U.S. Department of Labor

Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
(202) 693-7300
(202) 693-7365 (FAX)

Issue Date: 02 February 2015
Case No.:

2013-TAE-00011

In the Matter of:
THREE CHIMNEYS FARM, LLC,
D/B/A THREE CHIMNEYS FARM
Respondent.
Appearances:
Jennifer Booth Thomas, Esq.
Nashville, Tennessee
For the Administrator, Wage & Hour Division
Thomas D. Bullock, Esq.
J. Ross Stinetorf, Esq.
Lexington, Kentucky
For the Respondent
BEFORE:

LARRY S. MERCK
Administrative Law Judge
DECISION AND ORDER

This matter arises under the H2-A provisions of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1188 et seq., as amended by the Immigration Reform and Control Act
(“IRCA”), and implementing regulations at 20 C.F.R. Part 655 1 and 29 C.F.R. Part 501.2 The H2A nonimmigrant worker visa program permits employers to employ foreign workers on a
1

Subpart B of 20 C.F.R. Part 655 outlines the procedures the U.S. Secretary of Labor (“Secretary”) established to
make factual determinations regarding: (1) whether sufficient “able, willing, and qualified” United States (“U.S.”)
workers” are “available to perform the temporary and seasonal agricultural employment for which an employer
desires to import nonimmigrant foreign workers” (“H-2A workers”); and (2) whether employing “H-2A workers
will adversely affect the wages and working conditions of workers in the U.S. similarly employed.” 20 C.F.R. §
655.100(a)-(b) (2010). Per 20 C.F.R. § 655.101, “The Secretary has delegated [the] authority to make
determinations under 8 U.S.C. 1188 to the Assistant Secretary for the Employment and Training Administration
(ETA), who in turn has delegated that authority to the Office of Foreign Labor Certification (OFLC). The
determinations are made by the OFLC Administrator who, in turn, may delegate this responsibility to designated
staff members; e.g., a Certifying Officer (CO).”
2

The regulations at 29 C.F.R. Part 501 govern the enforcement of all contractual obligations applicable to the
employment of H-2A workers and workers in corresponding employment. 29 C.F.R. § 501.0.

 temporary or seasonal basis when insufficient U.S. workers are “able, willing, and qualified” to
do the job, and when employing foreign workers will not “adversely affect the wages and
working conditions of” similarly situated U.S. workers. 75 Fed. Reg. 6884 (Feb. 12, 2010); 8
U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1), 1188.1; 20 C.F.R. Part 655.
BACKGROUND3
Three Chimneys Farm, LLC (“Respondent”) is a thoroughbred horse farm in Versailles,
Kentucky. Respondent submitted an Application for Temporary Employment Certification under
the H-2A temporary agricultural worker program, signed by LaTerri Williams, Respondent’s
Director of Human Resources, and Laura Elizabeth Conley-Morgan, Respondent’s attorney.
(GX 1 at 13-22). On January 26, 2011, the Employment and Training Administration (“ETA”)
approved Respondent’s application and granted certification for Respondent to employ thirteen
foreign workers as grooms on its farm.4 (GX 1). The ETA’s certification letter stated
Respondent “must comply with all assurances, guarantees and other requirements contained in
20 CFR 655, Subpart B and 20 CFR 653, Subpart F.” Id. Furthermore, the letter included
information regarding Respondent’s obligation to adhere to the work contract requirements listed
in 20 C.F.R. § 655.122(q). (GX 1 at 2).
The Application for Temporary Employment Certification outlined that Respondent’s
contract period for H-2A workers would be from February 25, 2011 to November 20, 2011,
meaning the H-2A workers would begin working for Respondent on February 25, 2011 and
cease working on November 20, 2011. (GX 1; TR at 66). The H-2A workers would receive
$9.71 per hour to “care for horses to protect their health and improve their appearance in
conjunction with their assistance during the employer’s breeding, foaling, weaning and yearling
preparation season. Workers will provide water for the employer’s horses and will measure,
mix, and apportion feed and feed supplements according to feeding instructions during the
aforementioned season.” (TR at 66-67; GX 1 at 4). Applicants for the groom position were not
required to have any minimum education, training, or employment experience. (GX 1 at 16; TR
at 67).
In the spring of 2011, the U.S. Department of Labor Wage and Hour Division began
investigating Respondent. Id. Michael Bodenbender, who was an investigator at the Wage and
Hour Division’s Louisville District office, conducted the investigation. (TR at 105). Following
the investigation, the Administrator of the Wage and Hour Division (“Administrator”) issued a
Notice of Determination of Wages Owed and Assessing Civil Money Penalties (“Determination
Letter”) on March 1, 2012. On March 30, 2012, Respondent timely requested a hearing per 29
C.F.R. § 501.33. On June 18, 2013, the Administrator referred the Order of Reference to the
Office of Administrative Law Judges for a hearing in accordance with 29 C.F.R. § 502.37.

