Adm'r, Wage & Hour Div., USDOL v. Ace Amusements (agency decision, June 9, 2026)

Plain-English summary

Ace Amusements and Midway West Amusements operated carnivals and received certification to employ H-2B workers. After investigating, the Department of Labor found violations involving wages, worker placement, and cooperation with the investigation. The ALJ found twelve violations, reversed the civil money penalties, sent wage issues back to the Wage and Hour Division, and ordered five-year debarment. The ARB affirmed the violations and five-year debarment, reversed one finding about unapproved job classifications, and sent the wage, penalty, and other issues back to the ALJ for further proceedings.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1101(a)(15)(H)(ii)(b) and 1184(c)(14); 20 C.F.R. § 655.73(a); and 29 C.F.R. §§ 503.23(b), 503.23(e), and 503.24
• Outcome: The ARB affirmed in part and vacated, modified, and remanded in part, including remand of wage damages and civil money penalties, while affirming five-year debarment.
• Key point: Civil money penalties and debarment serve different purposes, so eliminating penalties because debarment was imposed was error.

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 AND HOUR                     ARB CASE NOS. 2024-0019
    DIVISION, UNITED STATES                                        2024-0036
    DEPARTMENT OF LABOR,
                                                     ALJ CASE NOS. 2022-TNE-00015,
                PROSECUTING PARTY,                                 2022-TNE-00016
                                                     ALJ CHRISTOPHER LARSEN
         v.
                                                     DATE: June 9, 2026
    ACE AMUSEMENTS AND MIDWAY
    WEST AMUSEMENTS, INC.,

                RESPONDENTS.

Appearances:

For the Prosecuting Party:
      Seema Nanda, Esq., Jennifer S. Brand, Esq., Rachel Goldberg, Esq.,
      Karla Jackson Edwards, Esq.; United States Department of Labor,
      Office of the Solicitor; Washington, District of Columbia

For the Respondents:
      R. Wayne Pierce, Esq.; The Pierce Law Firm, LLC; Annapolis,
      Maryland

Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,
Administrative Appeals Judge


                                 DECISION AND ORDER

      This case arises under the H-2B provisions of the Immigration and
Nationality Act (INA), 1 as amended, and its implementing regulations. 2 On
                          0F                                               1F




January 5, 2024, an Administrative Law Judge (ALJ) issued a Decision and Order

1       8 U.S.C. §§ 1101(a)(15)(H)(ii)(b); 1184(c)(14).
2       20 C.F.R. Part 655, Subpart A (2026); 29 C.F.R. Part 503 (2025).

                                         2

Debarring Employers (D. & O.) finding that Respondents Ace Amusements (Ace)
and Midway West Amusements, Inc. (Midway West) violated provisions of the
INA. 3 Both Respondents and the Administrator for the Wage and Hour Division
     2F




(WHD) of the U.S. Department of Labor (DOL) appealed to the Administrative
Review Board (Board). For the following reasons, we affirm in part and vacate and
remand in part.

                                     BACKGROUND

       Respondents operate carnivals throughout the western United States. 4            3F




Midway West is owned and operated by Michelle Jensen, 5 and Ace is owned by her
                                                        4F




son, Jordan Jensen. 6 In 2021, Ace and Midway West both filed I-129 Petitions for
                         5F




Nonimmigrant Workers and Temporary Employment Certifications (TEC). 7              6F




The DOL granted certification for Midway West to hire forty-two H-2B workers and
for Ace to hire fifty workers for April 1, 2021, to November 15, 2021. 8
                                                                   7F




       On July 1, 2021, police officers executed a search warrant on Midway West
because they had received information about possible labor trafficking. 9
                                                                        8F




Police observed the scene, identified Jordan and his brother Hunter, and witnessed
Hunter handing Mexican passports to adult Latino males. 10 Subsequently, the
                                                             9F




police arrested Jordan. 11     10F




     Upon learning of the police activity and arrest, the WHD District Office in
Phoenix, Arizona, launched an investigation into Midway West and Ace. 12 The 11F




3         D. & O. at 4, 130.
4         Id. at 2.
5         Id. at 33.
6         Id. at 28.
7         Id. at 2.
8         Id. at 4.
9         Id.
10        Id.
11        Id.
12        Id.

                                                  3

WHD conducted surveillance, site visits, and interviews. 13 Kristin Espinoza, a WHD
                                                        12F




Investigator, attempted to meet with Michelle and requested documents several
times to no avail. 14
                    13F




      On April 14, 2022, after several months of failed attempts at contacting
Michelle, the WHD issued the Midway Determination Letter. 15 The WHD assessed
                                                              14F




back wages and civil money penalties (CMPs) for Midway West’s seven violations of
the Attestations set forth in the TEC, and imposed a five-year debarment. 16 That
                                                                         15F




same day, the WHD also issued the Midway/Ace Determination Letter, which
assessed back wages and CMPs for Midway West and Ace’s nine joint violations and
imposed a five-year debarment. 17     16F




       Respondents requested a hearing before an ALJ with the Office of
Administrative Law Judges (OALJ). 18 A hearing was held on April 18-19, 27-28,
                                            17F




and May 1-3, 2023. 19 On January 5, 2024, the ALJ issued the D. & O., finding that
                          18F




Respondents committed twelve violations and debarred them for five years. 20   19F




The ALJ reversed the WHD’s imposition of CMPs, and remanded all wage
determinations, including the payment of wages, overtime, reimbursement for
travel expenses, and the failure to make deductions required by law, to the WHD
for further consideration. 21   20F




      Both parties petitioned the Board to review the D. & O.




