Administrator, Wage and Hour Div., USDOL v. Washington Farm Labor Association (agency decision, March 31, 2023)

Read the official release

Plain-English summary

Washington Farm Labor Association filed a master H-2A application as joint employer with Sakuma Brothers Farms and recruited 69 foreign agricultural workers. The Board held that the association's choice and sworn certifications made it a joint employer as a matter of law, and that it could not accept master-application benefits while disclaiming responsibility for compliance at the farm. It upheld liability for unequal treatment of 207 domestic workers, unsafe or inadequate housing conditions, and rejection of domestic applicants for experience that H-2A workers were not required to have. Prior discretionary decisions not to penalize associations did not create a reasonable reliance right, and separate penalties against each joint employer were not double punishment. The Board upheld per-worker penalties, corrected arithmetic errors in the administrative judge's calculation, and ordered $60,487.50. Judge Burrell agreed that the association was a joint employer but dissented from the penalty ruling, favoring remand to reassess culpability and the asserted change in enforcement policy.

Decision snapshot

• Cited authorities: 8 U.S.C. § 1188; 5 U.S.C. § 557(b); 20 C.F.R. §§ 655.103, 655.122, 655.130-.131, and 655.135; 29 C.F.R. §§ 501.19 and 501.41-.42
• Outcome: Joint-employer liability affirmed and civil penalties corrected to $60,487.50; one judge dissented in part.
• Key point: An agricultural association that elects the H-2A master-application benefits and certifies itself as joint employer assumes compliance duties and may receive separate, per-worker penalties for violations at a member farm.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

IN THE MATTER OF:

ADMINISTRATOR, WAGE ARB CASE NO. 2021-0069 AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, ALJ CASE NO. 2018-TAE-00013

       PROSECUTING PARTY,                DATE: March 31, 2023

 v.

WASHINGTON FARM LABOR
ASSOCIATION,

       RESPONDENT.

Appearances:

For the Administrator, Wage and Hour Division:
Seema Nanda, Esq.; Jennifer S. Brand, Esq.; Megan E. Guenther,
Esq.; Rachel Goldberg, Esq.; and Shelley E. Trautman, Esq.; U.S.
Department of Labor, Office of the Solicitor; Washington, District of
Columbia

For the Respondent:
Leon R. Sequeira, Esq.; LRS Law; Prospect, Kentucky

Before HARTHILL, Chief Administrative Appeals Judge, and BURRELL and PUST, Administrative Appeals Judges; BURRELL, Administrative Appeals Judge, Concurring in Part and Dissenting in Part 2

                            DECISION AND ORDER

HARTHILL, Chief Administrative Appeals Judge:

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

Nationality Act (INA), as amended,1 and the U.S. Department of Labor (Department) implementing regulations found at 20 C.F.R. Part 655, Subpart B and 29 C.F.R. Part 501 (collectively, the H-2A program).2 The INA’s H-2A program allows employers to hire foreign, nonimmigrant workers to temporarily fill agricultural positions in the United States.

   On August 25, 2021, a Department Administrative Law Judge (ALJ) issued a

Decision and Order – Affirming in Part and Modifying in Part Administrator’s Determination (D. & O.). In the D. & O., the ALJ determined that Respondent Washington Farm Labor Association (WAFLA) was responsible for H-2A program violations as a joint employer and was liable for civil money penalties (CMPs). For the reasons set forth below, we AFFIRM the ALJ’s D. & O.

                                   BACKGROUND

   WAFLA is an agricultural association that provides H-2A program

assistance, human resources support, and legal compliance functions to its roughly 800 members.3 In May 2013, Sakuma Brothers Farms (Sakuma) engaged WAFLA to apply for and obtain H-2A workers for hand harvesting and field packing late season blueberries and blackberries at Sakuma’s farm in Burlington, Washington.4 Sakuma had never before hired H-2A workers and engaged WAFLA based on WAFLA’s representations regarding its experience with the H-2A program.5

 WAFLA prepared and submitted to the Department all required

documentation to obtain H-2A workers for Sakuma, including, among other things,

1 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1184(c)(1), 1188. 2 This case arises under the H-2A regulations that were in effect from 2010 to 2020, and all cites herein are to the 2010 regulations. 20 C.F.R. §§ 655.100-.185; Temporary Agricultural Employment of H-2A Aliens in the United States (2010 Final H-2A Rule), 75 Fed. Reg. 6884 (Feb. 12, 2010). The Department proposed new regulations for the H-2A program in 2019, with new final regulations taking effect in 2020 and 2022. 3 D. & O. at 7 4 Id. at 4. 5 Id. 3

a master application on ETA Form 9142A and a job order on ETA Form 790.6 In the master application and job order, WAFLA certified under the penalty of perjury that it was a joint employer with Sakuma and that it agreed to comply with all terms and conditions of H-2A employment.7 Based on the documentation submitted by WAFLA, the Department approved WAFLA and Sakuma to recruit and hire H-2A workers for the period of August 5, 2013, through October 31, 2013.8 WAFLA ultimately recruited 69 H-2A workers for Sakuma and facilitated the travel and logistics of transporting the workers from their homes outside the United States to Sakuma’s farm.9

   In or around August 2013, the Department’s Wage and Hour Division (WHD)

initiated an investigation of Sakuma and its H-2A program compliance.10 On April 7, 2017, the Administrator of the WHD (Administrator)11 sent Sakuma and WAFLA a Notice of Determination of Back Wages and Assessment of Civil Monetary Penalties (Notice of Determination).12 The Notice of Determination charged Sakuma and WAFLA with several violations of the H-2A program regulations and assessed CMPs of $123,825 against Sakuma and $750 against WAFLA.13 Sakuma and WAFLA contested the violations and penalties, and the matter was referred to the Department’s Office of Administrative Law Judges on February 15, 2018.14

  On April 25, 2018, the Administrator issued an Amended Notice of

Determination of Back Wages and Assessment of Civil Money Penalties (Amended Notice of Determination), amending its assessment of CMPs against Sakuma and

6 Id.
7 Id. at 7-9; Administrator’s Hearing Exhibit (Adm’r Hearing Ex.) 2 at 7; Adm’r Hearing Ex. 3 at 2, 7-9. 8 D. & O. at 4. 9 Id. at 4. 10 Id. at 6. 11 In recognition of the fact that the person holding the position of Administrator has changed over time, we use plural pronouns when referring to the Administrator in this decision. 12 Id. at 2; WAFLA Hearing Exhibit (WAFLA Hearing Ex.) A. 13 WAFLA Hearing Ex. A. at 1, 6-9. The Notice of Determination also assessed
$9,599.58 in unpaid wages owed to 61 workers. Id. at 1. 14 D. & O. at 2. 4

   WAFLA.15 In the Amended Notice of Determination, the Administrator assessed

CMPs of $106,800 against Sakuma and $124,575 against WAFLA.16 The table below summarizes each alleged violation and the CMPs assessed by the Administrator against WAFLA, including any percentage reduction the Administrator applied based on mitigation factors.17

Regulation Violation Penalty 20 C.F.R. H-2A workers were given $108,675
§ 655.122(a), preferential treatment over domestic ($310,500 base (d)(3), (h)(4) workers penalty, 30%
mitigation, plus 50%
further mitigation)

20 C.F.R. Housing failed to meet the applicable $1,800 ($3,000 base
§ 655.122(d)(1) safety and health standards penalty, 40%
mitigation)

20 C.F.R. U.S. workers were rejected from $12,000 ($15,000 base
§ 655.135(d) employment due to lack of experience penalty, 20%
when H-2A workers without mitigation)
experience were hired

20 C.F.R. H-2A workers were not properly paid $750 ($1,500 base
§ 655.122(h)(1) for their inbound transportation costs penalty, 50%
mitigation)

20 C.F.R. U.S. workers were rejected even $1,350 ($1,500 base
§ 655.135(c) though they were qualified; WAFLA penalty, 10%
failed to follow up with applicants mitigation)
and rejected workers because the
farm had inadequate housing

Total $124,575

15 Id.; WAFLA Hearing Ex. B.
16 WAFLA Hearing Ex. B at 6. The Amended Notice of Determination also reduced the assessed back wages to $5,443.21 owed to 19 workers after previous payments had been made. Id. 17 The H-2A regulations identify several factors that the Administrator may consider in determining the amount of penalty to be assessed for each violation, commonly referred to as “mitigation factors.” 29 C.F.R. § 501.19(b); infra footnote 132. 5

  Sakuma and the Administrator subsequently agreed to a settlement of the

CMPs assessed against Sakuma and filed proposed Consent Findings with the ALJ on October 4, 2018.18 WAFLA was not a party to the settlement or the Consent Findings.19

   The ALJ conducted a formal hearing on the Administrator’s charges against

WAFLA on October 15 and 16, 2018.20 On August 25, 2021, the ALJ issued the D. & O. The ALJ determined that WAFLA was a joint employer with Sakuma as a matter of law because it certified itself as a joint employer on its master application for the H-2A workers. Thus, the ALJ held that WAFLA was legally responsible for violations of the H-2A program.21

  The ALJ also determined that the following H-2A program violations

occurred:

   (1) H-2A workers were given preferential treatment over domestic workers in
       corresponding employment;
   (2) workers were not provided with housing meeting the applicable safety and
       health standards;
   (3) domestic workers were rejected from employment due to lack of
       experience when H-2A workers were employed who did not have any
       previous experience;
   (4) applicants were not followed up with and workers were rejected because
       the farm had inadequate housing; and
   (5) transportation was provided to H-2A workers that was not provided to
       domestic workers.22

18 D. & O. at 4.
19 Id. at 3 n.2, 4. The cases against Sakuma and WAFLA were originally consolidated with the ALJ. Id. at 3 n.2. In light of Sakuma’s settlement, to enter the proposed Consent Findings between the Administrator and Sakuma, and to accurately reflect the parties in the remaining dispute, on November 9, 2018, the ALJ ordered that Sakuma’s case (ALJ No. 2018-TAE-00012) and WAFLA’s case (ALJ No. 2018-TAE-00013) were bifurcated nunc pro tunc to October 4, 2018. Id. 20 Id. at 2. Having reached a settlement with the Administrator, Sakuma did not participate in the hearing. Id. at 3. 21 Id. at 11-16. 22 Id. at 22-29, 32. The ALJ determined that violations (4) and (5) were duplicative of other violations, and, therefore, did not assess any CMPs for those violations. Id. at 29, 32. 6

   Contrary to the Administrator’s Amended Notice of Determination, the ALJ

determined that H-2A workers were properly paid for their inbound transportation costs and so that charge was not established.23

   Having found WAFLA responsible as a joint employer for H-2A violations at

Sakuma’s farm, the ALJ assessed CMPs against WAFLA. After thoroughly analyzing the regulatory mitigation factors found in 29 C.F.R. § 501.19(b), the ALJ reduced the assessments levied by the Administrator for each violation such that they totaled only $59,037.50, rather than $124,575.24 The table below summarizes each violation and the assessed CMP determined by the ALJ, including any percentage reduction the ALJ ordered based on mitigation factors.

Regulation Violation Penalty 20 C.F.R. H-2A workers were given $52,987.5025
§ 655.122(a), preferential treatment over ($310,500 base penalty, (d)(3), (h)(4) domestic workers with 65% mitigation, plus
50% further mitigation)

20 C.F.R. Housing failed to meet the $80026 ($3,000 base penalty,
§ 655.122(d)(1) applicable safety and health with 70% mitigation)
standards

Neither party disputes the ALJ’s conclusions regarding these duplicative violations. Therefore, we need not consider them in this appeal. 23 Id. at 29-32. 24 Id. at 22-32. The ALJ erroneously calculated the total assessment as $59,037.50 due to two computation errors, explained infra footnotes 25 & 26. The corrected total assessment, using the ALJ’s percentage reductions, is $60,487.50. 25 The ALJ erred in his calculation for this violation. The ALJ stated that he would apply a 10% reduction from the base penalty of $310,500 for each of three mitigation factors. Id. at 23-25. The ALJ erroneously calculated 10% of the base penalty as $31,500, when it is in fact $31,050. Id. at 25. Likewise, the ALJ stated that he would apply a 30% reduction for another mitigation factor. Id. at 24-25. The ALJ erroneously calculated 30% of the base penalty as $94,500, when it is in fact $93,150. Id. at 25. The corrected assessment for this violation, using the ALJ’s percentage reductions, is $54,337.50. Therefore, the ALJ mistakenly understated the assessment against WAFLA for this violation by $1,350. 26 In the ALJ’s summary of damages, the ALJ stated his assessment for this violation was $800. Id. at 32. However, the ALJ’s calculations show the assessment should have been
$900 ($525 for a refrigerator-related violation plus $375 for a garbage-related violation). Id. 7

20 C.F.R. U.S. workers were rejected from $5,250 ($15,000 base
§ 655.135(d) employment due to lack of penalty, with 65%
experience when H-2A workers mitigation)
without experience were hired

20 C.F.R. U.S. workers were rejected even $0 (duplicative of other
§ 655.135(c) though they were qualified; violations)
WAFLA failed to follow up with
applicants and rejected workers
because the farm had inadequate
housing

Total $59,037.5027

   WAFLA timely filed a Petition for Review with the Administrative Review

Board (ARB or Board) on September 24, 2021. The Board accepted for review WAFLA’s assertions that the ALJ erred:

 •   By determining that WAFLA is a joint employer with Sakuma of the H-2A
     employees at Sakuma’s farm in 2013.

 •   By determining that WAFLA is liable for violations of the H-2A program that
     occurred at Sakuma’s farm in 2013.

 •   In determining that WAFLA had no cognizable reliance interest in the
     Administrator’s prior interpretation and application of the H-2A statute and
     regulations.

 •   In calculating civil money penalties based on violations attributed to WAFLA
     in the Amended Notice of Determination.

at 27. Therefore, the ALJ’s order mistakenly understated the assessment against WAFLA for this violation by $100. 27 The correct total assessment is $60,487.50. The ALJ mis-calculated the assessment by $1,450 ($1,350 for the preferential treatment violation and $100 for the housing violation). 8

                  JURISDICTION AND STANDARD OF REVIEW

  The Secretary of the Department of Labor has delegated the authority to

review this matter to the Board.28 The regulations governing H-2A enforcement allow a party to appeal to an ALJ for a de novo review of the Administrator’s action, and appeal to the ARB for review of the ALJ’s decision.29 The ARB, on review from the ALJ, reviews the record de novo, including the CMP assessments.30

                                   DISCUSSION

  On appeal, WAFLA argues that the ALJ erred by concluding it was a joint

employer as a matter of law because it certified itself as a joint employer in its master application. Despite its sworn certification, WAFLA argues that it cannot be deemed a joint employer for H-2A program purposes absent adequate indicia of employment under the common law of agency, which, it asserts, do not exist in this case. WAFLA also argues that it is entitled to rely on what it alleges to be the Administrator’s previous interpretation and application of the H-2A statute and regulations to not hold agricultural associations like WAFLA liable for H-2A program violations by their members.

   Additionally, WAFLA contends that, even if it did jointly employ the H-2A

workers at Sakuma’s farm, it was not involved in, and is therefore not responsible for, the H-2A program violations committed by Sakuma. WAFLA also argues that assessing CMPs against both Sakuma and WAFLA for the alleged H-2A violations constitutes the imposition of an improper double penalty that exceeds the maximum penalty permitted under the H-2A program regulations. Finally, WAFLA asserts that the amount of penalties assessed by the ALJ was erroneously calculated and is grossly disproportionate to the nature of the violations involved.

