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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. 2021-0007

ALJ CASE NO. 2018-TNE-00019

ALJ RICHARD M. CLARK

DATE: July 28, 2023

BUTLER AMUSEMENTS, INC.,

RESPONDENT.

Appearances:

For the Respondent:

R. Wayne Pierce, Esq.; The Pierce Law Firm, LCC; Annapolis,

Maryland

For the Administrator, Wage and Hour Division:

Elena S. Goldstein, Esq.; Jennifer S. Brand, Esq.; Rachel Goldberg,

Esq.; Sara A. Conrath, Esq.; U.S. Department of Labor, Office of the

Solicitor; Washington, District of Columbia

Before HARTHILL, Chief Administrative Appeals Judge, and PUST and

BURRELL, Administrative Appeals Judges

DECISION AND ORDER

HARTHILL, Chief Administrative Appeals Judge:

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

Nationality Act (INA), as amended, and its implementing regulations. 1 The H-2B

program permits employers to hire nonimmigrant workers to perform temporary

nonagricultural work on a one-time, seasonal, peak load, or intermittent basis, all

as defined by the Department of Homeland Security (DHS). 2 DHS requires that

employers petitioning for H-2B visas obtain a labor certification from the U.S.

Department of Labor (Department or DOL) before applying for H-2B visas through

DHS. 3

To obtain a labor certification, employers first obtain a prevailing wage

determination for the job opportunity from DOL’s Employment and Training

Administration (ETA) by submitting an Application for a Prevailing Wage

Determination (ETA Form 9141). 4 Employers must offer and pay H-2B workers the

highest of the determined prevailing wage or the applicable federal, state, or local

8 U.S.C. §§ 1101(a)(15)(H)(ii)(b) et seq., 1184(c)(14), and 20 C.F.R. Part 655, subpart

A (2008); 29 C.F.R. Part 503 (2015). The 2008 H-2B regulations apply to the instant case

because Respondent submitted the operative labor certification application in 2012, which

was approved by the Department of Homeland Security (DHS) in 2013. D. & O. at 5-6.

Although the U.S. District Court for the Northern District of Florida issued an order

vacating and permanently enjoining DOL from enforcing the 2008 Rule with an effective

date of April 30, 2015, see Perez v. Perez, No. 14-cv-682, Doc. 14, slip op. at 7-8 (N.D. Fla.

Mar. 4, 2015), the court later clarified that “‘the permanent injunction was not intended to,

and does not, apply retroactively.’” Perez v. Perez, No. 14-cv-682, Doc. 62 (N.D. Fla. Sept. 4,

2015). See Adm’r, Wage and Hour Div., U.S. Dep’t of Lab. v. Deggeller Attractions, Inc., ARB

No. 2020-0004, ALJ No. 2018-TNE-00008, slip op. at 4-5 (ARB Jan. 25, 2022) (noting that

the Perez court’s clarification held that the 2008 regulations were still enforceable and thus

apply to labor certifications issued before April 30, 2015). The 2015 H-2B regulations

provide that with respect to determinations to enforce provisions of the job order or

provisions under 8 U.S.C. § 1184(c), the procedures and rules contained in 29 C.F.R. § 503,

Subpart C “will apply regardless of the date of violation.” 29 C.F.R. § 503.40(b).

Accordingly, the 2015 rules apply to the procedural issues in this matter.

8 C.F.R. § 214.2(h)(6)(ii)(B). An H-2B employee is defined as “having a residence in a

foreign country which he has no intention of abandoning who is coming temporarily to the

United States to perform other temporary service or labor if unemployed persons capable of

performing such service or labor cannot be found in this country . . . .”

8 U.S.C. § 1101(a)(15)(H)(ii)(b).

8 C.F.R. § 214.2(h)(6)(iii)(A).

20 C.F.R. § 655.10 (2009). The 2008 H-2B regulations (2008 regulations) were

promulgated on December 19, 2008, effective on January 18, 2009, and codified into the

Code of Federal Regulations in 2009. Labor Certification Process and Enforcement for

Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in

the United States (H-2B Workers), and Other Technical Changes, 73 Fed. Reg. No. 245,

78,020 (Dec. 19, 2008). References to 20 C.F.R. § 655 refer to the 2008 regulations unless

otherwise specified.

minimum wage. 5 After obtaining a prevailing wage determination, the employer

must submit an Application for Temporary Employment Certification (ETA Form

9142B) and a recruitment report to the ETA for approval. 6

Section 214(c)(l4) of the INA gives DHS the authority to impose

administrative remedies when the Secretary of DHS finds “a substantial failure to

meet any of the conditions of the petition to admit . . . a nonimmigrant worker

under [8 U.S.C. § 1101(a)(l5)(H)(ii)(b)] or . . . a willful misrepresentation of a

material fact in such petition.” 7 DHS is authorized to delegate this enforcement

authority to the Secretary of Labor, 8 and has delegated to the Secretary of Labor its

authority “to enforce compliance with the conditions of a petition and Department of

Labor approved temporary labor certification to admit or otherwise provide status

to an H-2B worker.” 9 This enforcement authority has been further delegated within

DOL to the Administrator, Wage and Hour Division (WHD) of the Department

(Administrator). 10

In 2013, the Administrator conducted an on-site investigation of Respondent

Butler Amusements, Inc.’s (Butler Amusements or Respondent) 11 location in Santa

Barbara, California. 12 On February 6, 2018, WHD issued a Determination Letter

finding that Butler Amusements substantially failed to comply with certain

attestations it made in its ETA Forms 9141 and 9142B and assessed back wages

and civil monetary penalties (CMPs). 13 Butler Amusements contested WHD’s

20 C.F.R. § 655.22(e).

20 C.F.R § 655.20.

8 U.S.C. § 1184(c)(14)(A).

8 U.S.C. § 1184(c)(14)(B).

8 C.F.R. 214.2(h)(6)(ix).

See Secretary’s Order 01-2014, 79 Fed. Reg. 77,527-01 (Dec. 19, 2014). As of the date

of this opinion, the Principal Deputy Administrator is the ranking official responsible for

the U.S. Department of Labor’s Wage and Hour Division.

Butler Amusements’ former CEO, Michael Brajevich, was a named party below but

the ALJ concluded that he was not individually or personally liable for Butler Amusements’

violations. Id. at 30. Because Respondent did not appeal this determination to the Board, it

has become final; accordingly, we have removed Mr. Brajevich from the case caption and

refer only to Butler Amusements as the Respondent herein.

D. & O. at 6.

Id. The ALJ noted that the February 6, 2018 Determination Letter originally cited

$24,987.20 in unpaid wages to nine H-2B workers, and $10,000 in CMPs. Id. at 6 n.8. The

ALJ’s May 2, 2019 Second Order Granting In Part Motion to Amend and Reconsidering

April 12 Amendment Order (May 2, 2019 Order) amended the unpaid wages to $26,955.40.

Id.

finding and assessed remedies and requested administrative review with the Office

of Administrative Law Judges (OALJ). 14

On September 30, 2020, a DOL Administrative Law Judge (ALJ) issued a

Decision and Order (D. & O.) determining that Respondent failed to comply with

the requirements of the H-2B program and ordered Respondent to pay back wages

and assessed CMPs. Respondent petitioned the Administrative Review Board (ARB

or Board) for review of the ALJ’s decision. For the reasons set forth below, we

AFFIRM the ALJ’s D. & O.

BACKGROUND

The following facts were determined by the ALJ in the D. & O. and are not

disputed on appeal.

Butler Amusements operated a traveling amusement carnival providing

rides, games, and concessions to fairs in California, Oregon, Washington, Idaho,

Arizona, and Nevada. 15 In October 2012, Butler Amusements requested a prevailing

wage determination for the job opportunity “Amusement and Recreation

Attendants” (ARAs) for 246 H-2B workers. 16 Its agent, James Kendrick Judkins

(Judkins), completed and submitted ETA Forms 9141 and 9142B on its behalf. 17 On

ETA Form 9142B, Michael Brajevich (Brajevich), Butler Amusements’ former CEO,

and Judkins both attested that the information on the application was true and

accurate. 18

1. Butler Amusements’ Application and Certification for H-2B Workers

In 2012, Butler Amusements completed ETA Form 9141 and entered

“Amusement and Recreation Attendants - Traveling Carnival” as the “Job Title,”

“39-3091” as the “Suggested SOC (ONET/OES) code,” and “Amusement Recreation

Attendants” as the “Suggested SOC (ONET/OES) occupation title.” 19 The Standard

Occupational Code (SOC) system utilized by ETA had an occupation search engine

called O*NET (Occupational Net) which provided extensive information about any

occupation including occupational categories and characteristics (knowledge, skills,

Id. at 13.

Id. at 2-3.

Id. at 3.

Id.

Id.; RX 5 at 1.

abilities, tasks and general work activities). 20 For ARA positions, O*NET identified

the core tasks as: selling tickets; collecting fees; selling refreshments; recording

details of attendance, sales, receipts, reservations, or repairs; providing information

about facilities; directing patrons, monitoring safety; cleaning rides; and staying

informed of safety measures. 21

Under “Job duties,” Butler Amusements represented that the H-2B workers

would, “[p]erform [a] variety of attending duties at amusement facility (traveling

carnival). Set up, tear down, operate amusement rides, food concessions and/or

games.” 22 The H-2B workers were to work 40 hours per week from 1:00 p.m. to

10:00 p.m., travel to multiple worksites, and receive no overtime. 23 No experience,

education, training, specific skills, or special licenses were required for the job,

except for a drug and criminal background check. 24 Butler Amusements indicated

that H-2B workers in this position would not supervise any other employees. 25

In October 2012, Butler Amusements posted job advertisements for 250 open

positions for Carnival and Amusement Recreation Attendants. 26 The

advertisements explained that the jobs included “a variety of attending duties” at

amusement facilities, including “set up, tear down, operate amusement rides, food

concessions and/or games.” 27 Butler Amusements would “pay the weekly salary for

each week the worker was employed,” make “available mobile housing valued at

$125.00 per week” and make “available transportation from venue to venue and

scheduled transportation to laundry, shopping valued at $25.00 per week.” 28

In December 2012, Butler Amusements filed ETA Form 9142B and

represented a temporary need for 246 full-time seasonal ARAs for Butler

Amusements’ 2013 season. 29 Under “job duties,” Butler Amusements again

Id. at 3, 22.

Id. at 22.

Id. at 3; RX 5 at 2.

Id. at 3.

Id.