13    Id.
14    Id. at 5.
15    Id.
16    Id.
17    Id.
18    Id. at 6.
19    Id. at 1.
20    Id. at 111-27.
21    Id. at 130.

                                             4

                       JURISDICTION AND STANDARD OF REVIEW

       This Board has jurisdiction to hear appeals concerning questions of law or
fact from the Administrator’s final determinations under the H-2B program. 22      21F




The Board reviews an ALJ’s decision de novo 23 and acts with “all the powers [the
                                                 22F




Secretary] would have in making the initial decision.” 24 23F




                                       DISCUSSION

       Upon review of the D. & O., the parties’ arguments, and the record, the
Board: (1) affirms the ALJ’s findings that Respondents violated twelve provisions of
the H-2B regulations and TEC Attestations; (2) reverses the ALJ’s finding that
Respondents did not violate the prohibition against placing workers in unapproved
classifications and finds that Respondents violated this provision; (3) vacates the
ALJ’s remand to the WHD to determine whether Respondents made all deductions
required by law and remands to the ALJ for further consideration; (4) remands to
the ALJ to determine whether Respondents violated the requirements to disclose
the job order and post a notice of workers’ rights; (5) vacates the ALJ’s remand
order to the WHD to calculate damages and remands to the ALJ to apply the
burden-shifting framework articulated in Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 687-88 (1946) to determine the amount of damages Respondents owe
their H-2B workers; (6) vacates the ALJ’s elimination of CMPs and remands to the
ALJ for further consideration; and (7) affirms the ALJ’s order that Respondents be
debarred for five years. 25 24F




22    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).
23     See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Am. Truss, ARB No. 2005-0032,
ALJ No. 2004-LCA-00012, slip op. at 2-3 (ARB Feb. 28, 2007) (citing Talukdar v. U.S. Dep’t
of Veterans Affs., ARB No. 2004-0100, ALJ No. 2002-LCA-00025, slip op. at 8 (ARB Jan. 31,
2007) (for the proposition that “ARB applies de novo review in INA cases.”)).
24     5 U.S.C. § 557(b).
25     In addition to the arguments set forth below, Respondents make four additional
arguments. None of the arguments alter our conclusion. First, Respondents contend that
the ALJ’s D. & O. should be remanded because it constitutes an interlocutory order.
Respondents’ (Resp.) Brief (Br.) at 4-6. However, the D. & O. was not interlocutory but
rather a final, appealable order. Second, Respondents contend that the ALJ improperly
excluded portions of testimony from Assistant District Director Rios. Resp. Br. at 32-34.

                                                5

1. Legal Standard

       The H-2B program permits employers to hire temporary foreign workers to
perform nonagricultural services or labor in the United States. Employers may only
hire foreign workers under the H-2B program if (1) there are not sufficient U.S.
workers who are qualified and available to perform the temporary services or labor,
and (2) the employment of foreign workers will not adversely affect the wages and
working conditions of U.S. workers similarly employed. 26       25F




       Under the H-2B program’s regulations, employers seeking to employ H-2B
workers must obtain a certification from the DOL. 27 To obtain a certification, the
                                                          26F




employer must file the ETA Form 9142B, Application for Temporary Employment
Certification (TEC) with the DOL’s Office of Foreign Labor Certification (OFLC). 28          27F




The employer must sign the TEC under penalty of perjury, attesting to their
knowledge of, and agreeing to comply with, the terms and conditions of the H-2B
program. 29 The regulations require an employer to abide by conditions that relate
          28F




to, inter alia, non-discriminatory hiring practices, prohibition against preferential
treatment of foreign workers, rates of pay, area of intended employment,
transportation and visa fees, transportation from the place of employment,
disclosure of the job order, contracts with third parties, and retention of documents
and records. 30 29F




However, we find that the ALJ did not abuse his discretion in sustaining objections on
questions that called for speculation and legal conclusions. Third, Respondents argue that
the ALJ erred by not permitting counsel to consult with their clients about waiving the
attorney-client privilege to assert a reliance-on-counsel defense regarding the failure to
produce records to the WHD. However, the ALJ considered Respondents’ arguments
pertaining to their failure to produce records, D. & O. at 121-25. Fourth, Respondents raise
constitutional arguments regarding the Department of Labor’s authority to enforce the
H-2B regulations. Resp. Br. at 35-37. However, the Board does not have the authority to
rule on Respondents’ constitutional arguments regarding the validity of the H-2B
regulations and the Department of Labor’s enforcement.
26     8 U.S.C. § 1101(a)(15)(H)(ii)(b); 29 C.F.R. § 503.1(a); 8 C.F.R. § 214.2(h)(6)(iii)(A).
27     29 C.F.R. § 503.1; 20 C.F.R. § 655.1.
28     Id. § 655.15.
29     Id. § 655.18; 29 C.F.R. § 503.19(d).
30     20 C.F.R. § 655.20; 29 C.F.R. §§ 503.16, 503.17.

