under the

H-2A program provisions. WAFLA Reply Br. at 12 (“As noted, the statute does not even

specifically authorize monetary penalties . . . .”). The H-2A statute and regulations

expressly provide for the imposition of penalties on offending employers. 8 U.S.C.

108

language in the CMP provisions reflects a purposeful choice by Congress and the

Department to treat the imposition of CMPs and the imposition of a debarment

sanction differently regarding the allocation of responsibility and liability between

agricultural associations and their members.109 Therefore, we conclude that the

additional limitations identified in the debarment provisions do not apply to the

assessment of CMPs.

5. The ALJ Did Not Err by Relying on the Consent Findings to Determine

that the Alleged Violations Occurred

In concluding that violations of the H-2A program requirements occurred in

this case, the ALJ relied, in significant part, on Sakuma’s admissions of fact in the

Consent Findings.110 Although WAFLA does not dispute in this appeal that the

§ 1188(g)(2) (“The Secretary of Labor is authorized to take such actions, including imposing

appropriate penalties . . . .” (emphasis added)); 29 C.F.R. § 501.19(a) (“A civil money

penalty may be assessed by the WHD Administrator for each violation . . . .” (emphasis

added)).

See Russello v. U.S., 464 U.S. 16, 23 (1983) (“Where Congress includes particular

language in one section of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” (internal quotations and citation omitted)). WAFLA questions why

the assessment of a debarment penalty would carry more limitations or be more

circumscribed than the assessment of a monetary penalty. WAFLA Reply Br. at 13. As the

Administrator correctly observes, debarment is a severe sanction and has been reserved by

Congress for substantial violations of the H-2A program. Adm’r Sur-reply at 4-5; 8 U.S.C.

§ 1188(b)(2)(A); Adm’r, Off. of Foreign Lab. Certification, Emp. & Training Admin., U.S.

Dep’t of Lab. v. Castro Harvesting, ARB No. 2013-0082, ALJ No. 2013-PED-00002, slip op.

at 10 (ARB Nov. 26, 2013) (stating that debarment is “an obviously severe penalty” (citation

omitted)). Given the significance and particular severity of debarment, it is natural that the

circumstances in which it can be ordered are more limited or circumscribed as compared to

purely monetary penalties. WAFLA also observes that, pursuant to 29 C.F.R. § 501.20(d)(2),

the same regulatory mitigation factors are used to determine the amount of CMPs to be

assessed for a violation and to determine whether a violation is so “substantial” as to merit

debarment. WAFLA Reply Br. at 14. WAFLA appears to suggest that, because of this

overlap, the CMP and debarment analyses should be treated as coextensive, and, therefore,

the additional limitations concerning when an agricultural association will be debarred for

the actions of its members should extend to the assessment of CMPs as well. The question

of whether a violation is “substantial” and merits debarment is different than the question

of whether the debarment should extend from a member to the agricultural association that

had no knowledge of, or participation in, the violation. While the former question shares

some regulatory overlap with the CMP assessment, the latter question, according to the

plain language of the H-2A statutory and regulatory provisions, does not.

109

110

D. & O. at 4-6, 22-29.

violations identified by the ALJ occurred, it nevertheless asserts that the ALJ erred

by relying on the Consent Findings because WAFLA was not a party to them.111

We find no basis to conclude that the ALJ erred in his review and consideration of

the admissions in the Consent Findings.

First, WAFLA asserts that its Executive Director testified that “certain

characterizations about wafla in the proposed Consent Findings were factually

incorrect or misleading and appeared to be self-serving for Sakuma’s benefit,

including pointing out that documentary evidence in the record materially

contradicted some [of] Sakuma’s representations.”112 WAFLA does not explain to

the Board what was mischaracterized or misleading in the Consent Findings, how

the documentary evidence in the record contradicted the Consent Findings, why it

believes the alleged mischaracterizations or misleading statements affected the

outcome of this case, or otherwise elaborate on this broad and conclusory allegation.

Accordingly, we deem the argument waived.113

111

WAFLA Br. at 14-16.

112

Id. at 14.

Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Global Horizons, Inc., ARB No. 20110058, ALJ Nos. 2005-TAE-00001, 2005-TLC-00006, slip op. at 7 (ARB May 31, 2013)

(citations omitted) (rejecting a party’s “one or two sentences” challenging an ALJ’s

sanctions award, finding such “insufficient for an appeal” of the order); Walker v. Am.

Airlines, ARB No. 2005-0028, ALJ No. 2003-AIR-00017, slip op. at 17 (ARB Mar. 30, 2007)

(citations omitted) (rejecting argument about which complainant made only “passing

references and commentary” on appeal); Dev. Res., Inc. ARB No. 2002-0046, slip op. at 4

(ARB Apr. 11, 2002) (disregarding an argument upon which a party did not elaborate, and

quoting Tolbert v. Queens Coll., 242 F.3d 58, 75-76 (2d Cir. 2001), for the “settled appellate

rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived.”). Even if we considered WAFLA’s

conclusory argument, we would still find no basis to conclude that the ALJ erred in his

consideration of the evidence. ALJs have broad discretion in evidentiary determinations,

and the Board will only overturn such determinations upon a showing that the ALJ abused

his or her discretion. Rathburn v. The Belt Ry. Co. of Chicago, ARB No. 2016-0036, ALJ No.

2014-FRS-00035, slip op. at 3, 5-6 (ARB Dec. 8, 2017) (citations omitted). The ALJ

considered the sworn admissions of fact from Sakuma in the Consent Findings and found

them consistent with the credible testimony offered at the hearing by the WHD investigator

who led the investigation at Sakuma’s farm. D. & O. at 6; see also Riddell v. CSX Transp.,

Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054, slip op. at 13 n.3 (ARB May 19, 2020)

(recognizing the ALJ’s power to consider written out-of-court statements, which “increase

the ALJ’s access for probative evidence”). The ALJ explained his reasons for finding the

WHD investigator credible, and WAFLA has not challenged that credibility finding in this

appeal. D. & O. at 6; see Riddell, ARB No. 2019-0016, slip op. at 13 (“The Board gives

considerable deference to an ALJ’s credibility determinations and defers to such

113

WAFLA also contends that the ALJ erred by “suggest[ing] that if wafla

disagreed with the content of the Consent Findings then wafla could have taken

discovery from Sakuma employees regarding the proposed consent findings.”114

According to WAFLA, the “ALJ failed to recognize that the Consent Findings were

agreed to by the Administrator and Sakuma just days before the hearing began and

more than three months after discovery in the case closed on July 20, 2018.”115

Thus, WAFLA asserts that “[t]he D. & O. does not explain how Sakuma could have

possibly taken discovery about statements by Sakuma in the Consent Findings

more than three months before the Consent Findings existed.”116

Although WAFLA is correct that the Consent Findings themselves were

signed and submitted after discovery closed, WAFLA had sufficient opportunity to

conduct discovery on the factual matters contained in the Consent Findings. The

specific facts asserted in the Consent Findings concerned the violations about which

WAFLA has had notice since it was issued the Amended Notice of Determination at

the outset of the proceedings before the ALJ. WAFLA had the opportunity to take

discovery on the facts underlying the violations (and thus underlying the Consent

Findings), and use that discovery to challenge the factual predicates for the ALJ’s

conclusion that H-2A violations occurred in this case. Instead, as the ALJ notes,

WAFLA chose, “with a few exceptions . . . to litigate issues of law rather than

contest the alleged violations with contradictory evidence.”117

determinations unless they are inherently incredible or patently unreasonable.” (internal

quotations and citation omitted)). The ALJ also considered WAFLA’s Executive Director’s

testimony challenging certain paragraphs of the Consent Findings, but found the testimony

insufficient to discredit or override the admissions in the Consent Findings. D. & O. at 7.

Again, aside from vaguely asserting that the Executive Director disagreed with some

assertions of fact in the Consent Findings, WAFLA has not explained how or why the ALJ

abused his broad discretion in considering the Consent Findings over the Executive

Director’s conflicting testimony.

114

WAFLA Br. at 15 (citing D. & O. at 7).

115

Id.

116

Id. at 16.

117

D. & O. at 7.

For these reasons, WAFLA has not presented a sufficient basis for the Board

to conclude that the ALJ erred by accepting and relying on the admissions of fact

identified in the Consent Findings.118

6. The ALJ Properly Assessed CMPs

A. The CMPs Against WAFLA Do Not Constitute a Double Penalty

WAFLA argues that by penalizing both Sakuma and WAFLA, the

Administrator improperly “assess[ed] a penalty twice for the same violation.”119

Under WAFLA’s theory, because Sakuma has already paid its penalties, the

violations at issue have been “resolved,” and the assessment against WAFLA

constitutes an unlawful “double penalty” that exceeds the regulatory maximum

permitted for each violation.120

In Azzano Farms, we held that the Administrator may properly penalize each

joint employer separately for their violations of the H-2A program.121 The H-2A

regulations permit the Administrator to assess penalties “for each violation” of the

H-2A program.122 Importantly, the regulations explain that “[e]ach failure” to

comply with the H-2A program requirements “constitutes a separate violation.”123

“Each,” in this context, does not “require[ ] splitting the CMP maximum between

employers when there is a joint employment situation.”124 “Instead, CMPs are

assessed per violation which, in the instance of joint employment, means that each

Judge Burrell appears to discount the admissions in the Consent Findings because

WAFLA did not sign the Consent Findings. Concurring and Dissenting Opinion at 60. He

does not explain why an ALJ may not accept a sworn out-of-court statement, merely

because one party did not sign off on or accept the assertions therein. He also fails to

address the ALJ’s assessment that the assertions in the Consent Findings were consistent

with the WHD investigator’s credible testimony.