Id. Workers would typically work 40 hours per week, Wednesday through Sunday,

from 1:00 pm to 10:00 pm, making a weekly wage ranging from $323.60 to 368.40 per week,

and were required to travel with the carnival to Washington, California, Arizona, Nevada,

Oregon, and Idaho. Id.

Id. at 3-4; RX 1 at 1.

Id. at 4.

described the position’s “Job duties” as to “[p]erform [a] variety of attending duties

at amusement facility (traveling carnival). Set-up, tear-down, operate amusement

rides, food concessions and/or games.” 30 The position required “no special skills,

licenses/certifications.” 31 The H-2B workers would not supervise the work of other

employees. 32 Butler Amusements also noted that it would follow the prevailing

practices in the Traveling Amusement Industry with regard “to housing,

transportation and weekly salary for workers.” 33 Butler Amusements submitted an

Addendum to ETA Form 9142B, listing 71 worksites and again stated it “makes

available mobile housing valued at $125.00 per week,” and “transportation from

venue to venue, and scheduled transportation to laundry, shopping valued at $25.00

per week.” 34

On ETA Form 9142B, an employer must attest that it will abide by certain

terms, assurances, and obligations as a condition for receiving a temporary labor

certification. 35 In Section I, Declaration of Employer and Attorney/Agent, Butler

Amusements checked “Yes” confirming they had read and agreed to all applicable

terms, assurances, and obligations in Appendix B.1 of ETA Form 9142. 36 Judkins

signed Appendix B.1 Section A, and Brajevich signed Appendix B.1 Section B. 37 By

signing Butler Amusements’ Declaration (Attestation #13), Brajevich certified that

the job opportunity was a full-time temporary position and that “[t]he dates of

temporary need, reason(s) for temporary need, and number of worker positions

being requested for certification has been truly and accurately stated on the

application.” 38 Brajevich took full responsibility for the accuracy of any

representations made by his agent or attorney, in this case, Judkins, and declared

under penalty of perjury that he had read and reviewed the application and that to

the best of his knowledge it was true and accurate. 39

On December 14, 2012, based on the attestations and documentation

provided, ETA certified Butler Amusements’ application for temporary labor

Id.

Id. at 4-5.

Id. at 5.

Id.

certification of 246 H-2B workers as ARAs. 40 The workers arrived in early February

2013. 41

2. WHD Investigation and Findings

In 2013, WHD Investigator Carrie Aguilar (Aguilar) visited Butler

Amusements’ worksite in Santa Barbara, California. 42 Aguilar and her WHD team

observed Butler Amusements’ operations and interviewed employees. 43 In

November 2013, WHD found that nine H-2B workers were employed outside the

approved job duties of ARA. 44 The investigator determined that these workers had

worked as drivers, maintenance workers, and supervisors, all of which have

different SOC codes and prevailing wage determinations. 45

A. Butler Amusements Employed H-2B Workers Outside the Approved Job

Duties of ARA

WHD determined that Butler Amusements employed two H-2B workers,

Antonio Mendez (Mendez) and Omar Lopez (Lopez), as supervisors as indicated by a

roll sheet listing both Mendez and Lopez as supervisors. 46 Multiple employees

stated they reported to either Mendez or Lopez as their supervisor. 47 In 2013,

Butler Amusements had employed Mendez for 12 years, and he had been a

supervisor for six years. 48 In Mendez’s position as an supervisor, he checked to

make sure employees were doing their jobs, dealt with customer complaints,

responded to ride operators when something was broken, and filled out the ride

roster. 49 Mendez was the general manager’s “left hand.” 50 When visiting, Mendez

gave the Wage and Hour Investigators the tour, a role which, in Aguilar’s

experience, supervisors typically assume. 51 Lopez supervised 16 employees, and in

Id.

Id. at 13.

Id. at 6.

Id.

Id. at 9.

Id.

their statements multiple employees stated Lopez told them when to start each

day. 52 Lopez also filled out the ride roster. 53

WHD determined that Butler Amusements employed Jaime Hernandez and

Felipe Villegas (Villegas) solely as shop workers, in which they exclusively worked

in the “shop” or “spare parts trailer” cleaning parts and supplies, welding, doing

inspections, and repairing rides. 54

WHD further determined that Butler Amusements employed Saul Estadillo

Herrera (Estadillo), Sergio Guzman (Guzman), Jose Ivan Ortega (Ortega), Gustavo

Gamero (Gamero), and Fernando Preza (Preza) as truck drivers. 55 These

Commercial Driver’s License [CDL] drivers drove tractor trailers and semi-trucks to

transport rides, but did not operate rides. 56 Multiple records referred to these H-2B

employees as drivers. 57 Two handwritten notes in Butler Amusements’ payroll

records listed Ortega, Guzman, and Preza as drivers who were all paid $500 for the

week ending April 7, 2013, in Yuma. 58 A payroll spreadsheet for “Butch’s Unit”

listed Ortega, Guzman, and Preza as drivers. 59 While Estadillo and Gamero were

not listed as drivers, the pay slips regularly showed that they did not work on

weekends which were the longest and busiest days for ride operators, and typically

the days the drivers would not transport rides. 60

Estadillo worked for Butler Amusements as a driver for three years and

drove the trailers hauling rides. 61 To comply with Department of Transportation

regulations, Estadillo did not drive more than 10 hours per shift and kept a

transportation logbook of his hours, which ranged from 20 to 60 hours per week. 62

Id.

Id. at 10.

Id.

Id. The ALJ commented that while the note did not include the year 2013, it was

“reasonable to assume it was 2013 because Butch’s unit was in Yuma during that time

period in 2013.” Id. at 10 n.32.

Id. at 10.

Id.

Id. The ALJ noted that Estadillo referred to the vehicles he drove as trailers, thus it

is not clear whether these are distinct from the “semi-trucks” to which Ortega referred. Id.

at 10 n.33.

Id. at 10.

His pay was the same regardless of his hours. 63 When he was not driving, he

inspected the trailer truck and was on standby for whatever the manager needed. 64

Ortega drove semi-trucks to transport rides but not to transport people. 65 He

drove a maximum of 10 hours per shift, and his hours varied weekly. 66 He recorded

his driving hours in a logbook, which he submitted to Butler Amusements. 67 Butler

Amusements provided the semi-truck in which he lived and slept and did not charge

him for his living accommodations. 68

B. Butler Amusements’ Pay Practices

Butler Amusements paid the nine workers more than the ARA prevailing

wage, but less than the prevailing wage for the jobs they performed (first-line

supervisors, maintenance shop workers, and drivers). 69

Butler Amusements provided free housing in trailers, transportation from

venue to venue, and local transportation to run errands. 70 No employee reported

deductions for any of these items. 71 Not all of the employees stayed in the provided

trailers, and there was no evidence that employees who did not stay in the provided

lodging received higher wages for not using the trailers. 72 The occupancy of the

trailers varied, with some employees sharing with four people or only one

roommate, and some employees with private rooms. 73 Butler Amusements provided

a payroll spreadsheet listing employee information, including columns titled “gross,

draws, uniforms, ID, bunk, and net.” 74 None of the employees had a deduction for

“bunk” identified on the spreadsheet. 75

Id.

Id. at 12, 24.

Id. at 8.

Id. The only deductions were cash advances. Id.

Id.

Butler Amusements submitted 1,132 pages of payroll records and

photocopied pay slips for review. 76 Butler Amusements also submitted its own

summary of the hours that each of the nine employees worked. 77 The Administrator

found that “Butler Amusements’ payroll records did not represent the hours H-2B

workers actually worked, and that the dollar amounts on the pay slips were likely

accurate but the documented hours were unreliable.” 78 The ALJ found that the

errors in Butler Amusements’ payroll records and summary exhibit (Butler

Amusements’ Hearing Exhibit RX 45) made both documents unreliable. 79 The ALJ

noted that the submitted pay slips omitted amounts paid, contained duplicate pay

slips for the same person for the same period, and were inexplicably missing records

for some employees. 80 The ALJ also noted that records were missing for several of

the nine employees. 81 The ALJ also found that there were duplicate pay slips for

Estadillo, Gamero, and Lopez which indicated different hours worked during the

same time period and so could not be reconciled to determine which pay slip record

was correct. 82

The Administrator did not credit the hours documented on Butler

Amusements’ pay slips because it suspected the hours were inaccurate. 83 Based on

his review of the employee interviews and the pay slips, the ALJ found that this

decision was reasonable, and that the Administrator reasonably reconstructed

hours worked based on the attestation in ETA Form 9142B rather than by relying

on incomplete and questionably accurate pay slips. 84

Id. at 11.

Id. (citing RX 45 (Respondent’s Summary Exhibit of Hours Worked by H-2B

Workers)).

Id. Based on the pay slips, the ALJ found it was reasonable to conclude that during

the period of investigation all nine employees traveled from Riverside County to Maricopa

County, to Yuma County, and to Santa Barbara County. Id. at 13.

Id. at 11.

Id. For example, for the week of February 24 to March 3, Butler Amusements

recorded that Preza worked 37 hours, but no pay was documented. Id.

Id. For another example, Gamero, Guzman, Preza, Ortega, and Estadillo each had

no pay slip with hours from April 1 to April 7. Id.

Id. at 11-12. For example, there were duplicate pay slips for Estadillo for March 25

to March 31, the first indicating he worked 17.5 hours and the second indicating he worked

38.5 hours that week. Id. at 11. Additionally, in Butler Amusements’ summary exhibit RX

45, it referred to pages that were not included in the exhibit, attributed hours to the wrong

pay periods, and made questionable conclusions regarding employee duties. Id. at 12.

Id.

Based on the investigation, WHD sent Butler Amusements a Summary of

Unpaid Wages which listed ten employees with varying amounts of unpaid wages

for the period from February 2, 2013, to April 27, 2013. 85

3. Procedural History and ALJ’s Decision

On February 6, 2018, the Administrator issued a Determination Letter

finding that Butler Amusements substantially failed to comply with Attestation

#13—which requires the employer to accurately state the dates of temporary need,

reason for temporary need, and number of workers for temporary need—or stated

another way, failed to comply with the requirement to provide proper job

classification information on Form 9142B and DHS Form I-129. 86 The

Administrator based this finding on the substantive provisions of the 2008 H-2B

regulations and the procedural provisions of the 2015 H-2B regulations, and

determined that Butler Amusements “violated Attestation #13 and 20 C.F.R. §

655.22(n) (2009) as well as the Form I-129’s part 5, question 1.” 87 The Administrator

assessed back wages totaling $24,987.20, and $10,000 in CMPs. 88 On February 28,

2018, Butler Amusements contested the Administrator’s finding and remedies and

requested administrative review with the OALJ. 89

Before the ALJ, Butler Amusements filed an Opposed Motion for Summary

Judgment, and the ALJ issued an Order Denying Summary Decision on November

14, 2018. In his Order, the ALJ concluded, among other things, that that the fiveyear statute of limitations in 28 U.S.C. 2462 for actions to enforce a civil fine or

penalty was applicable to this case, and that the Administrator had timely filed its

determination letter within the five-year limitations period. 90 The ALJ also

concluded that back wages were an appropriate remedy under 20 C.F.R. 655.65(i)

for the violations alleged in this case. 91 The ALJ’s May 2, 2019 Order noted that the

original amount of unpaid wages cited in the Determination Letter was $24,987.20,

but amended the unpaid wages to $26,955.40 due to an inadvertent omission of one

of the employees entitled to back wages. 92

Id. at 6.