                                                  6



       As part of the certification process, the employer must make an effort to
recruit U.S. workers to ensure that there are no qualified U.S. workers available for
the position it intends to fill with H-2B workers. 31 The employer must submit a job
                                                      30F




order to the State Workforce Agency (SWA) serving each geographical area of
intended employment listed in the TEC. 32 A job order is a document containing all
                                            31F




the material terms and conditions of employment for the position(s) for which H-2B
workers are sought. 33 The employer must also advertise the position(s) to U.S.
                      32F




workers, and the advertisements must describe the geographical area of intended
employment “with enough specificity to apprise applicants of any travel
requirements and where applicants will likely have to reside to perform the services
or labor.” 34 The employer must offer the same wage and other benefits and terms
              33F




and conditions of employments to U.S. workers that it will offer H-2B workers. 35 34F




2. Violations

        An employer violates the H-2B program requirements when it substantially
fails to comply with any of the terms and conditions of the H-2B registration,
application for prevailing wage determination, TEC, or the H-2B petition (H-2B
Forms). 36 To be “substantial,” the employer’s failure must be both (1) “willful,” and
        35F




(2) “a significant deviation from the terms and conditions of [the H-2B Forms].” 37     36F




       A willful violation “occurs when the employer, attorney, or agent knows its
statement is false or that its conduct is in violation, or shows reckless disregard for
the truthfulness of its representation or for whether its conduct satisfies the
required conditions.” 38 In determining whether a violation is significant, the
                            37F




31    20 C.F.R. § 655.40(a).
32    Id. § 655.16(a)(1).
33    Id. § 655.5.
34    Id. § 655.41(b)(2).
35    Id. § 655.18.
36    8 U.S.C. § 1184(c)(14)(A); 29 C.F.R. § 503.19(a)(2).
37    Id.
38    Id. § 503.19(b).

                                            7

regulations identify a non-exhaustive list of factors that the Administrator may
consider, including: (1) the employer’s previous history of violation(s) under the
H-2B program; (2) the number of H-2B workers, workers in corresponding
employment, or U.S. workers who were and/or are affected by the violation(s);
(3) the gravity of the violation(s); (4) the extent to which the violator achieved a
financial gain due to the violation(s), or the potential financial loss or potential
injury to the worker(s); and (5) whether U.S. workers have been harmed by the
violation. 39
         38F




       The ALJ found that Respondents committed twelve of the sixteen alleged
violations, including: (1) Midway West did not pay the proper wage rate, (2) Ace did
not pay the proper wage rate, (3) Midway West failed to notify OFLC that several
workers separated from employment early, (4) Midway West failed to pay inbound
transportation costs, (5) Ace failed to pay inbound transportation costs, (6) Midway
West failed to pay outbound transportation costs, (7) Ace failed to pay outbound
transportation costs, (8) Midway West engaged in prohibited retaliation and
intimidation, (9) Midway West failed to cooperate with the DOL, (10) Ace and
Midway West jointly placed workers outside the area of intended employment,
(11) Ace and Midway West jointly failed to provide earnings statements, and (12)
Ace and Midway West jointly failed to provide safe transportation. 40 The ALJ found
                                                                      39F




that Midway West did not violate the prohibition of placing workers in unapproved
job classifications. 41 The ALJ was unable to determine whether Respondents failed
                          40F




to comply with all deduction requirements, and remanded to the WHD for further
reconsideration. 42 Lastly, the ALJ did not issue a conclusion on whether
                    41F




Respondents failed to disclose the job order and post a notice of workers’ rights. 43
                                                                                   42F




39    Id. § 503.19(c).
40    D. & O. at 111-27.
41    Id. at 115.
42    Id. at 125, 128.
43    Id. at 127.

                                              8

       A. Respondents Violated Twelve Provisions of the TEC

       Respondents contend that the ALJ erred in finding that they substantially
failed to comply with the H-2B program’s requirements pertaining to the twelve
violations listed above. 44 Respondents argue that the willfulness standard set forth
                            43F




in McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) requires the
Administrator to prove an employer’s specific and subjective knowledge, and that
the ALJ erred in finding their actions were willful. 45 Respondents contend that an
                                                        44F




employer must possess actual knowledge or awareness of a violation, citing the
2017 Davis Bacon and Related Acts definition of “willfulness.” 46 Respondents
                                                                     45F




further argue that “an employer’s subjective good faith precludes any violation from
being willful.” 47
               46F




       We disagree. Pursuant to McLaughlin v. Richland Shoe Co., a violation of the
Fair Labor Standards Act (FLSA) is willful when “the employer either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by
statute.” 48 The H-2B regulations define a “willful” violation as one that “occurs
         47F




when the employer, attorney, or agent knows its statement is false or that its
conduct is in violation, or shows reckless disregard for the truthfulness of its
representation or for whether its conduct satisfies the required conditions.” 49 This   48F




definition is consistent with the longstanding definition in Richland Shoe Co. 50             49F




     Respondents repeatedly cite the FLSA to support their arguments. 51          50F




However, this reliance bears little relevance here. One critical factor in the

44     Resp. Br. at 7.
45     Id. at 7-12.
46      Id. at 12 (citing J.D. Eckman, Inc., ARB No. 2017-0023, ALJ No. 2015-DBA-00030,
slip op. at 6 (ARB July 9, 2019)).
47     Id. at 14.
48     McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
49     29 C.F.R. § 503.19(b)
50     See Temporary Non-Agricultural Employment of H-2B Aliens in the United States,
80 Fed. Reg. 24042, 24086 (Apr. 29, 2015) (section 503.19(b)’s definition of willfulness “is
consistent with the longstanding definition of willfulness” in Richland Shoe Co.).
51     Resp. Br. at 8-11.