118

119

WAFLA Br. at 30.

120

Id. at 30-31.

121

Azzano Farms, ARB No. 2020-0013, slip op. at 20-21.

122

29 C.F.R. § 501.19(a).

123

Id.

124

Azzano Farms, ARB No. 2020-0013, slip op. at 20.

joint employer committed a violation, rendering each joint employer liable for the

violation it committed.”125

As we have explained in the instant case, WAFLA and Sakuma, as joint

employers, were each obligated to ensure compliance with the H-2A program.126

Consistent with our holding in Azzano Farms, each entity’s failure to fulfill its

obligations constitutes a separate violation and exposes each entity to separate

penalties. Thus, the ALJ correctly concluded that the penalty against WAFLA was

not an unlawful “double penalty,” and that Sakuma’s penalty assessment, and its

satisfaction thereof, does not affect the penalty that can be assessed against as a

joint employer under the H-2A program.

B. The CMPs Assessed by the ALJ Were Appropriate

Finally, WAFLA contends that, even if it is liable for violations of the H-2A

program, “the penalties assessed by the ALJ are erroneous even considering the

reductions applied.”127 We disagree.

The INA authorizes the Secretary “to take such actions, including imposing

appropriate penalties . . . as may be necessary to assure employer compliance with

terms and conditions of employment under” the H-2A program.128 Pursuant to this

authority, the Administrator is authorized to assess CMPs up to a maximum

prescribed amount for each violation by each joint employer.129

In determining the monetary amount that should be assessed against an

offending employer, the regulations direct the Administrator to consider “the type of

violation committed and other relevant factors,” including, but not limited to: (1)

previous history of violation(s); (2) the number of H-2A workers, workers in

Id. We analogized in Azzano Farms that the imposition of CMPs is like the

imposition of sentences for criminal conduct. Id. “Criminal courts do not look at sentencing

guidelines and allocate the sentence among the parties who are found guilty. Instead, each

party is sentenced for its participation in the crime.” Id. This contrasts with assessment for

back wages, where a total amount may be appropriately allocated between parties. Id.

125

See supra Section 1, “WAFLA is a Joint Employer as a Matter of Law,” and Section

4, “Joint Employer Status Renders WAFLA Liable for CMPs.”

126

127

WAFLA Br. at 31.

128

8 U.S.C. § 1188(g)(2).

129

29 C.F.R. § 501.19(a), (c)-(d).

corresponding employment, or U.S. workers who were and/or are affected by the

violation(s); (3) the gravity of the violation(s); (4) efforts made in good faith to

comply with the H-2A program requirements; (5) explanation from the person

charged with the violation(s); (6) commitment to future compliance; (7) the extent to

which the violator achieved a financial gain due to the violation, or the potential

financial loss or potential injury to the workers.130 “[T]he assessment of a particular

penalty (or of an enhanced penalty for a repeat or willful violation) is not

mandatory, but guided by consideration of the seven [mitigation] factors listed in

paragraph (b), the facts of each individual case, and by common sense.”131 Thus, as

we explained in Azzano Farms, the Administrator has discretion in assessing CMPs

in any individual case.132

The ALJ determined that the H-2A program requirements were violated in

three ways in this case. First, the ALJ determined that domestic workers in

corresponding employment did not receive the same benefits and working

conditions as did the H-2A workers employed at Sakuma’s farm.133 The H-2A

workers were not charged housing deposits, were given basic housing supplies, and

were provided transportation to their worksites.134 The domestic workers did not

receive the same treatment. Although domestic workers were given access to

housing at Sakuma’s farm, they were charged a deposit for that housing.135

Domestic workers also did not receive the same basic housing supplies and were not

130

Id. § 501.19(b).

131

2010 Final H-2A Rule, 75 Fed. Reg. at 6944.

Azzano Farms, ARB No. 2020-0013, slip op. at 22. As the ALJ notes, in exercising

this discretion, as a matter of national policy the Administrator typically begins by

determining the maximum regulatory penalty for a given violation. The Administrator then

considers the seven regulatory factors identified above as mitigation factors, typically

reducing the maximum penalty by 10% for each mitigation factor which they determine

applies in the circumstances of the case. D. & O. at 21. The ALJ adopted the same approach

below. Id. at 22. WAFLA has not challenged this approach to determining the amount of

CMPs to be assessed under the H-2A program.

132

The H-2A regulations prohibit giving H-2A workers preferential treatment over

domestic workers, stating that “[t]he employer’s job offer must offer to U.S. workers no less

than the same benefits, wages, and working conditions that the employer is offering,

intends to offer, or will provide to H-2A workers.” 20 C.F.R. § 655.122(a).

133

134

D. & O. at 22-23.

135

Id. at 22.

provided with transportation.136 On appeal, WAFLA does not dispute that these

violations occurred.

The Administrator assessed a base penalty of $1,500 against WAFLA for

each of the 207 domestic workers who did not receive the same benefits and working

conditions as the H-2A workers employed at the farm, for a total of $310,500.137

After applying the regulatory mitigation factors, the Administrator reduced the

penalty to $108,675.138

Conducting a de novo review, the ALJ determined that the mitigation factors

warranted further reducing the assessments levied by the Administrator.139 The

ALJ calculated the penalty as follows:

Base penalty ($1,500 x 207)

Factor 1 – history

Factor 2 – workers affected

Factor 3 – gravity

Factor 5 – explanation

Factor 6 – commitment

Factor 7 – financial gain

SUBTOTAL

Factor 4 – good faith

TOTAL

Mitigation Factor

-5 percent

0 percent

10 percent

30 percent

10 percent

-50 percent

Dollar amount

$310,500

-$15,525

-$0

-$31,500

-$94,500

-$31,500

$105,975

-$52,987.50

$52,987.50140

Second, the ALJ determined that worker housing did not meet applicable

health and safety standards.141 Specifically, WHD investigators found a refrigerator

that was not operating properly and an “infestation of flies near full garbage by

men’s bathroom [and] [a]lso [a] piece of feces located on ground outside men’s

136

Id. at 22-23.

137

Id. at 23.

138

Id.

139

Id. at 23-25.

As noted above in footnote 25, the ALJ erred in his calculations. The corrected

assessment for this violation, using the ALJ’s percentage reductions, is $54,337.50.

140

The H-2A regulations require employers to provide housing at no cost to H-2A

workers and those workers in corresponding employment who are not able to return to their

residence within the same day. 20 C.F.R. § 655.122(d)(1). The housing must meet the safety

standards identified in 29 C.F.R. § 1910.142. 20 C.F.R. § 655.122(d)(1)(i).

141

bathroom.”142 Once again, WAFLA does not dispute on appeal that these violations

occurred.

The Administrator assessed a base penalty of $1,500 for each of these two

violations, for a total of $3,000.143 After applying the regulatory mitigation factors,

the Administrator reduced the penalty to $1,800.144

The ALJ again determined that the mitigation factors warranted further

reducing the assessments levied by the Administrator.145 For the refrigeratorrelated violation, the ALJ calculated the penalty as follows:

Base penalty

Factor 1 – history

Factor 2 – workers affected

Factor 3 – gravity

Factor 4 – good faith

Factor 5 – explanation

Factor 6 – commitment

Factor 7 – financial gain

TOTAL

Mitigation Factor

-5 percent

0 percent

10 percent

30 percent

10 percent

Dollar amount

$1,500

-$75

-$0

-$150

-$450

-$150

$525

For the garbage-related violation, the ALJ calculated the penalty as follows:

Base penalty

Factor 1 – history

Factor 2 – workers affected

Factor 3 – gravity

Factor 4 – good faith

Factor 5 – explanation

Factor 6 – commitment

Factor 7 – financial gain

TOTAL

142

D. & O. at 26.

143

Id.

144

Id.

145

Id. at 26-27.

Mitigation Factor

-5 percent

0 percent

10 percent

30 percent

10 percent

Dollar amount

$1,500

-$75

-$0

-$150

-$450

-$150

$375

Finally, the ALJ determined that domestic workers were rejected from

employment due to lack of experience, while H-2A workers were employed without

experience.146 The job description prepared by WAFLA imposed a three-month

experience requirement for applicants.147 Many of the H-2A workers ultimately

employed at Sakuma’s farm did not meet the experience requirement, while at least

one domestic applicant was denied employment based on a lack of experience.148

WAFLA, again, does not dispute on appeal that this violation occurred.

The Administrator assessed a base penalty of $15,000 for this violation.149

After applying the regulatory mitigation factors, the Administrator reduced the

penalty to $12,000.150

Once again, the ALJ determined that the mitigation factors warranted

further reducing the assessments levied by the Administrator.151 The ALJ

calculated the penalty as follows:

Base penalty

Factor 1 – history

Factor 2 – workers affected

Factor 3 – gravity

Factor 4 – good faith

Factor 5 – explanation

Mitigation Factor

-5 percent

10 percent

0 percent

10 percent

30 percent

Dollar amount

$15,000

-$750

-$1500

-$0

-$1500

-$4500

The H-2A regulations require an employer to hire any qualified and eligible U.S.

worker who applies for a job advertised under a job order, until 50% of the period of the

work contract has elapsed. 20 C.F.R. § 655.135(d).