Id. at 13.

Id.

Id. at 6.

Id. at 13.

Order Denying Summary Decision at 14-18 (ALJ Nov. 14, 2018) (Summary Decision

Order).

Id. at 12-13.

May 2, 2019 Order at 3; D. & O. at 6 n.8.

A hearing was held in May 2019, and the ALJ issued the D. & O. on

September 30, 2020, finding that Butler Amusements substantially failed to comply

with the H-2B program by employing nine H-2B workers outside the job duties of

amusement and recreation attendants. 93 The ALJ found that Butler Amusements

had instead employed the workers as drivers, maintenance shop workers, and

supervisors. 94 The ALJ concluded that WHD’s method of calculating back wages

through reconstruction was appropriate, but in recalculating the back wages owed,

he lowered them from $26,955.40 to $26,786. 95 The ALJ rejected Butler

Amusements’ claim that it was entitled to certain credits. 96 Finally, the ALJ held

that the Administrator’s assessment of a $10,000 CMP was reasonable. 97

Butler Amusements timely appealed to the Board.

JURISDICTION AND STANDARD OF REVIEW

The ARB has jurisdiction to review an ALJ’s decision and issue the final

determination of the Secretary of Labor (“Secretary”) under the H-2B program. 98

Id. at 19.

Id.

Id. at 25-26.

Id. at 27.

Id. at 28. The ALJ also concluded that Respondent could not show that the doctrine

of laches should apply, that Brajevich was not individually or personally liable for Butler

Amusements’ violations, and that an anti-retaliation order for any H-2B worker owed back

wages was warranted. Id. at 15-17, 30-31. None of these issues have been presented to the

Board for appeal, and thus the ALJ’s decision on these matters is final. We note that

although Butler Amusements mentioned laches in the Petition for Review, it did not brief

this issue. The Board will deem an argument waived when a party asserts a conclusory

proposition on appeal without providing an explanation or elaborating on the proposition as

it relates to the party’s argument. See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v.

Washington Farm Lab. Ass’n, ARB No. 2021-0069, ALJ No. 2018-TAE-00013, slip op. at 29

n.113 (ARB Mar. 31, 2023) (internal citations omitted).

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

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020); see also 29 C.F.R. § 503.51.

The Board reviews an ALJ’s decision de novo 99 and acts with “all the powers [the

Secretary] would have in making the initial decision.” 100

DISCUSSION

Upon review of the ALJ’s D. & O., the parties’ arguments on appeal, and the

record, the Board concludes that: (1) the current case is not time barred; (2) Butler

Amusements violated the INA and H-2B regulations by employing H-2B workers

outside of the job classification listed on ETA Form 9142B; (3) the ALJ’s

recalculation of back wages owed was properly determined; (4) Butler Amusements

is not eligible for any credits under the 2008 H-2B regulations; and (5) the ALJ’s

affirmance of CMPs is reasonable under the facts in the current matter.

1. The Administrator’s Case Is Not Time Barred

A. The Administrator Timely Issued the Determination Letter

WHD issued its determination letter on February 6, 2018, covering the period

from February 1, 2013, through April 24, 2013. 101 Applying a five-year limitations

period, the ALJ found that WHD’s February 6, 2018 Determination Letter was

timely because it was issued before April 24, 2018. 102

Butler Amusements argues that the ALJ incorrectly determined that the

statute of limitations accrued when the violation concluded on April 24, 2013,

rather than on February 1, 2013, when the workers arrived and the violation

began. 103 Butler Amusements further argues that the “moment of employment”

(which it argues began on February 1, 2023, when the workers began working for

See Adm’r, Wage and Hour Div., U.S. Dep’t of Lab. v. Am. Truss, ARB No. 20050032, ALJ No. 2004-LCA-00012, slip op. at 2-3 (ARB Feb. 28, 2007) (citing Talukdar v.

U.S. Dep’t of Veterans Affs., ARB No. 2004-0100, ALJ No. 2002-LCA-00025, slip op. at 8

(ARB Jan. 31, 2007) (for the proposition that “ARB applies de novo review in INA cases.”)).

100

5 U.S.C. 557(b).

101

D. & O. at 6; RX 19.

D. & O. at 16-17; Summary Decision Order at 16-18. Although the Administrator did

not agree that the five-year statute of limitations in Section 2462 applied to the back wages

sought in this case, the Administrator has not appealed this aspect of the ALJ’s decision on

the basis that it is not determinative. We agree that the application of the five-year

limitations period in the D. & O. does not eliminate any period of time for which the

Administrator sought back wages, and therefore we do not need to address whether Section

2462’s five-year statute of limitations applies to H-2B proceedings where the Administrator

seeks to recover back wages.

102

103

Respondent’s (Resp.) Brief (Br.) at 5-6.

Butler Amusements) was a single discrete violation that provided grounds for the

Administrator’s cause of action, 104 and “[t]he fact that the purported violations may

have continued until April 24, 2013, has no bearing on the statute of limitations

accrual.” 105

In support of its argument that the violation in this case occurred once, and

that it was not continuing or repeating, Butler Amusements argues that the statute

of limitations for this violation is limited by a scienter requirement, which requires

a “subjective state of mind of recklessly disregarding whether its conduct was

prohibited by the statute” 106 and is illustrated in discrimination cases. 107 Butler

Amusements argues that “even if the subjective reckless disregard standard could

be contorted into objective recklessness (i.e., gross negligence), it would change

nothing because the willfulness prong would still determine the date of ‘first

accrual.’” 108

In response, the Administrator argues that the violation in this case was not

a single discrete event, but instead consisted of recurring failures to comply with

the H-2B program requirements. 109 The Administrator points to the fact that during

the February-April 2013 period which WHD investigated, Butler Amusements

employed at least nine H-2B workers outside the certified job classification;

therefore, Butler Amusements substantially failed to comply with the terms and

conditions of ETA Form 9142B throughout that same period. 110 The Administrator

analogizes this substantial failure violation to an FLSA action, where there is “a

series of repeated violations of an identical nature” such that “each failure to pay

. . . begins a new statute of limitations period as to that particular event.” 111 Thus,

“the underpayment is not the ‘effect’ of a prior violation; it is the violation itself.” 112

104

Id. at 6-7 (citations omitted).

Id. at 7. Under this interpretation of the accrual rule, Butler Amusements concludes

that the determination letter was time-barred. Id. at 5-6.

105

106

Resp. Reply Br. at 4 n.1.

107

Id. at 4-6.

108

Id. at 4 n.1.

109

Administrator’s (Adm’r) Br. at 25-26.

110

Id.

Id. (citing Figueroa v. D.C. Metro. Police Dep’t, 633 F.3d 1129, 1135 (D.C. Cir. 2011)

(internal quotation marks omitted)); see also Knight v. Columbus, Ga., 19 F.3d 579, 580-81

(11th Cir. 1994), cert. denied, 513 U.S. 929 (1994).

111

112

Adm’r Br. at 26 (citing Figueroa, 633 F.3d at 1135).

Butler Amusements counters that the accrual of an INA claim is more

analogous to the situation in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 113 in

which the Supreme Court held that the applicable limitations period did not begin

anew for each paycheck reflecting a prior violation of Title VII. 114 The Court

distinguished FLSA claims from Title VII claims because the latter do not require

proof of specific intent to discriminate. Butler Amusements equates the H-2B

provision’s willfulness requirement to Title VII’s specific intent requirement. This

argument fails for two reasons. First, H-2B’s definition of “willful” includes reckless

disregard, which does not equate to specific intent. 115 Second, the Supreme Court

did not appear to equate proof of willfulness with Title VII’s specific intent

requirement because it cited to FLSA’s “willful violation” provision when

distinguishing the FLSA from Title VII. 116

We agree with the Administrator that each significant deviation from the

terms and conditions of the H-2B petition and accompanying labor certification is

the violation itself, 117 and thus begins a new statute of limitations.

Butler Amusements also argues that the Administrator was required to

charge this violation as a willful misrepresentation, rather than a substantial

113

See 550 U.S. 618, 641 (2007).

114

Resp. Reply Br. at 4.

20 C.F.R. § 655.65(e) (“‘[W]illful failure’ means a knowing failure or a reckless

disregard with respect to whether the conduct was contrary to sec. 214(c) of the INA, or this

subpart.”).

115

Ledbetter, 550 U.S. at 641 (“Again, however, Ledbetter’s argument overlooks the fact

that an FLSA minimum wage or overtime claim does not require proof of a specific intent to

discriminate. See 29 U.S.C. § 207 (establishing overtime rules); cf. § 255(a) (establishing 2–

year statute of limitations for FLSA claims, except for claims of a “willful violation,” which

may be commenced within 3 years).”). In support of this proposition, Butler Amusements

also cites to breach of contract cases and Clean Air Act cases, but we are unable to discern

why these are analogous. Resp. Reply Br. at 4-6.

116

See 8 U.S.C. 1184(c)(14) (an employer violates the INA when it willfully fails to

comply with the H-2B requirements and that failure constitutes a “significant deviation”

from the terms and conditions of the employer’s petition). See also Adm’r, Wage and Hour

Div., U.S. Dep’t of Lab. v. 5 Star Forestry, ARB No. 2013-0056, ALJ No. 2012-TNE-00010,

slip op. at 5 (ARB Nov. 6, 2014) (Final Decision and Order on Civil Money Penalty)

(affirming ALJ’s decision charging the employer with four separate H-2B violations, instead

of a single violation, for placing H-2B workers in four different locations outside the area of

the intended employment the employer listed in its application for temporary employment

certification). In 5 Star Forestry, the Board found that each placement was a substantive

deviation from the terms and conditions of the H-2B petition (to conduct the necessary

measures to confirm the absence of U.S. workers in each location it attends to place H-2B

workers), and thus each deviation was a violation in itself. Id. at 5-6.