                                              9

willfulness analysis under the H-2B regulations is “the fact that employers submit a
signed [TEC] attesting under penalty of perjury that that they know and accept the
obligations of the program, which are clearly listed in Appendix B of the [TEC].” 52     51F




Here, the ALJ found violations based on provisions of the INA and Respondents’
agreement to abide by the Attestations in Appendix B of the TEC, not on the
FLSA. 53
      52F




        Likewise, Respondents’ reliance on the 2017 DBRA regulations also bears
little relevance. 54 The 2017 DBRA regulations applied an “aggravated or willful”
                  53F




standard, which was defined as “voluntary, deliberate, intentional, and not
negligent.” 55 Unlike the 2017 DBRA regulations, the H-2B’s definition of
            54F




“willfulness” includes a showing of “reckless disregard for the truthfulness of its
representation or for whether its conduct satisfies the required conditions.” 56   55F




Under the H-2B regulations, “reckless disregard” does not require specific intent. 57          56F




       After a thorough review of the record, we agree with the ALJ that
Respondents acted with reckless disregard as to whether their conduct satisfied the
required conditions and that Respondents significantly deviated from the terms and
conditions of their TECs for the reasons stated by the ALJ as it pertains to the
following violations: (1) Midway West failed to pay the proper wage rate,
(2) Ace failed to pay the proper wage rate, (3) Midway West failed to notify OFLC
that several workers separated early from employment, (4) Midway West failed to
pay inbound transportation costs, (5) Ace failed to pay inbound transportation costs,

52     80 Fed. Reg. at 24086-87.
53     See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Deggeller Attractions, Inc.,
ARB No. 2020-0004, ALJ No. 2018-TNE-00008, slip op. at 6 (ARB Jan. 25, 2022) (whether
the FLSA applied was irrelevant because the employer had violated its obligation based on
provisions of the INA, rather than the FLSA, as well as that employer’s agreement to the
attestations in the TEC).
54     Resp. Br. at 12 (citing J.D. Eckman, Inc., ARB No. 2017-0023, slip op. at 6).
55     29 C.F.R. § 5.12(a)(1). We note that the DBRA regulations have since been amended.
56     29 C.F.R. § 503.19(b).
57      Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Butler Amusements, ARB No. 2021-
0007, ALJ No. 2018-TNE-00019, slip op. at 15 (ARB July 28, 2023) (the “H-2B’s definition of
‘willful’ includes reckless disregard, which does not equate to specific intent”) (citation
omitted).

                                         10

(6) Midway West failed to pay outbound transportation costs, (7) Ace failed to pay
outbound transportation costs, (8) Midway West engaged in prohibited retaliation
and intimidation, (9) Midway West failed to cooperate with the DOL, (10) Ace and
Midway West jointly placed workers outside the area of intended employment,
(11) Ace and Midway West jointly failed to provide earnings statements, and
(12) Ace and Midway West jointly failed to provide safe transportation.

      Notably, both Michelle and Jordan on behalf of Midway West and Ace
respectively attested under penalty of perjury to their knowledge of and compliance
with the obligations of the H-2B program when they signed Appendix B to their
TECs in 2021. 58 Despite this, Respondents displayed a stunning indifference to the
              57F




terms under which they received their certification. Accordingly, we affirm the
D. & O. on these twelve violations.

      B. Midway West Violated the Prohibition Against Placing Workers in
         Unapproved Classifications

        The regulations provide that an employer must “[d]escribe the job
opportunity for which certification is sought with sufficient information to apprise
U.S. workers of the services or labor to be performed, including the duties.” 59
                                                                           58F




The regulations also provide that “[e]ach job qualification and requirement must be
listed in the job order and must be bona fide and consistent with the normal and
accepted qualifications and requirements imposed by non-H-2B employers in the
same occupation and area of intended employment.” 60 Attestation 11 on the TEC
                                                    59F




states that an employer will not place any H-2B workers “in a job classification not
listed on the approved application unless the employer has obtained a new approved
Form ETA-9142B.” 61   60F




58    D. & O. at 4.
59    20 C.F.R. § 655.18(b)(3).
60    29 C.F.R. § 503.16(e).
61    Admin. Exhibit (AX) 5 at 11.

                                                11

        The ALJ found that Espinoza and her team observed some Midway West
H-2B employees driving vehicles during their investigation. 62 The WHD had
                                                                        61F




determined those workers should have been classified as “tractor-trailer drivers”
rather than “carnival workers.” 63 However, the ALJ found there was no evidence in
                                    62F




the record other than Espinoza’s testimony to support that her opinion regarding
the classification was correct. 64 Although the ALJ found that Michelle demonstrated
                              63F