3

In this Decision and Order, GX refers to the Government’s Exhibits, RX refers to Respondent’s Exhibits, and JX
refers to the Joint Exhibits. TR refers to the transcript of the hearing held on June 10, 2014 and June 11, 2014 in
Richmond, Kentucky.
4

In this Decision and Order, I have referred to the H-2A work contract positon as the “groom” position.

-2-

 As discussed in more depth below, the parties resolved, through the settlement
proceedings, most of the issues contained in the Notice of Determination of Wages Owed and
Assessing Civil Money Penalties. (Respondent’s Prehearing Memorandum; Administrator’s
Prehearing Order Report).
I held a hearing on June 10, 2014, and June 11, 2014, in Richmond, Kentucky. Both
Respondent and the Administrator were represented at the hearing. I admitted into evidence GX
1-105 (TR at 7, 86), JX 1-26 (TR at 9, 102), and RX 1-127 (TR at 23). I also admitted RX 1A,
Respondent’s Motion for Continuance and/or Exclusion of Witness and Testimony, for
identification. (TR at 14). I gave the parties until July 14, 2014 to submit additional evidence,
and until August 4, 2014 to submit closing briefs. (TR at 330). Respondent submitted four
additional exhibits following the hearing.8 The Government objects to three of the exhibits on
the basis that they are irrelevant. Despite the Government’s objection, I hereby admit
Respondent’s Exhibits into evidence as RX 13-16, but will only consider the evidence to the
extent it is relevant to the issues in this case. Since Lacy Lillard-Herrera and LaTerri Williams
did not testify at the hearing and were not subject to cross-examination, I give their affidavits
less probative weight. Both parties filed closing briefs9 and the record is now closed. While I
have considered all evidence of record, I have only summarized evidence that is relevant to the
issues in this case.

5

The following Government exhibits were admitted at the hearing: Respondent’s Application for Temporary
Employment Certification for the 2011 contract period (GX 1); the Summary of Unpaid Wages, Form WH-56 (GX
2); the Summary of Violations (GX 3); the Kentucky State Workforce Agency referral of eight U.S. workers to
Respondent’s farm (GX 4); Respondent’s Recruitment Report Logs (GX 5); the Administrator’s Wage Transcription
and Computation Sheets, FormWH-55 (GX 6); the transcript of Nicole Burt’s statements (GX 7); the transcript of
LaTerri Williams’ statement (GX 8); Michael Bodenbender’s Notes (GX 9); and the Administrator’s Wage
Transcription and Computation Sheet for Nicole Burt (GX 10). (TR at 6-7, 86).
6

The following Joint Exhibits were admitted at the hearing: The parties’ Joint Stipulations (JX 1); and the Consent
Findings and Order (JX 2). (TR at 9, 102).
7