117

failure to comply, and that any willful misrepresentation would have occurred when

it filed its ETA Form 9142B in 2012 (outside the limitations period). 118 However, an

employer may willfully misrepresent facts on its ETA Form 9142B and be charged

with willful misrepresentation, or an employer may substantially fail to comply

with the statements it made on its ETA Form 9142B regarding its temporary need

for H-2B workers and be charged with a substantial failure to comply. 119

In this case, Butler Amusements had not substantially failed to comply with

the requirement in 20 C.F.R. § 655.22(n) until it actually acted with reckless

disregard of the H-2B program requirements by employing nine H-2B workers in

job classifications other than ARA. Therefore, the Secretary’s claim did not begin to

accrue until February 2013, and Butler Amusements substantially failed to comply

repeatedly throughout the period that WHD investigated, to April 2013. Therefore,

the Board finds that that Administrator’s February 6, 2018 Determination Letter

was timely filed within the five-year limitations period.

B. The Four-Year Limitations Period in 28 U.S.C. 1658(a) Does Not Apply to

Administrative Actions

Butler Amusements argues in the alternative that the statute of limitations

is governed by the four-year limitations period set forth in 28 U.S.C. § 1658(a), 120

which governs “civil action[s] arising under an Act of Congress enacted after” 1990.

Butler Amusements argues that DOL’s enforcement actions are considered a civil

matter, thus, Section 1658(a) governs the current matter. 121

Butler Amusements is incorrect. As the Federal Communications

Commission (FCC) recently recognized, “[t]he text, context, purpose, and history of

Section 1658(a) make clear that it governs court actions, not agency

Resp. Br. at 3, 7 n.1, 24-25 (Butler Amusements arguing that 20 C.F.R. § 655.22(n)

“can only be violated through a misrepresentation in the application, not through

substantial failure to comply,” thus the only relevant moment in time occurred when it

submitted the application on 11/7/2012.); see also id. at 6 (for Butler Amusements’

argument that the violation occurred upon submission of the application because that was

the moment of either willfulness or reckless disregard).

118

The Administrator can identify different types of violations after an investigation,

including a willful misrepresentation of a material fact on a petition, or a substantial

failure to meet any conditions of the labor certification or DHS Form I-129. 20 C.F.R.

§ 655.60.

119

120

Resp. Br. at 8-12; see 28 U.S.C. § 1658(a).

121

Resp. Br. at 11-12.

proceedings . . . .” 122 First, as the FCC explained, the term “action,” as used in

federal statutory provisions, most frequently refers to judicial proceedings in civil

matters and not agency proceedings. The Fourth Circuit, when analyzing the term

“civil action” in 28 U.S.C § 1658(a), similarly held that it did not apply to a civil

commitment hearing, noting that such a proceeding was distinct from a civil action,

which is one that “seek[s] to enforce or protect a private civil right.” 123 An

administrative enforcement action, such as in the current case, does not seek to

enforce or protect a private civil right. Similarly, the Supreme Court, when

analyzing 28 U.S.C. § 2415(a), another federal limitations statute, stated that the

term “action” is “ordinarily used in connection with judicial, not administrative,

proceedings.” 124

The FCC’s analysis of the context, purpose and history of Section 1658(a)

further supports the conclusion that this section only applies to suits brought in

federal court:

Section 1658 was enacted as part of the Judicial

Improvements Act of 1990. Title III of that Act, in which

Section 1658 was enacted, is the Federal Courts Study

Implementation Act of 1990. As those names would

suggest, where the term “action” appears in the enacting

law, it refers to formal judicial proceedings or other action

by the judiciary or its governing bodies.

***

‘The primary goals of [the Judicial Improvements] Act

[were] to decrease delays in the federal court system as a

result of overloaded case dockets, to increase overall

efficiency, and to reduce costs and litigation expenses.” The

Sandwich Isles Comms., Inc., FCC 18-172, 2019 WL 105385, at *39 (F.C.C. Jan. 3,

2019), reh'g denied, 2019 WL 2564087 (D.D.C. 2019); see also Garvey v. Hale, SE-14527,

1997 WL 566262, at *1 n.3 (N.T.S.B. Aug. 29, 1997) (stating that Section 1658(a) applies to

“certain civil actions in federal court” and not to proceedings before the National

Transportation Safety Board).

122

United States v. Searcy, 880 F.3d 116, 124 (4th Cir. 2018), cert. denied, 139 S. Ct.

285 (2018).

123

BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). The cases cited by Butler

Amusements as examples of the term “civil action” being applied to administrative

proceedings are inapposite because they apply the Administrative Procedure Act, which

provides a cause of action for review of administrative actions in federal court, and thus

involves a judicial proceeding not limited to administrative proceedings. See Resp. Br. at

10-12.

124

purpose of Section 1658 specifically was to eliminate the

need for federal courts to “borrow” the most analogous state

or federal law limitations period for federal claims that

lacked their own designated limitations period.

***

In other words, the legislative concerns that animated the

enactment of Section 1658, and the goals of Judicial

Improvements Act of 1990 as a whole, related to

proceedings in federal court, not administrative

proceedings. 125

The FCC concluded by noting that it could find no case where section 1658(a) was

used to set the limitations period for an administrative proceeding. 126 The Board

likewise concludes that the limitations period set forth in 28 U.S.C. § 1658(a) does

not apply to this administrative enforcement action.

C. Statutes of Limitations Should Not Be Borrowed from Other Statutes in

Suits Brought by the Government

Butler Amusements also argues that the ALJ erred by failing to “borrow” a

statute of limitations from either the Fair Labor Standards Act or the H-2A

program for application in this case. 127 However, the borrowing principles relied

upon by Butler Amusements apply to private actions brought under a federal

statute that does not itself specify a statute of limitations—not, as here, where the

enforcement action is brought by the government itself. 128 Because these borrowing

principles do not apply in cases brought by the government, 129 the ALJ did not err

in refusing the requested action.

125

Sandwich Isles Comms., Inc., 2019 WL 105385, at *39 (citations omitted).

126

Id. at *40.

See Resp. Br. at 12-15. Butler Amusements’ references to the H-2A program twoyear statute of limitations, id. at 14, is also misplaced because it applies to debarment

actions, not enforcement actions. See 8 U.S.C. 1188(b).

127

See, e.g., Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 35556 (1991) (discussing borrowing principles in the context of a private action), reh’g denied,

501 U.S. 1277 (1991); Bd. of Regents v. Tomanio, 446 U.S. 478, 488 (1980) (same).

128

See, e.g., Alden Mgmt. Servs., Inc. v. Chao, 532 F.3d 578, 581-82 (7th Cir. 2008)

(noting that “nothing in the [INA] establishes a period of limitations for the Secretary’s

proceeding” and stating that “a borrowing approach . . . does not apply to administrative

proceedings initiated by the national government” (citation omitted)); Dole v. Local 427, 894

129

2. Butler Amusements Violated the INA and the H-2B Regulations by

Employing H-2B Workers Outside the Job Classification Listed on the

Application for Temporary Labor Certification

The ALJ found that the Administrator had adequately established that

Butler Amusements substantially failed to comply with the 2008 H-2B regulations

by employing nine H-2B workers as ARAs who did not perform ARA job duties. 130

Instead, Butler Amusements employed these H-2B employees as drivers, shop

workers, and supervisors of ARAs. 131 After reviewing the ALJ’s finding de novo, we

agree with the ALJ for the following reasons.

A. Statutory and Regulatory Background

In 2008, the DOL proposed and instituted an attestation-based filing system

for the H-2B program; the employer’s “information and attestations on the

application form” were to provide the Department with “the necessary

assurances . . . to initially verify program compliance.” 132 The regulation also

provided for the Department to conduct compliance audits of H-2B applications133

and for the Administrator to conduct investigations. 134

Following an investigation, the Administrator can identify three types of

violations: (1) a willful misrepresentation of a material fact on a petition; (2) a

substantial failure to meet any conditions of the labor certification or DHS Form I-

F.2d 607, 614-15 (3d Cir. 1990) (rejecting argument that an analogous federal statute of

limitations should apply to Secretary of Labor’s suit brought under the Labor Management

Reporting and Disclosures Act); Marshall v. Intermountain Elec. Co., 614 F.2d 260, 263

(10th Cir. 1980) (refusing to apply state statute of limitations to Secretary of Labor’s action

under the Occupational Safety and Health Act).

130

D. & O. at 19.

131

Id.

Id. at 17 (citing Lab. Certification Process and Enf’t for Temp. Em’t in Occupations

Other Than Agric. or Registered Nursing in the U.S. (H-2B Workers), and Other Technical

Changes, 73 Fed. Reg. 245, 78,020 (Dec. 19, 2008); Final Rule, 73 Fed. Reg. 245, 78,035

(Dec. 19, 2008) (codified at 20 C.F.R. §§ 655 and 656)).

132

133

Id. (citing 20 C.F.R. § 655.24).

Id. at 17-18 (citing 20 C.F.R. § 655.60). The Administrator performs all of the

Secretary’s investigative and enforcement functions, and pursuant to a complaint or

otherwise, conducts investigations and gathers information as deemed necessary by the

Administrator to determine compliance with the H-2B program. 20 C.F.R. §§ 655.50(a)-(b).

134

129; or (3) a misrepresentation of a material fact to the State Department on a visa

application. 135

In this case, WHD’s 2013 investigation found that Butler Amusements

substantially failed to meet the conditions of the labor certification application

attested to as listed in Section 655.22. 136 Section 655.22(n) requires the employer to

attest that it truly and accurately stated the number of workers needed, the dates of

need, and the reasons underlying the temporary need in its labor certification

request. 137

On ETA Form 9142B, Butler Amusements represented that it had a

temporary need for 246 full-time seasonal “Amusement and Recreation Attendants”

starting on February 1, 2013, and ending on October 31, 2013. 138 Butler

Amusements listed the job duties that these workers would perform as a “variety of

attending duties at amusement facility (traveling carnival). Set-up, tear-down,

operate amusement rides, food concessions and/or games.’” 139 When Brajevich

signed the Employer’s Declaration in Appendix B.1 Section B on ETA Form 9142,

he certified that the “job opportunity was a full-time temporary position and that

‘the dates of temporary need, reason(s) for temporary need, and number of worker

positions being requested for certification has been truly and accurately stated on

the application[.]’” 140 However, because Butler Amusements employed nine H-2B

workers as supervisors (2), shop workers (2), and drivers (5), WHD determined that

Butler Amusements substantially failed to meet the conditions of the labor

certification. 141 The ALJ agreed.