146

147

D. & O. at 27-28.

Id. at 28. WAFLA appears to concede that at least one domestic worker was denied

employment based on the experience requirement. WAFLA Br. at 23 (“There can be no

reasonable dispute that Sakuma’s actions resulted in the violations.”). The ALJ found that

other domestic workers were also rejected based on a lack of experience. D. & O. at 10, 28.

WAFLA asserts that the ALJ “provides no details on the identity of those individuals or the

circumstances resulting in those candidates not being hired.” WAFLA Br. at 22 n.8. To the

contrary, the ALJ identified both other applicants by name and cited the evidence in

support of his finding. D. & O. at 10 (citing Adm’r Hearing Ex. 18). Additionally, WAFLA’s

Executive Director also testified that records reflected that these two other domestic

applicants were rejected based on the experience requirement. Tr. at 285.

148

149

D. & O. at 28.

150

Id.

151

Id. at 28-29.

Factor 6 – commitment

Factor 7 – financial gain

TOTAL

10 percent

0 percent

-$1500

-$0

$5,250

The ALJ’s analysis is detailed, well-reasoned, and adequately supported by

the record. The ALJ reviewed the evidence in support of each violation, reasonably

considered each regulatory mitigation factor, and thoroughly and cogently explained

the basis for his CMP assessments.

On appeal, WAFLA does not challenge the bulk of the ALJ’s CMP analysis, or

application of the regulatory mitigation factors. Rather, WAFLA presents two

narrow arguments. First, WAFLA contends that its lack of culpability with respect

to the violations warrants further mitigation.152 Second, WAFLA contends that the

ALJ erred in assessing a separate penalty for each of the domestic workers who did

not receive the same benefits and working conditions as the H-2A workers employed

at Sakuma’s farm.153 As explained in more detail below, we reject both

arguments.154 Accordingly, we find no basis to disturb the ALJ’s assessments, and

As we have explained, WAFLA argues that its lack of involvement in or control over

the H-2A violations resulting from Sakuma’s actions precludes liability for the violations

entirely. See supra Section 4, “Joint Employer Status Renders WAFLA Liable for CMPs.”

WAFLA does not expressly argue in its briefs to the Board that, short of precluding liability

entirely, its alleged lack of culpability should at least be considered as a mitigating factor to

further reduce the amount of the CMPs assessed against it. Compare WAFLA Br. at 20-23

(explaining why WAFLA believes it should not be liable for the violations) with id. at 30-31

(challenging the CMP assessment). Even so, the ALJ considered WAFLA’s alleged lack of

culpability as a mitigating factor for each violation under regulatory factor 5 (the

“[e]xplanation from the person charged with the violation(s)”). D. & O. at 24-25, 26-27, 2829; see 29 C.F.R. § 501.19(b)(5). Judge Burrell, in his separate opinion hereto, also considers

WAFLA’s culpability as a factor in the CMP assessment for each violation. Concurring and

Dissenting Opinion at 58-64. For the sake of completeness, we have considered WAFLA’s

argument in the context of mitigation as well.

152

153

WAFLA Br. at 31.

WAFLA also vaguely argues that “the penalties assessed by the ALJ are erroneous

even considering the reductions applied. In particular, the $52,987.50 penalty assessed by

the ALJ for the alleged preferential treatment, even with the reduction applied by the ALJ,

is grossly disproportionate to the nature of the violation and is contrary to law.” Id. at 31.

WAFLA does not elaborate or explain any basis to reduce or mitigate the assessed CMPs,

other than the two arguments specifically identified above. Accordingly, we limit our review

to WAFLA’s specific arguments. See supra footnote 113.

154

adopt the penalties assessed by the ALJ.155

i. WAFLA’s Asserted Lack of Culpability Does not Warrant Further Mitigation

In reviewing and analyzing the regulatory mitigation factors, the ALJ

considered WAFLA’s argument that it was not culpable for the violations at issue in

this case because each of the violations were under the control of, and were

primarily attributable to the actions of, Sakuma. Specifically, in analyzing factor

5—the “[e]xplanation from the person charged with the violation(s)”—the ALJ noted

with respect to the preferential treatment and health and safety violations that

“WAFLA relied on Sakuma to carry out the obligations to the H-2A workers and

corresponding U.S. workers . . . .”156 Similarly, with respect to the failure to hire

violation, the ALJ noted that WAFLA “did encourage Sakuma to comply with the

regulations and job order,” but appears to have been rebuffed because, ultimately,

“it was Sakuma that was in a position to decide whether [the applicant] was

actually employed.”157 As a result, the ALJ determined that a 30% reduction in the

base penalty was appropriate for mitigation factor 5, which was significantly

greater than the 10% reduction applied by the Administrator.158 However, the ALJ

declined to reduce the assessment any further, noting that, ultimately, WAFLA

remained responsible with Sakuma under the H-2A program, but did not take the

steps necessary to ensure the requirements of the program were met.159

See Adm’r, Wage & Hour Div. & Office of Foreign Lab. Certification, U.S. Dep’t of

Lab. v. Peter’s Fine Greek Food, Inc., ARB No. 2014-0003-B, ALJ No. 2011-TNE-00002,

2012-PED-00001, slip op. at 2 (ARB Sept. 17, 2014) (stating that the Board will accept the

ALJ’s findings concerning the assessment of CMPs if they are reasonable).

155

156

D. & O. at 24, 26-27.

Id. at 28, 29 n.25. The ALJ noted, however, that “[n]o documentation of precisely

why [the applicant] was not hired (the stated reason or the true reason), or what individual

made the final decision, is in the record.” Id. at 29. Although this lack of evidence makes it

difficult to assess WAFLA’s relative culpability for the violation, the ALJ appears to have

given WAFLA the benefit of the doubt that Sakuma ultimately made the decision not to

hire the applicant. Id at 29 n.25.

157

158

Id. at 24, 26-27, 29.

Id. at 24-25 (observing that WAFLA did not engage in compliance efforts “to the

extent of inspecting at the Sakuma farm—and, of course, not to the extent of preventing the

violations in the case”), 29 (recognizing that although WAFLA encouraged compliance with

respect to the failure to hire violation, it ultimately remained responsible with Sakuma for

the violation).

159

We agree with the ALJ that a 30% reduction is appropriate based on

WAFLA’s relative culpability with respect to the violations. As WAFLA asserts, the

violations at issue here are primarily attributable to Sakuma’s actions. Yet, as we

have explained, WAFLA, as a joint employer, was still obligated to ensure program

compliance at Sakuma’s farm. As the ALJ correctly observed, WAFLA did not take

the steps necessary to fulfill its obligations and ensure that violations did not occur.

Instead, WAFLA effectively concedes that, having recruited and transported the

H-2A workers to Sakuma’s farm, it did not undertake any additional steps to ensure

that the H-2A program requirements were met at the farm. This was contrary to

WAFLA’s statutory and regulatory duties and, as the ALJ noted, was unwise in the

circumstances of this case given that Sakuma was a first-time participant in the

program.160 Accordingly, we decline to reduce the CMP assessment any further.161

ii. The ALJ Did Not Err by Assessing a Per-Worker Penalty for the Preferential

Treatment Violation

As stated above, the ALJ determined that 207 domestic workers were

unlawfully denied certain benefits and working conditions provided to the H-2A

workers at Sakuma’s farm.162 The ALJ agreed with the Administrator’s decision to

separately penalize WAFLA for each of the 207 affected workers (a “per-worker”

penalty), rather than to assess a single penalty encompassing the entire violation (a

“per-regulation” penalty).163

160

Id. at 4, 25.

It appears Judge Burrell would reduce the penalty to zero based on his view of

WAFLA’s relative lack of culpability in the violations. Concurring and Dissenting Opinion

at 58-64. We respectfully disagree with our colleague, who we believe ignores the

continuing obligations to which WAFLA committed itself as a joint employer. The H-2A

statute and regulations do not permit a joint employer to completely denounce its

obligations in the way WAFLA attempts to do in this case. While WAFLA may have

relatively less culpability for the violations than Sakuma based on their relative roles in the

violations, WAFLA nevertheless retained a duty to ensure compliance at the farm, and is

therefore culpable for having failed to take the appropriate steps to do so. As we have

explained, the regulation provides ample flexibility for the Administrator (and upon review,

the ALJ and the Board) to take an employer’s role in the violations into account when

assessing penalties.

161

162

D. & O. at 22-23.

163

Id. at 22, 23-24.

The ALJ’s and the Administrator’s approach is consistent with the H-2A

regulations. As explained above, the Administrator has the discretion to assess

CMPs “for each violation” of the H-2A program requirements, including “[e]ach

failure . . . to honor the terms or conditions of a worker’s employment required by

[the H-2A statute or regulations].”164 Pursuant to this regulation, each instance in

which a domestic worker was denied the same benefits and working conditions as

the H-2A workers constitutes a separate violation.165 Thus, it was appropriate for

the Administrator, and, in turn, the ALJ, to assess 207 separate penalties against

WAFLA and Sakuma, one for each employee whose rights were violated.166

As the ALJ noted, though, the Administrator, in the exercise of the discretion

granted to them to determine the appropriate penalty in any given case, may elect

to assess a per-regulation penalty instead of a per-worker penalty, even in instances

in which the violation extends to multiple workers.167 WAFLA objects to the

Administrator’s and the ALJ’s decision to apply a per-worker penalty, rather than a

per-regulation penalty, in this case.168

In support of its argument, WAFLA asserts that the ALJ’s reasoning for

applying a per-worker penalty is contradictory and flawed. WAFLA notes that the

ALJ first found that a per-worker violation was appropriate because the

preferential treatment was “particularly grave,”169 but later in his discussion of the

mitigation factors for the preferential treatment violations appeared to contradict

himself, stating that he “disagree[d] with the Administrator’s implicit finding that

this was a grave violation, precluding mitigation.”170 Based on these statements,

WAFLA asserts that “the violation should have resulted in a per-regulation penalty

according to the very standard the ALJ cites for determining whether penalties are

applied on a per-worker or per-regulation basis.”171

164

29 C.F.R. § 501.19(a).

165

See id. (“Each failure . . . constitutes a separate violation.”).