The following Respondent’s Exhibits were admitted at the hearing: a MapQuest printout (RX 1); a copy of
Respondent’s brochure from 2011 (RX 2); printouts from the Kentucky Court of Justice regarding LaTerri Williams
(RX 3); a series of documents, including a statement from the Treasury Administration System, a check printout, a
summary of wages, and a series of e-mails (RX 4); Respondent’s Recruitment Plan (RX 5); Respondent’s Results of
Recruitment Report, dated January 24, 2011 (RX 6); a letter from the ETA to Laura Elizabeth Conley-Morgan,
dated January 26, 2011 (RX 7); a letter from the ETA to Laura Elizabeth Conley-Morgan, dated January 21, 2011
(RX 8); Respondent’s Recruitment Report Logs (RX 9); the Administrator’s First Set of Interrogatories for the
Respondent and the Administrator’s Request for Production of Documents (RX 10); the Administrator’s Privilege
Log, the Administrator’s Responses to Respondent’s Request for Admissions, the Administrator’s Responses to
Respondent’s 2nd Request for Production of Documents, and the Administrator’s Responses to Respondent’s
Interrogatories (RX 11); and Wayne Smith’s Affidavit (RX 12). (TR at 20-23).
8

Respondent submitted the following exhibits after the hearing: Lacy Lillard-Herrera’s affidavit, dated July 14,
2014 (RX 13); La Terri Williams’ affidavit, dated June 28, 2014 (RX 14); Kentucky Cabinet for Health and Family
Services Supplemental Nutrition Assistance Program Requirements (RX 15); and correspondence dated January 26,
2011 from the Department to Laura Elizabeth Conley-Morgan (RX 16).
9

On August 4, 2014, the parties filed a Joint Motion for a Continuance to File Post-Hearing Briefs. I orally granted
their request to have until August 8, 2014 to submit post-hearing briefs.

-3-

 ISSUES
At the hearing on June 10, 2014, the parties agreed to twelve joint stipulations. (JX 1; TR
at 9). I hereby accept the following stipulations:
The Administrator, Wage and Hour Division, United States Department of Labor
(Administrat[or]) and the Respondent, Three Chimneys Farm, LLC d/b/a Three
Chimneys Farm (Three Chimneys Farm) jointly stipulate to the following:
1. The Administrator issued a Determination Letter on March 1, 2012 in the
above-referenced matter pursuant to 20 C.F.R. Part 655 under the H-2A
provisions of the Immigration and Nationality Act (INA), finding that the
Respondents failed to comply with Section 218 of the Immigration and
Nationality Act as amended by the Immigration Reform and Control Act (8
U.S.C. §§1101(a)(15(H)(ii)(a), 1184(c) and 1186), and applicable regulations
at 20 C.F.R. Part 655 and 29 C.F.R. Part 501.
2. Upon written notice issued on March 1, 2012, pursuant to § 503(a)(1) of the
Act and Regulation found at 29 C.F.R. § 500.143, civil money penalties in the
amount of $180,600 were assessed against Respondents for alleged violations
of the Act and applicable regulations during the periods January 2010 through
November 2010 and from January 2011 through November 2011.
Respondents also were notified that, as a consequence of the violations,
unpaid wages in the amount of $113,374.09 were owed.
3. Respondents, by letter dated March 29, 2012, took timely written exception to
such determination of violations, assessment of civil money penalties, and
notification of unpaid wages.
4. The Administrator filed an Order of Reference to the Administrative Law
Judge on June 12, 2013.
5. The parties stipulate that [] alleged unpaid wages and civil money penalties
assessed for violations of 20 C.F.R. § 655.135(a) and 20 C.F.R. § 655.122(q)
are the only issues remaining for hearing.
6. The parties stipulate that the following allegations of violations and unpaid
wages have been settled and that the foregoing settlement shall not be used in
any manner against the Respondent at the hearing of this matter:
a. 20 C.F.R. § 655.104(h)(1): Failure to Comply with inbound
transportation requirements.