On appeal, Butler Amusements contends that the ALJ erred in finding that it

violated 20 C.F.R. § 655.22(n) because while the statute is violated when there is a

misrepresentation on the application, it is not violated when an employer

compensates workers at the approved wage rate for the approved job code although

135

Id. at 17 (citing 20 C.F.R. § 655.60).

Id. at 17-18. See 20 C.F.R. § 655.60(b) (Administrator to determine through

investigation whether the employer has “[s]ubstantially failed to meet any of the conditions

of the labor certification application attested to, as listed in § 655.22, or any of the

conditions of the DHS I-129, Petition for a Nonimmigrant Worker for an H-2B worker in 8

CFR 214.2(h).”).

136

137

20 C.F.R. § 655.22(n).

138

D. & O. at 4.

139

Id. (citation omitted).

140

Id. at 5 (citation omitted).

141

Id. at 9-10, 13.

the workers may have also performed additional “incidental” job duties. 142 Butler

Amusements argues its application did not contain a misrepresentation of its

temporary need and therefore, it could not have violated Section 655.22(n). 143 Butler

Amusements argues that, instead of charging it under 20 C.F.R. § 655.22(n) for

mispresenting its temporary need for workers, the Administrator was required to

charge this case as a willful misrepresentation of a material fact when Butler

Amusements submitted the application in 2012 or when it was approved. 144

Contrary to this argument, the Administrator was not required to charge this

matter as a willful misrepresentation case. The Administrator may charge an

employer with a willful misrepresentation or a substantial failure to comply with

the conditions attested to on ETA Form 9142B, 145 and in this case chose the latter.

A substantial failure violation occurs after the workers are in the U.S. 146

We now turn to whether Butler Amusements substantially failed to comply

with the temporary need requirement in 20 C.F.R. Section 655.22(n). The INA

defines substantial failure as “the willful failure to comply [with this section which]

constitutes a significant deviation from the terms and conditions of a petition.” 147

142

Resp. Br. at 3-4, 34.

143

Id. at 24-25.

144

Id. at 7 n.1.

145

20 C.F.R. § 655.60(a)-(b).

See RX 40 (Deposition of Carrie Aguilar) at 18-19 (Aguilar explaining the difference

between a misrepresentation (occurs when “something that was known at the time of the

filing to be an error or incorrect” before the workers are in the country) and a substantial

failure (a failure “to comply substantially with the terms and conditions outlined in” ETA

Form 9142B “[a]fter the workers are here and the terms and conditions of [ETA Form

9142B] are not complied with”); see also Adm’r, Wage and Hour Div., U.S. Dep’t of Lab. v.

C.S. Lawn & Landscape, Inc., ARB No. 2020-0005, ALJ No. 2018-TNE-00023, slip op. at 8

(ARB Apr. 4, 2022) (in which the Board held that the employer’s substantial failure to

comply with Section 655.22(g)(1) did not start to accrue until the employer actually took the

housing deduction from the workers’ paychecks).

146

8 U.S.C. § 1184(c)(14)(D) (emphasis added). Section 214(c)(14) of the INA states that

if DHS finds “a substantial failure to meet any of the conditions of the petition to admit . . .

a nonimmigrant worker under [8 U.S.C. § 1101(a)(15)(H)(ii)(b)] or . . . a willful

misrepresentation of a material fact in such petition,” it may impose such administrative

remedies, including civil monetary penalties, as it determines to be appropriate. 8 U.S.C. §

1184(c)(14)(A). The statute continues: “In this paragraph, the term ‘substantial failure’

means the willful failure to comply with the requirements of this section that constitutes a

significant deviation from the terms and conditions of a petition.” 8 U.S.C. § 1184(c)(14)(D).

In addition, “the highest penalties shall be reserved for willful failures to meet any of the

conditions of the petition that involve harm to United States workers.” 8 U.S.C.

§ 1184(c)(14)(C).

147

Likewise, a substantial failure under the 2008 H-2B regulations means a “willful

failure that constitutes a significant deviation from the terms and conditions of the

labor condition application or the DHS I-129.” 148

B. Butler Amusements Willfully Failed to Comply with the 2008 Regulations

Because It Recklessly Disregarded Whether It Was in Compliance with the

INA and H-2B Program Requirements

The 2008 H-2B regulations define “willful failure” as a “knowing failure or a

reckless disregard with respect to whether the conduct was contrary to sec. 214(c) of

the INA, or this subpart.” 149 Under this standard, the term “willful” refers to

conduct that is “voluntary,” “deliberate,” or “intentional,” and “not merely

negligent.” 150 A violation is willful if the employer “either knew or showed reckless

disregard for the matter of whether its conduct was prohibited . . . .” 151 An act is not

“willful” if the employer simply knew potential violations were “in the picture.” 152

The ALJ found Butler Amusements “acted with reckless disregard for

whether it was in compliance with the INA and its implementing regulations by

ignoring the regulations and instructions accompanying the temporary employment

certification application and employing nine H-2B workers outside of its job

certification.” 153

Butler Amusements argues that it did not act with reckless disregard

because: (1) it did not have proper notice or knowledge of its obligations under the

H-2B program as the 2008 Rule did not provide or explain how much detail to

provide when submitting a job code, how to complete ETA Form 9142B or

instructions for describing job duties, or what the correct test was to determine a job

code; (2) 20 C.F.R. § 655.22(n) does not address the impropriety of compensating

workers at the approved job rate if they were not performing the job duties for the

approved job code but addresses misclassification on the application; and (3) that it

did not know of a regulatory requirement to only employ H-2B workers in the

certified job classifications, nor did the ALJ ever identify any pertinent regulatory

duty. 154

148

See 20 C.F.R. § 655.65(d); see also 8 U.S.C. § 1184(c)(14)(A).

20 C.F.R. § 655.65(e) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988);

Trans World Airlines v. Thurston (Thurston), 469 U.S. 111 (1985)).

149

150

McLaughlin, 486 U.S. at 133.

151

Id.

152

Thurston, 469 U.S. at 127.

153

D. & O. at 19.

154

Resp. Br. at 24-29.

i. Butler Amusements Ignored the 2008 H-2B Regulations

Butler Amusements argues that an agency must provide notice of its

interpretation of what is prohibited before it may impose penalties. 155 The agency

provides notice “[i]f, by reviewing the regulations and other public statements

issued by the agency, a regulated party acting in good faith would be able to

identify, with ‘ascertainable certainty,’ the standards with which the agency expects

parties to conform.” 156

Here, we agree with the ALJ that “[t]he regulations and instructions

accompanying the certification application provided ample notice and guidance for

Employer to comply with the INA and the terms of its certification,” 157 and that

several sections of the 2008 H-2B regulations would have given Butler Amusements

notice of its obligations. 158 The 2008 H-2B regulations dictated that employers must

truly and accurately state, “the dates of temporary need, reason for temporary need,

and number of positions being requested for labor certification . . . on the

application.” 159 These directions are clear, and we agree with the ALJ that Butler

Amusements “should have known that it was supposed to employ the number of

ARA workers it had truly and accurately requested.” 160

Butler Amusements argues on appeal that the 2008 H-2B regulations do not

provide notice to employers about how to request a job code during the application

process or “limit the employer’s assigned job duties to the job code requested.” 161

Butler Amusements argues that because of the lack of guidance from the H-2B

regulations, including how much time and effort it should have spent on selecting a

job code, “attempting to impose a regulatory duty would seriously undermine the

public’s ability to understand the rules that must be followed.” 162

We agree with the ALJ that “[t]he content and purpose of the advertising

requirements should have given Respondent notice of the level of specificity

Id. at 30; see also D. & O. at 19 (“An agency must provide notice of its interpretation

of what is prohibited before it may impose penalties.”) (citing Gen. Elec. Co. v. U.S. EPA, 53

F.3d 1324, 1328-29 (D.C. Cir. 1995)).

155

156

D. & O. at 19-20 (citing Gen. Elec. Co., 53 F.3d at 1329).

157

Id. at 19.

158

Id. at 20.

159

20 C.F.R. § 655.22(n).

160

D. & O. at 20.

161

Resp. Br. at 26-27.

162

Id. at 27, 32.

required for the job description.” 163 The 2008 H-2B regulations explain that

“[b]efore receiving a temporary labor certification for H-2B workers, an employer

must ensure that there are not enough interested and able U.S. workers to fill the

positions. 164 Employers must advertise the job with enough specificity “to apprise

applicants . . . where [they] will likely have to reside to perform the services or

labor” and describe the “opportunity (including the job duties) . . . with sufficient

detail to apprise applicants of services or labor to be performed . . .” as well as,

“[t]he job opportunity’s minimum education and experience requirements . . . .” 165

Furthermore, the job description in the advertisement and the temporary

employment certification application have to be similar because employers cannot

place “less favorable” job requirements on U.S. workers. 166 Thus, like the ALJ, we

find unconvincing Respondent’s arguments that it did the best it could in the

absence of clear directive and guidance.

Butler Amusements also argues that workers performed a variety of job

duties but that none of these job duties were assigned outside of the job code, and

that it was being efficient by concentrating approved duties in a small number of H2B workers. 167 Butler Amusements argues that when it searched the different job

titles, every single one of the duties listed was an approved job duty for

“Amusement and Recreation Attendants.” Thus, it satisfied the only regulatory

staffing requirement, which is to comply with industry practice. 168 Like the ALJ, we

find that Butler Amusements should have known it was required to describe the job

duties with enough specificity to inform workers of the labor to be performed.

However, “despite its representations on the temporary employment certification,

[Butler Amusements] placed workers in positions where they were supervising

other employees, exclusively driving semi-trucks, or working in a repair shop—all

duties which were not listed on ETA Form 9141, 9142B, or the I-129.” 169

We also agree with the ALJ that Sections 655.20 and 655.34(b) also provide

notice that a strategy of concentrating duties to promote efficiency violates the 2008

H-2B regulations. 170 Section 655.20(d) states that “[c]ertification of more than one

position may be requested on the application as long as all H-2B workers will

163

D. & O. at 20.

164

Id. (citing 20 C.F.R. § 655.17).

165

20 C.F.R. § 655.17.

166

Id.

167

Resp. Br. at 30-31.

168

Id.