See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Sun Valley Orchards, LLC,

ARB No. 2020-0018, ALJ No. 2017-TAE-00003, slip op. at 13 (ARB May 27, 2021)

(recognizing the Administrator’s discretion to assess a per-worker penalty).

166

167

D. & O. at 22.

168

WAFLA Br. at 31.

169

D. & O. at 22.

170

Id. at 24.

171

WAFLA Br. at 31.

Although a surface reading of the ALJ’s analysis may appear to reveal

contradictory statements, a close reading of the D. & O. reveals that the word

“grave,” as used by the ALJ, had different meanings based on the context in which

it was used. In the context of determining whether a per-worker penalty was

appropriate, the ALJ determined that the violations were “grave” or severe in scope.

Specifically, the ALJ reasoned that a particularly large number of workers were

affected, and that the violations “identifiably affect[ed] each of the 207 workers

individually rather than the workers as a group.”172 In contrast, in the context of

reviewing the regulatory mitigation factors, the ALJ determined that the violations

were not particularly “grave” in nature as compared to other types of H-2A

violations.173 For example, the ALJ found the violations at issue—failing to provide

housing supplies to domestic workers, charging domestic workers a housing deposit,

and not transporting domestic workers to the worksite—were “not of the highest

gravity” as compared to, for example, wage theft or fraud.174

Although the ALJ may have been imprecise in his use of the term “grave,” his

analysis, when viewed carefully, was reasonable and sound. Although the

preferential treatment violations at issue here were not, both individually and in

isolation, particularly grave in nature, the violations identifiably affected 207

workers. Accordingly, in the aggregate the violations were sufficiently significant

and severe as to justify a per-worker penalty assessment.175 We find no basis to

overturn the ALJ’s determination that a per-worker penalty—which, as explained

above, is consistent with the H-2A regulatory language—was appropriate in the

circumstances of this case.176

172

D. & O. at 23-24.

173

Id. at 24.

174

Id.

We note that the ALJ analyzed the grave scope of the violations—and the

appropriateness of a per-worker penalty—under the second regulatory mitigation factor

(the number of workers affected), and analyzed the grave nature of the violations under the

third regulatory factor (gravity of the violations). Id. at 23-24. This underscores that the

ALJ attached a different meaning to the word “grave” depending on the context in which he

used it.

175

Significantly, although WAFLA suggests that the ALJ’s analysis was contradictory

based on his imprecise use of the word “grave,” WAFLA does not actually challenge on

appeal the ALJ’s specific reasoning for determining that the scope of the violation was so

significant as to justify a per-worker penalty.

176

$9,599.58 in back wages for six violations.179 The Administrator assessed WAFLA

$750 for a reimbursement violation.180 Both Sakuma and WAFLA disputed the

claim, and the Administrator referred the matter to the OALJ for a hearing.181

On or about April 25, 2018, the Administrator amended the Notice of

Determination to charge both Sakuma and WAFLA for the violations.182 Sakuma’s

assessment was modified to $106,800. WAFLA’s assessment was modified from

$750 to $124,575 in CMPs and $5,443.21 in back wages.183

Through settlement and consent findings, Sakuma settled with the

Administrator and did not participate in the hearing. The case proceeded against

WAFLA for the six violations.184

2. The ALJ’s Decision and WAFLA’s Appeal

The ALJ applied Sakuma’s admissions to WAFLA.185 The ALJ rejected

WAFLA’s contention that the Administrator’s amendment from $750 to $124,575

created unfair surprise because there was no change in policy, only an exercise of

discretion to enforce.186 Evaluating the Administrator’s Determinations and

application of mitigating factors, the ALJ agreed with some assessments and

mitigating factors but modified others.187 Ultimately, the ALJ found WAFLA liable

for $59,037.50 in civil penalties.188

WAFLA appealed the ALJ’s decision to the ARB, objecting to the ALJ’s

finding that it was a joint employer, and even if it were a joint employer, that it was

179

D. & O. at 2; WAFLA’s Hearing Ex. A; WAFLA Br. at 3.

180

D. & O. at 2.

181

Id.

182

Id.; WAFLA’s Hearing Ex. B.

183

D. & O. at 2. The assessment of back wages was not specific to Sakuma or WAFLA.

184

Id. at 3.

185

Id. at 4-7.

186

Id. at 16-19.

Id. at 22-32. WAFLA actually prevailed over the subject of its initial appeal. The

ALJ rejected the CMP against WAFLA for the reimbursement violation. Id. at 29-32.

187

188

Id. at 32.

liable for the violations.189 WAFLA contests the ALJ’s conversion of Sakuma’s

admissions into WAFLA admissions as WAFLA was not a party to the consent

findings.190 WAFLA contends that even if WAFLA were a joint employer with

Sakuma’s H-2A employees, this would not extend to the assessments concerning

U.S. employees.191 WAFLA appeals the ALJ’s decision that it had no justifiable

reliance on prior agency interpretation of respective liability between associations

and member farms.192

On a more general basis, WAFLA argues lack of control, participation, and

responsibility for Sakuma’s violations.193 For each of the violations except

reimbursement of inbound transportation, it is undisputed that Sakuma was the

party that committed the violation, not WAFLA.194 WAFLA objects to being held

vicariously responsible for Sakuma’s actions.195

In response, the Administrator defends its assessment and generally

supports the ALJ’s decision that WAFLA was a joint employer and was liable for

every violation committed by Sakuma.196 The Administrator argues that WAFLA is

estopped from arguing that it is not a joint employer because it declared itself to be

a joint employer in application forms and accepted the benefits of this status.197

The Administrator rejects WAFLA’s argument of reliance interests because the

Administrator’s interpretation of the regulatory scheme concerning joint employer

has been consistent throughout.198 Thus, WAFLA’s citation to reliance and “new

189

WAFLA Br. at 7, 19.

190

Id. at 14-17.

191

Id. at 19.

192

Id. at 23.

Id. at 19-23, 27-29. This follows the litigation in Azzano Farms. See Azzano Farms,

ARB No. 2020-0013, ALJ No. 2019-TAE-00002, slip op. at 43-44, 46-47 (ARB Mar. 30, 2023)

(Burrell, J., concurring and dissenting).

193

194

WAFLA Br. at 14-17, 19-23.

195

Id. at 23.

196

Adm’r Br. at 17-22, 28-32.

197

Id. at 26.

198

Id. at 34.

interpretation” case law is inapposite.199 Rather, it was within the Administrator’s

exercise of discretion to enforce the regulations.

DISCUSSION

The Administrator has the burden of proof regarding the reasonableness of

the CMP.200 Under 29 C.F.R. § 501.19, the Administrator may consider “the type of

violation committed and other relevant factors” in determining how large a penalty

to impose.201 Section 501.19(b) provides a non-exhaustive list of factors to consider

when imposing a CMP.202 On appeal, the ARB has all the power the Secretary has

and reviews the ALJ’s findings of fact and conclusions of law de novo.203

1. Joint-Employer Status

Regarding WAFLA’s argument concerning its status as a joint employer

under the 2010 H-2A regulations, I refer to the discussion in Azzano Farms.204

The regulations—though murky205 and containing a regulatory definition of joint

employer that speaks to common-law “indicia of employment”—set out, when

considered in full context, that agricultural associations filing master applications

are joint employers for purposes of the certification.206 This conclusion requires

199

Id. at 36-43.

See 5 U.S.C. § 556(d); Zappala Farms, ARB Nos. 2001-0054, -0096 to -0098, ALJ No.

1997-MSP-00009-P, slip op. 9-10 (ARB Aug. 29, 2001).

200

Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Three D Farms, ARB Nos. 20160092, -0093, ALJ No. 2016-TAE-00003, slip op. at 9 (ARB Feb. 12, 2019).

201

202

Id.

203

5 U.S.C. § 557(b); Three D Farms, ARB Nos. 2016-0092, -0093, slip op. at 5.

Azzano Farms, ARB No. 2020-0013, slip op. at 32-34 (Burrell, J., concurring and

dissenting).

204

The confusion is validated by the fact that the WHD personnel generating and

signing the determination in this case also applied the regulatory definition and testified

that “joint employer” for associations filing as joint employers required examining commonlaw principles. Infra at footnotes 259-63 and accompanying text.

205

Azzano Farms, ARB No. 2020-0013, slip op. at 32-34 (Burrell, J., concurring and

dissenting).