28 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020). 29 29 C.F.R. §§ 501.41(b), (d), 501.42. 30 5 U.S.C. § 557(b); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Three D Farms, LLC, ARB Nos. 2016-0092, -0093, ALJ No. 2016-TAE-00003, slip op. at 5 (ARB Feb. 12, 2019); see Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Pegasus Consulting Grp., Inc., ARB No. 2005-0086, ALJ No. 2004-LCA-00021, slip op. at 7 (ARB Apr. 28, 2009) (citations omitted); see also Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Elderkin Farm, ARB Nos. 1999-0033, -0048, ALJ No. 1995-CLA-00031, slip op. at 12 (ARB June 30, 2000) (clarifying that de novo review means the Board may substitute its judgment for the ALJ’s on CMPs). 9

   The Board recently considered and resolved many of these precise arguments

and issues in another case to which WAFLA was a respondent: Administrator, Wage and Hour Division, U.S. Department of Labor v. Azzano Farms, Inc.31 The material facts in the instant case and in Azzano Farms are, in many respects, the same. In that case, WAFLA filed a master application for H-2A nonimmigrant workers for member farms, including co-respondent Azzano Farms, Inc,32 just as it did with respect to Sakuma in the present case. In both cases, WAFLA represented that it was the joint employer of the H-2A workers and swore to comply with the H-2A program requirements.33 In both cases, the Administrator sought to impose CMPs against WAFLA as a joint employer for violations of the H-2A program at its member’s farm.34

   Upon considering the history and purpose of the H-2A program and the

language and structure of the H-2A regulations, we concluded in Azzano Farms that an agricultural association that applies and certifies itself as a joint employer on a master application will be treated as a joint employer as a matter of law.35 Further, we concluded that WAFLA was estopped from disclaiming liability as a joint employer after accepting the benefits of the program, and that WAFLA could not establish justifiable reliance on the Administrator’s alleged previous interpretation and application of the H-2A statute and regulations to avoid liability.36 We also concluded that when an agricultural association is a joint employer under the H-2A program, the association assumes responsibility to ensure compliance with H-2A regulations and may, therefore, be liable for CMPs when violations of the H-2A program occur.37

   Consistent with our decision in Azzano Farms, and for the reasons set forth

in that case and discussed more fully below in the present case, we conclude that WAFLA was a joint employer with Sakuma under the H-2A program. We also conclude that WAFLA is estopped from disclaiming liability as a joint employer, cannot establish justifiable reliance to avoid liability, and is liable for the H-2A

31 ARB No. 2020-0013, ALJ No. 2019-TAE-00002 (ARB Mar. 30, 2023). 32 Id. at 2-3. 33 Id. at 2-3, 15. 34 Id. at 3-4. 35 Id. at 7-16. 36 Id. at 16-18. 37 Id. at 18-19. 10

program violations identified by the ALJ. Finally, we conclude that the CMPs ordered by the ALJ are appropriate in the circumstances of this case.

1. WAFLA is a Joint Employer as a Matter of Law

   As we explained in Azzano Farms, the H-2A program permits an agricultural
   association, like WAFLA, to recruit, solicit, and hire H-2A nonimmigrant workers on behalf of its member farms.38 When applying under the H-2A program, an agricultural association must certify whether it is filing as an agent of, or as a joint employer with, its member farms.39 The agricultural association receives different benefits and carries different legal responsibilities depending on whether it is an agent or a joint employer.

   As an agent, an agricultural association must file individual Applications for
   Temporary Employment Certification on ETA Form 9142A for each member farm.40 The agricultural association’s role as an agent is limited, and it may assist its member farms navigate the H-2A application process without assuming the obligations of an employer under the program.41

   Alternatively, an agricultural association may file a master application as a
   joint employer, which provides additional benefits that are not available for agents. For example, an agricultural association may file a single master application on behalf of multiple members, may sign the master application on behalf of its members, and may transfer workers among the members identified in the master application.42 To apply using a master application, the agricultural association must

38 Id. at 8.
39 Id. at 12; Adm’r Hearing Ex. 3 at 2; 20 C.F.R. § 655.103(b) (defining “agricultural association” and stating that “[a]n agricultural association may act as the agent of an employer, or may act as the sole or joint employer of any worker subject to 8 U.S.C. 1188”); Dep’t of Labor Form, ETA-9142A, H-2A Application for Temporary Employment Certification, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/eta_form_9142a.pdf. The agricultural association may also certify that it is filing as a “sole employer” of the H-2A workers. Adm’r Hearing Ex. 3 at 2; 20 C.F.R. § 655.103(b). Neither party argues that WAFLA was a sole employer here. 40 See 20 C.F.R. § 655.131(a). 41 Id. § 655.103(b) (defining “agent”). 42 8 U.S.C. § 1188(d)(2) (“If an association is a joint or sole employer of temporary agricultural workers, the certifications granted under this section to the association may be used for the certified job opportunities of any of its producer members and such workers 11

certify that: (1) it is a joint employer with each of its members identified in the application; (2) it will comply with specific H-2A program obligations, including those identified as being violated in this case; and (3) it will “comply with applicable Federal, State and local employment-related laws and regulations.”43

   As we explained in Azzano Farms, “associations must choose one status or

the other, and that choice controls.”44 In that case, we conducted a thorough review of the H-2A statute, regulations, and implementing materials, and explored in depth the history and purposes of the H-2A program.45 From this review, we ultimately concluded that, by operation of law, an agricultural association like WAFLA which elects to file a master application on behalf of one or more members accepts the designation of, and certifies itself as, a joint employer.46 In doing so, it incurs the incumbent responsibility of any other joint employer under the H-2A program.47

  The facts presented in the instant case are materially identical to those

presented in Azzano Farms. As in Azzano Farms, here WAFLA filed a master application on behalf of its member. WAFLA certified on the H-2A program application, Form ETA 9142A, that it was a “Joint Employer” with its member for purposes of the H-2A program, identified itself in the section for “Employer

may be transferred among its producer members to perform agricultural services of a temporary or seasonal nature for which the certifications were granted.”); 20 C.F.R. §§ 655.103(b) (defining “master application”), 655.130 (“An association filing a master application as a joint employer may sign on behalf of its employer members. An association filing as an agent may not sign on behalf of its members but must obtain each member’s signature on each [ETA Form 9142A].”), 655.131(b) (“An association may file a master application on behalf of its employer-members. The master application is available only when the association is filing as a joint employer. An association may submit a master application covering the same occupation or comparable work available with a number of its employer-members . . . .”). 43 20 C.F.R. § 655.103(b) (defining “master application”); Adm’r Hearing Ex. 3 at 2, 7-9. 44 Azzano Farms, ARB No. 2020-0013, slip op. at 9. 45 Id. at 7-12. 46 Id. at 14-15; see also 8 U.S.C. § 1188(d)(2); 20 C.F.R. §§ 655.103(b) (defining “master application” and “agricultural association”), 655.131(b) (setting forth the requirements for filing a master application, including that it is “available only when the association is filing as a joint employer”); Temporary Agricultural Employment of H-2A Aliens in the United States (2009 Proposed H-2A Rule), 74 Fed. Reg. 45906, 45916 (proposed Sept. 4, 2009); 2010 Final H-2A Rule, 75 Fed. Reg. at 6917, 6918. 47 Azzano Farms, ARB No. 2020-0013, slip op. at 14-15, 19. 12

Information,” and included its own employee’s information as the “Employer Point of Contact.”48 Likewise, WAFLA’s representative signed the form under the “Employer Declaration” section.49 In an addendum to the master application, WAFLA also identified itself as the “Main Employer” of the requested H-2A workers.50

   With its application in this case, as in Azzano Farms, WAFLA also filed an

ETA Form 790, known as a “job order,” which includes all the relevant and required information about the temporary agricultural job, including job duties, working hours, and housing and transportation information.51 Like was done with respect to the ETA Form 9142A, a WAFLA employee signed under the “Employer’s Certification” section of the ETA Form 790.52 Likewise, in the addendum to the ETA Form 790, WAFLA reiterated that it was filing “an association application . . . on behalf of its member(s), using the joint employer format,” and that “Employer” as repeatedly used therein “refers collectively to the association and the member(s).”53

   The ALJ regarded WAFLA’s use of a master application, in which it

repeatedly certified its status as a joint employer with Sakuma and its acknowledged responsibility to ensure compliance with the H-2A program requirements, as “dispositive” and, in and of itself, “sufficient . . . to find that
[WAFLA] was a joint employer.”54 The ALJ conducted a thorough, thoughtful, and well-reasoned analysis that is consistent with Azzano Farms. Based on this analysis, the ALJ found that WAFLA was a joint employer as a matter of law by virtue of its use of the master application and self-identification and certification as a joint employer therein.

  Despite the foregoing, WAFLA contends that it cannot be a joint employer

with Sakuma, regardless of its certifications or use of the master application, unless

48 Adm’r Hearing Ex. 3 at 2.
49 Id. at 9. In contrast, WAFLA left the “Attorney or Agent Declaration” fields blank. Id. 50 Id. at 10. 51 Adm’r Hearing Ex. 2; Dep’t of Labor Form, ETA-790, Agricultural Clearance Order, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_Form_790.pdf. 52 Adm’r Hearing Ex. 2 at 6. 53 Id. at 7. 54 D. & O. at 14. 13

it satisfies the definition of “employer” under the common law of agency.55 In support of this proposition, WAFLA primarily relies on the regulatory definitions of employer and joint employment, which incorporate common law agency principles.56

   We considered and rejected this same argument in Azzano Farms. As we

explained there, and as the Administrator and the ALJ recognized in the instant case, the common law of agency, as adopted by the regulatory definitions cited by WAFLA, provide an independently sufficient basis to find that an agricultural association is a joint employer for purposes of the H-2A program, in addition to, but separate from, the agricultural association’s use of, and certifications in, a master application.57 Stated another way, while an agricultural association may be found to be a joint employer under the common law of agency, it will also be considered a joint employer for H-2A purposes as a matter of law when, like WAFLA, it uses a master application and designates and certifies itself as a joint employer.58

  For these reasons, we agree with the ALJ that WAFLA was a joint employer

with Sakuma as a matter of law for purposes of the H-2A program.

2. Estoppel Prevents WAFLA from Disclaiming Joint Employer Liability

   As we did in Azzano Farms, we also conclude that principles of estoppel
   preclude WAFLA from disclaiming its status as a joint employer. As we explained in that case, “[t]he Board has long held that entities cannot take advantage of the benefits of temporary workers and subsequently claim that they are not liable for the consequences of their violations, even when they may have erroneously been granted the benefits of the program to begin with.”59 By certifying itself as a joint employer with Sakuma and using a master application, WAFLA benefited from the H-2A program by being approved to recruit nonimmigrant workers for its member,

55 WAFLA’s Brief in Support of Petition for Review (WAFLA Br.) at 7-11. 56 Id. at 12-13. 57 Azzano Farms, ARB No. 2020-0013, slip op. at 14-15. 58 Id.; see also id. at 32-34 (Burrell, J., concurring in part, dissenting in part). We do not intend this decision, or our decision in Azzano Farms, to suggest that an agricultural association that elects to file as an agent on ETA Form 9142A will never be held liable as a joint employer for H-2A program violations. An agricultural association that files an ETA Form 9142A as an agent may nevertheless be a joint employer for H-2A program purposes under the common law of agency. 59 Id. at 16 (citations omitted). 14

Sakuma.60 WAFLA charged Sakuma for these services, receiving $1,200 for each of the 69 workers it brought from outside of the United States to Sakuma’s farm, for a total of $82,800.61 Thus, WAFLA clearly benefited from its representations and its participation in the program. Consistent with our past holdings including Azzano Farms, we find that WAFLA is estopped from disclaiming its status as a joint employer after reaping the benefits of the H-2A program.

   WAFLA insists that it should not be estopped from disclaiming its status as a

joint employer because it could have received similar benefits, including participation in the H-2A program, by filing as an agent of Sakuma on an individual ETA Form 9142A instead of as a joint employer on a master application.62 WAFLA has not identified any legal support for the proposition that its ability to receive similar benefits through some other means precludes the application of estoppel principles. The fact remains that WAFLA enjoyed the benefits of its representations and certifications as a joint employer. Additionally, as we explained above, filing as a joint employer on a master application offered additional benefits to WAFLA and Sakuma that would not have been available had WAFLA filed as an agent. For example, agricultural associations filing as joint employers are able to file a single master application on behalf of multiple members,63 transfer workers among the members identified in the master application,64 and sign the master application on behalf of its members.65 Thus, we find no basis to alter our conclusion in Azzano Farms that WAFLA is estopped from disclaiming its status as a joint employer.

60 See id. at 16-17.
61 D. & O. at 4.
62 WAFLA’s Reply Brief (WAFLA Reply Br.) at 4.
63 8 U.S.C. § 1188(d)(2); 20 C.F.R. §§ 655.103(b) (defining “master application”), 655.131(b). 64 8 U.S.C. § 1188(d)(2); 20 C.F.R. §§ 655.103(b) (defining “master application”), 655.131(b). 65 20 C.F.R. § 655.130(d). WAFLA asserts that because Sakuma was the only member identified on the master application in this case, it could not have enjoyed the benefit of filing on behalf of, and transferring employees between, multiple member farms. WAFLA Reply Br. at 4-5. Even so, it is undisputed that, at the very least, WAFLA enjoyed the additional benefit of signing on behalf of its member, which it could not have done had it filed as an agent. See 20 C.F.R. § 655.130(d). WAFLA discounts this benefit as a mere “administrative convenience,” but it is a convenience and benefit for WAFLA and its member nonetheless. WAFLA Reply Br. at 5. 15

3. Justifiable Reliance is Insufficient to Avoid Liability

   WAFLA next argues that it cannot be held liable for violations of the H-2A
   program because it had a “cognizable reliance interest in the Administrator’s longstanding prior interpretation and application of the H-2A statute and regulations to not hold associations liable for the conduct of their members.”66 We rejected this same argument in Azzano Farms, and we do so again in the instant case.

   As it did in Azzano Farms, WAFLA accuses the Administrator of adopting a
   “convenient litigating position” to hold an agricultural association responsible for H-2A program violations when they certify themselves as a joint employer.67 According to WAFLA, the “Administrator was unable to produce any evidence demonstrating any time in the entire history of the H-2A program prior to March 2018, that she had ever articulated or applied the H-2A regulations in such a way as to assert an association was liable for violations by its members.”68

   To the contrary, we agree with the ALJ that the Department “has
   consistently—in writing—placed associations filing master applications as joint employers in a position of responsibility for ensuring compliance with the terms of the program by their members.”69 When the Department sought to promulgate new H-2A regulations in 2009, it stated in the notice of proposed rulemaking:

        The Department proposes to retain the long-standing
        requirement that a master application may be filed only by
        an association acting as a joint employer with its members;
        the Proposed Rule reiterates this joint responsibility by
        requiring that the association identify all employer-
        members that will employ H-2A workers. The Application
   

66 WAFLA Br. at 23.
67 Id. at 25.
68 Id.
69 D. & O. at 16. Conversely, WAFLA did not produce any evidence that the Department or the Administrator announced that agricultural associations that certify themselves as joint employers on a master application would or could never be held responsible for violations of the H-2A program requirements. 16

        must demonstrate that each employer has agreed to the
        conditions of H-2A eligibility.[70]

Thus, as we stated in Azzano Farms, “the Department was clear that the proposed rule would continue the ‘long-standing’ requirement that associations filing a master application do so as a joint employer and agree to the H-2A program’s requirements.”71

  Upon subsequently issuing the final H-2A regulations in 2010, the

Department again reiterated that an agricultural association utilizing a master application as a joint employer is jointly responsible with its members for compliance under the H-2A program:

        In addition, the Final Rule continues to require a single
        date of need as a basic element for a master application, as
        well as a longstanding requirement that master
        applications may only be filed by an association acting as a
        joint employer with its members. The Department
        highlights joint responsibility of the association and its
        employer-members by requiring that the association
        identify all employer-members that will employ H-2A
        workers.[72]

The Department went on:

        The Department proposed to continue allowing
        associations to file on behalf of their members. The [notice
        of proposed rulemaking] clarified the role of associations as
        filers (sole employer, joint employer or agent), in order to
        assist the association and employer-members in
        understanding the obligations each party is undertaking
        with respect to the Application. As in the past, an
        association will be required to identify in what capacity it
        is filing, so there is no doubt as to whether the association

70 2009 Proposed H-2A Rule, 74 Fed. Reg. at 45916 (emphasis added). 71 Azzano Farms, ARB No. 2020-0013, slip op. at 10. 72 2010 Final H-2A Rule, 75 Fed. Reg. at 6918 (emphasis added). 17

          is subject to the obligations of an agent or an employer
          (whether individual or joint). This requirement is a
          continuation from both the 1987 Rule and 2008 Final Rule
          that required an association of agricultural producers to
          identify whether the association is the sole employer, a
          joint employer with its employer-members, or the agent of
          its employer-members.[73]

   Thus, dating back to at least 2009—four years before WAFLA elected to file a

master application as a joint employer with Sakuma, eight years before the Administrator issued its Notice of Determination, 12 years before the ALJ issued the D. & O., and 14 years before we issued this decision—the Department has proclaimed, in writing associated with formal rulemaking, its long-standing position that an agricultural association filing a master application as a joint employer is subject to joint responsibility with its members for compliance with the H-2A program requirements.74 WAFLA fails to address these repeated, consistent statements as to the Department’s position on an agricultural association’s responsibility as a joint employer, which undercut the assertion that the Administrator “change[d] its interpretation and application of the regulations” as a