-4-

 b. 20 C.F.R. § 655.104(h)(2): Failure to Comply with outbound
transportation requirements.
c. 20 C.F.R. § 655.105(o): Unlawful cost-shifting.
d. 20 C.F.R. § 655.135(c) and 20 C.F.R. § 655.156(a) and (b): Failure to
comply with recruitment requirements.
e. 20 C.F.R. § 655.135(j): Unlawful cost-shifting.
f. 20 C.F.R. § 655.135(e): Failure to comply with employment related
laws.
g. 20 C.F.R. § 655.122(h): Failure to comply with inbound
transportation requirements.
h. 20 C.F.R. § 655.122(h): H-2A workers given preferential treatment.
7. The parties stipulate that the following violation 20 C.F.R. § 655.122(q):
Failure to provide workers copy of work contract is unresolved.
8. As to this allegation, the parties stipulate to the following:
a. The parties agree that there were twenty-three (23) U.S. workers in
corresponding employment for the 2011 contract period.
b. The Administrator assessed civil money penalty in the amount of
$31,050.
9. The parties stipulate that the following violation 20 C.F.R. § 655.135(a):
Unlawful rejection of U.S. workers is unresolved.
10. As to the allegations, the parties agree to the following:
a. The Administrator alleges unpaid wages owed in the amount of
$16,312.80.
b. The Administrator assessed a civil money penalty in the amount of
$12,000.
11. The Administrator does not object to the Respondent’s exhibits as exchanged
and listed on the Respondent’s May 19, 2014 Pre-Hearing Response. The
Administrator reserves the right to object to any witnesses or exhibits not
listed on the Respondent’s May 19, 2014 Pre-Hearing Response.
12. The Respondent does not object to the Administrator’s individual exhibits as
exchanged and listed on the Administrator’s May 19, 2014 Pre-Hearing
Response, but reserves the right to object to the totality of the case being
based upon hearsay evidence.
(JX 1).

-5-

 At the hearing on June 11, 2014, the parties submitted a document entitled Consent
Findings and Order. (TR at 102; JX 2). The Consent Findings and Order consists of six pages
and Exhibit A. As permitted by 20 CFR § 501.40 (b), I accepted the consent findings and found
they were reasonable under the facts and circumstances of this case. (TR at 103). Accordingly, I
approve and adopt the Consent Findings and Order in its entirety as part of this Decision and
Order.
The following issues remain for resolution in this case:10
1. Whether Respondent violated 20 C.F.R. § 655.135(a); and, if so
a. whether the unpaid wages penalty for failing to comply with 20 C.F.R. §655.135(a) is
appropriate; and
b. whether the civil money penalty for violating 20 C.F.R. §655.135(a) is appropriate.
2. Whether Respondent violated 20 C.F.R. § 655.122(q); and, if so
whether the civil money penalty for violating 20 C.F.R. §655.122(q) is appropriate.
SUMMARY OF THE EVIDENCE

Four witnesses testified at the hearing on June 10, 2014 and June 11, 2014. Nicole Burt,
Michael Bodenbender, and Karen Garnett testified on behalf of the Administrator. Case Clay
testified on behalf of Respondent.

Nicole Burt’s Hearing Testimony
10

In addition to the unresolved issues, Respondent alleges that the Department failed to promptly refer this matter
for a hearing, as required by 29 CFR §501.37(a). It argues the delay of over one year and two months “was
unreasonable,” “without justification,” and “has substantially prejudiced [Respondent’s] ability to defend the
allegations against it.” (Brief for Respondent Three Chimneys Farm at 22). Respondent’s argument is without
merit. The Temporary Nonimmigrant Agricultural Workers provision of the INA, as amended by the IRCA, neither
contains a statute of limitations applicable to enforcement actions, nor explicitly incorporates the limitations
provisions of any other statute. However, pursuant to 28 U.S.C. § 2462, administrative proceedings to adjudicate
civil money penalties must begin within five years from the date of a violation. In this case, the Administrator
issued a Determination Letter on March 1, 2012 for violations that occurred in 2011. The Administrator filed the
Order of Reference on June 12, 2013. Thus, the Order of Reference was timely. Furthermore, there is no evidence
Respondent was prejudiced by the administrative delay. Mr. Clay testified that he most likely first received the
Summary of Unpaid Wages (GX 2) during his first meeting with Mr. Bodenbender in the fall of 2011. (TR at 308).
Ms. Garnett testified that the amount of back wages and civil penalties assessed did not change from the time
Respondent was given the Determination Letter to the point settlement negotiations began. (TR at 240). Thus, on
March 1, 2012, Respondent was aware of the violations alleged, unpaid wages assessed, and civil money penalties
assessed, and it had every opportunity to begin preparing to defend the allegations against it.