206

looking at the 2010 regulations holistically rather than just the actual regulatory

definition of “joint employer.”207

2. The Administrator Did Not Explain the 2017-2018 Change in Policy,

Which Created an Unfair Surprise for WAFLA

A. There Was a Change in Policy

Central to this dispute is whether there was a change in WHD’s enforcement

policy. The ALJ concluded that there was not. For the following reasons, I would

reverse the ALJ on this point and find that there was such a change in

interpretation or agency practice in the late 2017 or early 2018 time frame.208

As applied in this case, that change took place in an amendment to an existing

enforcement action.209

Sakuma participated in the H-2A program in 2013, and WHD initiated its

investigation in 2013.210 Several years later, in an April 7, 2017 Notice of

Determination, the Administrator assessed WAFLA $750 for a reimbursement

violation. WAFLA objected to the assessment. WAFLA acknowledged that it was

responsible for reimbursement but denied that it violated the regulations because it

fulfilled its obligations.211 The matter was referred to the OALJ for hearing. Before

the ALJ, the Administrator filed an amended Determination on April 25, 2018,

changing WHD’s assessment from $750 for failure to reimburse to $124,575 in

CMPs and $5,443.21 in back wages for all violations at Sakuma Farms.212

Regulation 20 C.F.R. § 655.131(b) provides that “[t]he master application is

available only when the association is filing as a joint employer.”

207

D. & O. at 2, 7-8; Tr. at 240-60 (comparing applications and assessments before and

after change and WAFLA’s testimony that previously assessments were determined on the

basis of culpability), 259-79 (WAFLA’s testimony concerning conversations with WHD

personnel on new policy and impact of policy on WAFLA’s operations; WAFLA testified that

the Wage and Hour Investigator indicated the change would begin with Azzano Farms but

WAFLA had already filed the Azzano Farms application); see also Azzano Farms, ARB No.

2020-0013, slip op. at 38 & n.154 (Burrell, J., concurring and dissenting) (recounting WHI

and WAFLA testimony that there was a change in internal guidance).

208

209

D. & O. at 2.

210

Supra footnote 178.

211

D. & O. at 9.

212

Id. at 2.

WAFLA understandably rejects the notion that there was no change in

policy. WAFLA’s Executive Director testified that for “thousands of applications

over the last 20 years” and “hundreds of Wage and Hour audits,” the policy was that

associations were not held liable for violations by member farms that the

association did not commit.213 WAFLA’s Executive Director testified to the longstanding practice that inspectors charge the party responsible for the violation.214

WAFLA participated in more than 1,000 applications and an estimated thirty to

forty audits by the Wage and Hour Division. For some of these audits involving

farms, WAFLA’s Executive Director testified that WAFLA was not even

contacted.215 In one instance, WAFLA was found responsible for an advertising

violation.216 In another case, the member farm was charged roughly $186,000 in

back wages and $534,000 in CMPs for various violations.217 WAFLA was assessed

$100 for a transportation violation, which it objected to.218 Consistent with the

litigation in Azzano Farms, WAFLA’s Executive Director testified that the change

in policy occurred in the 2017-2018 time frame.219

The ALJ found credible WAFLA Executive Director’s testimony that he

believed WAFLA would not be held liable for actions it was not responsible for but

also found that that belief was not reasonable “in light of the plain language of the

governing regulations and WAFLA’s own application to bring H-2A workers” to the

U.S.220 As explained in Azzano Farms, I disagree that the regulations are clear on

this point.221 The 2010 H-2A regulations provide a definition for joint employer that

speaks to common-law principles, which, if applied to associations, would greatly

ameliorate the confusion because of common-law control and agency tests.222 Joint213

Id. at 7.

214

Tr. at 234-52.

215

Id. at 252.

216

Id. at 237.

217

Id. at 248.

218

Id. at 244-49.

219

D. & O. at 7-8; Tr. at 253-60, 276.

220

D. & O. at 19.

See Azzano Farms, ARB No. 2020-0013, slip op. at 34-38 (Burrell, J., concurring and

dissenting). The lack of clarity is reinforced by the multiple times the DOL has had to issue

regulations refining and clarifying “joint employer” in the H-2A regulations. Id. at 38 n.153.

221

222

Id. at 34-39.

employer status established by checking a box without any control or agency test in

the H-2A master application context, with multiple entities engaging in multiple

roles, creates a vexing question of respective responsibility.223 The only H-2A

statutory language discussing violations disavows strict liability for respective

violations of the association and member farms unless the counterpart participated

in or had knowledge of the violation.224 This provision is applicable to debarment

and does not discuss qualifications on the Secretary’s enforcement.

The majority opinion emphasizes the preamble’s “joint responsibility”

language,225 but this fails to clarify the issue:

The Department highlights joint responsibility of the

association and its employer-members by requiring that

the association identify all employer-members that will

employ H-2A workers. The Application must demonstrate

that each employer has agreed to the conditions of H–2A

labor certification.[226]

Rather than covertly imposing strict liability on the association filing the

application, the preamble’s instruction that member farms be identified as

employers is consistent with an interpretation of responsibility of each employer

committing a violation respectively, especially in light of the Administrator’s pre2018 practice. The H-2A statute authorizes the Secretary to enforce obligations only

223

Id. at 37-38.

8 U.S.C. § 1188(d)(3); Azzano Farms, ARB No. 2020-0013, slip op. at 36 (Burrell, J.,

concurring and dissenting).

224

The preamble is not a transparent means of conveying vicarious liability for

agricultural associations. Nat’l Wildlife Fed’n v. Env’t Prot. Agency, 286 F.3d 554, 569-70

(D.C. Cir. 2002) (“The preamble to a rule is not more binding than the preamble to a

statute. A preamble no doubt contributes to the general understanding of a statute, but it is

not an operative part of the statute and it does not enlarge or confer powers on

administrative agencies or officers. Where the enacting or operative parts of a statute are

unambiguous, the meaning of the statute cannot be controlled by language in the

preamble.”) (cleaned up).

225

Temporary Agricultural Employment of H-2A Aliens in the United States (2010

Final H-2A Rule), 75 Fed. Reg. 6884, 6918 (Feb. 12, 2010).

226

against employers.227 Thus, any entity with a role in the H-2A program must be

identified as an employer to fall under the Secretary’s enforcement powers.

The number of entities involved and their respective activities could vary

from one application to the next. A master application filed by an association may

govern multiple farms,228 allowing workers to shift among the farms to more

efficiently match resources with need.229 In this case, as in Azzano Farms, WAFLA

filed the application and was responsible for recruiting and transporting the H-2A

employees to Sakuma Farms. WAFLA acknowledged responsibility for any

violations occurring in these activities. Once the farmers were at the farm, however,

the member farm controlled all aspects of H-2A employment, including hiring the

workers, providing and maintain housing, and providing transportation.230

Because there may be multiple entities engaging in multiple activities, the

forms involved in the master application do not remove the confusion for

8 U.S.C. § 1188(g)(2) (“The Secretary of Labor is authorized to take such actions,

including imposing appropriate penalties and seeking appropriate injunctive relief and

specific performance of contractual obligations, as may be necessary to assure employer

compliance with terms and conditions of employment under this section.”).

227

The Administrator characterizes the master application as a benefit to WAFLA, but

as stated in Azzano Farms, the master application is a benefit to the member farms, not to

WAFLA. Azzano Farms, ARB No. 2020-0013, slip op. at 37 n.151 (Burrell, J., concurring

and dissenting). Using the association allows the farms to share the cost of the application

fee and utilize WAFLA’s expertise on certain shared processes such as filing requirements,

recruitment, advertising, and transportation. WAFLA has no economic incentive to use the

master application format when filing an application on behalf of member farms. It would

benefit financially from collecting a fee from every farm by filing individual applications.

Further, WAFLA objects to the characterization of its collection of $82,800 as if it were a fee

to WAFLA. The collection of this money was largely if not entirely for reimbursement of

costs associated with pre-farm activities. Tr. at 286 (WAFLA’s Executive Director taking

issue with this characterization: “That is such a broad misstatement that it borders on a

false statement. What Sakuma does, and what all did, if the workers elect this type of a

program that we offer, they give WAFLA the money and then WAFLA pays the recruiters,

the government, the reimbursement, the hotels and the transportation” for all of the

employees.).

228

Supra Majority Opinion at 10. In a given application, an association may be involved

in actual employment or housing of H-2A workers, which would expand its activities and

obligations. In Azzano Farms, for example, WAFLA employed a small number of H-2A

workers. Azzano Farms, ARB No. 2020-0013, slip op. at 35 n.144 (Burrell, J., concurring

and dissenting).

229

Infra Sections 4, “WAFLA’s Role in Sakuma’s Housing and Transportation,” and 5,

“WAFLA’s Role in Failing to Hire a U.S. Corresponding Employee”.

230

prospective applicants. As discussed in Azzano Farms, WAFLA’s Form 790 and

Form 9142 application are one-size-fits-all forms, applicable to all participating

member farms and the association filing the application, whether as an agent, sole

employer, or as a joint employer.231 The majority opinion notes that Form 790 has

language “Employer (Association and Member collectively). . . .” The Form also

explains that WAFLA completed it as “an association application filed by WAFLA

on behalf of its member(s).”232 WAFLA points out that the Form has language that

the “employer”—referring to the applicable member farm—retains “ultimate

responsib[ility] for ensuring compliance” for housing.233

In this application, Sakuma was the only member farm. The same forms,

however, would be used for master applications involving multiple member farms.

The Department explains in recent H-2A regulations that a non-active member

farm, though an “employer” in a master application with multiple farms, is not

responsible for the violations of an active member farm currently employing H-2A

workers.234 Member farms are liable only for violations when they are employing H2A employees. Likewise, it is not apparent whether a member farm, though an

“employer” under the forms, would be responsible for violations arising out of the

pre-farm activities the association is responsible for such as advertising,

recruitment, and transportation of H-2A workers to the farms.

For the above reasons, I disagree with the ALJ and the majority that the

regulations and the application forms are clear on the point of vicarious liability

and thus undermine WAFLA’s testimony concerning pre-2018 practice.