169

D. & O. at 20.

170

Id.

perform the same services or labor on the same terms and conditions, in the same

occupation . . . .” 171 Section 655.34(b) states “[a] temporary labor certification is only

valid for the . . . specific services or labor to be performed . . . .” 172 We find it notable

that, although the company had participated in the H-2B program since 2000, CEO

Brajevich admitted he had never read or referenced the 2008 H-2B rules. As the

ALJ noted, if Brajevich had read the regulations, “these requirements would have

put [Butler Amusements] on notice that all workers within a certification should

perform the same labor, under the same conditions, and in the same occupations

and that the certification was only valid for the services or labor specified in the

application.” 173

Having carefully reviewed the record de novo, we see no reason to disturb the

ALJ’s findings. 174 We therefore conclude that Butler Amusements showed reckless

disregard for complying with the statute and regulations when it submitted a

temporary employment certification for 246 ARA workers, and did not review the

implementing regulations, and then employed some of its certified H-2B workers

exclusively in occupations outside of the certification.

ii. Butler Amusements Ignored Instructions on ETA Forms 9141, 9142B, and

DHS I-129

Regardless of whether Brajevich read the 2008 H-2B rules, the instructions

accompanying ETA Forms 9141, 9142B, and the DHS I-129 informed Butler

Amusements of its obligations. Thus, we agree with the ALJ that Butler

Amusements “seemingly ignored the instructions they did receive with their

temporary employment certification.” 175 The ALJ provided an example:

[T]o enable ETA to make a prevailing wage determination

(PWD), [Butler Amusements was] to ‘[d]escribe the job

duties, in detail, to be performed by any worker filling the

job opportunity.’ The instructions stated, ‘specify field(s)

and/or product(s)/industry(ies) involved, any equipment to

be used, and pertinent work conditions.’ The duties

provided must be specific enough to be classified under a

relevant SOC pursuant to the O*Net publication.[] The

171

20 C.F.R. § 655.20(d).

172

20 C.F.R. § 655.34(b).

173

D. & O. at 20.

As stated by the ALJ, Butler Amusements’ “strategy to ‘just put [workers] wherever

we can get them to be efficient,’ was expedient, but clearly violated this explicit

requirement.” Id.

174

175

Id. at 21.

instructions also directed [Butler Amusements] to indicate

the number of employees the H-2B workers would

supervise and whether the supervised workers would be

subordinates or peers. The ETA Form 9142B has similar

instructions. 176

We agree with the ALJ that despite this guidance, Butler Amusements “did

not include in the description any mention of needing a commercial driver’s license,

driving a semi-truck to transport rides, working in a repair shop, or supervising

other employees.” 177 Butler Amusements instead employed H-2B workers in

positions dramatically different from the job description—in the positions of firstline supervisors, maintenance shop workers, and drivers—that was used to

generate a prevailing wage determination, advertised to U.S. workers, and certified

for H-2B workers. 178

If Butler Amusements wished to fill positions that included supervisory roles,

driving, and shop work, it “should have submitted separate applications for the

various jobs they sought to fill.” 179 Instead, Butler Amusements “exerted minimal

effort to comply with the INA and the 2008 H-2B regulations, which demonstrated

more than mere negligence, but a reckless disregard for whether its actions violated

the statute and regulations.” 180

iii. Butler Amusements Did Not Act Reasonably or with a Good Faith Belief

That It Had Not Committed a Violation of the 2008 H-2B Regulations

Butler Amusements argues that, because it relied on an experienced

consultant when filing out the Form 9142B, it could not have willfully violated the

regulations. 181 As the ALJ noted, “[i]n the Notice of Proposed Rulemaking, the

Department confirmed ‘[i]n the H-2B program, the agent simply represents the

employer in the labor certification process. The employer is ultimately responsible

for its obligations under the program . . . .” 182 By signing Butler Amusements’

Declaration on ETA Form 9142B, Brajevich “certified the job opportunity was a full176

Id. (citations omitted).

177

Id.

178

Id.

179

Id.

Id. The ALJ found if Butler Amusements “had reviewed the regulations and other

documents in good faith, [it] could have ascertained what actions to take to comply.” Id.

(citing Gen. Elec. Co., 53 F.3d at 1329).

180

181

Resp. Br. at 32-33.

182

D. & O. at 21 (citing RX 76 at 17; 73 Fed. Reg. 245, 78,035 (Dec. 19, 2008)).

time temporary position and that ‘[t]he dates of temporary need, reason(s) for

temporary need, and number of worker positions being requested for certification

has been truly and accurately stated on the application . . . .’” 183 Brajevich “took full

responsibility for the accuracy of any representations made by his agent or attorney

and declared under penalty of perjury that he read and reviewed the application

and that to the best of his knowledge it was true and accurate.” 184

As did the ALJ, we find the Supreme Court’s Thurston case instructive on

this issue. In Thurston, the record showed that the employer, an airline, acted

reasonably and in good faith. 185 When airline officials met with lawyers, they

determined that the airline’s existing policy violated the Age Discrimination in

Employment Act (ADEA), and proposed and adopted a new policy. 186 Relying on

these facts, the Court held that the airline did not show willful or reckless disregard

for whether its conduct violated the ADEA. 187 We agree with the ALJ’s finding that,

unlike the airline in Thurston, Butler Amusements did not act reasonably and in

good faith. 188 The airline in Thurston “did not just consult counsel, they engaged

with the process, and changed their plan of action based on counsel’s advice.” 189

Thus, merely “[c]onsulting counsel is not sufficient to show that one acted in good

faith, nor is pleading ignorance.” 190

On appeal, Butler Amusements argues that its expert consultant advised it to

pursue this course of action and that the ALJ imposed “strict liability” for relying on

an erroneous professional consultant. 191 We disagree. The ALJ correctly noted that

it was Butler Amusements and “Brajevich [who] took full responsibility for the

accuracy of any representations made by his agent or attorney and declared under

183

Id. (citing AX C-9 (Attestation #13)).

Id. at 21-22 (citing AX C-9). The ALJ also noted that Brajevich testified that

Respondent’s counsel acted on Butler Amusements’ authority. Id. at 22(citing the

RESTATEMENT (THIRD) OF AGENCY, § 2.01 (2006) (which states that “[a]n agent acts

with actual authority when at the time of taking action that has legal consequences for the

principal, the agent reasonably, in accordance with the principal’s manifestations to the

agent, that the principal wishes the agent so to act.”)). The ALJ concluded that

Respondent’s counsel “acted with actual authority and Butler Amusements is bound to the

legal consequences of his actions.” Id.

184

185

469 U.S. at 129.

186

Id.

187

Id.

188

D. & O. at 22 (citing Thurston, 469 U.S. at 113).

189

Id. (citing Thurston, 469 U.S. at 129).

190

Id.

191

Resp. Br. at 33.

penalty of perjury that he read and reviewed the application and that to the best of

his knowledge it was true and accurate.” 192 The ALJ did not impose strict liability

by finding that Butler Amusements did not reasonably rely on counsel, but instead

concluded it is ultimately the employer’s responsibility to ensure that its application

is accurate, and in this case Butler Amusements failed to do so.

Relying on counsel with expertise in the H-2B program alone is not

persuasive evidence that an employer acted reasonably or in good faith with the

INA and H-2B program requirements. In sum, the Board agrees with the ALJ that,

despite adequate notice of its obligations, Butler Amusements made convenient

decisions and exerted minimal effort to comply despite relying on and consulting

with counsel.

C. Butler Amusements Placed Nine H-2B Employees Outside of ARA

Positions and Its Reckless Disregard Resulted in a Significant Deviation

from the Terms and Conditions of ETA Forms 9141 and 9142B

As set out in the Background section in detail, the core tasks for ARA

positions as published in O*NET are vastly different than those represented by

Butler Amusements in ETA Forms 9141 and 9142B. 193 In the face of the disparity

between the O*NET core task description and the work that the nine subject H-2B

workers actually performed, Butler Amusements argues that employing workers

exclusively in supplemental activities was not a significant deviation from the job

certification because their strategy of concentrating approved duties in a small

number of H-2B workers made them more efficient and thus was acceptable under

the H-2B regulations under the “incidental-duty rule.” 194 This argument fails both

factually and legally.

Turning first to the facts, the O*NET description for “supplemental activity”

lists includes “inspecting equipment to detect wear and tear and making minor

repairs,” and similarly, “an ARA might spend some time maintaining inventories of

192

D. & O. at 21-22 (citation omitted).

In O*NET, the core duties for ARA positions are: selling tickets; collecting fees;

selling refreshments; recording details of attendance, sales, receipts, reservations, or

repairs; providing information about facilities; directing patrons, monitoring safety;

cleaning rides; and staying informed of safety measures. Id. at 22 (citation omitted). On

ETA Forms 9141 and 9142B, Butler Amusements represented that the H-2B workers it

sought as ARAs would, “[p]erform a variety of attending duties at amusement facility

(traveling carnival)” and they would “[s]et up, tear down, operate amusement rides, food

concessions and/or games.” Id. No experience, education, training, specific skills, or special

licenses were required for the job, and though the workers would travel to different

worksites they would not supervise any other employees. Id.

193

194

Resp. Br. at 34.

equipment and assembling and disassembling equipment.” 195 Here, the ALJ found

that none of the nine employees performed the core duties associated with an ARA

position, and that they also rarely performed the supplemental duties. 196 The ALJ

noted that “[t]he five drivers spent their time almost exclusively transporting rides

on semi-trucks. They self-identified as drivers and were listed as drivers.

Additionally they slept in their trucks, had commercial drivers’ licenses, and kept

logbooks to comply with [U.S.] Department of Transportation regulations.” 197 As for

the two shop workers, they “labored solely in the maintenance shop cleaning parts

and supplies, welding, doing inspections, and repairing rides.” 198 “[T]he supervisors

described themselves as supervisors, and other employees, as well as Butler

Amusements’ management, corroborated this.” 199 “The supervisors walked around

to make sure employees were doing their jobs, dealt with customer complaints,

responded to ride operators when something was broken, and filled out the ride

roster.” 200 Thus, the ALJ found that “[t]he nine employees did not perform core ARA

duties and only minimally performed supplemental ARA duties.” 201

Next, we turn to the law. As an initial matter, the Board is unpersuaded by

Butler Amusements’ argument that the “incidental-duty rule” should be “borrowed”

from H-2A regulations for application to the current case. 202 Butler Amusements is

also incorrect that the 2008 H-2B Regulations did not require it to employ H-2B

workers only in the job code that was requested and approved. 203 This argument

195

D. & O. at 22-23 (citations omitted).

196

Id. at 23.

197

Id. (citations omitted).

