PERSIAN BROADCAST SERVICE GLOB V. MARTIN WALSH, ET AL, No. 22-55254 (9th Cir. 2023)
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In an effort to employ an Australian citizen and E-3 visa-holder, Persian Broadcast filed and received approval for a Labor Condition Application (LCA) through the U.S. Department of Labor (“Department”), first in 2011 and again in 2013. An LCA binds an employer to pay the required wages for the period of authorized employment, and only two exemptions can eliminate an employer’s legal obligations: when an employee is nonproductive for personal reasons or there has been a bona fide termination of the employment relationship. In February 2015, the employee filed an administrative complaint with the Department, arguing that Persian Broadcast failed to pay him the full amount of his wages as specified in the two LCAs.
The Ninth Circuit affirmed the district court’s summary judgment upholding an Administrative Review Board (“ARB”) order awarding backpay plus pre-and post-judgment interest to the employee. First, the panel held that the employee’s February 2015 complaint was not time-barred. The ARB reasonably relied on the LCAs rather than the employee’s visa to determine the period of authorized employment and Persian Broadcast’s wage obligations. By failing to pay the employee the reported wage under the second LCA period, Persian Broadcast continued to violate the wage requirement until the LCA period ended on September 12, 2015.
Second, the panel held that the employee’s circumstances did not meet either of the statutory exemptions to the LCA wage requirement because, by continuing his reporting work, the employee remained in productive status, and there was never a bona fide termination.
Court Description: Wages/Labor Condition Applications The panel affirmed the district court’s summary judgment upholding an Administrative Review Board (“ARB”) order awarding backpay plus pre-and post- judgment interest to Majid Varess, an Australian citizen and E-3 visa-holder who was employed as a sports reporter and producer by Persian Broadcast Service Global (“Persian Broadcast”).
To employ Varess, Persian Broadcast filed and received approval for a Labor Condition Application (LCA) through the U.S. Department of Labor (“Department”), first in 2011 and again in 2013. An LCA binds an employer to pay the required wages for the period of authorized employment, and only two exemptions can eliminate an employer’s legal obligations: when an employee is nonproductive for personal reasons or there has been a bona fide termination of the employment relationship.
20 C.F.R.
§ 655.731(c)(7)(ii). In February 2015, Varess filed an administrative complaint with the Department, arguing that Persian Broadcast failed to pay him the full amount of his wages as specified in the two LCAs.
First, the panel held that Varess’s February 2015 complaint was not time barred. The ARB reasonably relied on the LCAs rather than Varess’s visa to determine the period of authorized employment and Persian Broadcast’s wage obligations. By failing to pay Varess the reported wage under the second LCA period, Persian Broadcast continued to violate the wage requirement until the LCA period ended on September 12, 2015.
Second, the panel held that Varess’s circumstances did not meet either of the statutory exemptions to the LCA wage requirement because, by continuing his reporting work, Varess remained in productive status and there was never a bona fide termination.
Finally, given Persian Broadcast’s failure to pay Varess the LCA wages for the period of authorized employment, the ARB did not abuse its discretion by awarding backpay plus pre- and post-judgment interest.
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