As evidence of the increased number of audits and enforcement actions, the Administrative Review Board (ARB) has awarded back wages to an H-1B employee in Matter of Vojtisek-Lom (http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/07_097.LCAP.PDF). In its decision, the ARB reviews the complaint filed by the ex-employee Michal Vojtisek-Lom against his former employer Clean Air Technologies International, Inc., the decision by the Wage and Hour Division (WHD), and the decision by the DOL’s Administrative Law Judge (ALJ) in the matter. In his complaint, Vojtisek-Lom alleged Clean Air had failed to pay him all of his wages during his course of employment. Both the WHD and ALJ found in favor of Vojtisek-Lom, holding Clean Air responsible for back wages in the amounts of $20,076.99 and $46,955.37, respectfully. The ARB upheld the ALJ’s finding, and held Clean Air responsible for back wages in the amount of $46,955.37 plus interest. The ARB found that Clean Air’s payment responsibility began when Vojtisek-Lom made himself “available for work” (here he resigned his other employment to begin work for Clean Air). The ARB found that Vojtisek-Lom was entitled to payment for period of time he was abroad for company purposes and for a period two weeks vacation time, which was in line with company policy for all employees. Further, the ARB held that Clean Air was liable for payment of the higher of the prevailing wage or actual wage noted on the LCA. The ARB concluded that not only had the complaint been timely filed by Vojtisek-Lom, but that the ALJ had correctly calculated the back wage amount due. As such the ARB upheld the ALJ’s findings. This case is a good example of the liabilty employers may face in enforcement actions brought by the DOL. Companies should review their records to make sure they are following the regulations in regards to payment of wages due employees. For assistance with these calculations, please contact your HLG attorney.