73 Id. at 6917.
74 Drake v. Fed. Aviation Admin., 291 F.3d 59, 67-68 (D.C. Cir. 2002) (recognizing “the basic principle that an agency’s interpretation of one of its own regulations commands substantial judicial deference,” and deferring to an interpretation that was consistent with the position the agency took in its notice of proposed rulemaking (citations omitted)); cf. Halo v. Yale Health Plan, Dir. of Benefits & Records Yale Univ., 819 F.3d 42, 52 (2d Cir. 2016) (stating that since Congress, through the Administrative Procedure Act, directs agencies to incorporate preambles into regulations, “‘it does not make sense to interpret the text of a regulation independently from its’” preamble) (quoting Kevin M. Stack, Interpreting Regulations, 111 MICH. L. REV. 355, 361 (2012)); Kevin M. Stack, Preambles as Guidance, 84 GEO. WASH. L. REV. 1252 (2016). Judge Burrell, in his opinion concurring in part and dissenting in part in the instant case (Concurring and Dissenting Opinion), construes the Department’s statements in the preambles to the proposed and final 2010 H- 2A regulations that associations and members are “jointly responsible” for H-2A program compliance to mean that each association and each member is responsible only for its own conduct and bears no responsibility for violations that can be attributed to the actions of the other. Concurring and Dissenting Opinion at 48-49. We believe this ignores the ordinary meaning of the word “joint,” defined as “common to or shared by two or more persons or entities.” BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added). Because of this joint or shared responsibility, both the association and the member are responsible when a violation occurs. 18

“convenient litigating position” for the first time for purposes of the litigation here and in Azzano Farms.75

75 WAFLA Br. at 25-26. Judge Burrell agrees with WAFLA that there was a “change in interpretation or agency practice in the late 2017 or early 2018 time frame.” Concurring and Dissenting Opinion at 46. In support of their position, WAFLA and Judge Burrell rely on cases in which the Supreme Court and other federal courts analyzed the deference to be given to agency interpretations of statutes or regulations that were different from or conflicted with prior interpretations, or which constituted new and novel interpretations on issues which did not reflect the “fair and considered” judgment of the agency. E.g., Kisor v. Wilkie, 139 S.Ct. 2400, 2417-18 (2019) (explaining that deference may not be appropriate “when an agency substitutes one view of a rule for another”); Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 217-18, 221-23 (2016) (declining to defer to a new agency interpretation where the agency abandoned its “decades-old” interpretation and “said almost nothing” about the reasons for the change); Fed. Commc’n Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 517 (2009) (deferring to a new agency interpretation even though it “broke[ ] new ground”); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170-71 (2007) (deferring to an agency interpretation although “the Department may have interpreted these regulations differently at different times in their history”); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988) (declining to give deference to a new agency interpretation that was “contrary to the narrow view of that provision advocated in past cases,” and was “wholly unsupported by regulations, rulings, or administrative practice”); Nat’l Org. of Veterans’ Advoc., Inc. v. Sec’y of Veterans Aff., 48 F.4th 1307, 1314- 16 (Fed. Cir. 2022) (declining to defer to a new agency interpretation that conflicted with past interpretations set forth in cases decided by the Board of Veterans’ Appeals); Romero v. Barr, 937 F.3d 282, 296 (4th Cir. 2019) (declining to defer to a new agency interpretation that broke from decades of precedential agency decisions interpreting the regulations differently); United Farm Workers of Am. v. Chao, 227 F. Supp. 2d 102, 107-08 (D.D.C. 2002) (concluding that the agency’s new interpretation was “at odds with the governing statute and regulation,” and conflicted with past comments accompanying the regulations and the agency’s handbook).
These cases are inapposite in the context and circumstances of the instant case.
Unlike the cases cited by WAFLA and Judge Burrell, the Administrator did not change their interpretation or offer a new and novel interpretation in this case, nor did the Administrator’s decision to enforce the H-2A program rules come as an unreasonable and unfair surprise to WAFLA. For the reasons explained herein and in Azzano Farms, the Administrator’s position on WAFLA’s responsibility for H-2A program violations is consistent with the text of the H-2A program regulations, the long-standing position reaffirmed by the Department during formal rulemaking, and the certifications and obligations to which WAFLA committed itself on the master application. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994) (“While it is true that an agency’s interpretation of a statute or regulation that conflicts with a prior interpretation is entitled to considerably less deference than a consistently held agency view, that maxim does not apply here because petitioner fails to present persuasive evidence that the Secretary has interpreted the [provision at issue] in an inconsistent manner.” (internal quotations and citations omitted)). Indeed, Judge Burrell appears to acknowledge at times in his 19

   Additionally, WAFLA’s own attestations on its H-2A application materials

show that WAFLA swore to comply with H-2A program requirements as an “employer” of the workers hired under the job order. On its master application, after repeatedly declaring and certifying itself as an “employer” of the nonimmigrant workers it sought to recruit, WAFLA swore to “comply with all applicable Federal, State and local employment-related laws and regulations, including health and safety laws.”76 WAFLA committed itself to similar responsibilities in the ETA Form 790 job order, stating that “[t]he Employer (Association and Member collectively) agrees to abide by the assurances provided at 20 CFR Part 655, Subpart B, and 20 CFR 653.501, including the employer obligations set forth at 20 CFR 655.135.”77 WAFLA also certified in the master application that it would meet various obligations and conditions of employment required of employers by the H-2A program, including that:

 •   “[t]he job opportunity is and will continue to be open to any qualified U.S.
     worker,”
 •   “[t]here are no U.S. workers available in the area(s) capable of performing
     the temporary services or labor in the job opportunity,”

Concurring and Dissenting Opinion that, at most, the issue in this case is whether the Administrator changed their enforcement policy regarding agricultural association liability, and not that they changed their entire interpretation of the H-2A program regulations as was the case in many of the decisions upon which WAFLA and Judge Burrell principally rely. Concurring and Dissenting Opinion at 46 (“Central to this dispute is whether there was a change in WHD’s enforcement policy.” (emphasis added)). 76 Adm’r Hearing Ex. 3 at 8. 77 Adm’r Hearing Ex. 2 at 7. Judge Burrell states that the ETA Forms 9142A and 790 are “one-size-fits-all forms,” and, as a result, he asserts that few conclusions should be drawn from WAFLA’s self-certification as a joint employer therein. Concurring and Dissenting Opinion at 49-50. Nothing on the forms compelled WAFLA to certify itself as a joint employer, and the ETA Form 9142A gave WAFLA the option of instead certifying itself as an agent of its member. Adm’r Hearing Ex. 3 at 2, 7. Further, WAFLA did not merely check the “joint employer” box on the forms; instead, it added its own express language in the addendum to the Form 790 that it was “using the joint employer format,” that “‘Employer’ refers collectively to the association and the member(s),” and that “[t]he Employer (Association and Member collectively) agrees to abide by the assurances provided in” the H-2A program regulations. Adm’r Hearing Ex. 2 at 7. This was not default or one- size-fits-all language automatically populated in the forms. 20

 •   “[t]he job opportunity offers U.S. workers no less than the same benefits,
     wages, and working conditions that the employer is offering . . . to H-2A
     workers and complies with the requirements at 20 CFR 655, Subpart B,”
 •    it “[w]ill provide for or secure housing for workers who are not reasonably
     able to return to their permanent residence at the end of the work day that
     complies with the applicable local, State, or Federal standards and
     guidelines for housing without charge to the worker,” and
 •   it “[w]ill provide transportation in compliance with all applicable Federal,
     State or local laws and regulations between the worker’s living quarters . . .
     and the employer’s worksite without cost to the worker.”78

These are, of course, the precise guarantees and obligations which the Administrator charged WAFLA and Sakuma with violating. As we stated in Azzano Farms, the H-2A application process is not one in which “an association could fail to realize what it was attesting to in the course of correctly completing it.”79 Considering these attestations, WAFLA was not caught unaware when the Administrator ultimately held WAFLA responsible for violating the obligations to which it explicitly committed itself by signing the master application.

   In support of its argument that WAFLA believed it would not be held

responsible for H-2A violations and that the Administrator adopted a new interpretation of the H-2A regulations for the first time in the instant case, WAFLA relies almost exclusively on testimony presented at the hearing before the ALJ. Specifically, WAFLA points to evidence that the Administrator, in their enforcement discretion, had previously elected not to pursue CMPs against agricultural associations for H-2A violations committed by their members.80 In the circumstances of this case, we hold that evidence of the Administrator’s past discretionary enforcement choices does not establish a change in the Department’s position as to agricultural associations’ responsibility as joint employers or create a reasonable or cognizable reliance interest for WAFLA.

  As the Supreme Court has recognized many times over many years, “an

agency’s decision not to prosecute or enforce, whether through civil or criminal

78 Adm’r Hearing Ex. 3 at 7-8.
79 Azzano Farms, ARB No. 2020-0013, slip op. at 15. 80 WAFLA Br. at 24; accord Concurring and Dissenting Opinion at 47. 21

process, is a decision generally committed to an agency’s absolute discretion.”81 The Supreme Court explained:

          [A]n agency decision not to enforce often involves a
          complicated balancing of a number of factors which are
          peculiarly within its expertise. Thus, the agency must not
          only assess whether a violation has occurred, but whether
          agency resources are best spent on this violation or
          another, whether the agency is likely to succeed if it acts,
          whether the particular enforcement action requested best
          fits the agency’s overall policies, and, indeed, whether the
          agency has enough resources to undertake the action at
          all.[82]

   Even if the Administrator had traditionally chosen, in the exercise of their

enforcement discretion, not to seek penalties from agricultural associations signing master applications as joint employers for violations of the H-2A program occurring at the associations’ members’ farms, the fact that they did so in the instant case and in Azzano Farms does not mean that they changed their interpretation or position on agricultural association responsibility under the H-2A program or that WAFLA justifiably and reasonably believed it could or would never be held responsible for such violations.83 Neither WAFLA nor Judge Burrell point to any evidence of any

81 Heckler v. Chaney, 470 U.S. 821, 831 (1985); accord 5 U.S.C. § 701(a)(2) (precluding judicial review of agency action “committed to agency discretion by law”); see also Sec’y of Lab. v. Twentymile Coal Co., 456 F.3d 151, 156-57 (D.C. Cir. 2006) (recognizing the discretion afforded to the Secretary of Labor with respect to administrative charging and enforcement decisions for the statutes under his or her purview, which are generally unreviewable by a tribunal); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986) (same). 82 Chaney, 470 U.S. at 831-32; accord Massachusetts v. Env’t Prot. Agency, 549 U.S. 497, 527 (2007) (“As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.”). The Supreme Court equated agency enforcement decisions with prosecutorial decisions in criminal cases, which have long been regarded as committed solely to the discretion of the Executive Branch. Chaney, 470 U.S. at 832. 83 See United Airlines, Inc. v. Brien, 588 F.3d 158, 174 (2d Cir. 2009) (recognizing the “broad discretion [an agency has] in how it enforces statutory and regulatory law,” even when the agency shifts enforcement policy); cf. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996) (“The mere fact that an agency interpretation contradicts a prior agency position is not fatal.”). 22

written or other express enforcement policy from the Administrator, WHD, or the Department on this issue, let alone any express indication from the Administrator explaining the reasons for the Administrator’s past enforcement choices.

   As we have emphasized herein, the Department has consistently stated in

writing, in both its preambles associated with formal rulemaking and in the H-2A application materials themselves, that an agricultural association can be held responsible for H-2A program violations when it declares and certifies itself as a joint employer on a master application. These pronouncements provided clear notice and fair warning to agricultural associations like WAFLA that enforcement actions are possible, regardless of the discretionary enforcement choices the Administrator may have made for a myriad of reasons in the past.84

   As the ALJ recognized, WAFLA may have subjectively believed, based on its

experiences with past enforcement actions, that it would not be held responsible or penalized as a joint employer with its members.85 Even so, we agree with the ALJ’s ultimate conclusion that WAFLA’s subjective belief was unreasonable and does not give rise to a cognizable reliance interest.86

84 Judge Burrell asserts that “[i]n light of long-standing practice to the contrary, regulated agricultural associations like WAFLA require notice that they may be liable for the full amount of a member farm’s violation regardless of any ownership, knowledge, participation, or control the association may have had in the violation.” Concurring and Dissenting Opinion at 58. To the extent such notice is required, the regulatory history and the H-2A application materials discussed at length herein provide such notice. 85 D. & O. at 19. 86 See id. at 16 (“Reviewing the most relevant case law, it is apparent that the unwritten exercise of discretion to not enforce elements of a regulation does not create a cognizable reliance interest as against a written regulation.” (emphasis original)), 19 (stating that WAFLA’s subjective belief “in light of the plain language of the governing regulations and WAFLA’s own application to bring in the H-2A workers in this case, was not a reasonable belief, and does not absolve WAFLA of liability” (citations omitted)); Azzano Farms, ARB No. 2020-0013, slip op. at 18 (explaining that WAFLA’s argument that “the mere fact that it has not been held liable for past violations, despite being party to past investigations . . . without more, is far from a sufficient ground to find that WAFLA should be relieved of liability in this case”). As we stated in Azzano Farms, WAFLA’s reliance on Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012), is misplaced. Azzano Farms, ARB No. 2020-0013, slip op. at 17-18. In that case, the Supreme Court declined to give deference to the Department’s interpretation that pharmaceutical sales representations were not exempt “outside salesmen” under the Fair Labor Standards Act. Christopher, 567 U.S. at 150-51, 155-56. For decades, the Department had acquiesced in the pharmaceutical industry’s treatment of pharmaceutical sales representatives as exempt 23

   Aside from the Administrator’s discretionary enforcement choices, the only

other evidence WAFLA cites in support of the notion that the Administrator changed their interpretation of the H-2A regulations as a “convenient litigating position” in the instant case is the fact that the Administrator revised their initial Notice of Determination.87 In the original Notice of Determination, the Administrator assessed a penalty of $750 against WAFLA for one H-2A program violation—failure to comply with inbound transportation requirements—and did not assess CMPs against WAFLA as a joint employer for the other violations the Administrator sought to enforce against Sakuma.88 In the subsequent Amended Notice of Determination, the Administrator held WAFLA responsible for the other H-2A program violations as well and increased the CMPs assessed against WAFLA to $124,575.89 According to WAFLA, this amendment evidences a “change in [the Administrator’s] interpretation and application of the statute and regulations.”90

   Once again, we conclude that this evidence does not reflect a change in the

Administrator’s or the Department’s interpretation of the H-2A program regulations concerning agricultural association responsibility. The fact that the Administrator originally chose, in the exercise of their enforcement discretion, to not hold WAFLA responsible for H-2A violations which occurred at Sakuma’s farm does not mean that the Administrator believed WAFLA could not be held responsible for such violations, or that the Administrator would or could not revise their position to later hold WAFLA responsible. Indeed, the original Notice of Determination explicitly stated that the Administrator reserved the right, consistent with their discretionary authority, to “tak[e] other enforcement action as

under the FLSA, without ever announcing a contrary interpretation until doing so for the first time in an amicus brief in pending litigation. Id. at 157-58. Even if in the instant case the Administrator and WHD had not traditionally sought to collect assessments from agricultural associations for H-2A program violations committed by their members, unlike in Christopher, “the regulations, statute, and the Department’s statements consistently support WHD’s position” that agricultural associations can be held responsible and penalized as joint employers. Azzano Farms, ARB No. 2020-0013, slip op. at 17. 87 WAFLA Br. at 26; accord Concurring and Dissenting Opinion at 52-53. 88 WAFLA Hearing Ex. A at 1-3, 6-9. 89 WAFLA Hearing Ex. B at 5-10. 90 WAFLA Br. at 26; accord Concurring and Dissenting Opinion at 51 (“The timing, amount, and financial consequence of the change [from the original Notice of Determination to the Amended Notice of Determination] clearly weighs against the position that there was not a change [in the interpretation of the H-2A regulations] underlying the amendment.”). 24

is deemed appropriate by the Department of Labor, or the additional assessments of back wages or civil money penalties for violations of the H-2A provisions found at some future time.”91 The WHD Assistant District Director who issued the Amended Notice of Determination also testified that he had, on occasion, issued revised determination letters, just like he did in this case.92

   Consistent with this reservation, after initiating the enforcement action

against WAFLA and Sakuma, engaging in discovery, entering into settlement negotiations with Sakuma, and reexamining the facts of the investigation, the Administrator ultimately decided to assess additional penalties against WAFLA.93 As discussed above, these are precisely the type of enforcement decisions committed to the Administrator’s discretion, which tribunals should not second-guess.94

   For the foregoing reasons, we agree with the ALJ that WAFLA did not have a

cognizable reliance interest that was violated by the Administrator’s discretionary decision to hold WAFLA responsible as a joint employer for violations of the H-2A program at Sakuma’s farm.