In its response brief, the Administrator states that:

[T]he Administrator did not change her interpretation of

the statute and regulatory text. WAFLA does not and

cannot point to any instance where the Department or the

Administrator announced to the public, or to WAFLA, an

Azzano Farms, ARB No. 2020-0013, slip op. at 35 (Burrell, J., concurring and

dissenting).

231

232

Adm’r Hearing Ex. 2 (790 Form, Box 1).

233

Id. at Box 3.

Azzano Farms, ARB No. 2020-0013, slip op. at 45 n.187 (Burrell, J., concurring and

dissenting) (citing the explanation from the 2022 H-2A regulations).

234

interpretation that associations that file Master

Applications as joint employers would not be held

responsible for compliance with all H-2A requirements.[235]

The Administrator overstates the principle. A change in interpretation need not be

in the form of explicit rulemaking or agency guidance.236 Changes in policy can take

place, for example, in amicus briefs.237 The agency need not issue a formal

statement announcing the policy. “[A]n agency may—instead of issuing a new

interpretation that conflicts with an older one—set forth an interpretation for the

first time that is contrary to an established practice to which the agency has never

objected.”238

The ALJ claims that there was no change in policy, only a discretionary

choice whether to enforce or not to enforce.239 A change might be characterized as

prosecutorial discretion to enforce if there were a history of no audit and assessment

in any form followed by a decision to begin enforcing a regulation.240 Here, as

explained below, we have clear inconsistency in the form of a pattern of positive

enforcement one way in terms of respective liabilities and then another way in the

form of vicarious liability. Moreover, the Administrator increased its CMP by

16,500% in an existing enforcement action. The timing, amount, and financial

consequence of the change clearly weigh against the position that there was not a

change underlying the amendment. The imposition of CMPs is not the kind of

statutory or regulatory authority that is committed to agency discretion because it

so broad that reviewing courts have no meaningful substance to review.241

B. The Administrator Did Not Explain the Change in Policy

As noted above, the Administrator has not adequately explained the agency’s

decision-making process in the change from $750 in CMPs to $124,575 in CMPs.

235

Adm’r Br. at 34-35.

236

Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).

237

Id.

238

Romero v. Barr, 937 F.3d 282, 291 (4th Cir. 2019).

239

D. & O. at 16-19.

240

Heckler v. Chaney, 470 U.S. 821, 831 (1985).

241

Id. at 830.

The Administrator has not provided any citation to a written policy or written

internal guidance or even testimony acknowledging a change.

Before analyzing specific facts, it is necessary to identify the roles of

individuals within Wage and Hour Division. Collectively, the “Administrator” is

referred to as the person taking the action on behalf of the Wage and Hour Division.

The Administrator does not personally engage in all of the activities of the Division.

The investigation is carried out by the Wage and Hour Investigator (WHI). The

WHI recommends violations and CMPs to the Assistant District Director (ADD),

who prepares the notice of determination letter. Wage and Hour’s determination

letters can be signed by the District Director (DD) or the ADD.242

In the 2017 assessment against WAFLA, WAFLA testified that the WHI, in

the closing conference with WAFLA, recommended liability only for WAFLA’s

alleged failure to reimburse.243 WHI provided her recommendation to the ADD.244

In evaluating the WHI’s recommendation, the ADD considered the culpabilities of

the entities as well as the factors in 29 C.F.R. § 501.19(b).245 For the April 2017

assessment, the ADD forwarded the Determination letter to the DD, who signed the

letter.246 The first time the DD saw the 2017 Determination letter was the day she

signed it; she did not read it before signing.247 She did not know who prepared it,

but the standard practice was for the ADD to prepare it.248

After the DD had signed the 2017 Determination assessing WAFLA $750, the

ADD, apparently without input from the DD, created the amended April 25, 2018

Determination letter and signed it.249 The DD testified that she was not involved in

the 2018 amended Determination letter; that was handled by the ADD.250 The DD

242

Tr. at 73, 77-78.

243

Id. at 238-39.

244

Id. at 82.

245

Id. at 150.

246

Id. at 72, 75, 142.

247

Id. at 75.

248

Id. at 77.

249

Id. at 75-76.

250

Id. at 75-76, 104.

could not explain why or how the ADD could amend a signed DD determination

that changed the amount from $750 to $124,575 without the DD’s input.251

The ADD also could not explain the change from $750 to $124,575.252 The

ADD had issued between ten to one hundred determinations in his tenure but could

not recall having issuing an amended determination, especially an amendment that

took place five years after the initial audit.253 The ADD denied that there was a

change in policy254 but admitted that the Determination letter that he signed on

March 15, 2018, for Azzano Farms, a month or so before the amended

determination in this case, was the first time that CMPs were applied to both the

association and the member farm jointly for violations that took place at the

farm.255

Before this change in the 2017-2018 time frame, there was no change in

departmental guidance or in the Wage and Hour Division’s Field Handbook.256

There were no new factual developments stemming from the investigation to

explain the 16,500% change.257 There was no Supreme Court decision, statutory

change, or a regulatory change.258

One component of the confusion is the fact that the specific regulatory

definition of “joint employer” does not identify or explain the agricultural

association and master application process but refers generically to “indicia” of

employment and common law principles.259 Critically, the ADD who generated the

251

Id. at 84-85, 104-12.

252

Id. at 125, 150-56, 163.

253

Id. at 156, 207, 209.

254

Id. at 145-48, 185, 199, 213-14.

255

Id. at 189-90; see also id. at 253-57.

256

Id. at 185, 202.

Id. at 200-16. The Administrator claims in briefing to the Board that she learned

through discovery following the 2017 Notice of Determination that Sakuma was new to the

H-2A program and relied upon WAFLA’s expertise. See Majority Opinion at footnote 93.

257

258

Tr. at 200-16.

The regulatory definition of “joint employer” was altered to include agricultural

associations filing master applications in the 2022 amendments to the H-2A regulations.

Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 87 Fed.

Reg. 61660, 61794, 2022 WL 6741769 (Oct. 12, 2022).

259

2017 Determination for the DD and who generated and signed the 2018 amended

Determination testified that merely filing a master application does not create

joint-employment status; there are other factors that determine whether an

association is a joint employer. Counsel for WAFLA examined the ADD:

Q So, you’re saying that the simple fact of filing an H-2A

master application doesn’t make an association a joint

employer, that there are other factors that determine

whether an association is a joint employer?

A Yes, sir.[260]

The ADD identified those other factors as the common law or control factors such as

the ability to hire and fire the employee.261 Counsel for WAFLA followed up with an

example of an association filing a master application as a joint employer with other

member farms and asked the ADD if all three, the association and the farms, were

joint employers. The ADD testified the master application is just one of the factors

to joint employment. The ADD would have to consider other factors to determine

whether the association was a joint employer.262 This is a 180-degree opposite

260

Tr. at 166.

261

Id. at 165:

Q And it’s the Wage and Hour Division’s contention in this case

that when an association files a master application, on behalf of

its members, that the association is a joint employer, that’s the

Wage and Hour Division’s contention, correct?

A There are factors to a joint employment relationship, that can

be one of the factors.

Q What factors determine a joint employment relationship?

A. First of all, you have to have an employment relationship, and

that can be, you know, when a person, okay, it can be an

association, it can be an individual, and they go ahead and they

-- for H-2A purposes, okay -- they have a place, a physical place

in the U.S., okay where employees or applicants can go ahead

and seek employment, okay. Another factor is the employment

relationship, okay, such as over the work, such as, you know,

pay, the hiring, firing, that kind of stuff is usually you know,

important to us.

Id. at 175-76 (the association’s checking the box on the 9142 Form is not in itself

determinative of whether or not a joint employment relationship actually exists), 187

(same, the ADD would have to review other factors).

262

position from the central premise of the Administrator’s assessment of WAFLA’s

liability as an agricultural association for all of Sakuma’s violations solely because

it filed the master application as a joint employer.263

C. The Administrator’s Unexplained Change in Policy Created Unfair

Surprise and Was Unreasonable

Further, I agree with WAFLA that the change in policy here created an

unfair surprise as applied to WAFLA because it occurred without notice and during

pending litigation. It is not clear from the agency’s inconsistent positions whether

an agricultural association will be held responsible for none of the farm’s housing,

transportation, or hiring violations or all of them, and what goes into that

determination.

Reviewing courts defer to agency interpretations of regulations but limit or

withhold that deference when agency interpretation conflicts with prior agency

interpretation.264 “[Courts] owe deference to an agency’s interpretation advanced

during litigation regarding the meaning of an ambiguous regulation, if the position

is not inconsistent with the agency’s prior statements and actions regarding the

disputed regulation.”265

A change in interpretation without explanation reflects on the

reasonableness of agency action.266 Agency action will be set aside as arbitrary and

Adm’r Br. at 17-26. The ADD’s perception is, however, consistent with the

regulatory definition of joint employer following common-law principles of joint employer.

263

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994); Decker v. Northwest

Env’t Def. Ctr., 568 U.S. 597, 614 (2013) (interpretive consistency over time reinforces the

case for Auer deference to agency’s position); Sioux Valley Hosp. v. Bowen, 792 F.2d 715,

719 (8th Cir. 1986) (“Deference is due when an agency has developed its interpretation

contemporaneously with the regulation, when the agency has consistently applied the

regulation over time, and when the agency’s interpretation is the result of thorough and

reasoned consideration.”).