-6-

 Nicole Burt testified at the hearing on June 10, 2014. (TR at 24-62). She testified she
had approximately ten years of experience working with horses. (TR at 25). She learned of the
position at Respondent’s farm from the “unemployment office.” (TR at 26). She testified that
she applied to jobs at five horse farms. (TR at 39).
Ms. Burt testified that around March 2011, she called LaTerri Williams and inquired
about the groom position at Respondent’s farm. (TR at 26). Ms. Williams asked Ms. Burt to fax
in her resume. Id. Ms. Burt faxed her resume to Ms. Williams the same day they spoke on the
phone. Id. Ms. Burt testified that her phone number was on her resume and she had the ability
to receive text messages and voicemails on her phone. (TR at 32). Ms. Burt waited
approximately one week before calling Ms. Williams again and leaving her a message. (TR at
26). Ms. Burt testified that approximately one week after that, she finally got in touch with Ms.
Williams who said her supervisor still had not looked over Ms. Burt’s resume. (TR at 27). Ms.
Burt said she was not offered a job for the initial position she applied for. Id. Furthermore, she
was not told why she was not offered the job. Id.
Ms. Burt testified that Ms. Williams called her back and “mentioned a foreman position”
that would become available in approximately one week. (TR at 28). At some point in April,
approximately two weeks after the phone call with Ms. Williams regarding the foreman position,
Ms. Burt called Ms. Williams again. (TR at 28-29). Ms. Williams reiterated that her supervisor
still had not reviewed Ms. Burt’s resume. (TR at 29). Ms. Burt was never offered an interview
for the foreman position. Id.
Ms. Burt testified that a few weeks later, probably in early May, she called Ms. Williams
again. Ms. Williams told Ms. Burt “there were no positions available.” (TR at 29). Ms. Burt
stated she interpreted that to mean that neither the groom position nor the foreman position was
available. Id. According to Ms. Burt, Ms. Williams did not provide a reason for not hiring her.
Id. Ms. Burt stated that was the last contact she remembers having with Respondent. (TR at 30).
Ms. Burt testified that she never received a voicemail from Respondent and had she
received one, she would have returned the phone call. (TR at 32). She was unemployed from
March of 2011 until December 31, 2011. (TR at 32-33). During that time, she had no injuries
that would have prevented her from working as a groom. (TR at 33). She testified Respondent’s
farm was located approximately forty-five minutes to an hour from her home, and she had a car
that she would have driven to work. (TR at 34). She testified she was willing and able to accept
employment at Respondent’s farm from March 2011 until the end of 2011. Again, on both crossexamination and redirect examination, she reiterated that she would have taken the job. (TR at
52, 60).

Ms. Burt testified that Mr. Bodenbender11 called her in May 2011 and asked about the job
she had applied for at Respondent’s farm. (TR at 30). He called her again in August 2011 to ask
whether she had received the job. (TR at 31). Chris Binda was the only other person from Wage
and Hour with whom Ms. Burt spoke. Mr. Binda spoke with Ms. Burt on the phone
11

Michael Bodenbender was the investigator at the Wage and Hour Louisville District office who conducted the
investigation involving Respondent.

-7-

 approximately three weeks prior to the hearing. Id. Ms. Burt testified that it was not until after
her statement to Chris Binda, and after she agreed to testify, that she learned Wage and Hour was
alleging that Respondent might owe her back wages because of its failure to hire her. (TR at 35).

