By: Bruce Buchanan, Sebelist Buchanan Law

A U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) ruled In the Matter of: James Linnie v. Murphy Pipelines, Inc., Case No. 2020-LCA-00007 (June 16, 2021), that Murphy Pipelines failed to pay Linnie pursuant to the terms of his E-3 visa and accompanying Labor Condition Application (LCA). In so doing, Murphy Pipelines owes Linnie $336,730 in back wages and $67,346 in lost bonuses.

Facts

Linnie is a citizen of Australia and a civil engineer; thus, he is eligible for an E-3 non-immigrant visa. Murphy Pipelines is located in Jacksonville, Florida.

In July 2018, Andy Mayer, President of Murphy Pipelines, and Linnie agreed he would be hired as a Civil Engineering Commercial Manager at a salary of $170,000 per year for at least two years. His hiring was contingent on securing an E-3 visa, and his employment would continue at least for the duration of the visa. The company also agreed to pay the costs of Linnie’s E-3 visa, E-3D dependent visas for his wife and two children; the costs of their relocation to Jacksonville; health and dental insurance for a family of four; and a housing allowance of $2,000 a month for a year.

Thereafter, Murphy Pipelines filed an LCA for Linnie’s E-3 visa, which was certified by the U.S. Department of Labor on July 30, 2018. The LCA listed a period of intended employment of July 30, 2018, through July 30, 2020. Linnie and his family traveled to the U.S. Consulate in Barbados, at company expense, where they were promptly granted visas.

On August 3, Linnie and his family entered the U.S. on their new visas. On August 4, Linnie met with Mayer who told him to immediately go to Boston to take care of a matter. Linnie did so. Thereafter, Mayer told Linnie that the company would not pay for Linnie’s and his family’s relocation. Mayer told Linnie to go back to his house in Canada, pick up clothes for his family, and drive back to Florida.

When Linnie arrived back at Murphy Pipelines office on August 7, Mayer greeted him by telling him “you’re f---ing late.” Linnie worked in the office on August 7 and August 8 performing a variety of tasks, including Linnie preparing the monthly claim for a project in Saint John, New Brunswick; opining on risk related to a pipe supply issue; and providing knowledge on disputes about the Saint John project. None of these tasks were listed in his job description. While at work, Linnie provided his visa and made plans to obtain a Social Security card.

Termination

On August 9, Mayer told him he was terminated and had until Saturday to leave the housing that Mayer had arranged. Linnie and his family vacated the apartment on August 11, 2018, and returned to Canada. On August 13, Kinsella, a company manager, emailed and asked Linnie whether Mayer had proposed paying Linnie a small sum to keep Linnie’s visa valid and stated if anyone asked about the end of Linnie’s employment with Murphy Pipelines, Kinsella would say that there was a “visa issue.” Linnie later contacted the company about being paid and was told the company did not owe him any money.

Murphy Pipelines offered two explanations for Linnie’s termination. First, Linnie never informed them that his visa had been approved and it was not aware of Linnie’s entry into the United States. Second, Murphy Pipelines terminated Linnie effective August 17, 2018, because “[d]uring his initial 30-day period and after our due diligence, Mr. Linnie was found inadequate for the position offered. [Thus] the employment offer agreement had not been fulfilled.”

DOL Investigation

After his discharge, Linnie filed a claim for back wages with DOL and cited the LCA as to the wages that he was entitled to. The DOL denied his claim but it’s unclear why it did so when Murphy Pipelines never tendered any wages or paid return transportation expenses. Linnie appealed the denial, and the matter was heard by an ALJ.

ALJ’s Decision on Employment and Termination

• Linnie’s Employment

The ALJ found Murphy Pipelines’ argument that Linnie never entered into employment is plainly wrong. Murphy Pipelines focused on the fact that Linnie did not perform the job duties specified in the offer letter. The ALJ found this was irrelevant “because Linnie did not have to perform any duties, let alone the precise duties specified in the LCA, to enter into employment. See 20 C.F.R. § 655.731(c)(6)(i) (“waiting for an assignment” is enough). And Linnie was assigned duties in line with his job description. The Board has found that nonimmigrant workers enter into employment once they enter the country and communicate their availability to work to the employer. See Administrator v. University of Miami, ARB No. 10-090, ALJ No. 2009-LCA-026 (ARB Dec. 20, 2011); see also Gupta, ARB No. 12-049.

In this case, Linnie was clearly available for work and under the direction and control of Murphy Pipelines by August 3, 2018.