4. Joint Employer Status Renders WAFLA Liable for CMPs

   WAFLA next argues that, while the ALJ found it to be a joint employer of the
   H-2A nonimmigrant workers at issue here, several of the violations for which the ALJ held it responsible only affected domestic workers employed by Sakuma.95

91 WAFLA Hearing Ex. A at 2.
92 Hearing Transcript (Tr.) at 207-11; accord id. at 108-10 (WHD District Director testifying that it was normal for an Assistant District Director to issue a revised determination letter). 93 Acting Administrator’s Response Brief (Adm’r Br.) at 41; Administrator’s Post Hearing Brief in Response at 4 n.4; Tr. at 211-12. Judge Burrell asserts that “the Administrator has not adequately explained the agency’s decision-making process in the change from $750 in CMPs to $124,575 in CMPs” and that “[t]here were no new factual developments stemming from the investigation to explain the 16,500% change.” Concurring and Dissenting Opinion at 51, 53. To the extent the Administrator needs to justify their decision to issue the Amended Notice of Determination in light of their broad discretion to make these types of enforcement decisions, we believe these facts offer sufficient justification for the decision to amend. 94 See Chaney, 470 U.S. at 831-32. 95 WAFLA Br. at 19. Specifically, WAFLA attributes the preferential treatment, housing safety and health, and unlawful rejection of domestic workers violations solely to Sakuma’s actions. Id. at 16-17, 20-23. 25

WAFLA asserts that it had no control over, and therefore had no responsibility for, violations related to those domestic workers.96

    We rejected a similar argument made by WAFLA in Azzano Farms.97 As we

observed in that case, the H-2A regulations provide that employers of H-2A workers must agree, as part of the application process, “that [they] will abide by the requirements” of the H-2A regulations, and otherwise “comply with all applicable Federal, State and local laws and regulations, including health and safety laws.”98 These requirements cover obligations and responsibilities owed not only to the H-2A nonimmigrant workers covered by the application, but also to the domestic workers in “corresponding employment.”99 Consistent with the regulations, WAFLA swore in its application materials filed with the Department that, as a joint employer, it would ensure compliance with all H-2A program requirements, including those with respect to domestic workers.100 Specifically, as outlined above, WAFLA committed itself to ensuring that:

  •   “[t]he job opportunity is and will continue to be open to any qualified U.S.
      worker,”
  •   “[t]here are no U.S. workers available in the area(s) capable of performing
      the temporary services or labor in the job opportunity,”

96 Id. at 19-20.
97 In Azzano Farms, WAFLA asserted that it had no control over the violations committed by its member, whereas in the instant case WAFLA argues, more specifically, that it had no control over the domestic workers whose rights were violated under the H-2A program. Azzano Farms, ARB No. 2020-0013, slip op. at 18-19; WAFLA Br. at 19-23. Although the specifics of the arguments differ to a degree, the substance of the arguments—that WAFLA cannot be held responsible for a violation that resulted from the actions of its member—is materially the same. 98 Azzano Farms, ARB No. 2020-0013, slip op. at 19; 20 C.F.R. § 655.135. 99 20 C.F.R. §§ 655.122, 655.135; cf. 2009 Proposed H-2A Rule, 74 Fed. Reg. at 45907- 08 (stating that with the 2010 changes to the H-2A program, the Department’s purpose was to expand protections and incentives for U.S. workers). Domestic workers in “corresponding employment” are those who engage “in any work included in the job order, or in any agricultural work performed by the H-2A workers” during the validity period of the job order. 20 C.F.R § 655.103(b). 100 Id. §§ 655.122, 655.135; Adm’r Hearing Ex. 2 at 7; Adm’r Hearing Ex. 3 at 7-9. 26

  •   “[t]he job opportunity offers U.S. workers no less than the same benefits,
      wages, and working conditions that the employer is offering . . . to H-2A
      workers and complies with the requirements at 20 CFR 655, Subpart B,” and
  •   it “[w]ill provide for or secure housing for workers who are not reasonably
      able to return to their permanent residence at the end of the work day that
      complies with the applicable local, State, or Federal standards and
      guidelines for housing without charge to the worker.”101

These are the precise obligations from which WAFLA attempts to escape legal responsibility in this case.

   As we summarized in Azzano Farms, by virtue of its position as a joint

employer under the H-2A program and its attestations in its application materials, WAFLA “had an obligation to aid in compliance of its member-farms.”102 Accordingly, even if, as WAFLA argues, several of the violations here resulted from Sakuma’s actions or concerned the benefits and working conditions provided to domestic workers, WAFLA violated its own affirmative obligation to ensure the H-2A program requirements were met and that violations did not occur at Sakuma’s farm, including those pertaining to domestic workers in corresponding employment. For this reason, we disagree with WAFLA’s assertion that the “Administrator simply sought to hold wafla liable for the violations committed by Sakuma,” for which it had absolutely no responsibility.103 Instead, WAFLA is responsible, and can be penalized, for its failure to fulfill its own statutory and regulatory compliance obligations.104

101 Adm’r Hearing Ex. 3 at 7-8. We agree with the ALJ and the Administrator that, if WAFLA wished to avoid these obligations, it could have acted solely as an agent for Sakuma. D. & O. at 25; Adm’r Br. at 31. Having instead elected to file as a joint employer with Sakuma, it was incumbent on WAFLA to ensure that it had the ability to fulfill the compliance obligations to which it committed itself, including through appropriate oversight of the H-2A program at Sakuma’s farm. 102 Azzano Farms, ARB No. 2020-0013, slip op. at 19. 103 WAFLA Br. at 17; accord Concurring and Dissenting Opinion at 48, 50 (expressing concern with what Judge Burrell believes to be the undue imposition of “strict” or “vicarious” liability on an association for a violation resulting from the actions of one of its members). 104 To be clear, the fact that WAFLA can be held responsible and penalized for violations that it alleges can be attributed to the actions of its members does not mean that WAFLA’s alleged lack of “culpability” is irrelevant. See Concurring and Dissenting Opinion 27

   In support of its position that it cannot be assessed CMPs for violations that

resulted from Sakuma’s actions, WAFLA also cites to the H-2A statutory and regulatory provisions concerning debarment from the H-2A program.105 WAFLA observes that the statute and regulations circumscribe when an agricultural association may be debarred for violations that resulted from the actions of its members. Specifically, an agricultural association may only be debarred if it “participated in, had knowledge of, or reason to know of, the violation.”106 WAFLA contends that, as with debarment, an agricultural association should only be assessed CMPs for violations that resulted from a member’s actions if it participated in, or had knowledge of, the violation.107

   WAFLA’s reliance on the debarment provisions is misplaced. Unlike the

debarment provisions, the H-2A statutory and regulatory provisions granting the Administrator the authority to impose CMPs do not limit association liability only to those situations in which the association participated in, knew of, or reasonably should have known of, the violation.108 The conspicuous absence of limiting

at 59-60 (discussing the role Judge Burrell believes the association’s culpability should have in the CMP analysis). As we stated in Azzano Farms, and as discussed in Section 6.b.i, infra, to the extent WAFLA disputes its level of culpability given its role (or lack thereof) with respect to the violations, that is an issue addressed in the analysis of the appropriate amount of penalties to be assessed under the mitigation factors identified in 29 C.F.R.
§ 501.19(b). See Azzano Farms, ARB No. 2020-0013, slip op. at 16 n.62, 19. 105 WAFLA Reply Br. at 10-14; accord Concurring and Dissenting Opinion at 48; see also 8 U.S.C. § 1188(b)(2); 29 C.F.R. § 501.20. WAFLA raised its argument concerning the debarment provisions for the first time in its Reply Brief. Accordingly, WAFLA waived this argument. Palisades Urban Renewal Entp., ARB No. 2007-0124, ALJ No. 2006-DBA-00001, slip op. at 8 (ARB July 30, 2009). However, we granted the Administrator the opportunity to file a sur-reply, and have considered WAFLA’s argument for the sake of completeness. 106 8 U.S.C. § 1188(d)(3)(A) (emphasis added); accord 29 C.F.R. § 501.20(f). The statutory and regulatory provisions similarly provide that a member will not be debarred for an agricultural association’s violations of the H-2A program requirements unless it “participated in, had knowledge of, or reason to know of, the violation.” 8 U.S.C.
§ 188(d)(3)(B)(i); accord 29 C.F.R. § 501.20(h).
107 WAFLA Br. at 11-13.
108 See 8 U.S.C. § 1188(g)(2); 29 C.F.R. § 501.19. WAFLA appears to suggest that the Administrator may not have the authority to assess monetary penalties at all under the H-2A program provisions. WAFLA Reply Br. at 12 (“As noted, the statute does not even specifically authorize monetary penalties . . . .”). The H-2A statute and regulations expressly provide for the imposition of penalties on offending employers. 8 U.S.C. 28

language in the CMP provisions reflects a purposeful choice by Congress and the Department to treat the imposition of CMPs and the imposition of a debarment sanction differently regarding the allocation of responsibility and liability between agricultural associations and their members.109 Therefore, we conclude that the additional limitations identified in the debarment provisions do not apply to the assessment of CMPs.

5. The ALJ Did Not Err by Relying on the Consent Findings to Determine
   that the Alleged Violations Occurred

   In concluding that violations of the H-2A program requirements occurred in
   this case, the ALJ relied, in significant part, on Sakuma’s admissions of fact in the Consent Findings.110 Although WAFLA does not dispute in this appeal that the

§ 1188(g)(2) (“The Secretary of Labor is authorized to take such actions, including imposing appropriate penalties . . . .” (emphasis added)); 29 C.F.R. § 501.19(a) (“A civil money penalty may be assessed by the WHD Administrator for each violation . . . .” (emphasis added)). 109 See Russello v. U.S., 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotations and citation omitted)). WAFLA questions why the assessment of a debarment penalty would carry more limitations or be more circumscribed than the assessment of a monetary penalty. WAFLA Reply Br. at 13. As the Administrator correctly observes, debarment is a severe sanction and has been reserved by Congress for substantial violations of the H-2A program. Adm’r Sur-reply at 4-5; 8 U.S.C.
§ 1188(b)(2)(A); Adm’r, Off. of Foreign Lab. Certification, Emp. & Training Admin., U.S. Dep’t of Lab. v. Castro Harvesting, ARB No. 2013-0082, ALJ No. 2013-PED-00002, slip op. at 10 (ARB Nov. 26, 2013) (stating that debarment is “an obviously severe penalty” (citation omitted)). Given the significance and particular severity of debarment, it is natural that the circumstances in which it can be ordered are more limited or circumscribed as compared to purely monetary penalties. WAFLA also observes that, pursuant to 29 C.F.R. § 501.20(d)(2), the same regulatory mitigation factors are used to determine the amount of CMPs to be assessed for a violation and to determine whether a violation is so “substantial” as to merit debarment. WAFLA Reply Br. at 14. WAFLA appears to suggest that, because of this overlap, the CMP and debarment analyses should be treated as coextensive, and, therefore, the additional limitations concerning when an agricultural association will be debarred for the actions of its members should extend to the assessment of CMPs as well. The question of whether a violation is “substantial” and merits debarment is different than the question of whether the debarment should extend from a member to the agricultural association that had no knowledge of, or participation in, the violation. While the former question shares some regulatory overlap with the CMP assessment, the latter question, according to the plain language of the H-2A statutory and regulatory provisions, does not. 110 D. & O. at 4-6, 22-29. 29

violations identified by the ALJ occurred, it nevertheless asserts that the ALJ erred by relying on the Consent Findings because WAFLA was not a party to them.111 We find no basis to conclude that the ALJ erred in his review and consideration of the admissions in the Consent Findings.

   First, WAFLA asserts that its Executive Director testified that “certain

characterizations about wafla in the proposed Consent Findings were factually incorrect or misleading and appeared to be self-serving for Sakuma’s benefit, including pointing out that documentary evidence in the record materially contradicted some [of] Sakuma’s representations.”112 WAFLA does not explain to the Board what was mischaracterized or misleading in the Consent Findings, how the documentary evidence in the record contradicted the Consent Findings, why it believes the alleged mischaracterizations or misleading statements affected the outcome of this case, or otherwise elaborate on this broad and conclusory allegation. Accordingly, we deem the argument waived.113

111 WAFLA Br. at 14-16.
112 Id. at 14.
113 Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Global Horizons, Inc., ARB No. 2011- 0058, ALJ Nos. 2005-TAE-00001, 2005-TLC-00006, slip op. at 7 (ARB May 31, 2013) (citations omitted) (rejecting a party’s “one or two sentences” challenging an ALJ’s sanctions award, finding such “insufficient for an appeal” of the order); Walker v. Am. Airlines, ARB No. 2005-0028, ALJ No. 2003-AIR-00017, slip op. at 17 (ARB Mar. 30, 2007) (citations omitted) (rejecting argument about which complainant made only “passing references and commentary” on appeal); Dev. Res., Inc. ARB No. 2002-0046, slip op. at 4 (ARB Apr. 11, 2002) (disregarding an argument upon which a party did not elaborate, and quoting Tolbert v. Queens Coll., 242 F.3d 58, 75-76 (2d Cir. 2001), for the “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). Even if we considered WAFLA’s conclusory argument, we would still find no basis to conclude that the ALJ erred in his consideration of the evidence. ALJs have broad discretion in evidentiary determinations, and the Board will only overturn such determinations upon a showing that the ALJ abused his or her discretion. Rathburn v. The Belt Ry. Co. of Chicago, ARB No. 2016-0036, ALJ No. 2014-FRS-00035, slip op. at 3, 5-6 (ARB Dec. 8, 2017) (citations omitted). The ALJ considered the sworn admissions of fact from Sakuma in the Consent Findings and found them consistent with the credible testimony offered at the hearing by the WHD investigator who led the investigation at Sakuma’s farm. D. & O. at 6; see also Riddell v. CSX Transp., Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054, slip op. at 13 n.3 (ARB May 19, 2020) (recognizing the ALJ’s power to consider written out-of-court statements, which “increase the ALJ’s access for probative evidence”). The ALJ explained his reasons for finding the WHD investigator credible, and WAFLA has not challenged that credibility finding in this appeal. D. & O. at 6; see Riddell, ARB No. 2019-0016, slip op. at 13 (“The Board gives considerable deference to an ALJ’s credibility determinations and defers to such 30

  WAFLA also contends that the ALJ erred by “suggest[ing] that if wafla

disagreed with the content of the Consent Findings then wafla could have taken discovery from Sakuma employees regarding the proposed consent findings.”114 According to WAFLA, the “ALJ failed to recognize that the Consent Findings were agreed to by the Administrator and Sakuma just days before the hearing began and more than three months after discovery in the case closed on July 20, 2018.”115 Thus, WAFLA asserts that “[t]he D. & O. does not explain how Sakuma could have possibly taken discovery about statements by Sakuma in the Consent Findings more than three months before the Consent Findings existed.”116

   Although WAFLA is correct that the Consent Findings themselves were

signed and submitted after discovery closed, WAFLA had sufficient opportunity to conduct discovery on the factual matters contained in the Consent Findings. The specific facts asserted in the Consent Findings concerned the violations about which WAFLA has had notice since it was issued the Amended Notice of Determination at the outset of the proceedings before the ALJ. WAFLA had the opportunity to take discovery on the facts underlying the violations (and thus underlying the Consent Findings), and use that discovery to challenge the factual predicates for the ALJ’s conclusion that H-2A violations occurred in this case. Instead, as the ALJ notes, WAFLA chose, “with a few exceptions . . . to litigate issues of law rather than contest the alleged violations with contradictory evidence.”117

determinations unless they are inherently incredible or patently unreasonable.” (internal quotations and citation omitted)). The ALJ also considered WAFLA’s Executive Director’s testimony challenging certain paragraphs of the Consent Findings, but found the testimony insufficient to discredit or override the admissions in the Consent Findings. D. & O. at 7. Again, aside from vaguely asserting that the Executive Director disagreed with some assertions of fact in the Consent Findings, WAFLA has not explained how or why the ALJ abused his broad discretion in considering the Consent Findings over the Executive Director’s conflicting testimony. 114 WAFLA Br. at 15 (citing D. & O. at 7). 115 Id. 116 Id. at 16. 117 D. & O. at 7. 31

   For these reasons, WAFLA has not presented a sufficient basis for the Board

to conclude that the ALJ erred by accepting and relying on the admissions of fact identified in the Consent Findings.118

6. The ALJ Properly Assessed CMPs

   A. The CMPs Against WAFLA Do Not Constitute a Double Penalty

   WAFLA argues that by penalizing both Sakuma and WAFLA, the
   Administrator improperly “assess[ed] a penalty twice for the same violation.”119 Under WAFLA’s theory, because Sakuma has already paid its penalties, the violations at issue have been “resolved,” and the assessment against WAFLA constitutes an unlawful “double penalty” that exceeds the regulatory maximum permitted for each violation.120

   In Azzano Farms, we held that the Administrator may properly penalize each
   joint employer separately for their violations of the H-2A program.121 The H-2A regulations permit the Administrator to assess penalties “for each violation” of the H-2A program.122 Importantly, the regulations explain that “[e]ach failure” to comply with the H-2A program requirements “constitutes a separate violation.”123 “Each,” in this context, does not “require[ ] splitting the CMP maximum between employers when there is a joint employment situation.”124 “Instead, CMPs are assessed per violation which, in the instance of joint employment, means that each

118 Judge Burrell appears to discount the admissions in the Consent Findings because WAFLA did not sign the Consent Findings. Concurring and Dissenting Opinion at 60. He does not explain why an ALJ may not accept a sworn out-of-court statement, merely because one party did not sign off on or accept the assertions therein. He also fails to address the ALJ’s assessment that the assertions in the Consent Findings were consistent with the WHD investigator’s credible testimony. 119 WAFLA Br. at 30. 120 Id. at 30-31. 121 Azzano Farms, ARB No. 2020-0013, slip op. at 20-21. 122 29 C.F.R. § 501.19(a). 123 Id. 124 Azzano Farms, ARB No. 2020-0013, slip op. at 20. 32

joint employer committed a violation, rendering each joint employer liable for the violation it committed.”125

   As we have explained in the instant case, WAFLA and Sakuma, as joint

employers, were each obligated to ensure compliance with the H-2A program.126 Consistent with our holding in Azzano Farms, each entity’s failure to fulfill its obligations constitutes a separate violation and exposes each entity to separate penalties. Thus, the ALJ correctly concluded that the penalty against WAFLA was not an unlawful “double penalty,” and that Sakuma’s penalty assessment, and its satisfaction thereof, does not affect the penalty that can be assessed against as a joint employer under the H-2A program.