Nicole Burt’s Statement

Nicole Burt signed the following statement after her telephone interview with Mr.
Bodenbender on May 19, 2011:

I found out about the job opening at Three Chimney[]s Farm from a referral at the
unemployment office. I have a background working around horses with 6 years of
experience. About 2 months ago was when I first found out about the job. I called
and then the same day faxed my resume over to the farm. The person I was
dealing with there is LaTerri Williams. I told her that I was willing to do anything
with horses. She told me that they had no openings and were not looking at the
moment but that she would keep my resume on file. Then about 2-3 weeks ago
she contacted me about a possible opening as a foreman. She asked if I was
interested which I said I was but then I still have not heard back from her. When I
called last week to follow up she just said that her boss still has not reviewed the
resumes yet. I live in the area and have my own transportation to the job. I am still
unemployed and I am willing to accept any work available.
(GX 7 at 1).
Nicole Burt signed the following statement after her follow-up telephone interview with
Mr. Bodenbender on August 11, 2011:

Since our last conversation I have not been offered any employment by Three
Chimney’s Farm. As I said the last time they did finally call me back about a
different position they said was coming open. I said that I was interested and they
said they would call me back for an interview which they never did. Since then I
made a few follow up calls to inquire about the position. Each time they told me
that the supervisor is still looking at the resumes and would call me back which
never happened. I don’t think they are serious about hiring me. I am still
unemployed and looking for work.
(GX 7 at 2).
Michael Bodenbender’s Testimony

-8-

 Michael Bodenbender, who was an investigator at the Wage and Hour Louisville District
office, testified at the hearing on June 10, 2014. (TR at 63-220). He testified he had received
specialized training in how to investigate claims. (TR at 105). He was the investigator assigned
to investigate Respondent. Id. He testified that once he completed the primary investigation, he
gave his findings to his manager, Karen Garnett, who assessed the civil monetary penalties. (TR
at 108).
Mr. Bodenbender described the H-2A workers’ job description and pay rate, as evidenced
in Respondent’s Application for Temporary Employment Certification. (GX 1; TR at 66-67).
Mr. Bodenbender explained that the H-2A program requires an employer to certify that there are
“no U.S. workers available, ready, willing and able to do the work.” (TR at 68). Furthermore,
he said there is a “positive recruitment period where [the employer] need[s] to advertise the
position [] up until the midpoint of the contract.” Id. According to Mr. Bodenbender, if ready,
willing, and able applicants apply for the position, the employer should interview them and, if
qualified, hire them. Id. If the qualified applicants are not hired, the employer needs to
document why in its recruitment report. Id.
Mr. Bodenbender testified that Respondent advertised the position in the newspaper, as
the regulations require. (TR at 68, 124; GX 1 at 24-26). Each advertisement included a job
description, dates of employment, guaranteed work hours, rate of pay, and housing and
transportation benefits for the groom position. He explained that Respondent has transportation
obligations to corresponding workers, which are U.S. workers hired for the H-2A positions. (TR
at 70). For example, if an employee’s commute would not be reasonable, Respondent “would be
obligated to provide transportation from where that employee is located to the job site.” (TR at
70-71). Similarly, Respondent would be obligated to provide housing to corresponding workers
if they did not have a reasonable commute. (TR at 71). He explained that the H-2A workers and
corresponding employees receive the same certified housing. Id.
Mr. Bodenbender said he spoke with LaTerri Williams when he first started investigating
Respondent because she was the primary contact in charge of the H-2A program. (TR at 72,
116). His first contact with her was “anywhere between April and May,” 12 and he explained the
date on Ms. Williams’ Interview Statement, August 11, 2011, could have been incorrect due to a
clerical error. (TR at 132-134). He took handwritten notes during his initial interview with Ms.
Williams. (TR at 73, 132; GX 9 at 3). According to Mr. Bodenbender, the purpose of the initial
conference was to gather as many facts as possible. (TR at 138-139).