“complete and utter indifference to the terms under which Midway West received its
certification,” the ALJ acknowledged her argument that she classified those workers
as “amusement park attendants” both because it was consistent with industry
standard and driving vehicles was an incidental activity. 65 The ALJ concluded that
                                                            64F




Midway West did not violate the prohibition against placing workers in unapproved
classifications. 66
               65F




       The Administrator contends that the ALJ erred in finding that Midway West
did not place six workers in an unapproved job classification. 67 The Administrator
                                                                              66F




argues that Ms. Jensen’s testimony regarding industry standard is the only
information in the record that supports the ALJ’s finding. 68 The Administrator also
                                                                  67F




contends that the ALJ’s finding would give H-2B employers carte blanche to ignore
the TEC and “adopt any practice they subjectively believed to be common.” 69        68F




The Administrator further argues that the ALJ ignored evidence, including
Ms. Jensen’s testimony that the H-2B workers who drove vehicles spent twenty-to-
thirty percent of their time driving; that Midway West indicated “no” on the TEC
when asked if a driver’s license was required despite a commercial driver’s license
(CDL) being required for the truck driver position; and that Midway West paid
drivers an extra fifty dollars per week. 70
                                          69F




62    D. & O. at 115.
63    Id.
64    Id.
65    Id.
66    Id.
67    Administrator’s (Admin.) Br. at 37.
68    Id. at 38.
69    Id. (citing Butler Amusements, ARB No. 2021-0007, slip op. at 24-25).
70    Id. at 39.

                                                12



       Respondents counter that the Administrator failed to show that Respondents
willfully and substantially violated this provision by having H-2B workers
occasionally drive vehicles. 71 Respondents assert that the WHD never investigated
                               70F




industry practice, and argue that occasional driving is industry standard for
carnivals. 72 Respondents further contend that this is not a substantial violation, but
            71F




rather that the amount of time H-2B workers spent driving was incidental to their
overall job duties. 7372F




       We find that Midway West failed to apprise U.S. workers of all job duties and
violated the prohibition against placing workers in unapproved classifications.
As stated above, a violation is a substantial failure to comply with the terms and
conditions of the H-2B program requirements. 74 A violation is substantial when the
                                                     73F




employer’s failure is both “willful” and “a significant deviation” from the terms and
conditions of the H-2B program requirements. 75      74F




       Midway West failed to include driving as a job duty as well as the necessity of
having a Commercial Driver License (CDL) on the TEC and Job Order. 76 When75F




asked if a driver’s license was required on the TEC, Midway West checked “no.” 77  76F




Despite this, Respondents recruited drivers. Hunter Jensen testified that he
recruited at least one H-2B worker because he had the equivalent of a CDL based
on pictures he saw online of that worker driving carnival rides. 78 Jordan confirmed
                                                                 77F




that his brother recruited this worker. 79 Michelle testified that she preferred to hire
                                          78F




truck drivers who held a Licencia Federal, the equivalent of a CDL, and that her



71    Resp. Reply Br. at 25.
72    Id. at 25-26.
73    Id. at 26.
74    8 U.S.C. § 1184(c)(14)(A); 29 C.F.R. § 503.19(a)(2).
75    Id.
76    AX 5 at 3, 6-7, 17-18.
77    Id. at 17.
78    Transcript (Tr.) at 673.
79    Id. at 715.

                                            13

business would not be able to operate without drivers. 80 In addition, José Velazquez
                                                          79F




Lara, one of the drivers, testified that a recruiter asked him whether he had a
Licencia Federal, and stated that he was under the impression that he would work
exclusively as a driver. 81 Lastly, as the ALJ found, Michelle argued that Midway
                         80F




West was free to follow industry practice as she understood it regardless of her
attestations in the TEC, demonstrating a “complete and utter indifference to the
terms under which Midway West received its certification.” 82 Thus, we find that
                                                                      81F




Midway West demonstrated reckless disregard for whether its conduct satisfied the
required conditions.

       We also find that Midway West significantly deviated from the terms and
conditions of the H-2B program because the factors set forth in Section 503.19(c)
weigh against Midway West. Approximately five to six H-2B workers drove
vehicles. 83 These drivers were paid an extra $50 per week, 84 which Midway West
         82F                                                    83F




did not disclose to U.S. workers. Because H-2B workers were offered better pay
than U.S. workers, we find that U.S. workers were harmed, and that this harm was
significant. 8584F




      In addition, we are not persuaded by Respondents’ argument that driving
was an incidental job activity that was consistent with industry practice.
Respondents cite the preamble of the 2008 INA regulations to support their
argument that an H-2B worker may perform job duties not listed in the job order if
they are “minor and incidental to the activity/activities listed in the job order.” 86
                                                                                     85F




However, this case arises under the INA regulations that went into effect on April


80     Id. at 912-13.
81     Id. at 222-23, 245-57.
82     D. & O. at 115.
83     AX 4; AX 32 at 28.
84     AX 11.
85     See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Lucero Pool Plaster, Inc.,
ARB Nos. 2023-0040, -0045, ALJ No. 2019-TNE-00011, slip op. at 11-12 (ARB Feb. 27,
2025) (when H-2B workers are offered better pay and/or benefits than U.S. workers, it is
presumed that U.S. workers were harmed).
86     Resp. Response Br. at 26 (citing 73 Fed. Reg. 77110, 77117).