   B. The CMPs Assessed by the ALJ Were Appropriate

  Finally, WAFLA contends that, even if it is liable for violations of the H-2A

program, “the penalties assessed by the ALJ are erroneous even considering the reductions applied.”127 We disagree.

  The INA authorizes the Secretary “to take such actions, including imposing

appropriate penalties . . . as may be necessary to assure employer compliance with terms and conditions of employment under” the H-2A program.128 Pursuant to this authority, the Administrator is authorized to assess CMPs up to a maximum prescribed amount for each violation by each joint employer.129

   In determining the monetary amount that should be assessed against an

offending employer, the regulations direct the Administrator to consider “the type of violation committed and other relevant factors,” including, but not limited to: (1) previous history of violation(s); (2) the number of H-2A workers, workers in

125 Id. We analogized in Azzano Farms that the imposition of CMPs is like the imposition of sentences for criminal conduct. Id. “Criminal courts do not look at sentencing guidelines and allocate the sentence among the parties who are found guilty. Instead, each party is sentenced for its participation in the crime.” Id. This contrasts with assessment for back wages, where a total amount may be appropriately allocated between parties. Id. 126 See supra Section 1, “WAFLA is a Joint Employer as a Matter of Law,” and Section 4, “Joint Employer Status Renders WAFLA Liable for CMPs.” 127 WAFLA Br. at 31. 128 8 U.S.C. § 1188(g)(2). 129 29 C.F.R. § 501.19(a), (c)-(d). 33

corresponding employment, or U.S. workers who were and/or are affected by the violation(s); (3) the gravity of the violation(s); (4) efforts made in good faith to comply with the H-2A program requirements; (5) explanation from the person charged with the violation(s); (6) commitment to future compliance; (7) the extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers.130 “[T]he assessment of a particular penalty (or of an enhanced penalty for a repeat or willful violation) is not mandatory, but guided by consideration of the seven [mitigation] factors listed in paragraph (b), the facts of each individual case, and by common sense.”131 Thus, as we explained in Azzano Farms, the Administrator has discretion in assessing CMPs in any individual case.132

   The ALJ determined that the H-2A program requirements were violated in

three ways in this case. First, the ALJ determined that domestic workers in corresponding employment did not receive the same benefits and working conditions as did the H-2A workers employed at Sakuma’s farm.133 The H-2A workers were not charged housing deposits, were given basic housing supplies, and were provided transportation to their worksites.134 The domestic workers did not receive the same treatment. Although domestic workers were given access to housing at Sakuma’s farm, they were charged a deposit for that housing.135 Domestic workers also did not receive the same basic housing supplies and were not

130 Id. § 501.19(b).
131 2010 Final H-2A Rule, 75 Fed. Reg. at 6944.
132 Azzano Farms, ARB No. 2020-0013, slip op. at 22. As the ALJ notes, in exercising this discretion, as a matter of national policy the Administrator typically begins by determining the maximum regulatory penalty for a given violation. The Administrator then considers the seven regulatory factors identified above as mitigation factors, typically reducing the maximum penalty by 10% for each mitigation factor which they determine applies in the circumstances of the case. D. & O. at 21. The ALJ adopted the same approach below. Id. at 22. WAFLA has not challenged this approach to determining the amount of CMPs to be assessed under the H-2A program. 133 The H-2A regulations prohibit giving H-2A workers preferential treatment over domestic workers, stating that “[t]he employer’s job offer must offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers.” 20 C.F.R. § 655.122(a). 134 D. & O. at 22-23. 135 Id. at 22. 34

provided with transportation.136 On appeal, WAFLA does not dispute that these violations occurred.

   The Administrator assessed a base penalty of $1,500 against WAFLA for

each of the 207 domestic workers who did not receive the same benefits and working conditions as the H-2A workers employed at the farm, for a total of $310,500.137 After applying the regulatory mitigation factors, the Administrator reduced the penalty to $108,675.138

  Conducting a de novo review, the ALJ determined that the mitigation factors

warranted further reducing the assessments levied by the Administrator.139 The ALJ calculated the penalty as follows:

                             Mitigation Factor             Dollar amount

Base penalty ($1,500 x 207) -- $310,500 Factor 1 – history 5 percent -$15,525 Factor 2 – workers affected 0 percent -$0 Factor 3 – gravity 10 percent -$31,500 Factor 5 – explanation 30 percent -$94,500 Factor 6 – commitment 10 percent -$31,500 Factor 7 – financial gain 10 percent -$31,500 SUBTOTAL -- $105,975 Factor 4 – good faith 50 percent -$52,987.50 TOTAL -- $52,987.50140

  Second, the ALJ determined that worker housing did not meet applicable

health and safety standards.141 Specifically, WHD investigators found a refrigerator that was not operating properly and an “infestation of flies near full garbage by men’s bathroom [and] [a]lso [a] piece of feces located on ground outside men’s

136 Id. at 22-23.
137 Id. at 23.
138 Id.
139 Id. at 23-25.
140 As noted above in footnote 25, the ALJ erred in his calculations. The corrected assessment for this violation, using the ALJ’s percentage reductions, is $54,337.50. 141 The H-2A regulations require employers to provide housing at no cost to H-2A workers and those workers in corresponding employment who are not able to return to their residence within the same day. 20 C.F.R. § 655.122(d)(1). The housing must meet the safety standards identified in 29 C.F.R. § 1910.142. 20 C.F.R. § 655.122(d)(1)(i). 35

bathroom.”142 Once again, WAFLA does not dispute on appeal that these violations occurred.

   The Administrator assessed a base penalty of $1,500 for each of these two

violations, for a total of $3,000.143 After applying the regulatory mitigation factors, the Administrator reduced the penalty to $1,800.144

   The ALJ again determined that the mitigation factors warranted further

reducing the assessments levied by the Administrator.145 For the refrigerator- related violation, the ALJ calculated the penalty as follows:

                           Mitigation Factor            Dollar amount

Base penalty -- $1,500 Factor 1 – history 5 percent -$75 Factor 2 – workers affected 0 percent -$0 Factor 3 – gravity 0 percent -$0 Factor 4 – good faith 10 percent -$150 Factor 5 – explanation 30 percent -$450 Factor 6 – commitment 10 percent -$150 Factor 7 – financial gain 10 percent -$150 TOTAL -- $525

For the garbage-related violation, the ALJ calculated the penalty as follows:

                           Mitigation Factor               Dollar amount

Base penalty -- $1,500 Factor 1 – history 5 percent -$75 Factor 2 – workers affected 0 percent -$0 Factor 3 – gravity 10 percent -$150 Factor 4 – good faith 10 percent -$150 Factor 5 – explanation 30 percent -$450 Factor 6 – commitment 10 percent -$150 Factor 7 – financial gain 10 percent -$150 TOTAL -- $375

142 D. & O. at 26.
143 Id.
144 Id.
145 Id. at 26-27.
 36

  Finally, the ALJ determined that domestic workers were rejected from

employment due to lack of experience, while H-2A workers were employed without experience.146 The job description prepared by WAFLA imposed a three-month experience requirement for applicants.147 Many of the H-2A workers ultimately employed at Sakuma’s farm did not meet the experience requirement, while at least one domestic applicant was denied employment based on a lack of experience.148 WAFLA, again, does not dispute on appeal that this violation occurred.

   The Administrator assessed a base penalty of $15,000 for this violation.149

After applying the regulatory mitigation factors, the Administrator reduced the penalty to $12,000.150

   Once again, the ALJ determined that the mitigation factors warranted

further reducing the assessments levied by the Administrator.151 The ALJ calculated the penalty as follows:

                             Mitigation Factor             Dollar amount

Base penalty -- $15,000 Factor 1 – history 5 percent -$750 Factor 2 – workers affected 10 percent -$1500 Factor 3 – gravity 0 percent -$0 Factor 4 – good faith 10 percent -$1500 Factor 5 – explanation 30 percent -$4500

146 The H-2A regulations require an employer to hire any qualified and eligible U.S. worker who applies for a job advertised under a job order, until 50% of the period of the work contract has elapsed. 20 C.F.R. § 655.135(d). 147 D. & O. at 27-28. 148 Id. at 28. WAFLA appears to concede that at least one domestic worker was denied employment based on the experience requirement. WAFLA Br. at 23 (“There can be no reasonable dispute that Sakuma’s actions resulted in the violations.”). The ALJ found that other domestic workers were also rejected based on a lack of experience. D. & O. at 10, 28. WAFLA asserts that the ALJ “provides no details on the identity of those individuals or the circumstances resulting in those candidates not being hired.” WAFLA Br. at 22 n.8. To the contrary, the ALJ identified both other applicants by name and cited the evidence in support of his finding. D. & O. at 10 (citing Adm’r Hearing Ex. 18). Additionally, WAFLA’s Executive Director also testified that records reflected that these two other domestic applicants were rejected based on the experience requirement. Tr. at 285. 149 D. & O. at 28. 150 Id. 151 Id. at 28-29. 37

Factor 6 – commitment 10 percent -$1500 Factor 7 – financial gain 0 percent -$0 TOTAL -- $5,250

   The ALJ’s analysis is detailed, well-reasoned, and adequately supported by

the record. The ALJ reviewed the evidence in support of each violation, reasonably considered each regulatory mitigation factor, and thoroughly and cogently explained the basis for his CMP assessments.

   On appeal, WAFLA does not challenge the bulk of the ALJ’s CMP analysis, or

application of the regulatory mitigation factors. Rather, WAFLA presents two narrow arguments. First, WAFLA contends that its lack of culpability with respect to the violations warrants further mitigation.152 Second, WAFLA contends that the ALJ erred in assessing a separate penalty for each of the domestic workers who did not receive the same benefits and working conditions as the H-2A workers employed at Sakuma’s farm.153 As explained in more detail below, we reject both arguments.154 Accordingly, we find no basis to disturb the ALJ’s assessments, and

152 As we have explained, WAFLA argues that its lack of involvement in or control over the H-2A violations resulting from Sakuma’s actions precludes liability for the violations entirely. See supra Section 4, “Joint Employer Status Renders WAFLA Liable for CMPs.” WAFLA does not expressly argue in its briefs to the Board that, short of precluding liability entirely, its alleged lack of culpability should at least be considered as a mitigating factor to further reduce the amount of the CMPs assessed against it. Compare WAFLA Br. at 20-23 (explaining why WAFLA believes it should not be liable for the violations) with id. at 30-31 (challenging the CMP assessment). Even so, the ALJ considered WAFLA’s alleged lack of culpability as a mitigating factor for each violation under regulatory factor 5 (the “[e]xplanation from the person charged with the violation(s)”). D. & O. at 24-25, 26-27, 28- 29; see 29 C.F.R. § 501.19(b)(5). Judge Burrell, in his separate opinion hereto, also considers WAFLA’s culpability as a factor in the CMP assessment for each violation. Concurring and Dissenting Opinion at 58-64. For the sake of completeness, we have considered WAFLA’s argument in the context of mitigation as well. 153 WAFLA Br. at 31. 154 WAFLA also vaguely argues that “the penalties assessed by the ALJ are erroneous even considering the reductions applied. In particular, the $52,987.50 penalty assessed by the ALJ for the alleged preferential treatment, even with the reduction applied by the ALJ, is grossly disproportionate to the nature of the violation and is contrary to law.” Id. at 31. WAFLA does not elaborate or explain any basis to reduce or mitigate the assessed CMPs, other than the two arguments specifically identified above. Accordingly, we limit our review to WAFLA’s specific arguments. See supra footnote 113. 38

adopt the penalties assessed by the ALJ.155

  i. WAFLA’s Asserted Lack of Culpability Does not Warrant Further Mitigation

   In reviewing and analyzing the regulatory mitigation factors, the ALJ

considered WAFLA’s argument that it was not culpable for the violations at issue in this case because each of the violations were under the control of, and were primarily attributable to the actions of, Sakuma. Specifically, in analyzing factor 5—the “[e]xplanation from the person charged with the violation(s)”—the ALJ noted with respect to the preferential treatment and health and safety violations that “WAFLA relied on Sakuma to carry out the obligations to the H-2A workers and corresponding U.S. workers . . . .”156 Similarly, with respect to the failure to hire violation, the ALJ noted that WAFLA “did encourage Sakuma to comply with the regulations and job order,” but appears to have been rebuffed because, ultimately, “it was Sakuma that was in a position to decide whether [the applicant] was actually employed.”157 As a result, the ALJ determined that a 30% reduction in the base penalty was appropriate for mitigation factor 5, which was significantly greater than the 10% reduction applied by the Administrator.158 However, the ALJ declined to reduce the assessment any further, noting that, ultimately, WAFLA remained responsible with Sakuma under the H-2A program, but did not take the steps necessary to ensure the requirements of the program were met.159

155 See Adm’r, Wage & Hour Div. & Office of Foreign Lab. Certification, U.S. Dep’t of Lab. v. Peter’s Fine Greek Food, Inc., ARB No. 2014-0003-B, ALJ No. 2011-TNE-00002, 2012-PED-00001, slip op. at 2 (ARB Sept. 17, 2014) (stating that the Board will accept the ALJ’s findings concerning the assessment of CMPs if they are reasonable). 156 D. & O. at 24, 26-27. 157 Id. at 28, 29 n.25. The ALJ noted, however, that “[n]o documentation of precisely why [the applicant] was not hired (the stated reason or the true reason), or what individual made the final decision, is in the record.” Id. at 29. Although this lack of evidence makes it difficult to assess WAFLA’s relative culpability for the violation, the ALJ appears to have given WAFLA the benefit of the doubt that Sakuma ultimately made the decision not to hire the applicant. Id at 29 n.25. 158 Id. at 24, 26-27, 29. 159 Id. at 24-25 (observing that WAFLA did not engage in compliance efforts “to the extent of inspecting at the Sakuma farm—and, of course, not to the extent of preventing the violations in the case”), 29 (recognizing that although WAFLA encouraged compliance with respect to the failure to hire violation, it ultimately remained responsible with Sakuma for the violation). 39

   We agree with the ALJ that a 30% reduction is appropriate based on

WAFLA’s relative culpability with respect to the violations. As WAFLA asserts, the violations at issue here are primarily attributable to Sakuma’s actions. Yet, as we have explained, WAFLA, as a joint employer, was still obligated to ensure program compliance at Sakuma’s farm. As the ALJ correctly observed, WAFLA did not take the steps necessary to fulfill its obligations and ensure that violations did not occur. Instead, WAFLA effectively concedes that, having recruited and transported the H-2A workers to Sakuma’s farm, it did not undertake any additional steps to ensure that the H-2A program requirements were met at the farm. This was contrary to WAFLA’s statutory and regulatory duties and, as the ALJ noted, was unwise in the circumstances of this case given that Sakuma was a first-time participant in the program.160 Accordingly, we decline to reduce the CMP assessment any further.161

  ii. The ALJ Did Not Err by Assessing a Per-Worker Penalty for the Preferential
      Treatment Violation