Id. (citations omitted). The ALJ noted that Villegas did not need his company shirt

because he spent so little time working with the public. Id. (citation omitted).

198

199

Id. (citation omitted).

200

Id. (citation omitted).

201

Id. (citation omitted).

The “incidental activities” argument fails because this provision is related to the

type of “work activity of the type typically performed on a farm and incident to the

agricultural labor or services for which an H-2A labor certification was approved may be

performed by an H-2A worker.” 73 Fed. Reg. 77,110 (Dec. 19, 2008) (emphasis added).

202

Resp. Br. at 26. Respondent also argues that the new language in the 2012 and 2015

regulations prohibiting workers outside of the certified job classifications demonstrated

that the 2008 H-2B regulations did not prohibit the practice. Id. at 24-26. The clarifying

language in those later regulations, however, indicated that the requirement existed under

the 2008 H-2B regulations but was not explicit. D. & O. at 23 (noting that the 2012 and

2015 H-2B regulations added clarifying language that “‘an H–2B worker is only permitted

to work in the job and in the location that OFLC [Office of Foreign Labor Certification]

approves unless the employer obtains a new temporary labor certification.’”).

203

ignores and undermines the purpose of the INA and the Department’s temporary

labor certification process to protect U.S. workers. Butler Amusements certified that

there were no qualified U.S. workers available for the positions and that

employment of H-2B workers would not adversely affect the wages and working

conditions of U.S. workers. 204 If the regulations did not require H-2B workers to be

only employed in the job code requested, the Department’s certification process

would be rendered meaningless—as the ALJ succinctly stated, “to allow employers

to select a job code, receive a prevailing wage determination, advertise the job to

[U.S.] workers, hire H-2B workers after certifying that no [U.S.] workers wanted

the position, and then employ H-2B workers to perform a different job entirely,

undermines the purpose of the INA to protect U.S. workers.” 205

Accordingly, we agree with the ALJ that Butler Amusements “failed to

advertise the nine positions to [U.S.] workers and adequately compensate the nine

employees.” 206 “Drivers, shop workers, and supervisors all have different SOC codes

and corresponding prevailing wage rates, which are higher than the [prevailing

wage rate] for [an] ARA.” 207 As Butler Amusements “placed these nine employees

outside of the ARA position but paid them as if they were ARA employees, [Butler

Amusements] significantly deviated from its certification and owes back wages.” 208

Butler Amusements’ reckless disregard for the regulations and its lack of a good

faith effort to comply with the rules resulted in a substantial failure to meet

204

See RX 2 (ETA’s Certification of Butler Amusements’ Application) at 21.

D. & O. at 23. By placing workers outside the position of ARA, Butler Amusements

failed to ensure that there no qualified workers in the U.S. for the positions of drivers, shop

workers, and supervisors. Butler Amusements’ failure not only ignored regulatory

guidance, but also undermined the labor certification process of ensuring that it had been

“unsuccessful in locating sufficient numbers of qualified U.S. applicants for the job

opportunity for which labor certification is sought.” 20 C.F.R. §655.22(c) (emphasis added).

See also Outdoor Amusement Bus. Ass’n, Inc. v. U.S. Dep’t of Homeland Sec., 983 F.3d 671,

675 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021) (“A core part of the H-2B visa

program is labor certifications—the process of determining whether American workers are

available and whether employment of H-2B workers would adversely affect similarly

employed American workers.”); Nat’l Ass’n of Mfrs. v. U.S. Dep’t of Homeland Sec.,

491 F.Supp.3d 549, 565 (N.D. Cal. 2020), appeal dismissed, No. 20-17132, 2021 WL

1652546 (9th Cir. 2021) (“[A]ccording to the existing statutory scheme, the H-2B visa

category requires that a visa can only be issued ‘if unemployed persons capable of

performing [the necessary temporary] service or labor cannot be found in this country[]’

[and] [t]hat safeguard is achieved through a careful and robust certification process

overseen by the Department of Labor[.]”) (citations omitted).

205

206

D. & O. at 24.

207

Id. (citation omitted).

208

Id. (citation omitted).

conditions of the labor certification, and thus, Butler Amusements violated 20

C.F.R. § 655.22(n).

3. Remedy

If the Administrator finds that an employer has not paid wages at the wage

level required by Section 655.22(e), the Administrator may require the employer to

pay back wages. 209 Back wages further the purposes of the H-2B program by

reducing the employer’s incentive to bypass U.S. workers in order to hire H-2B

workers who are more easily exploited. 210 The Board acknowledges the necessity

and authority of WHD to reconstruct hours worked and payments made to

determine back wages when the employer’s records are unreliable. 211

A. The ALJ’s Recalculation of Back Wages Owed

WHD reconstructed the back wages owed based on a 40-hour week (per the

temporary employment certification), the itinerary in the temporary employment

certification, and SOC job codes for drivers, first-line supervisors, and maintenance

and repair workers. 212 In finding that Butler Amusements owed $26,955.40, the

Administrator did not rely on its pay slips because the Administrator found the

number of hours worked recorded on the pay slips was not credible. 213 The ALJ

found that the “pay slip hours were unreliable and could not have been used to

reconstruct employee back wages” based on Aguilar’s testimony that the typed

timecards were less reliable than handwritten timecards because employees did not

contemporaneously document when they started and stopped working and because

the hours listed on the pay slips did not align with employee accounts. 214

However, the ALJ found that the data in RX 26 was reasonably reliable

regarding the location of the workers, and so recalculated the wages that Butler

Amusements owed each worker as could be best determined from the locations

209

20 C.F.R. § 655.65(i).

210

73 Fed. Reg. 78,020, 78,047 (Dec. 19, 2008).

See Adm’r, Wage and Hour Div., U.S. Dep’t of Lab. v. Peter’s Fine Greek Food, Inc.,

ARB No. 2014-0003-B, ALJ Nos. 2011-TNE-00002, 2012-PED-00001, slip op. at 6

(ARB Sept. 17, 2014). Thus, the ALJ’s decision to disregard some pay records did not

impose a “de facto timekeeping obligation” on Butler Amusements, Resp. Br. at 35, and its

FLSA-exempt status and statutory time-keeping obligations are irrelevant.

211

212

D. & O. at 24 (citation omitted).

213

Id. at 25 (citation omitted).

214

Id.

available in the exhibit. 215 The ALJ based the hourly wage rate on the Foreign

Labor Certification (FLC) wage data in Administrator’s Hearing Exhibit (AX) J,

specifically the mean (H-2B) rate, for the respective location and occupation of the

H-2B worker. 216 Based on the ALJ’s recalculation of back wages using the mean H2B wage for each worker as best determined from the locations available in RX 26,

the ALJ found that Butler Amusements owed $26,786 in back wages. 217

B. The ALJ Properly Determined the Amount of Back Wages Owed

Butler Amusements first contends that the ALJ erred as a matter of law by

awarding back wages because they were not available for violations of Section

655.22(n) under the 2008 Rule. 218 Butler Amusements is incorrect. The first clause

of Section 655.65(i) provides that “the Administrator may impose such other

administrative remedies as the Administrator determines to be appropriate,

including reinstatement of displaced U.S. workers, or other appropriate legal or

equitable remedies.” 219 Thus, under this broad grant of authority, the ALJ properly

concluded that the Administrator can require Butler Amusements to pay back

wages. Back wages are “appropriate” because the workers were not paid the

prevailing wages that they should have been paid for the work they performed.

With regard to hours worked, Butler Amusements next argues that the ALJ

erred as a matter of law by “imposing a de facto timekeeping duty with strict

liability” by disregarding pay records countersigned by the H-2B workers. 220 This

argument fails because the ALJ did not impose such a duty; the record and D. & O.

reflect that the ALJ carefully reviewed the Respondent’s pay records and

215

Id.

Id. at 25-26. AX J contains the different SOC codes and corresponding prevailing

wage rates for drivers, shop workers, and supervisors, which are higher than the prevailing

wage rate for ARA. Id. at 24.

216

Id. at 25-26. The ALJ relied on data from RX 26, AX H, and AX J. Id. at 25. Butler

Amusements summarily argues that “[t]he ALJ also erred as a matter of law by adopting

the mean or average H-2B wage rate, D&O 26, even though that calculation did not exist

under the 2008 DOL Rule.” Resp. Br. at 38. Butler Amusements argues that the

Administrator was required to present any evidence on which of 4 skill levels applied under

20 C.F.R. § 655.10 (2009) and alludes to skill level I as the appropriate wage rate. Id.

217

Resp. Br. at 35. Butler Amusements cites to 20 C.F.R. § 655.65(i), but appears to

base this contention solely on the second clause of 655.22(i), which provides for back pay for

violations of 20 C.F.R. § 655.22(e).

218

219

20 C.F.R. § 655.65(i) (emphasis added).

Resp. Br. at 35-38. Butler Amusements argues, inter alia, that because it was an

FLSA-exempt employer and not required to keep records, the Administrator shifted the

“burden of proof” to the employer. Id.

220

determined they were unreliable because some were incomplete, some were missing

(including the driver logs), and some timesheets conflicted with others such that the

ALJ had no way of determining which one was accurate. 221 The ALJ noted that

Butler Amusements’ pay slips were not contemporaneously recorded time cards and

employees did not record their own hours; instead, carnival supervisors would

record and report employees’ hours to a payroll clerk. 222 The pay slips did not

always reflect the hours H-2B employees spent driving, thus the pay slips did not

always reflect accurate hours H-2B employees worked. 223 Employees who drove the

vans were paid extra, but these hours were not reflected on the pay slips. 224 The

unrecorded time spent driving was estimated to have been between two to eight

hours, depending on the distance between fairs. 225

Accordingly, we agree with the ALJ’s conclusion that, based on these facts

and not on any “de facto timekeeping duty,” it was reasonable for the Administrator

to use the 40 hours per week that Butler Amusements certified the H-2B workers

would work, not the pay records. 226 With regard to the location of the workers, the

ALJ found that the data regarding their location was reasonably reliable, and he

then recalculated the wages that Butler Amusements owed each worker as could

best be determined from the location evidence available. 227

Butler Amusements also summarily argues that the ALJ erred as a matter of

law by adopting the mean or average H-2B wage rate, because that calculation did

not exist under the 2008 Rule. 228 We find that the ALJ reasonably looked at FLC

data for mean hourly wage rates in the relevant period to determine wage rates for

the jobs that the H-2B workers were actually performing. 229 Indeed, Butler

Amusements agreed with the propriety of the Administrator’s use of the average

pay rate for the alternate job codes. 230 To the extent Butler Amusements is now

221

D. & O. at 11-12.

222

Id. at 6-7.