                                         14

29, 2015, not the 2008 regulations. 87 Respondents have not cited any current,
                                  86F




binding legal authority to support their argument that the “incidental activities”
rule applies. Second, Respondents have not established that driving duties were
industry practice. Notably, Respondents stated that a driver’s license was not
required, which contradicts their argument that driving is industry practice.
In addition, driving was not included in either the TEC or Job Order, which both
indicate that the job duties were to “perform [a] variety of attending duties at
amusement or recreation facility. May schedule use of recreation facilities, maintain
and provide equipment to participants of sporting events or recreational pursuits, or
operate amusement concessions and rides.” 88 Further, at least one H-2B worker was
                                           87F




under the impression that he would work exclusively as a driver. 89
                                                                 88F




       Thus, we find that Midway West failed to apprise U.S. workers of all job
duties and violated the prohibition against placing workers in an unapproved job
classification. Therefore, we vacate the ALJ’s finding and remand for the ALJ to
assess CMPs.

      C. The ALJ Erred in Remanding to WHD to Determine Whether Respondents
         Failed to Make All Deductions Required by Law

      H-2B employers must “make all deductions from the worker’s paycheck
required by law.” 90 The ALJ found that neither Midway West nor Ace could
                 89F




demonstrate that they complied with this requirement because they failed to keep
accurate records. 91 However, the ALJ also found that he could not determine that
                 90F




Respondents violated this provision because the records failed to show how much
Respondents should have paid in wages, how much should have been deducted, and




87    80 Fed. Reg. 24042.
88    AX 5 at 3, 17.
89    Tr. at 222-23, 245-57.
90    29 C.F.R. § 503.16(c).
91    D. & O. at 125.

                                                  15

how much was actually deducted. 92 Consequently, the ALJ remanded to the WHD
                                            91F




for further consideration. 93         92F




      The ALJ erred in remanding to the WHD. An ALJ’s order “may affirm, deny,
reverse, or modify, in whole or in part, the determination of the Administrator,
WHD.” 94 The only situation identified by the parties in which the regulations
           93F




provide that an ALJ may remand to the WHD is when the “WHD assesses back
wages for wage violation(s) of [Section] 503.16 based upon a [prevailing wage
determination] obtained by the Administrator from OFLC during the investigation
and the ALJ determines that the Administrator’s request was not warranted.” 95           94F




Determining whether Respondents paid all required deductions does not fall under
that narrow circumstance. Thus, the ALJ did not have the authority to remand to
the WHD.

        When an employer fails to keep and maintain accurate records, an ALJ may
use the two-step burden-shifting framework articulated in Mt. Clemens Pottery
Co. 96 Under the Mt. Clemens framework, if the employer’s records are “inaccurate
     95F




or inadequate,” the Administrator must show that the workers “in fact performed
work for which [they were] improperly compensated” by producing “sufficient
evidence to show the amount and extent of that work as a matter of just and
reasonable inference.” 97 If the Administrator meets its burden, then the burden
                                96F




shifts to the employer to produce evidence of the precise amount owed. 98 If the   97F




employer fails to do so, the court may award damages “even though the result may
be only approximate.” 99      98F




92         Id.
93         Id. at 128.
94         29 C.F.R. § 503.50(b).
95         Id. § 503.50(c).
96         Lucero Pool Plaster, Inc., ARB Nos. 2023-0040, -0045, slip op. at 18.
97         Mt. Clemens Pottery Co., 328 U.S. at 687.
98         Id. at 687-88.
99         Id. at 688.

                                           16

       Accordingly, we vacate the ALJ’s order remanding to the WHD, and remand
to the ALJ to apply the Mt. Clemens Pottery Co. framework to determine whether
Respondents failed to make all deductions required by law, and, if so, to what
amount.

      D. The ALJ Erred in Not Issuing Findings as to Whether Respondents
         Violated the Requirements to Disclose the Job Order and to Post a Notice of
         Workers’ Rights

       Lastly, the ALJ did not issue a finding on Respondents’ alleged failure to
disclose the job order or their alleged failure to post a notice of workers’ rights. 100
                                                                                    99F




Although the ALJ analyzed these issues and appears to suggest that Respondents
violated both provisions, the ALJ did not reach a conclusion. 101 On remand, the ALJ
                                                                      100F




is instructed to issue findings regarding whether Respondents violated the
requirements to provide H-2B workers with a copy of the job order 102 and to post a
                                                                             101F




notice of workers’ rights “in a conspicuous location at the place of employment” in
English, and to the extent necessary, “in any language common to a significant
portion of the workers if they are not fluent in English.” 103 102F




3. Remedies

       If the Administrator determines an employer has violated the requirements
of the H-2B program, the Administrator may assess remedies, including the
recovery of unpaid wages and the imposition of CMPs. 104103F




      A. The ALJ Erred in Remanding the Wage Determinations to WHD

      The ALJ remanded all wage determinations, including but not limited to,
the payment of wages, overtime, reimbursement of travel expenses, and the failure


100   D. & O. at 127.
101   Id.
102   29 C.F.R. § 503.16(l).
103   Id. § 503.16(m).
104   Id. § 503.20(a).

                                                   17

to make deductions required by law, to the WHD to determine the amount that
Respondents owe their H-2B workers. 105 The ALJ found that while the records
                                            104F




showed that Respondents did not pay H-2B workers in accordance with the terms
set forth in the TECs, the records also did not support the WHD’s calculations. 106
                                                                                105F