   As stated above, the ALJ determined that 207 domestic workers were

unlawfully denied certain benefits and working conditions provided to the H-2A workers at Sakuma’s farm.162 The ALJ agreed with the Administrator’s decision to separately penalize WAFLA for each of the 207 affected workers (a “per-worker” penalty), rather than to assess a single penalty encompassing the entire violation (a “per-regulation” penalty).163

160 Id. at 4, 25.
161 It appears Judge Burrell would reduce the penalty to zero based on his view of WAFLA’s relative lack of culpability in the violations. Concurring and Dissenting Opinion at 58-64. We respectfully disagree with our colleague, who we believe ignores the continuing obligations to which WAFLA committed itself as a joint employer. The H-2A statute and regulations do not permit a joint employer to completely denounce its obligations in the way WAFLA attempts to do in this case. While WAFLA may have relatively less culpability for the violations than Sakuma based on their relative roles in the violations, WAFLA nevertheless retained a duty to ensure compliance at the farm, and is therefore culpable for having failed to take the appropriate steps to do so. As we have explained, the regulation provides ample flexibility for the Administrator (and upon review, the ALJ and the Board) to take an employer’s role in the violations into account when assessing penalties. 162 D. & O. at 22-23. 163 Id. at 22, 23-24. 40

   The ALJ’s and the Administrator’s approach is consistent with the H-2A

regulations. As explained above, the Administrator has the discretion to assess CMPs “for each violation” of the H-2A program requirements, including “[e]ach failure . . . to honor the terms or conditions of a worker’s employment required by
[the H-2A statute or regulations].”164 Pursuant to this regulation, each instance in which a domestic worker was denied the same benefits and working conditions as the H-2A workers constitutes a separate violation.165 Thus, it was appropriate for the Administrator, and, in turn, the ALJ, to assess 207 separate penalties against WAFLA and Sakuma, one for each employee whose rights were violated.166

   As the ALJ noted, though, the Administrator, in the exercise of the discretion

granted to them to determine the appropriate penalty in any given case, may elect to assess a per-regulation penalty instead of a per-worker penalty, even in instances in which the violation extends to multiple workers.167 WAFLA objects to the Administrator’s and the ALJ’s decision to apply a per-worker penalty, rather than a per-regulation penalty, in this case.168

  In support of its argument, WAFLA asserts that the ALJ’s reasoning for

applying a per-worker penalty is contradictory and flawed. WAFLA notes that the ALJ first found that a per-worker violation was appropriate because the preferential treatment was “particularly grave,”169 but later in his discussion of the mitigation factors for the preferential treatment violations appeared to contradict himself, stating that he “disagree[d] with the Administrator’s implicit finding that this was a grave violation, precluding mitigation.”170 Based on these statements, WAFLA asserts that “the violation should have resulted in a per-regulation penalty according to the very standard the ALJ cites for determining whether penalties are applied on a per-worker or per-regulation basis.”171

164 29 C.F.R. § 501.19(a).
165 See id. (“Each failure . . . constitutes a separate violation.”). 166 See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Sun Valley Orchards, LLC, ARB No. 2020-0018, ALJ No. 2017-TAE-00003, slip op. at 13 (ARB May 27, 2021) (recognizing the Administrator’s discretion to assess a per-worker penalty). 167 D. & O. at 22. 168 WAFLA Br. at 31. 169 D. & O. at 22. 170 Id. at 24. 171 WAFLA Br. at 31. 41

   Although a surface reading of the ALJ’s analysis may appear to reveal

contradictory statements, a close reading of the D. & O. reveals that the word “grave,” as used by the ALJ, had different meanings based on the context in which it was used. In the context of determining whether a per-worker penalty was appropriate, the ALJ determined that the violations were “grave” or severe in scope. Specifically, the ALJ reasoned that a particularly large number of workers were affected, and that the violations “identifiably affect[ed] each of the 207 workers individually rather than the workers as a group.”172 In contrast, in the context of reviewing the regulatory mitigation factors, the ALJ determined that the violations were not particularly “grave” in nature as compared to other types of H-2A violations.173 For example, the ALJ found the violations at issue—failing to provide housing supplies to domestic workers, charging domestic workers a housing deposit, and not transporting domestic workers to the worksite—were “not of the highest gravity” as compared to, for example, wage theft or fraud.174

   Although the ALJ may have been imprecise in his use of the term “grave,” his

analysis, when viewed carefully, was reasonable and sound. Although the preferential treatment violations at issue here were not, both individually and in isolation, particularly grave in nature, the violations identifiably affected 207 workers. Accordingly, in the aggregate the violations were sufficiently significant and severe as to justify a per-worker penalty assessment.175 We find no basis to overturn the ALJ’s determination that a per-worker penalty—which, as explained above, is consistent with the H-2A regulatory language—was appropriate in the circumstances of this case.176

172 D. & O. at 23-24.
173 Id. at 24.
174 Id.
175 We note that the ALJ analyzed the grave scope of the violations—and the appropriateness of a per-worker penalty—under the second regulatory mitigation factor (the number of workers affected), and analyzed the grave nature of the violations under the third regulatory factor (gravity of the violations). Id. at 23-24. This underscores that the ALJ attached a different meaning to the word “grave” depending on the context in which he used it. 176 Significantly, although WAFLA suggests that the ALJ’s analysis was contradictory based on his imprecise use of the word “grave,” WAFLA does not actually challenge on appeal the ALJ’s specific reasoning for determining that the scope of the violation was so significant as to justify a per-worker penalty. 42

                                   CONCLUSION

   For the foregoing reasons, we AFFIRM the ALJ’s D. & O., and order WAFLA

to pay civil money penalties of $60,487.50.177

   SO ORDERED.


                                      ____________________________________
                                      SUSAN HARTHILL
                                      Chief Administrative Appeals Judge


                                      ____________________________________
                                      TAMMY L. PUST
                                      Administrative Appeals Judge

BURRELL, Administrative Appeals Judge, concurring in part, dissenting in part:

   Respectfully, I concur with the majority opinion that WAFLA is a joint

employer under the 2010 regulations but otherwise dissent from the majority’s affirmance of the ALJ’s opinion. As explained in further detail below, I would remand the matter back to the ALJ with instructions to consider WAFLA’s culpability in the violations underlying the Administrator’s assessment of civil monetary penalties (CMPs).

                                  BACKGROUND

1. The Administrator’s Notices of Determination

   Sakuma participated in the H-2A program beginning in June 2013, and WHD
   initiated its investigation in August 2013.178 In an April 7, 2017 Notice of Determination, the Administrator assessed Sakuma $123,825 in CMPs and

177 See infra footnote 27.
178 D. & O. at 5-6, 22, 26; Administrator’s Post-Hearing Brief at 3, 15, 20. 43

$9,599.58 in back wages for six violations.179 The Administrator assessed WAFLA
$750 for a reimbursement violation.180 Both Sakuma and WAFLA disputed the claim, and the Administrator referred the matter to the OALJ for a hearing.181

  On or about April 25, 2018, the Administrator amended the Notice of

Determination to charge both Sakuma and WAFLA for the violations.182 Sakuma’s assessment was modified to $106,800. WAFLA’s assessment was modified from
$750 to $124,575 in CMPs and $5,443.21 in back wages.183

 Through settlement and consent findings, Sakuma settled with the

Administrator and did not participate in the hearing. The case proceeded against WAFLA for the six violations.184

2. The ALJ’s Decision and WAFLA’s Appeal

   The ALJ applied Sakuma’s admissions to WAFLA.185 The ALJ rejected
   WAFLA’s contention that the Administrator’s amendment from $750 to $124,575 created unfair surprise because there was no change in policy, only an exercise of discretion to enforce.186 Evaluating the Administrator’s Determinations and application of mitigating factors, the ALJ agreed with some assessments and mitigating factors but modified others.187 Ultimately, the ALJ found WAFLA liable for $59,037.50 in civil penalties.188

   WAFLA appealed the ALJ’s decision to the ARB, objecting to the ALJ’s
   finding that it was a joint employer, and even if it were a joint employer, that it was

179 D. & O. at 2; WAFLA’s Hearing Ex. A; WAFLA Br. at 3. 180 D. & O. at 2. 181 Id. 182 Id.; WAFLA’s Hearing Ex. B. 183 D. & O. at 2. The assessment of back wages was not specific to Sakuma or WAFLA. 184 Id. at 3. 185 Id. at 4-7. 186 Id. at 16-19. 187 Id. at 22-32. WAFLA actually prevailed over the subject of its initial appeal. The ALJ rejected the CMP against WAFLA for the reimbursement violation. Id. at 29-32. 188 Id. at 32. 44

liable for the violations.189 WAFLA contests the ALJ’s conversion of Sakuma’s admissions into WAFLA admissions as WAFLA was not a party to the consent findings.190 WAFLA contends that even if WAFLA were a joint employer with Sakuma’s H-2A employees, this would not extend to the assessments concerning U.S. employees.191 WAFLA appeals the ALJ’s decision that it had no justifiable reliance on prior agency interpretation of respective liability between associations and member farms.192

   On a more general basis, WAFLA argues lack of control, participation, and

responsibility for Sakuma’s violations.193 For each of the violations except reimbursement of inbound transportation, it is undisputed that Sakuma was the party that committed the violation, not WAFLA.194 WAFLA objects to being held vicariously responsible for Sakuma’s actions.195

   In response, the Administrator defends its assessment and generally

supports the ALJ’s decision that WAFLA was a joint employer and was liable for every violation committed by Sakuma.196 The Administrator argues that WAFLA is estopped from arguing that it is not a joint employer because it declared itself to be a joint employer in application forms and accepted the benefits of this status.197 The Administrator rejects WAFLA’s argument of reliance interests because the Administrator’s interpretation of the regulatory scheme concerning joint employer has been consistent throughout.198 Thus, WAFLA’s citation to reliance and “new

189 WAFLA Br. at 7, 19.
190 Id. at 14-17.
191 Id. at 19.
192 Id. at 23.
193 Id. at 19-23, 27-29. This follows the litigation in Azzano Farms. See Azzano Farms, ARB No. 2020-0013, ALJ No. 2019-TAE-00002, slip op. at 43-44, 46-47 (ARB Mar. 30, 2023) (Burrell, J., concurring and dissenting). 194 WAFLA Br. at 14-17, 19-23. 195 Id. at 23. 196 Adm’r Br. at 17-22, 28-32. 197 Id. at 26. 198 Id. at 34. 45

interpretation” case law is inapposite.199 Rather, it was within the Administrator’s exercise of discretion to enforce the regulations.

                                   DISCUSSION

   The Administrator has the burden of proof regarding the reasonableness of

the CMP.200 Under 29 C.F.R. § 501.19, the Administrator may consider “the type of violation committed and other relevant factors” in determining how large a penalty to impose.201 Section 501.19(b) provides a non-exhaustive list of factors to consider when imposing a CMP.202 On appeal, the ARB has all the power the Secretary has and reviews the ALJ’s findings of fact and conclusions of law de novo.203

1. Joint-Employer Status

   Regarding WAFLA’s argument concerning its status as a joint employer
   under the 2010 H-2A regulations, I refer to the discussion in Azzano Farms.204 The regulations—though murky205 and containing a regulatory definition of joint employer that speaks to common-law “indicia of employment”—set out, when considered in full context, that agricultural associations filing master applications are joint employers for purposes of the certification.206 This conclusion requires

199 Id. at 36-43.
200 See 5 U.S.C. § 556(d); Zappala Farms, ARB Nos. 2001-0054, -0096 to -0098, ALJ No. 1997-MSP-00009-P, slip op. 9-10 (ARB Aug. 29, 2001). 201 Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Three D Farms, ARB Nos. 2016- 0092, -0093, ALJ No. 2016-TAE-00003, slip op. at 9 (ARB Feb. 12, 2019). 202 Id. 203 5 U.S.C. § 557(b); Three D Farms, ARB Nos. 2016-0092, -0093, slip op. at 5. 204 Azzano Farms, ARB No. 2020-0013, slip op. at 32-34 (Burrell, J., concurring and dissenting). 205 The confusion is validated by the fact that the WHD personnel generating and signing the determination in this case also applied the regulatory definition and testified that “joint employer” for associations filing as joint employers required examining common- law principles. Infra at footnotes 259-63 and accompanying text. 206 Azzano Farms, ARB No. 2020-0013, slip op. at 32-34 (Burrell, J., concurring and dissenting). 46

looking at the 2010 regulations holistically rather than just the actual regulatory definition of “joint employer.”207

2. The Administrator Did Not Explain the 2017-2018 Change in Policy,
   Which Created an Unfair Surprise for WAFLA

   A. There Was a Change in Policy

   Central to this dispute is whether there was a change in WHD’s enforcement
   policy. The ALJ concluded that there was not. For the following reasons, I would reverse the ALJ on this point and find that there was such a change in interpretation or agency practice in the late 2017 or early 2018 time frame.208 As applied in this case, that change took place in an amendment to an existing enforcement action.209

   Sakuma participated in the H-2A program in 2013, and WHD initiated its
   

   investigation in 2013.210 Several years later, in an April 7, 2017 Notice of Determination, the Administrator assessed WAFLA $750 for a reimbursement violation. WAFLA objected to the assessment. WAFLA acknowledged that it was responsible for reimbursement but denied that it violated the regulations because it fulfilled its obligations.211 The matter was referred to the OALJ for hearing. Before the ALJ, the Administrator filed an amended Determination on April 25, 2018, changing WHD’s assessment from $750 for failure to reimburse to $124,575 in CMPs and $5,443.21 in back wages for all violations at Sakuma Farms.212

207 Regulation 20 C.F.R. § 655.131(b) provides that “[t]he master application is available only when the association is filing as a joint employer.” 208 D. & O. at 2, 7-8; Tr. at 240-60 (comparing applications and assessments before and after change and WAFLA’s testimony that previously assessments were determined on the basis of culpability), 259-79 (WAFLA’s testimony concerning conversations with WHD personnel on new policy and impact of policy on WAFLA’s operations; WAFLA testified that the Wage and Hour Investigator indicated the change would begin with Azzano Farms but WAFLA had already filed the Azzano Farms application); see also Azzano Farms, ARB No. 2020-0013, slip op. at 38 & n.154 (Burrell, J., concurring and dissenting) (recounting WHI and WAFLA testimony that there was a change in internal guidance). 209 D. & O. at 2. 210 Supra footnote 178. 211 D. & O. at 9. 212 Id. at 2. 47

    WAFLA understandably rejects the notion that there was no change in

policy. WAFLA’s Executive Director testified that for “thousands of applications over the last 20 years” and “hundreds of Wage and Hour audits,” the policy was that associations were not held liable for violations by member farms that the association did not commit.213 WAFLA’s Executive Director testified to the long- standing practice that inspectors charge the party responsible for the violation.214 WAFLA participated in more than 1,000 applications and an estimated thirty to forty audits by the Wage and Hour Division. For some of these audits involving farms, WAFLA’s Executive Director testified that WAFLA was not even contacted.215 In one instance, WAFLA was found responsible for an advertising violation.216 In another case, the member farm was charged roughly $186,000 in back wages and $534,000 in CMPs for various violations.217 WAFLA was assessed
$100 for a transportation violation, which it objected to.218 Consistent with the litigation in Azzano Farms, WAFLA’s Executive Director testified that the change in policy occurred in the 2017-2018 time frame.219

   The ALJ found credible WAFLA Executive Director’s testimony that he

believed WAFLA would not be held liable for actions it was not responsible for but also found that that belief was not reasonable “in light of the plain language of the governing regulations and WAFLA’s own application to bring H-2A workers” to the U.S.220 As explained in Azzano Farms, I disagree that the regulations are clear on this point.221 The 2010 H-2A regulations provide a definition for joint employer that speaks to common-law principles, which, if applied to associations, would greatly ameliorate the confusion because of common-law control and agency tests.222 Joint-

213 Id. at 7.
214 Tr. at 234-52.
215 Id. at 252.
216 Id. at 237.
217 Id. at 248.
218 Id. at 244-49.
219 D. & O. at 7-8; Tr. at 253-60, 276.
220 D. & O. at 19.
221 See Azzano Farms, ARB No. 2020-0013, slip op. at 34-38 (Burrell, J., concurring and dissenting). The lack of clarity is reinforced by the multiple times the DOL has had to issue regulations refining and clarifying “joint employer” in the H-2A regulations. Id. at 38 n.153. 222 Id. at 34-39. 48

employer status established by checking a box without any control or agency test in the H-2A master application context, with multiple entities engaging in multiple roles, creates a vexing question of respective responsibility.223 The only H-2A statutory language discussing violations disavows strict liability for respective violations of the association and member farms unless the counterpart participated in or had knowledge of the violation.224 This provision is applicable to debarment and does not discuss qualifications on the Secretary’s enforcement.