• Linnie’s Voluntary Departure vs. Termination

Generally, an employer has an obligation to pay an E-3 nonimmigrant worker even if the E-3 nonimmigrant worker is not performing work. 20 C.F.R. § 655.731(c)(7)(i). The ALJ discussed two situations where the employer need not pay the employee the wage specified in the LCA:
The ALJ found Murphy Pipelines’ argument that Linnie’s departure was voluntary was almost exclusively to the contrary. Alternatively, Murphy Pipelines argued when Linnie returned to Canada, he made himself unavailable. The date of Linnie’s return to Canada, August 17, 2018, rather than the date of Mayer’s encounter with Linnie, August 9, 2018, is the purported termination date that Respondent listed in the letter they provided to USCIS.

The ALJ was not persuaded and stated:
The ALJ found Linnie remained available to work even after his return to Canada because he had the ability to telecommute and travel between Canada and the U.S. on an E-3 visa.
The test for a bona fide termination is that an employer: Mayer’s August 9th meeting with Linnie effectively put Linnie on notice of termination. Linnie understood the meeting to effect a termination, as would any reasonable person in Linnie’s position.

Murphy Pipelines submitted a December 11, 2019, letter notifying USCIS that Respondent had terminated Linnie. The ALJ found the letter was effective to put USCIS on notice of the termination of Linnie. However, letter was ineffective to either disclaim any employment relationship with Linnie or to backdate Linnie’s termination to August 17, 2018. As the ALJ stated: “USCIS was not on notice of Linnie’s termination on August 17, 2018, simply because Respondent listed that date in a letter sent in December 2019. The second prong of the bona fide termination analysis cannot be effective any earlier than USCIS had notice, which was not until December 11, 2019.”

There is no evidence Murphy Pipelines ever provided payment for Linnie’s transportation back to Canada, which it must do to effect a bona fide termination. See, e.g., Amtel Group of Florida, Inc. v. Yongmahapakorn, ARB No. 07-104, ALJ No. 2004-LCA-006 (ARB Jan. 29, 2008). Circumstances when payment for transportation home is required include situations where the employer dismisses the E-3 employee ahead of the end of the authorized period of employment.” Chettypally v. Premier IT Solutions, Inc., ARB No. 2017-0057, ALJ No. 2017-LCA-00006 (ARB Jan. 21, 2020); see also 8 C.F.R. § 214.2(h)(iii)(E). Transportation costs are due to the non-immigrant’s “last place of foreign residence.” 8 C.F.R. § 214.2(h)(iii)(E).

In this case, Linnie did not remain in the U.S. but rather returned to Canada, his last place of foreign residence, as of August 17, 2018. Murphy Pipelines argued Linnie’s return to Canada on August 17, 2018, obviated the need for it to meet at least the prong of the bona fide termination analysis requiring payment for transportation and perhaps the prong requiring notification to USCIS.

There are circumstances in which the Board has found bona fide termination despite the nonpayment of transportation costs even when the circumstances indicated that those transportation costs would normally be due. Such as if a nonimmigrant gets authority to remain in the U.S. on grounds other than their original visa or even voluntarily chooses to remain in the U.S. without authority, failure to pay return transportation costs may not prevent a bona fide termination. Or if Respondent offers to pay return transportation but the nonimmigrant refuses the payment, the prong is still met. The ALJ found neither of these circumstances are present here.

ALJ’s Remedies

Because Murphy Pipelines never effected a bona fide termination, the ALJ found Linnie was due back wages for the entire period from his entry into employment until the expiration of his visa: August 3, 2018, through July 26, 2020, or $3,269 per week for a period of 103 weeks, which amounts to $336,730 plus interest.

The ALJ found despite the LCA not including any reference to fringe benefits, he could consider the salary negotiations as evidence of the fringe benefits that were offered Linnie. First, Linnie is guaranteed at least the fringe benefits offered to similarly-situated U.S. workers. 20 C.F.R. §§ 655.810(a), 655.731(c)(3)(i). Because Murphy Pipelines offered no evidence that Linnie’s eventual employment was not based on the fringe benefits set forth by Linnie, the ALJ found the terms Mayer agreed to on July 4, 2018, represent the agreement between the parties for the purposes of an award.

However, Linnie failed to provide any evidence of the value of the unpaid healthcare benefits and the housing allowance/free rent changed; thus, the ALJ could not award these benefits. The ALJ did award the 20% bonus contemplated by the parties or $67,346 even though this fringe benefit was not specifically listed in the LCA.

Takeaways

This decision demonstrates the importance of knowing the law as it relates to the termination of a non-immigrant worker and perfecting the termination. If one fails, you may end up owing the employee over $400,000 as happened in this case.