The Kentucky State Workforce Agency reported to Mr. Bodenbender that eight
individuals had inquired about, and were found eligible for, the groom position at Respondent’s
farm. (TR at 74; GX 4). He explained that all of the newspaper advertisements direct applicants
to the Kentucky State Workforce Agency. (TR at 204). Nicole Burt was the only individual
from that list with whom Mr. Bodenbender interviewed. (TR at 74). He stated Nicole Burt was
12

During his hearing testimony, Mr. Bodenbender explained that the date on Ms. Williams’ interview statement,
August 11, 2011, could be wrong. (TR at 132). He explained that the form he uses is a template and the date could
reflect the date he printed the statement to put it in the file, as opposed to the date of the interview. (TR at 133). On
the handwritten notes from his interview with Ms. Williams, Mr. Bodenbender wrote “4-28-2011,” indicating he
interviewed Ms. Williams in April. (GX 9 at 3).

-9-

 the only person that led to a violation, in large part because he was unable to get into contact
with the other referrals. (TR at 146). Mr. Bodenbender interviewed Ms. Burt twice via
telephone, first on May 19, 2011, and later on August 11, 2011. (TR at 75; GX 7). He testified
he followed up with Ms. Burt to ask whether Respondent had contacted her or hired her since he
had last spoken with her. (TR at 76). According to Mr. Bodenbender, Ms. Burt “indicated that
she had made follow-up calls, but she had not been interviewed or offered employment.” Id.
Mr. Bodenbender explained that because he did not have permission to use Ms. Burt’s name and
information during the investigation, he did not reference her name when he interviewed Case
Clay. (TR at 151).
Mr. Bodenbender explained that after his initial meeting with Ms. Williams, he received
and reviewed Respondent’s Recruitment Report Logs for five applicants. (TR at 77, 78; GX 5).
The logs showed that Respondent did not interview any of the applicants. (TR at 77; GX 5).
Furthermore, the logs did not state a reason for not hiring any of the applicants. Id. Mr.
Bodenbender testified that he did not receive any records showing that Respondent actually hired
U.S. workers for the groom position. (TR at 78).
In looking for violations, Mr. Bodenbender explained that 20 C.F.R. § 655.135(a)
requires Respondent to prioritize U.S. workers over H-2A workers. (TR at 83). Although
Respondent’s H-2A workers had already arrived at the farm when Ms. Burt inquired about
employment, Mr. Bodenbender explained that Respondent “had an obligation to accept the
application for employment, to conduct an interview with the employee and to either offer the
employment or decline employment and provide a legitimate reason as to why employment was
not offered.” Id. According to Mr. Bodenbender, at the midpoint of the contract, in this case on
July 8, 2011, Respondent was no longer under an obligation to hire qualified U.S. workers. Id.
Mr. Bodenbender opined that Ms. Burt had experience and expertise in the horse industry
beyond what the groom job required and she was qualified to do the job prior to July 8, 2011, the
midpoint of the contract. (TR at 84).
Mr. Bodenbender explained how he calculated the unpaid wages. (TR at 87; GX 10). He
took the hourly rate of pay for the groom position, $9.71, and the number of guaranteed hours
per week, forty, from Respondent’s Application for Temporary Employment Certification. (TR
at 87; GX 1 at 4). Mr. Bodenbender testified that interviews with employees working under
Respondent’s H-2A contract revealed they were actually working forty-eight hours per week, not
forty hours per week. (TR at 87, 175). Thus, in computing Ms. Burt’s back wages, Mr.
Bodenbender multiplied $9.71 by forty-eight to achieve a gross weekly rate of $466.08. (TR at
87). He multiplied that by “the number of weeks between the week after Ms. Burt sought
employment with the farm until the end of the contract on 11-20[,] which was a total of 35
weeks.” (TR at 88). Thus, thirty-five multiplied by $466.08 equals $16,312.80 in back wages.
(TR at 88, 176; GX 10). Mr. Bodenbender explained that Ms. Burt actually contacted
Respondent before March 27, 2011. (TR at 88). Thus, he calculated back wages from the
beginning of the week following the date Ms. Burt sought employment with Respondent. (TR at
89). Mr. Bodenbender testified he does not have the authority to calculate civil money penalties.
Id.
According to Mr. Bodenbender, interviews with employees working in corresponding
employment revealed a violation under 20 C.F.R. 655.122(q). (TR at 90; GX 3). He explained
that corresponding employees are U.S. employees doing the same work as H-2A employees.
- 10 -