  The majority opinion emphasizes the preamble’s “joint responsibility”

language,225 but this fails to clarify the issue:

          The Department highlights joint responsibility of the
          association and its employer-members by requiring that
          the association identify all employer-members that will
          employ H-2A workers. The Application must demonstrate
          that each employer has agreed to the conditions of H–2A
          labor certification.[226]

  Rather than covertly imposing strict liability on the association filing the

application, the preamble’s instruction that member farms be identified as employers is consistent with an interpretation of responsibility of each employer committing a violation respectively, especially in light of the Administrator’s pre- 2018 practice. The H-2A statute authorizes the Secretary to enforce obligations only

223 Id. at 37-38.
224 8 U.S.C. § 1188(d)(3); Azzano Farms, ARB No. 2020-0013, slip op. at 36 (Burrell, J., concurring and dissenting). 225 The preamble is not a transparent means of conveying vicarious liability for agricultural associations. Nat’l Wildlife Fed’n v. Env’t Prot. Agency, 286 F.3d 554, 569-70 (D.C. Cir. 2002) (“The preamble to a rule is not more binding than the preamble to a statute. A preamble no doubt contributes to the general understanding of a statute, but it is not an operative part of the statute and it does not enlarge or confer powers on administrative agencies or officers. Where the enacting or operative parts of a statute are unambiguous, the meaning of the statute cannot be controlled by language in the preamble.”) (cleaned up). 226 Temporary Agricultural Employment of H-2A Aliens in the United States (2010 Final H-2A Rule), 75 Fed. Reg. 6884, 6918 (Feb. 12, 2010). 49

against employers.227 Thus, any entity with a role in the H-2A program must be identified as an employer to fall under the Secretary’s enforcement powers.

   The number of entities involved and their respective activities could vary

from one application to the next. A master application filed by an association may govern multiple farms,228 allowing workers to shift among the farms to more efficiently match resources with need.229 In this case, as in Azzano Farms, WAFLA filed the application and was responsible for recruiting and transporting the H-2A employees to Sakuma Farms. WAFLA acknowledged responsibility for any violations occurring in these activities. Once the farmers were at the farm, however, the member farm controlled all aspects of H-2A employment, including hiring the workers, providing and maintain housing, and providing transportation.230

  Because there may be multiple entities engaging in multiple activities, the

forms involved in the master application do not remove the confusion for

227 8 U.S.C. § 1188(g)(2) (“The Secretary of Labor is authorized to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment under this section.”). 228 The Administrator characterizes the master application as a benefit to WAFLA, but as stated in Azzano Farms, the master application is a benefit to the member farms, not to WAFLA. Azzano Farms, ARB No. 2020-0013, slip op. at 37 n.151 (Burrell, J., concurring and dissenting). Using the association allows the farms to share the cost of the application fee and utilize WAFLA’s expertise on certain shared processes such as filing requirements, recruitment, advertising, and transportation. WAFLA has no economic incentive to use the master application format when filing an application on behalf of member farms. It would benefit financially from collecting a fee from every farm by filing individual applications. Further, WAFLA objects to the characterization of its collection of $82,800 as if it were a fee to WAFLA. The collection of this money was largely if not entirely for reimbursement of costs associated with pre-farm activities. Tr. at 286 (WAFLA’s Executive Director taking issue with this characterization: “That is such a broad misstatement that it borders on a false statement. What Sakuma does, and what all did, if the workers elect this type of a program that we offer, they give WAFLA the money and then WAFLA pays the recruiters, the government, the reimbursement, the hotels and the transportation” for all of the employees.). 229 Supra Majority Opinion at 10. In a given application, an association may be involved in actual employment or housing of H-2A workers, which would expand its activities and obligations. In Azzano Farms, for example, WAFLA employed a small number of H-2A workers. Azzano Farms, ARB No. 2020-0013, slip op. at 35 n.144 (Burrell, J., concurring and dissenting). 230 Infra Sections 4, “WAFLA’s Role in Sakuma’s Housing and Transportation,” and 5, “WAFLA’s Role in Failing to Hire a U.S. Corresponding Employee”. 50

prospective applicants. As discussed in Azzano Farms, WAFLA’s Form 790 and Form 9142 application are one-size-fits-all forms, applicable to all participating member farms and the association filing the application, whether as an agent, sole employer, or as a joint employer.231 The majority opinion notes that Form 790 has language “Employer (Association and Member collectively). . . .” The Form also explains that WAFLA completed it as “an association application filed by WAFLA on behalf of its member(s).”232 WAFLA points out that the Form has language that the “employer”—referring to the applicable member farm—retains “ultimate responsib[ility] for ensuring compliance” for housing.233

   In this application, Sakuma was the only member farm. The same forms,

however, would be used for master applications involving multiple member farms. The Department explains in recent H-2A regulations that a non-active member farm, though an “employer” in a master application with multiple farms, is not responsible for the violations of an active member farm currently employing H-2A workers.234 Member farms are liable only for violations when they are employing H- 2A employees. Likewise, it is not apparent whether a member farm, though an “employer” under the forms, would be responsible for violations arising out of the pre-farm activities the association is responsible for such as advertising, recruitment, and transportation of H-2A workers to the farms.

  For the above reasons, I disagree with the ALJ and the majority that the

regulations and the application forms are clear on the point of vicarious liability and thus undermine WAFLA’s testimony concerning pre-2018 practice.

  In its response brief, the Administrator states that:

         [T]he Administrator did not change her interpretation of
         the statute and regulatory text. WAFLA does not and
         cannot point to any instance where the Department or the
         Administrator announced to the public, or to WAFLA, an

231 Azzano Farms, ARB No. 2020-0013, slip op. at 35 (Burrell, J., concurring and dissenting). 232 Adm’r Hearing Ex. 2 (790 Form, Box 1). 233 Id. at Box 3. 234 Azzano Farms, ARB No. 2020-0013, slip op. at 45 n.187 (Burrell, J., concurring and dissenting) (citing the explanation from the 2022 H-2A regulations). 51

         interpretation that associations that file Master
         Applications as joint employers would not be held
         responsible for compliance with all H-2A requirements.[235]

The Administrator overstates the principle. A change in interpretation need not be in the form of explicit rulemaking or agency guidance.236 Changes in policy can take place, for example, in amicus briefs.237 The agency need not issue a formal statement announcing the policy. “[A]n agency may—instead of issuing a new interpretation that conflicts with an older one—set forth an interpretation for the first time that is contrary to an established practice to which the agency has never objected.”238

   The ALJ claims that there was no change in policy, only a discretionary

choice whether to enforce or not to enforce.239 A change might be characterized as prosecutorial discretion to enforce if there were a history of no audit and assessment in any form followed by a decision to begin enforcing a regulation.240 Here, as explained below, we have clear inconsistency in the form of a pattern of positive enforcement one way in terms of respective liabilities and then another way in the form of vicarious liability. Moreover, the Administrator increased its CMP by 16,500% in an existing enforcement action. The timing, amount, and financial consequence of the change clearly weigh against the position that there was not a change underlying the amendment. The imposition of CMPs is not the kind of statutory or regulatory authority that is committed to agency discretion because it so broad that reviewing courts have no meaningful substance to review.241

  B. The Administrator Did Not Explain the Change in Policy

   As noted above, the Administrator has not adequately explained the agency’s

decision-making process in the change from $750 in CMPs to $124,575 in CMPs.

235 Adm’r Br. at 34-35.
236 Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012). 237 Id. 238 Romero v. Barr, 937 F.3d 282, 291 (4th Cir. 2019). 239 D. & O. at 16-19. 240 Heckler v. Chaney, 470 U.S. 821, 831 (1985). 241 Id. at 830. 52

The Administrator has not provided any citation to a written policy or written internal guidance or even testimony acknowledging a change.

   Before analyzing specific facts, it is necessary to identify the roles of

individuals within Wage and Hour Division. Collectively, the “Administrator” is referred to as the person taking the action on behalf of the Wage and Hour Division. The Administrator does not personally engage in all of the activities of the Division. The investigation is carried out by the Wage and Hour Investigator (WHI). The WHI recommends violations and CMPs to the Assistant District Director (ADD), who prepares the notice of determination letter. Wage and Hour’s determination letters can be signed by the District Director (DD) or the ADD.242

   In the 2017 assessment against WAFLA, WAFLA testified that the WHI, in

the closing conference with WAFLA, recommended liability only for WAFLA’s alleged failure to reimburse.243 WHI provided her recommendation to the ADD.244 In evaluating the WHI’s recommendation, the ADD considered the culpabilities of the entities as well as the factors in 29 C.F.R. § 501.19(b).245 For the April 2017 assessment, the ADD forwarded the Determination letter to the DD, who signed the letter.246 The first time the DD saw the 2017 Determination letter was the day she signed it; she did not read it before signing.247 She did not know who prepared it, but the standard practice was for the ADD to prepare it.248

  After the DD had signed the 2017 Determination assessing WAFLA $750, the

ADD, apparently without input from the DD, created the amended April 25, 2018 Determination letter and signed it.249 The DD testified that she was not involved in the 2018 amended Determination letter; that was handled by the ADD.250 The DD

242 Tr. at 73, 77-78.
243 Id. at 238-39.
244 Id. at 82.
245 Id. at 150.
246 Id. at 72, 75, 142.
247 Id. at 75.
248 Id. at 77.
249 Id. at 75-76.
250 Id. at 75-76, 104.
 53

could not explain why or how the ADD could amend a signed DD determination that changed the amount from $750 to $124,575 without the DD’s input.251

   The ADD also could not explain the change from $750 to $124,575.252 The

ADD had issued between ten to one hundred determinations in his tenure but could not recall having issuing an amended determination, especially an amendment that took place five years after the initial audit.253 The ADD denied that there was a change in policy254 but admitted that the Determination letter that he signed on March 15, 2018, for Azzano Farms, a month or so before the amended determination in this case, was the first time that CMPs were applied to both the association and the member farm jointly for violations that took place at the farm.255

  Before this change in the 2017-2018 time frame, there was no change in

departmental guidance or in the Wage and Hour Division’s Field Handbook.256 There were no new factual developments stemming from the investigation to explain the 16,500% change.257 There was no Supreme Court decision, statutory change, or a regulatory change.258

   One component of the confusion is the fact that the specific regulatory

definition of “joint employer” does not identify or explain the agricultural association and master application process but refers generically to “indicia” of employment and common law principles.259 Critically, the ADD who generated the

251 Id. at 84-85, 104-12.
252 Id. at 125, 150-56, 163.
253 Id. at 156, 207, 209.
254 Id. at 145-48, 185, 199, 213-14.
255 Id. at 189-90; see also id. at 253-57.
256 Id. at 185, 202.
257 Id. at 200-16. The Administrator claims in briefing to the Board that she learned through discovery following the 2017 Notice of Determination that Sakuma was new to the H-2A program and relied upon WAFLA’s expertise. See Majority Opinion at footnote 93. 258 Tr. at 200-16. 259 The regulatory definition of “joint employer” was altered to include agricultural associations filing master applications in the 2022 amendments to the H-2A regulations. Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 87 Fed. Reg. 61660, 61794, 2022 WL 6741769 (Oct. 12, 2022). 54

2017 Determination for the DD and who generated and signed the 2018 amended Determination testified that merely filing a master application does not create joint-employment status; there are other factors that determine whether an association is a joint employer. Counsel for WAFLA examined the ADD:

          Q So, you’re saying that the simple fact of filing an H-2A
          master application doesn’t make an association a joint
          employer, that there are other factors that determine
          whether an association is a joint employer?
          A Yes, sir.[260]

The ADD identified those other factors as the common law or control factors such as the ability to hire and fire the employee.261 Counsel for WAFLA followed up with an example of an association filing a master application as a joint employer with other member farms and asked the ADD if all three, the association and the farms, were joint employers. The ADD testified the master application is just one of the factors to joint employment. The ADD would have to consider other factors to determine whether the association was a joint employer.262 This is a 180-degree opposite

260 Tr. at 166.
261 Id. at 165:
Q And it’s the Wage and Hour Division’s contention in this case
that when an association files a master application, on behalf of
its members, that the association is a joint employer, that’s the
Wage and Hour Division’s contention, correct?
A There are factors to a joint employment relationship, that can
be one of the factors.
Q What factors determine a joint employment relationship?
A. First of all, you have to have an employment relationship, and
that can be, you know, when a person, okay, it can be an
association, it can be an individual, and they go ahead and they
-- for H-2A purposes, okay -- they have a place, a physical place
in the U.S., okay where employees or applicants can go ahead
and seek employment, okay. Another factor is the employment
relationship, okay, such as over the work, such as, you know,
pay, the hiring, firing, that kind of stuff is usually you know,
important to us.
262 Id. at 175-76 (the association’s checking the box on the 9142 Form is not in itself determinative of whether or not a joint employment relationship actually exists), 187 (same, the ADD would have to review other factors). 55

position from the central premise of the Administrator’s assessment of WAFLA’s liability as an agricultural association for all of Sakuma’s violations solely because it filed the master application as a joint employer.263

   C. The Administrator’s Unexplained Change in Policy Created Unfair
      Surprise and Was Unreasonable

  Further, I agree with WAFLA that the change in policy here created an

unfair surprise as applied to WAFLA because it occurred without notice and during pending litigation. It is not clear from the agency’s inconsistent positions whether an agricultural association will be held responsible for none of the farm’s housing, transportation, or hiring violations or all of them, and what goes into that determination.

    Reviewing courts defer to agency interpretations of regulations but limit or

withhold that deference when agency interpretation conflicts with prior agency interpretation.264 “[Courts] owe deference to an agency’s interpretation advanced during litigation regarding the meaning of an ambiguous regulation, if the position is not inconsistent with the agency’s prior statements and actions regarding the disputed regulation.”265

  A change in interpretation without explanation reflects on the

reasonableness of agency action.266 Agency action will be set aside as arbitrary and

263 Adm’r Br. at 17-26. The ADD’s perception is, however, consistent with the regulatory definition of joint employer following common-law principles of joint employer. 264 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994); Decker v. Northwest Env’t Def. Ctr., 568 U.S. 597, 614 (2013) (interpretive consistency over time reinforces the case for Auer deference to agency’s position); Sioux Valley Hosp. v. Bowen, 792 F.2d 715, 719 (8th Cir. 1986) (“Deference is due when an agency has developed its interpretation contemporaneously with the regulation, when the agency has consistently applied the regulation over time, and when the agency’s interpretation is the result of thorough and reasoned consideration.”). 265 Drake v. Fed. Aviation Admin., 291 F.3d 59, 67 (D.C. Cir. 2002); Martin v. Occupational Safety & Health Rev. Comm’n, 499 U.S. 144, 157 (1991) (whether the Secretary has consistently applied the interpretation embodied in the citation is a factor bearing on the reasonableness of the Secretary’s position). 266 Road Sprinkler Fitters Local Union No. 669, ARB No. 2010-0123, slip op. at 6 (ARB June 20, 2012) (“In matters requiring the Administrator’s discretion, the Board generally defers to the Administrator as being ‘in the best position to interpret [applicable 56

capricious if the agency fails to provide a reasoned explanation for its decision.267 Neither the DD nor the ADD explained the change from the 2017 assessment to the 2018 assessment.268 Without any explanation or change in law or fact, the WHI, ADD, and DD found WAFLA responsible for none of Sakuma’s violations in 2017 then the ADD found WAFLA responsible for all of them in 2018. The agency’s inconsistent positions taken in 2017 and 2018, without explanation, highlight the unreasonableness of the amended Determination.269 The Supreme Court in Christopher v. SmithKline Beecham Corp. wrote:

          [A reviewing court] accord[s] the [agency’s] interpretation
          a measure of deference proportional to the thoroughness
          evident in its consideration, the validity of its reasoning,
          its consistency with earlier and later pronouncements, and
          all those factors which give it power to persuade.[270]