223

Id.

224

Id. at 7

225

Id.

See Peter’s Fine Greek Food, Inc., ARB No. 2014-0003-B, slip op. at 6 (acknowledging

the necessity and authority of WHD to reconstruct hours worked and payments to

determine back wages when the employer’s records are unreliable).

226

D. & O. at 25 (recalculating back wages and finding a small discrepancy based on

the investigator’s projected itinerary).

227

228

Resp. Br. at 38 (citing to 20 C.F.R. § 655.10 (2009)).

229

See D. & O. at 25-26.

230

Resp. Post-Hearing Br. at 18.

arguing that the wage rates it requested in its application for ARAs should have

been used instead, it does not explain why the ALJ should have used those other

rates in a subsequent enforcement action.

In sum, we have reviewed the ALJ’s calculations and methodology and

discern no sufficient reason to disturb the ALJ’s calculations.

C. Butler Amusements Is Not Eligible for Any Credits

Under the 2008 H-2B regulations, employers were permitted to make

deductions from a worker’s pay, consistent with the FLSA, for the reasonable cost of

furnishing housing and transportation, as well as worker expenses such as passport

and visa fees. 231 The 2008 H-2B regulations stated: “The job offer must specify all

deductions not required by law that the employer will make from the worker’s

paycheck. All deductions must be reasonable.” 232

Here, Butler Amusements claimed that it was entitled to credits for providing

housing, local transportation, relocation expenses, taxes, and reimbursement for a

prepayment plan because employees did not reach 40 hours a week during the

period of investigation. 233 Butler Amusements argues that the ALJ erred by

rejecting its proof of credits to offset legal obligations. 234

As an initial matter, the ALJ noted that the Butler Amusements did not cite

to any authority in support of these requested credits. 235 Instead, Butler

Amusements submitted a joint statement signed by employees in 2019 who worked

for them in 2013 that stated “employees received ‘valuable benefits’ such as

housing, transportation, food, relocation, visa processing fees, ‘and so on.’” 236 The

ALJ did not give this statement any weight as he had no context for the

circumstances in which it was signed, and noted there were inconsistencies between

this statement, employee statements in 2013, and Butler Amusements’ claim for

credits. 237

231

D. & O. at 26 (citation omitted).

20 C.F.R. § 655.22(g)(1) (emphasis added). This regulation applies regardless of

FLSA exemptions. Id.

232

233

D. & O. at 26-27.

234

Resp. Br. at 41-45.

235

D. & O. at 26-27.

236

Id. at 26.

Id. at 27. The ALJ provided examples. First, Butler Amusements did not mention

taxes or the prepayment plan in the letter but claim a credit for them for 2013 in RX 47

237

The ALJ also gave no weight to statements in Butler Amusements’ job offer,

wherein it stated it would make “available mobile housing valued at $125.00 per

week” and “transportation from venue to venue and scheduled transportation to

laundry, shopping valued at $25.00 per week.” 238 The ALJ found this language

ambiguous; it was not clear whether the employer was deducting this benefit from

the worker’s pay or providing a free benefit. 239 Moreover, in 2013, all of the

employees who lived in the trailers stated that housing was free. 240 Butler

Amusements’ temporary employment certification application also stated,

“Employer follows prevailing practices for Traveling Amusement Industry in

regards to housing, transportation and weekly salary for workers.” 241 The ALJ

found that “[t]his statement was also vague; it does not clearly specify all, or any, of

the deductions [Butler Amusements] will make.” 242

Finally, the ALJ noted that WHD documented that at least two of the drivers

did not live in the trailers. 243 The ALJ found that Butler Amusements’ request for a

deduction of $1,290 to $1,555 per employee for sleeping in a semi-truck cab was

unreasonable. 244

We find that, given all of the above facts, the ALJ properly determined that

Butler Amusements was not entitled to take any offsets for wages due.

Butler Amusements also argues that the ALJ’s interpretation that deductions

must be disclosed in the ETA Form 9142B application is contrary to its reasonable

interpretation that a deduction could be disclosed at any time before the workers’

arrival at the worksite. 245 The ALJ concluded that the language in an addendum to

the ETA Form 9142B “‘reserving the right to charge a fee for housing and

(Respondent’s Recalculation of Back Wages with Credits Applied). Id. The ALJ also noted

that all employee statements in 2013 stated that housing was free, and they independently

pooled their money for food. Id. Additionally, the ALJ found that Butler Amusements’ “and

so on” statement did not pass muster as a specific valuable benefit to deduct. Id. (citing

20 C.F.R. § 655.22(g)(1)).

238

D. & O. at 27 (citation omitted).

239

Id.

240

Id. (citation omitted).

241

Id. (citation omitted).

242

Id. (citing 20 C.F.R. § 655.22(g)(1)).

243

Id. (citation omitted).

244

Id. (citing 20 C.F.R. § 655.22(g)(1)) (other citation omitted).

245

Resp. Br. at 38-41.

transportation,‘” was an attempt to reserve a deduction “just in case” and failed to

comply with Section 655.22(g)(1). 246 But as explained above, the ALJ did not rely on

this interpretation of the disclosure requirement to reject Respondent’s credits; the

ALJ based his decision on Butler Amusements’ lack of reliable evidence in support

of the credits requested. 247

D. The ALJ Properly Determined the Amount of Civil Money Penalties Owed

The ALJ upheld the Administrator’s assessment of a $10,000 CMP for Butler

Amusements’ substantial failure to pay employees for the work they actually

performed. 248 We affirm the ALJ’s finding for the following reasons. 249

The Administrator may assess CMPs of up to $10,000 for an employer’s

substantial failure to meet a condition of the Temporary Employment Certification

or the DHS Form I-129, a willful misrepresentation in the application, or a failure

to cooperate with a DOL investigation. 250 To determine an appropriate CMP, the

Administrator “shall consider the type of violation committed and other relevant

factors.” 251 In addition to considering the willfulness of the violation, 252 the

Administrator may also consider other discretionary factors to determine the

appropriate CMP. 253

246

D. & O. at 27.

Thus, Butler Amusements’ arguments regarding “dueling interpretations” are

irrelevant.

247

248

D. & O. at 28.

“Regardless of whether the Board has the authority to perform a de novo review, we

choose to accept the ALJ’s findings if they are reasonable.” Peter’s Fine Greek Food, Inc.,

ARB No. 2014-0003-B, slip op. at 2; cf. Adm’r, Wage and Hour Div., U.S. Dep’t of Lab. v.

Wash. Farm Labor Ass’n, ARB No. 2021-0069, ALJ No. 2018-TAE-00013, slip op. at 8

(ARB Mar. 31, 2023) (reviewing ALJ’s CMP assessment under the H-2A program de novo).

249

250

20 C.F.R. § 655.65(c).

251

20 C.F.R. § 655.65(g).

“[T]he highest penalties shall be reserved for willful failures to meet any of the

conditions of the petition that involve harm to United States workers.”

8 U.S.C. § 1184(c)(14)(C); 20 C.F.R. § 655.65(g). Under the INA, a “willful failure” means a

knowing failure or a reckless disregard with respect to whether the conduct was contrary to

Section 214(c) of the INA. 20 C.F.R. § 655.65(e); see McLaughlin, 486 U.S. at 133.

252

The regulatory factors include: (1) the previous history of H-2B violations by the

employer; (2) the number of workers affected by the violation; (3) the gravity of the

violation; (4) the employer’s good faith efforts to comply; (5) the employer’s explanation of

the violation; (6) the employer’s commitment to future compliance; and (7) the extent to

253

The ALJ independently weighed the discretionary factors used to assess

CMPs 254 and found that, based on the mitigating factors, the Administrator’s

assessment of a $10,000 CMP was reasonable. 255 Specifically, the ALJ determined:

(1) although Butler Amusements did not have a history of violations, its records

evidenced a broader lack of adherence to H-2B rules; (2) the Administrator

convincingly argued that the violations were likely not limited to the nine

employees in this case and reasoned that the same practices were used throughout

Butler Amusements’ operation but because these additional violations were not

investigated or charged this factor does not weigh for or against Butler

Amusements; (3) Butler Amusements’ violation undermined objectives of the INA,

thus the third factor favors assessing a large CMP; (4) although they hired a

consultant, Butler Amusements put minimal effort into compliance; (5) Butler

Amusements’ explanation of its violation was wanting, and its delegation of work to

a consultant was insufficient to show a good faith effort to comply; (6) although

Butler Amusements refused to state that it would comply in the future because it

was unwilling to admit it was out of compliance, 256 the ALJ found it likely that

Butler Amusements will comply in the future; and (7) Butler Amusements gained

financially by using ARA classifications that have lower prevailing wages than the

other classifications. 257

We agree with the ALJ’s balancing of the above factors, only two of which

neither weighed for or against Butler Amusements, and likewise conclude that the

discretionary factors favored imposing the maximum CMP of $10,000 in this

instance. 258

which the employer achieved a financial gain due to the violation, or the potential financial

loss to the employer’s workers. 20 C.F.R. § 655.65(g).

20 C.F.R. § 655.75(b) (The ALJ “may affirm, deny, reverse, or modify, in whole or in

part, the determination of the Administrator,” with the “reason or reasons for such order” to

be stated in the decision.); see also Adm’r, Wage and Hour Div., U.S. Dep’t of Lab. v. Prism

Enters. of Cent. Fl., ALJ No. 2001-LCA-00008, slip op. at 13 (ALJ June 22, 2001), aff’d,

ARB No. 2001-0080 (ARB Nov. 25, 2003) (in which the ALJ noted that she weighed the

seven factors differently than the Administrator weighed them).

254

255

D. & O. at 28-30.

256

Id. at 29.

257

Id. at 28-29.

The ALJ’s finding would also have been appropriate under 29 C.F.R. § 655.65(a)

given the back wages owed.

258

CONCLUSION

Accordingly, we AFFIRM the ALJ’s determination that Butler Amusements

violated 20 C.F.R. § 655.22(n), AFFIRM the WHD Administrator’s assessment of

back wages in the amount of $26,786.00, and AFFIRM the WHD Administrator’s

assessment of a civil money penalty of $10,000.

SO ORDERED. 259

____________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

____________________________________

TAMMY L. PUST

Administrative Appeals Judge

____________________________________

THOMAS H. BURRELL

Administrative Appeals Judge

In any appeal of this Decision and Order that may be filed, we note that the

appropriately named party is the Secretary, Department of Labor, and not the

Administrative Review Board.

259

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.