264

Drake v. Fed. Aviation Admin., 291 F.3d 59, 67 (D.C. Cir. 2002); Martin v.

Occupational Safety & Health Rev. Comm’n, 499 U.S. 144, 157 (1991) (whether the

Secretary has consistently applied the interpretation embodied in the citation is a factor

bearing on the reasonableness of the Secretary’s position).

265

Road Sprinkler Fitters Local Union No. 669, ARB No. 2010-0123, slip op. at 6 (ARB

June 20, 2012) (“In matters requiring the Administrator’s discretion, the Board generally

defers to the Administrator as being ‘in the best position to interpret [applicable

266

capricious if the agency fails to provide a reasoned explanation for its decision.267

Neither the DD nor the ADD explained the change from the 2017 assessment to the

2018 assessment.268 Without any explanation or change in law or fact, the WHI,

ADD, and DD found WAFLA responsible for none of Sakuma’s violations in 2017

then the ADD found WAFLA responsible for all of them in 2018. The agency’s

inconsistent positions taken in 2017 and 2018, without explanation, highlight the

unreasonableness of the amended Determination.269 The Supreme Court in

Christopher v. SmithKline Beecham Corp. wrote:

[A reviewing court] accord[s] the [agency’s] interpretation

a measure of deference proportional to the thoroughness

evident in its consideration, the validity of its reasoning,

its consistency with earlier and later pronouncements, and

all those factors which give it power to persuade.[270]

Courts decline to give deference to an agency’s reversal of interpretation

when such reversal upsets expectation and reliance on prior interpretation. The

Court in Kisor v. Wilkie wrote:

regulations] in the first instance . . . , and absent an interpretation that is unreasonable in

some sense or that exhibits an unexplained departure from past determinations, the Board

is reluctant to set the Administrator’s interpretation aside.’”) (citation omitted); Miami

Elevator Co. & Mid-American Elevator Co., Inc., ARB Nos. 1998-0086, 1997-0145, slip op. at

16 (ARB Apr. 25, 2000) (same); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 48 (1983) (“We have frequently reiterated that an agency must

cogently explain why it has exercised its discretion in a given manner.”) (citation omitted).

See, e.g., Massachusetts v. Env’t Prot. Agency, 549 U.S. 497, 534 (2007); SmithKline

Beecham Corp., 567 U.S. at 155 (“deference is likewise unwarranted when there is reason to

suspect that the agency’s interpretation ‘does not reflect the agency’s fair and considered

judgment on the matter in question.’” (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997))).

267

268

Supra Section 2.b, “The Administrator Did Not Explain the Change in Policy.”

Thomas Jefferson Univ., 512 U.S. at 515 (“an agency’s interpretation of a statute or

regulation that conflicts with a prior interpretation is ‘entitled to considerably less

deference’ than a consistently held agency view”) (internal citations omitted); Encino

Motorcars LLC v. Navarro, 579 U.S. 211, 221 (2016) (“The agency must examine the

relevant data and articulate a satisfactory explanation for its action including a rational

connection between the facts found and the choice made. That requirement is satisfied

when the agency’s explanation is clear enough that its path may reasonably be discerned.

But where the agency has failed to provide even that minimal level of analysis, its action is

arbitrary and capricious and so cannot carry the force of law.”) (cleaned up).

269

270

SmithKline Beecham Corp., 567 U.S. at 159 (cleaned up).

That disruption of expectations may occur when an agency

substitutes one view of a rule for another. We have

therefore only rarely given Auer deference to an agency

construction “conflict[ing] with a prior” one. Or the

upending of reliance may happen without such an explicit

interpretive change.[271]

“[E]ven the absence of prior agency action can cause a new interpretation to be an

‘upending of reliance,’ preventing that interpretation from receiving Auer

deference.”272 An agency is free to change its mind.273 But this normally takes place

through more transparent means274 to avoid “unfair surprise.”275 The Court in Long

Island Care at Home, Ltd. v. Coke wrote:

[A]s long as interpretive changes create no unfair

surprise—and the Department’s recourse to notice-andKisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019) (internal citation omitted); see also

Romero, 937 F.3d at 291 (“[T]he upending of reliance may happen without such an explicit

interpretive change. Rather, an agency may—instead of issuing a new interpretation that

conflicts with an older one—set forth an interpretation for the first time that is contrary to

an established practice to which the agency has never objected.”) (internal citation omitted).

271

Nat’l Org. of Veterans’ Advocs., Inc., v. Sec’y of Veterans Affs., 48 F.4th 1307, 1316

(Fed. Cir. 2022).

272

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96-97 (2015) (identifying various means

of interpretative rulemaking); Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 981–82 (2005) (agencies are free to change their existing policies as long as

they provide a reasoned explanation for the change).

273

Martin, 499 U.S. at 157 (“[Less formal means of interpretating regulations] include

the promulgation of interpretive rules, and the publication of agency enforcement

guidelines. . . . A reviewing court may certainly consult them to determine whether the

Secretary has consistently applied the interpretation embodied in the citation, a factor

bearing on the reasonableness of the Secretary’s position.”) (cleaned up); Altera Corp. &

Subsidiaries v. Comm’r of Internal Revenue, 941 F.3d 1200, 1210 (9th Cir. 2019) (dissenting

from denial of rehearing en banc) (criticizing deference to litigation positions because “[a]

litigating position is not promulgated in the exercise of Congressionally delegated authority

because it is not adopted through any relatively formal administrative procedure. Rather,

an agency’s litigating position can ordinarily be changed from one case to another via

internal decisionmaking not open to public comment or determination.”) (cleaned up).

274

Kisor, 139 S. Ct. at 2417-18 (citations omitted) (“[A] court may not defer to a new

interpretation, whether or not introduced in litigation, that creates “unfair surprise” to

regulated parties.”); SmithKline Beecham Corp., 567 U.S. at 155 (same).

275

comment rulemaking in an attempt to codify its new

interpretation, makes any such surprise unlikely here—

the change in interpretation alone presents no separate

ground for disregarding the Department’s present

interpretation . . . .[276]

In light of long-standing practice to the contrary, regulated agricultural

associations like WAFLA require notice that they may be liable for the full amount

of a member farm’s violation notwithstanding the association’s lack of ownership,

knowledge, participation, or control in the violation.277 This is especially so when

the agency’s position changes during the litigation and the change results in

significant financial consequences for the party without notice.278 WAFLA’s

Executive Director “expressed concern that the new policy of liability would upend

WAFLA’s business model, result in millions of dollars in liability and put it at a

competitive disadvantage in the marketplace.”279 Following WHD’s change in policy,

WAFLA had to change its business model.280

3. Culpability Underlying 29 C.F.R. § 501.19 CMP Analysis

The Administrator’s CMPs are assessed according to 29 C.F.R. § 501.19.

The non-exhaustive factors at § 501.19(b) might be characterized as mitigating in

some circumstances, but this does not exclude an underlying assessment of

culpability in whether to assess a CMP at all. As discussed in Azzano Farms

(concurring and dissenting opinion) the preamble to the 2010 H-2A regulations

Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170-71 (2007) (citations

omitted).

276

Martin, 499 U.S. at 158 (identifying “adequacy of notice to regulated parties” as one

factor relevant to the reasonableness of the agency’s interpretation).

277

Nat’l Lab. Rels. Bd. v. Bell Aerospace Co. Div. of Textron Inc., 416 U.S. 267, 295

(1974) (suggesting that an agency should not change an interpretation in an adjudicative

proceeding when doing so would impose “new liability ... on individuals for past actions

which were taken in good-faith reliance on [agency] pronouncements” or in a case involving

“fines or damages”).

278

D. & O. at 8; WAFLA Post-Hearing Brief at 2 (“As a result [of the change in policy],

wafla is exposed to massive liability, which it had no opportunity to avoid by changing its

conduct because the new policy was not announced in advance. In fact, the Administrator

applied the new policy for the first time in early 2018 resulting in retroactive liability for

wafla for alleged violations that occurred some 5 years ago.”).

279

280

Tr. at 264-65, 277, 314-15.

indicates that the 501.19(b) factors and “common sense” address concerns of

excessive liability:

Contrary to the assumptions of some commenters, the

assessment of a particular penalty (or of an enhanced

penalty for a repeat or willful violation) is not mandatory,

but guided by consideration of the seven factors listed in

paragraph (b), the facts of each individual case, and by

common sense. For example, before assessing any penalty,

the WHD Administrator must consider the type of

violation, its gravity, the number of workers affected, and

several mitigating and/or aggravating factors including,

but not limited to, the explanation offered by the employer

(if any), its good faith or lack thereof, any previous history

of violations, and any financial loss, gain or injury as a

result of the violation. These safeguards are intended to

ensure that inadvertent errors and/or minor violations are

not unfairly penalized.[281]

The principle of culpability underpins the CMP analysis.282 “Culpable” is

defined as blamable; purposely, recklessly, knowingly; involving the breach of a

legal duty or the commission of a fault.283 The ADD testified that he looks at

culpability when determining whether to assess a CMP.284 This is intuitive as the

CMP is a penalty. The Supreme Court in Kokesh v. Securities & Exchange Comm’n

explained that a “‘penalty” is a “punishment, whether corporal or pecuniary,

imposed and enforced by the State, for a crime or offen[s]e against its laws.’”285 “[A]

pecuniary sanction operates as a penalty only if it is sought ‘for the purpose of

punishment, and to deter others from offending in like manner’—as opposed to

281

2010 Final H-2A Rule, 75 Fed. Reg. at 6944 (emphasis added).

Though not applicable to this enforcement action, the 2022 preamble, as part of an

effort to clarify the joint-employer issue, uses the term “culpable” five times in reference

joint employers and limiting liability under 501.19(b) factors. Temporary Agricultural

Employment of H-2A Nonimmigrants in the United States, 87 Fed. Reg. 61660, 61674-77,

2022 WL 6741769 (Oct. 12, 2022).

282

283

BLACK’S LAW DICTIONARY 385 (7th Ed.).