  Courts decline to give deference to an agency’s reversal of interpretation

when such reversal upsets expectation and reliance on prior interpretation. The Court in Kisor v. Wilkie wrote:

regulations] in the first instance . . . , and absent an interpretation that is unreasonable in some sense or that exhibits an unexplained departure from past determinations, the Board is reluctant to set the Administrator’s interpretation aside.’”) (citation omitted); Miami Elevator Co. & Mid-American Elevator Co., Inc., ARB Nos. 1998-0086, 1997-0145, slip op. at 16 (ARB Apr. 25, 2000) (same); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983) (“We have frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner.”) (citation omitted). 267 See, e.g., Massachusetts v. Env’t Prot. Agency, 549 U.S. 497, 534 (2007); SmithKline Beecham Corp., 567 U.S. at 155 (“deference is likewise unwarranted when there is reason to suspect that the agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matter in question.’” (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997))). 268 Supra Section 2.b, “The Administrator Did Not Explain the Change in Policy.” 269 Thomas Jefferson Univ., 512 U.S. at 515 (“an agency’s interpretation of a statute or regulation that conflicts with a prior interpretation is ‘entitled to considerably less deference’ than a consistently held agency view”) (internal citations omitted); Encino Motorcars LLC v. Navarro, 579 U.S. 211, 221 (2016) (“The agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. That requirement is satisfied when the agency’s explanation is clear enough that its path may reasonably be discerned. But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law.”) (cleaned up). 270 SmithKline Beecham Corp., 567 U.S. at 159 (cleaned up). 57

          That disruption of expectations may occur when an agency
          substitutes one view of a rule for another. We have
          therefore only rarely given Auer deference to an agency
          construction “conflict[ing] with a prior” one. Or the
          upending of reliance may happen without such an explicit
          interpretive change.[271]

“[E]ven the absence of prior agency action can cause a new interpretation to be an ‘upending of reliance,’ preventing that interpretation from receiving Auer deference.”272 An agency is free to change its mind.273 But this normally takes place through more transparent means274 to avoid “unfair surprise.”275 The Court in Long Island Care at Home, Ltd. v. Coke wrote:

          [A]s long as interpretive changes create no unfair
          surprise—and the Department’s recourse to notice-and-

271 Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019) (internal citation omitted); see also Romero, 937 F.3d at 291 (“[T]he upending of reliance may happen without such an explicit interpretive change. Rather, an agency may—instead of issuing a new interpretation that conflicts with an older one—set forth an interpretation for the first time that is contrary to an established practice to which the agency has never objected.”) (internal citation omitted). 272 Nat’l Org. of Veterans’ Advocs., Inc., v. Sec’y of Veterans Affs., 48 F.4th 1307, 1316 (Fed. Cir. 2022). 273 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96-97 (2015) (identifying various means of interpretative rulemaking); Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981–82 (2005) (agencies are free to change their existing policies as long as they provide a reasoned explanation for the change). 274 Martin, 499 U.S. at 157 (“[Less formal means of interpretating regulations] include the promulgation of interpretive rules, and the publication of agency enforcement guidelines. . . . A reviewing court may certainly consult them to determine whether the Secretary has consistently applied the interpretation embodied in the citation, a factor bearing on the reasonableness of the Secretary’s position.”) (cleaned up); Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue, 941 F.3d 1200, 1210 (9th Cir. 2019) (dissenting from denial of rehearing en banc) (criticizing deference to litigation positions because “[a] litigating position is not promulgated in the exercise of Congressionally delegated authority because it is not adopted through any relatively formal administrative procedure. Rather, an agency’s litigating position can ordinarily be changed from one case to another via internal decisionmaking not open to public comment or determination.”) (cleaned up). 275 Kisor, 139 S. Ct. at 2417-18 (citations omitted) (“[A] court may not defer to a new interpretation, whether or not introduced in litigation, that creates “unfair surprise” to regulated parties.”); SmithKline Beecham Corp., 567 U.S. at 155 (same). 58

          comment rulemaking in an attempt to codify its new
          interpretation, makes any such surprise unlikely here—
          the change in interpretation alone presents no separate
          ground for disregarding the Department’s present
          interpretation . . . .[276]

   In light of long-standing practice to the contrary, regulated agricultural

associations like WAFLA require notice that they may be liable for the full amount of a member farm’s violation notwithstanding the association’s lack of ownership, knowledge, participation, or control in the violation.277 This is especially so when the agency’s position changes during the litigation and the change results in significant financial consequences for the party without notice.278 WAFLA’s Executive Director “expressed concern that the new policy of liability would upend WAFLA’s business model, result in millions of dollars in liability and put it at a competitive disadvantage in the marketplace.”279 Following WHD’s change in policy, WAFLA had to change its business model.280

3. Culpability Underlying 29 C.F.R. § 501.19 CMP Analysis

   The Administrator’s CMPs are assessed according to 29 C.F.R. § 501.19.
   The non-exhaustive factors at § 501.19(b) might be characterized as mitigating in some circumstances, but this does not exclude an underlying assessment of culpability in whether to assess a CMP at all. As discussed in Azzano Farms (concurring and dissenting opinion) the preamble to the 2010 H-2A regulations

276 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170-71 (2007) (citations omitted). 277 Martin, 499 U.S. at 158 (identifying “adequacy of notice to regulated parties” as one factor relevant to the reasonableness of the agency’s interpretation). 278 Nat’l Lab. Rels. Bd. v. Bell Aerospace Co. Div. of Textron Inc., 416 U.S. 267, 295 (1974) (suggesting that an agency should not change an interpretation in an adjudicative proceeding when doing so would impose “new liability ... on individuals for past actions which were taken in good-faith reliance on [agency] pronouncements” or in a case involving “fines or damages”). 279 D. & O. at 8; WAFLA Post-Hearing Brief at 2 (“As a result [of the change in policy], wafla is exposed to massive liability, which it had no opportunity to avoid by changing its conduct because the new policy was not announced in advance. In fact, the Administrator applied the new policy for the first time in early 2018 resulting in retroactive liability for wafla for alleged violations that occurred some 5 years ago.”). 280 Tr. at 264-65, 277, 314-15. 59

indicates that the 501.19(b) factors and “common sense” address concerns of excessive liability:

          Contrary to the assumptions of some commenters, the
          assessment of a particular penalty (or of an enhanced
          penalty for a repeat or willful violation) is not mandatory,
          but guided by consideration of the seven factors listed in
          paragraph (b), the facts of each individual case, and by
          common sense. For example, before assessing any penalty,
          the WHD Administrator must consider the type of
          violation, its gravity, the number of workers affected, and
          several mitigating and/or aggravating factors including,
          but not limited to, the explanation offered by the employer
          (if any), its good faith or lack thereof, any previous history
          of violations, and any financial loss, gain or injury as a
          result of the violation. These safeguards are intended to
          ensure that inadvertent errors and/or minor violations are
          not unfairly penalized.[281]

   The principle of culpability underpins the CMP analysis.282 “Culpable” is

defined as blamable; purposely, recklessly, knowingly; involving the breach of a legal duty or the commission of a fault.283 The ADD testified that he looks at culpability when determining whether to assess a CMP.284 This is intuitive as the CMP is a penalty. The Supreme Court in Kokesh v. Securities & Exchange Comm’n explained that a “‘penalty” is a “punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offen[s]e against its laws.’”285 “[A] pecuniary sanction operates as a penalty only if it is sought ‘for the purpose of punishment, and to deter others from offending in like manner’—as opposed to

281 2010 Final H-2A Rule, 75 Fed. Reg. at 6944 (emphasis added). 282 Though not applicable to this enforcement action, the 2022 preamble, as part of an effort to clarify the joint-employer issue, uses the term “culpable” five times in reference joint employers and limiting liability under 501.19(b) factors. Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 87 Fed. Reg. 61660, 61674-77, 2022 WL 6741769 (Oct. 12, 2022). 283 BLACK’S LAW DICTIONARY 385 (7th Ed.). 284 Tr. at 150-51. The ADD added all joint employers are culpable. 285 Kokesh v. Secs. & Exch. Comm’n, 581 U.S. 455, 461 (2017) (quoting Huntington v. Attrill, 146 U.S. 657, 667 (1892)). 60

compensating a victim for his loss.”286 As examined in Azzano Farms, § 501.19(b) factors punish intentional, willful, or repeated conduct but not innocent, inadvertent conduct.287 “Inadvertent” means unintentional or “an accidental oversight.”288 “Good faith” is defined as “a state of mind consisting of honesty in belief or purpose.”289

   The ALJ walked through the factors on the premise that WAFLA committed

the violations and then tacked on mitigation while simultaneously analyzing the Administrator’s mitigation analysis.290 I disagree that mitigation is the limit of 501.19’s culpability analysis. Rather, consistent with prior agency practice, the evaluation of culpability reaches into whether the agricultural association is liable in the first place, not just whether it is eligible for a mitigation discount. As discussed below, the ALJ’s analysis under § 501.19 does not adequately distinguish between the activities WAFLA was directly responsible for and those that occurred at Sakuma Farms outside of the knowledge, control, supervision, and direction of WAFLA.

4. WAFLA’s Role in Sakuma’s Housing and Transportation

   For the general category of housing and transportation violations, the ADD’s
   assessment against WAFLA went from $0 in 2017 to $108,675 in 2018.291 On review by the ALJ, the ALJ affirmed but modified the Administrator’s assessment. At the outset, the ALJ referred to several Sakuma activities in hiring as “directed by WAFLA” or “per WAFLA’s instruction.”292 The ALJ applied Sakuma’s admissions to WAFLA.293 As WAFLA notes on appeal, the consent findings were signed by Sakuma and the Administrator, not by WAFLA.294

286 Id. (citations omitted).
287 Azzano Farms, ARB No. 2020-0013, slip op. at 40-43 (Burrell, J., concurring and dissenting). 288 BLACK’S LAW DICTIONARY 762 (7th Ed.). 289 Id. at 701. 290 D. & O. at 22-29. 291 Id. at 23; Tr. at 192-93. 292 D. & O. at 4-5, 28; see also Tr. at 283-86 (WAFLA taking issue with misstatements and mischaracterizations in the consent findings). 293 D. & O. at 4-7. 294 Id. at 4. 61

  Based on Sakuma’s consent findings, the ALJ found that WAFLA violated

several H-2A housing regulations.295 These violations consist of unlawfully deducting housing deposits from U.S. corresponding workers’ paychecks but not from H-2A workers’ paychecks; providing toiletries and amenities to H-2A workers but not to U.S. corresponding workers; and providing bussing services for H-2A workers but not for U.S. corresponding employees.296

   Subtracting Sakuma’s consent admissions, the testimony confirms WAFLA’s

lack of responsibility for the violations at issue. The ALJ confirms that the housing was provided by Sakuma.297 The ALJ stated: “WAFLA was not involved in the day- to-day functions at Sakuma during the summer of 2013. No representatives of WAFLA supervised work or set day-to-day work start and stop times for H-2A workers at Sakuma.”298 WAFLA had no supervision, control, or ownership of Sakuma’s housing or any role in transportation from the housing to the fields.299 WAFLA was not involved in deducting housing deposits from workers’ paychecks.300 WAFLA’s checks were for reimbursements; Sakuma’s checks were for payroll.301 WAFLA did not hand out toiletry packets or household items to the H-2A employees at Sakuma’s housing.302

   Countering WAFLA’s position, the ALJ stated that because WAFLA did not

assert control over aspects of Sakuma’s employment did not mean that WAFLA could not have as it continued to provide services and guidance to Sakuma about recruitment during the first half of the contract.303 As stated in Azzano Farms, an

295 Id. at 22.
296 Id.
297 Id. at 5, 22. The ALJ stated: “WAFLA noted that it retained the right to inspect the housing provided at the farm by Sakuma.” Id. at 8, citing AX-2, Box 3. WAFLA counters that “employer” here refers to Sakuma, not WAFLA. WAFLA Br. at 17-18. 298 D. & O. at 9; see also id. at 4-5; Tr. at 45-46. 299 D. & O. at 4-5; Tr. at 51, 58. 300 Tr. at 51, 216-18. 301 Tr. at 45-46. 302 Id. at 51, 216-18. 303 D. & O. at 9; Tr. at 279-81, 281-83, 287, 311-12. Further, providing information or counseling to the owner and operator, as demonstrated by assessments against WAFLA in both Azzano Farms and in this case, was not enough to prevent the Administrator’s 62

entity’s potential to influence or encourage the compliance of another is “a far leap from the type of ownership or control courts require to hold an employer vicariously liable” for the misdeeds of others.304

   The same analysis carries over to the Administrator’s assessment against

WAFLA for unclean and unsafe conditions at Sakuma Farms. According to the Administrator, WAFLA violated 20 C.F.R. § 655.122(d) and 29 C.F.R. § 1910.142 because of unsafe and unhealthy conditions at Sakuma Farms.305 These violations include improper garbage storage, pest infestation, and a malfunctioning refrigerator.306 For the infestation and unclean conditions, the ALJ cited a lack of proof as the photos did not reflect improper outdoor garbage collection, flies, or the presence of feces.307 For garbage and related violations, the ALJ assessed $375 against WAFLA.308 For the malfunctioning refrigerator, the ALJ assessed $525 against WAFLA.309

   As with the housing deposits, toiletries, and amenities, Sakuma owned and

operated the housing and was the party in control of maintenance and monitoring refrigerators, garbage control, and pest infestation. WAFLA did not possess legal ownership or control over Sakuma’s housing or manage its repair or upkeep.310

assessment against WAFLA. WAFLA counseled Azzano Farms against the substance underpinning a violation for failure to cooperate but was assessed the full amount for failing to cooperate. Azzano Farms, ARB No. 2020-0013, slip op. at 50 (Burrell, J., concurring and dissenting). In this case, WAFLA recommended that Sakuma hire the U.S. employee but was still assessed a CMP for Sakuma’s failure to do so. Infra at page 63 and footnote 317; D. & O. at 9, 29; WAFLA Br. at 22. 304 Azzano Farms, ARB No. 2020-0013, slip op. at 48 (Burrell, J., concurring and dissenting). 305 D. & O. at 25-27. 306 Id. 307 Id. at 26. 308 Id. at 27. 309 Id. 310 Id. at 4-5; WAFLA Br. at 21-22; Tr. at 216-18. The housing standards applicable to Sakuma Farms are found in 29 C.F.R. § 1910.142. They provide minute detail for employers to follow. As stated in Azzano Farms, compliance with these regulations may be reasonable if you are the owner or operator of the farm. WAFLA, however, provides application, wage and hour compliance, ADA compliance, and anti-harassment services to over 800 farms. Tr. 63

5. WAFLA’s Role in Failing to Hire a U.S. Corresponding Employee

   The H-2A regulations require that an H-2A employer hire qualified U.S.
   workers throughout the first 50% of the work contract.311 Sakuma’s initial plan was for workers to have three months’ experience.312 Sakuma initially rejected workers without the requisite experience. But then it learned that some employees that it had hired also lacked experience, so it discontinued the policy of rejecting employees for lack of experience.313 In the 2017 assessment, Sakuma was charged with unlawfully rejecting one U.S. employee for lack of experience.314 In the 2018 amendment, WAFLA was assessed a penalty of $12,000 for Sakuma’s failing to hire the employee, which the ALJ reduced to $5,250.315 As with the other violations, WAFLA was not the entity that rejected the U.S. employee’s employment.316 WAFLA actually encouraged Sakuma to hire the U.S. worker.317

   In sum, the preamble to the 2010 H-2A regulations indicates that the
   Administrator assigns CMPs based on common sense to avoid excessive fines and unfairness to parties. The “common sense” component is missing in the 2018 amendment to the Determination. WAFLA had no ownership, control, or supervision of Sakuma’s housing or transportation and was not the entity that

at 228; see Azzano Farms, ARB No. 2020-0013, slip op. at 49 (Burrell, J., concurring and dissenting). Even if WAFLA became a “shadow management agency” of its member farms (quoting the ALJ in Azzano Farms), it is difficult to see how it could logistically manage ultimate compliance with third-party housing, for example, as compliance would involve much more than a one-time inspection. It would have to inspect the properties of member farms daily to manage such things as the presence of flies or a full garbage can or whether the farm is handing out toiletry packages, or cooking utensils to all employees equally. Compliance would extend to hundreds of buildings and thousands of vehicles and employees. Tr. at 314. 311 20 C.F.R. § 655.135(d). 312 D. & O. at 28. 313 Id. at 5, 10, 28. But see Tr. at 285. 314 Tr. at 52-53. 315 D. & O. at 27-29. 316 Tr. at 53. 317 D. & O. at 28-29; Tr. at 279-82. 64

rejected the employment of the U.S. worker. I agree with WAFLA that the Administrator’s change in policy to hold it responsible for Sakuma’s acts in light of a long-standing practice to the contrary created an unfair surprise and was unreasonable as applied to WAFLA in this case. I would remand for the ALJ to re- evaluate WAFLA’s culpability in the underlying violations in determining whether WAFLA is liable for CMPs under 29 C.F.R. § 501.19.

                                      ____________________________________
                                      THOMAS H. BURRELL
                                      Administrative Appeals Judge