      As stated above, the ALJ may remand to the WHD when the WHD assessed
back wages for a violation based on a prevailing wage determination obtained by
the Administrator from OFLC during the investigation. 107 That situation does not
                                                         106F




apply here. Rather, because Respondents failed to keep and maintain records, the
ALJ should have applied the Mt. Clemens Pottery Co. burden-shifting framework.
Therefore, we vacate the ALJ’s remand order and instruct the ALJ to apply the
Mt. Clemens Pottery Co. burden-shifting framework to determine the wages and
expenses Respondents owe their H-2B workers for violations committed during the
2021 season.

      B. The ALJ Erred in Reversing All CMPs

       The Administrator may assess a CMP for each violation that is either a
willful misrepresentation of a material fact; a substantial failure to meet any of the
terms and conditions of the H-2B forms; or a willful misrepresentation of a material
fact to the Department of State during the H-2B nonimmigrant visa application
process. 108 “Each such violation involving the failure to pay an individual worker
        107F




properly or to honor the terms or conditions of [the aforementioned H-2B forms]
constitutes a separate violation.” 109
                                     108F




       For violations related to wages, impermissible deductions, or prohibited fees
and expenses, Section 503.23(b) provides that the Administrator may assess CMPs
“that are equal to the difference between the amount that should have been paid
and the amount that actually was paid to such worker(s),” subject to a maximum of


105   D. & O. at 128.
106   Id.
107   29 C.F.R. § 503.50(c).
108   Id. at §§ 503.19, 503.23(a).
109   Id. § 503.23(a).

                                              18

$12,383. 110 Back wages also “further the purposes of the H-2B program by reducing
        109F




the employer’s incentive to bypass U.S. workers in order to hire H-2B workers who
are more easily exploited.” 111 110F




       For all other violations, Section 503.23(d) provides that the Administrator
may assess CMPs up to the maximum of $12,383 per violation. 112 Section 503.23(e)
                                                                      111F




provides that, when assessing CMPs pursuant to paragraph (d), the Administrator
may consider the following factors: (1) any previous history of H-2B violations by
the employer; (2) the number of workers affected by the violation; (3) the gravity of
the violation; (4) the good-faith efforts by the employer to comply; (5) the employer’s
explanation for the violation; (6) the employer’s commitment to future compliance;
and (7) the extent to which the employer achieved a financial gain or workers
suffered a potential financial loss. 113 The highest penalties are reserved for willful
                                       112F




failures to meet any of the conditions in the TEC and H-2B petition that “involve
harm to U.S. workers.” 114
                         113F




      The ALJ reversed the WHD’s imposition of all CMPs. 115 The ALJ
                                                               114F




acknowledged the serious gravity of Respondents’ violations but found that the
regulatory maximum would be “insufficient to punish” Respondents for their
conduct. 116 The ALJ also found that CMPs would be unlikely to ensure
        115F




Respondents’ compliance in the future, and would be “more likely to result in years




110     Id. § 503.23(b). This maximum is adjusted by regulation. Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat
584, 599 (2015). The maximum in effect in the present case was $12,383. See Department of
Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2018, 83
Fed. Reg. 7-01, 12 (Jan. 2, 2018).
111   Butler Amusements, ARB No. 2021-0007, slip op. at 31.
112   29 C.F.R. § 503.23(d).
113   Id. § 503.23(e).
114   8 U.S.C. § 1184(c)(14)(C); 29 C.F.R. § 503.23(e).
115   D. & O. at 129.
116   Id.

                                                  19

of contentious litigation.” 117 Given the totality of the circumstances, the ALJ found
                                 116F




that debarment would serve as an appropriate sanction for Respondents’ conduct. 118          117F




       The Administrator contends that the ALJ erred in eliminating all CMPs. 119     118F




Specifically, the Administrator argues that the ALJ ignored the evidence supporting
CMPs, the ALJ’s conclusion contradicts the purpose of CMPs, and that the ALJ
erred in conflating debarment with CMPs, which are separate remedies and serve
different purposes. 120 The Administrator asserts that debarment is not a
                          119F




punishment, but rather protects the integrity of the H-2B program, while the
purpose of CMPs for H-2B violations is to punish an employer for committing
violations and to deter future violations. 121 The Administrator argues that the
                                           120F




CMPs the WHD assessed were reasonable in consideration of the facts and
regulations, and that there were no facts that warranted eliminating them, such as
Respondents’ explanations during the investigation or good faith compliance
efforts. 122
       121F




       The ALJ erred in eliminating all CMPs. Notably, the ALJ did not consider
any of the above factors in determining that CMPs were not warranted, nor did the
ALJ find any mitigating factors, such as crediting Respondents’ explanations or
finding that Respondents made a good faith effort to comply. 123 Rather, the ALJ
                                                                  122F




determined that CMPs were an insufficient punishment and eliminated them in an
attempt to avoid protracted litigation without citing any legal authority to support
his determination. 124 The ALJ’s finding contradicts the purpose of CMPs, which is
                       123F




117    Id.
118    Id.
119    Admin. Br. at 32.
120    Id. at 32-34.
121    Id. at 33-34.
122    Id. at 34-35.
123    D. & O. at 127-29.
124     Notably, despite the ALJ’s elimination of CMPs in an attempt to avoid protracted
litigation, both parties appealed the D. & O.

