975 F.3d 220
2d Cir.2020Background
- Aleutian Capital Partners (NY private equity) employed two H-1B workers: Gangjee (hired Aug 2011) and Horn (hired 2010, terminated Jan 2013).
- Aleutian filed LCAs committing to annual wages; it paid Gangjee a base plus revenue-linked bonus (not documented) producing uneven monthly payments—some months below the prorated LCA amount, some above. Total pay for 2012 exceeded the LCA annual amount.
- Gangjee filed a DOL complaint (Jan 14, 2013). DOL investigated, requested payroll/LCA records for all H-1B employees since Jan 15, 2012, and found multiple monthly underpayments for Gangjee and a December 2012 underpayment for Horn.
- DOL ordered back wages calculated as the sum of monthly shortfalls (no offsets for months with overpayments). ALJ and ARB affirmed; a three-member ARB majority rejected allowing annual netting; one member dissented limited to annual accounting.
- District Court affirmed the ARB. On appeal, Aleutian argued (1) required wage obligation should be assessed annually (allow netting), (2) DOL exceeded its one-year investigatory limit and statutory authority when awarding pre-complaint backpay and when investigating Horn. Second Circuit affirmed DOL/ARB in all respects.
Issues
| Issue | Plaintiff's Argument (Gangjee) | Defendant's Argument (Aleutian) | Held |
|---|---|---|---|
| Proper temporal unit for required wage obligation | Monthly prorated installments required by regulation; failure each month violates LCA | Wages should be assessed on annual basis; net annual pay satisfied LCA so no backpay for 2012 | Held for DOL: regulation requires prorated monthly payments; monthly underpayments give rise to back wages even if annual total exceeds LCA |
| Credit for overpayments / ability to self-remedy | No credit for overpayments in other months; each pay period stands alone | Employer may offset underpayments with earlier overpayments; otherwise employer penalized for self-remedying | Held for DOL: employer cannot net across months; payments must be "when due" and "no less often than monthly" under 20 C.F.R. §655.731(c)(4) |
| Temporal reach of remedies (pre-complaint backpay) | DOL may assess back wages beyond the one-year filing limit if investigation of a timely complaint reveals earlier violations | One-year filing limit bars investigation and remedies older than one year | Held for DOL: 8 U.S.C. §1182(n) and 20 C.F.R. §655.806(a)(5) allow back wages for periods prior to one year before filing when a timely complaint reveals such violations |
| Scope of investigatory authority (investigate non-complaining employees) | DOL may investigate whether the alleged unlawful pay practice affected other H-1B employees; requesting records for other H-1B workers is lawful | DOL may investigate only the specific allegations in the complaint; it lacked authority to investigate Horn who did not complain | Held for DOL: 8 U.S.C. §1182(n)(2)(A) and 20 C.F.R. §655.800(b) permit investigation of the full scope of the alleged pay practice, including other H-1B employees like Horn |
Key Cases Cited
- Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (ambiguous statutory gaps may be filled by a reasonable agency interpretation)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its own regulations)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and conditions for applying Auer deference)
- Greater Missouri Med.-Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015) (constrains DOL investigatory scope under an aggrieved-party complaint)
- Cyberworld Enter. Techs., Inc. v. Napolitano, 602 F.3d 189 (3d Cir. 2010) (DOL's pre-certification investigative limits)
- Nielsen v. AECOM Tech. Corp., 762 F.3d 214 (2d Cir. 2014) (statutory delegation signals agency interpretive authority)