284

Tr. at 150-51. The ADD added all joint employers are culpable.

Kokesh v. Secs. & Exch. Comm’n, 581 U.S. 455, 461 (2017) (quoting Huntington v.

Attrill, 146 U.S. 657, 667 (1892)).

285

compensating a victim for his loss.”286 As examined in Azzano Farms, § 501.19(b)

factors punish intentional, willful, or repeated conduct but not innocent,

inadvertent conduct.287 “Inadvertent” means unintentional or “an accidental

oversight.”288 “Good faith” is defined as “a state of mind consisting of honesty in

belief or purpose.”289

The ALJ walked through the factors on the premise that WAFLA committed

the violations and then tacked on mitigation while simultaneously analyzing the

Administrator’s mitigation analysis.290 I disagree that mitigation is the limit of

501.19’s culpability analysis. Rather, consistent with prior agency practice, the

evaluation of culpability reaches into whether the agricultural association is liable

in the first place, not just whether it is eligible for a mitigation discount. As

discussed below, the ALJ’s analysis under § 501.19 does not adequately distinguish

between the activities WAFLA was directly responsible for and those that occurred

at Sakuma Farms outside of the knowledge, control, supervision, and direction of

WAFLA.

4. WAFLA’s Role in Sakuma’s Housing and Transportation

For the general category of housing and transportation violations, the ADD’s

assessment against WAFLA went from $0 in 2017 to $108,675 in 2018.291 On review

by the ALJ, the ALJ affirmed but modified the Administrator’s assessment. At the

outset, the ALJ referred to several Sakuma activities in hiring as “directed by

WAFLA” or “per WAFLA’s instruction.”292 The ALJ applied Sakuma’s admissions to

WAFLA.293 As WAFLA notes on appeal, the consent findings were signed by

Sakuma and the Administrator, not by WAFLA.294

286

Id. (citations omitted).

Azzano Farms, ARB No. 2020-0013, slip op. at 40-43 (Burrell, J., concurring and

dissenting).

287

288

BLACK’S LAW DICTIONARY 762 (7th Ed.).

289

Id. at 701.

290

D. & O. at 22-29.

291

Id. at 23; Tr. at 192-93.

D. & O. at 4-5, 28; see also Tr. at 283-86 (WAFLA taking issue with misstatements

and mischaracterizations in the consent findings).

292

293

D. & O. at 4-7.

294

Id. at 4.

Based on Sakuma’s consent findings, the ALJ found that WAFLA violated

several H-2A housing regulations.295 These violations consist of unlawfully

deducting housing deposits from U.S. corresponding workers’ paychecks but not

from H-2A workers’ paychecks; providing toiletries and amenities to H-2A workers

but not to U.S. corresponding workers; and providing bussing services for H-2A

workers but not for U.S. corresponding employees.296

Subtracting Sakuma’s consent admissions, the testimony confirms WAFLA’s

lack of responsibility for the violations at issue. The ALJ confirms that the housing

was provided by Sakuma.297 The ALJ stated: “WAFLA was not involved in the dayto-day functions at Sakuma during the summer of 2013. No representatives of

WAFLA supervised work or set day-to-day work start and stop times for H-2A

workers at Sakuma.”298 WAFLA had no supervision, control, or ownership of

Sakuma’s housing or any role in transportation from the housing to the fields.299

WAFLA was not involved in deducting housing deposits from workers’ paychecks.300

WAFLA’s checks were for reimbursements; Sakuma’s checks were for payroll.301

WAFLA did not hand out toiletry packets or household items to the H-2A employees

at Sakuma’s housing.302

Countering WAFLA’s position, the ALJ stated that because WAFLA did not

assert control over aspects of Sakuma’s employment did not mean that WAFLA

could not have as it continued to provide services and guidance to Sakuma about

recruitment during the first half of the contract.303 As stated in Azzano Farms, an

295

Id. at 22.

296

Id.

Id. at 5, 22. The ALJ stated: “WAFLA noted that it retained the right to inspect the

housing provided at the farm by Sakuma.” Id. at 8, citing AX-2, Box 3. WAFLA counters

that “employer” here refers to Sakuma, not WAFLA. WAFLA Br. at 17-18.

297

298

D. & O. at 9; see also id. at 4-5; Tr. at 45-46.

299

D. & O. at 4-5; Tr. at 51, 58.

300

Tr. at 51, 216-18.

301

Tr. at 45-46.

302

Id. at 51, 216-18.

D. & O. at 9; Tr. at 279-81, 281-83, 287, 311-12. Further, providing information or

counseling to the owner and operator, as demonstrated by assessments against WAFLA in

both Azzano Farms and in this case, was not enough to prevent the Administrator’s

303

entity’s potential to influence or encourage the compliance of another is “a far leap

from the type of ownership or control courts require to hold an employer vicariously

liable” for the misdeeds of others.304

The same analysis carries over to the Administrator’s assessment against

WAFLA for unclean and unsafe conditions at Sakuma Farms. According to the

Administrator, WAFLA violated 20 C.F.R. § 655.122(d) and 29 C.F.R. § 1910.142

because of unsafe and unhealthy conditions at Sakuma Farms.305 These violations

include improper garbage storage, pest infestation, and a malfunctioning

refrigerator.306 For the infestation and unclean conditions, the ALJ cited a lack of

proof as the photos did not reflect improper outdoor garbage collection, flies, or the

presence of feces.307 For garbage and related violations, the ALJ assessed $375

against WAFLA.308 For the malfunctioning refrigerator, the ALJ assessed $525

against WAFLA.309

As with the housing deposits, toiletries, and amenities, Sakuma owned and

operated the housing and was the party in control of maintenance and monitoring

refrigerators, garbage control, and pest infestation. WAFLA did not possess legal

ownership or control over Sakuma’s housing or manage its repair or upkeep.310

assessment against WAFLA. WAFLA counseled Azzano Farms against the substance

underpinning a violation for failure to cooperate but was assessed the full amount for

failing to cooperate. Azzano Farms, ARB No. 2020-0013, slip op. at 50 (Burrell, J.,

concurring and dissenting). In this case, WAFLA recommended that Sakuma hire the U.S.

employee but was still assessed a CMP for Sakuma’s failure to do so. Infra at page 63 and

footnote 317; D. & O. at 9, 29; WAFLA Br. at 22.

Azzano Farms, ARB No. 2020-0013, slip op. at 48 (Burrell, J., concurring and

dissenting).

304

305

D. & O. at 25-27.

306

Id.

307

Id. at 26.

308

Id. at 27.

309

Id.

Id. at 4-5; WAFLA Br. at 21-22; Tr. at 216-18. The housing standards applicable to

Sakuma Farms are found in 29 C.F.R. § 1910.142. They provide minute detail for employers

to follow. As stated in Azzano Farms, compliance with these regulations may be reasonable

if you are the owner or operator of the farm. WAFLA, however, provides application, wage

and hour compliance, ADA compliance, and anti-harassment services to over 800 farms. Tr.

310

5. WAFLA’s Role in Failing to Hire a U.S. Corresponding Employee

The H-2A regulations require that an H-2A employer hire qualified U.S.

workers throughout the first 50% of the work contract.311 Sakuma’s initial plan was

for workers to have three months’ experience.312 Sakuma initially rejected workers

without the requisite experience. But then it learned that some employees that it

had hired also lacked experience, so it discontinued the policy of rejecting employees

for lack of experience.313 In the 2017 assessment, Sakuma was charged with

unlawfully rejecting one U.S. employee for lack of experience.314 In the 2018

amendment, WAFLA was assessed a penalty of $12,000 for Sakuma’s failing to hire

the employee, which the ALJ reduced to $5,250.315 As with the other violations,

WAFLA was not the entity that rejected the U.S. employee’s employment.316

WAFLA actually encouraged Sakuma to hire the U.S. worker.317

In sum, the preamble to the 2010 H-2A regulations indicates that the

Administrator assigns CMPs based on common sense to avoid excessive fines and

unfairness to parties. The “common sense” component is missing in the 2018

amendment to the Determination. WAFLA had no ownership, control, or

supervision of Sakuma’s housing or transportation and was not the entity that

at 228; see Azzano Farms, ARB No. 2020-0013, slip op. at 49 (Burrell, J., concurring and

dissenting). Even if WAFLA became a “shadow management agency” of its member farms

(quoting the ALJ in Azzano Farms), it is difficult to see how it could logistically manage

ultimate compliance with third-party housing, for example, as compliance would involve

much more than a one-time inspection. It would have to inspect the properties of member

farms daily to manage such things as the presence of flies or a full garbage can or whether

the farm is handing out toiletry packages, or cooking utensils to all employees equally.

Compliance would extend to hundreds of buildings and thousands of vehicles and

employees. Tr. at 314.

311

20 C.F.R. § 655.135(d).

312

D. & O. at 28.

313

Id. at 5, 10, 28. But see Tr. at 285.

314

Tr. at 52-53.

315

D. & O. at 27-29.

316

Tr. at 53.

317

D. & O. at 28-29; Tr. at 279-82.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.