                                                  20

to penalize noncompliance 125 and to serve as a meaningful deterrent. 126 In addition,
                             124F                                             125F




the ALJ also erred in conflating the purpose of CMPs with debarment, which is
meant to maintain the integrity of the H-2B program. 127      126F




      Thus, we vacate the ALJ’s order eliminating all CMPs. On remand,
we instruct the ALJ to reassess CMPs for each violation that is either a willful
misrepresentation of a material fact; a substantial failure to meet any of the terms
and conditions of the H-2B forms; or a willful misrepresentation of a material fact to
the Department of State during the H-2B nonimmigrant visa application process,
and to assess the amount of any CMPs warranted in accordance with Section
503.23. 128
        127F




4. Debarment

         An employer may be debarred from the H-2B program for one to five years if
it: (1) committed a willful misrepresentation 129 of a material fact in its H-2B forms;
                                                       128F




(2) substantially failed to meet any of the terms and conditions of the wage
determination, TEC, or H-2B petition; 130 or (3) committed a willful
                                           129F




125    80 Fed. Reg. at 24088.
126   See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Peter’s Fine Greek Food, Inc.,
ARB No. 2014-0003-B, ALJ Nos. 2011-TNE-00002, 2012-PED-00001, slip op. at 6
(ARB Sept. 17, 2014).
127    80 Fed. Reg. at 24087.
128     See Lucero Pool Plaster, Inc., ARB Nos. 2023-0040, -0045, slip op. at 35 (although the
seven factors listed in Section 503.23(e) are discretionary in application, their consideration
must be reasonably related to determining whether an employer significantly deviated from
its obligations).
129    “A willful misrepresentation of a material fact or a willful failure to meet the
required terms and conditions occurs when the employer, attorney, or agent knows a
statement is false or that the conduct is in violation, or shows reckless disregard for the
truthfulness of its representation or for whether its conduct satisfies the required
conditions.” 20 C.F.R. § 655.73(d).
130     In determining whether a violation is a significant deviation from the terms and
conditions of the H-2B forms, an ALJ may consider factors including, but not limited to the
factors listed in 20 C.F.R. § 655.73(e) (previous history of violations, number of affected
workers, gravity of the violations, extent of financial gain or potential financial loss or
potential injury to the workers, and whether U.S. workers were harmed).

                                                 21

misrepresentation of a material fact during the visa application process. 131 130F




The regulations list twelve violations that may justify debarment, which includes
the failure to pay required wages, the employment of H-2B workers outside the area
of intended employment, and impeding an investigation. 132 “The appropriate period
                                                                    131F




of debarment [is] based on the severity of the violation.” 133
                                                             132F




       The ALJ found that Respondents violated three provisions that may justify
debarment—Respondents’ failure to pay required wages, employing H-2B workers
outside the area of intended employment, and impeding the WHD’s investigation. 134                 133F




The ALJ also found that Respondents repeatedly disregarded their obligations in
spite of their agreement to adhere to the requirements of the H-2B program. 135             134F




The ALJ recognized that Respondents denied having any obligation to do otherwise
and that they appeared to be more concerned with “running their business as they
choose than in assuming the responsibilities incumbent on every H-2B employer.” 136                  135F




The ALJ further found that no American employer has an inherent right to hire
foreign workers, and that hiring foreign workers in non-compliance with the
applicable laws and regulations could affect the employment and working
conditions of U.S. workers. 137 Accordingly, the ALJ ordered Respondents’ “swift
                              136F




debarment” for the maximum term of five years. 138    137F




       Respondents contend that debarment is harmful and unnecessary. 139            138F




We disagree and affirm the ALJ’s finding that Respondents violated three
provisions that warrant debarment. As the ALJ found, Respondents demonstrated a
wanton and brazen indifference to the INA regulations and the H-2B program
requirements. Notably, as the ALJ recognized, Respondents paid “H-2B employees
what they liked,” worked employees “where they liked in spite of their promise to

131    Id. § 655.73(a); 29 C.F.R. § 503.24(c).
132    Id. § 503.24(a).
133    80 Fed. Reg. at 24084.
134    D. & O. at 129.
135    Id. at 130.
136    Id.
137    Id.
138    Id. at 129-30.
139    Resp. Petition for Review at 3; Resp. Br. at ii (Respondent’s argument is taken from
the table of contents. The pages addressing this argument were missing from their brief).

                                        22

strictly follow their [TEC],” and denied having any obligation to do otherwise. 140
                                                                             139F




Respondents’ actions were a grave departure from their obligations under the H-2B
program. Thus, we affirm the ALJ’s order that Respondents be debarred for the
maximum period of five years.

                                   CONCLUSION

    Accordingly, we AFFIRM the ALJ’s Decision and Order in part and VACATE,
MODIFY, and REMAND in part.

      SO ORDERED.




                                RANDEL K. JOHNSON
                                Chief Administrative Appeals Judge



                                THOMAS H. BURRELL
                                Administrative Appeals Judge




140   D. & O. at 130.