 (TR at 90). According to Mr. Bodenbender, Respondent’s corresponding employees “were not
aware of the H-2A program or that they were corresponding workers and had not received a copy
of the contract and w[ere] not aware that there was an H-2A contract in place.” Id. He explained
that H-2A workers receive the contract prior to entering the U.S. (TR at 91). However, U.S.
workers are subject to the same contract. Id. Mr. Bodenbender noted that some U.S. workers
were paid less than $9.71. (TR at 92). According to Mr. Bodenbender, Ms. Williams “indicated
that not only was [the contract] not provided [to U.S. workers], but that information was
considered confidential and it’s not something that [Respondent] would wish to have the other
employees [] see.” Id. Mr. Bodenbender’s testimony is consistent with the notes he took during
his meeting with Ms. Williams. (GX 9). Mr. Bodenbender testified that he did not speak with
any workers in corresponding employment who had received either the work contract or the
Application for Temporary Employment Certification. (TR at 94, 193, 196, 199).
Mr. Bodenbender testified that the Administrator is assessing penalties for Respondent’s
failure to provide work contracts to twenty-three workers in corresponding employment. (TR at
112). He explained that although Respondent had more than twenty-three workers in
corresponding employment, only twenty-three were paid less than $9.71 per hour. (TR at 113).
Mr. Bodenbender did not have the names of all of the individuals he interviewed, and he could
not say whether he spoke to the twenty-three individuals whom he alleges did not receive work
contract. Id. However, he stated that all of the corresponding workers he interviewed “had the
same statement that they didn’t receive a copy of the contract, they weren’t aware of the
conditions, they weren’t aware of the program.” (TR at 115).
Mr. Bodenbender also spoke with Mr. Clay, “who indicated he did not have as active a
role in the H-2A program as he should have and from that point going forward, he was going to
take an active role and … make [a] point to learn the program, make sure that [Respondent]
followed the requirements of the program.” (TR at 168). Mr. Bodenbender stated he relied on
Ms. Williams’ statements because “for that period of time” she “represented the company. She
was hired by the company. She was their employee. She was their H.R. director.” (TR at 169).
He testified he had no reason to believe Ms. Williams made any false statements, as her
statements “in large part support” what he “found in other areas.” (TR at 170).
Karen Garnett’s Testimony
Karen Garnett testified at the hearing on June 11, 2014. (TR at 222-263). She is the
District Director of the U.S. Department of Labor, Wage and Hour Division, and testified
regarding the civil money penalties assessed against Respondent.

In terms of assessing penalties, Ms. Garnett explained that she reviews the file after the
investigator has completed the fact-finding and written a report. Id. She determines whether the
documentation is sufficient to support the violations the investigation revealed. (TR at 224).
After reviewing whether a penalty should be assessed for a particular violation, based on the
totality of the evidence, she considers the base penalty amount as listed in 29 C.F.R. § 501. (TR
at 224). After that, she considers mitigating factors. (TR at 225). Although she is not required
to consider mitigating factors, Ms. Garnett testified she normally does. Id.

- 11 -

 Ms. Garnett explained why she reduced the civil money penalty for failing to provide
workers a copy of the work contract from forty-eight workers to twenty-three. Specifically, she
explained that although Respondent had forty-eight workers working in corresponding
employment, she removed from the calculations the workers who earned $9.71 per hour. (TR at
223). She was not aware of any corresponding workers who were provided the work contract.
(TR at 224).
In calculating the total penalties assessed under 29 C.F.R. § 501.19(c), $31,050, Ms.
Garnett explained that she started with $1,500 per violation, as permitted by the regulations. (TR
at 229-230). After considering the first mitigating factor,13 she reduced the penalty to $1,350 per
violation because the Respondent had no prior history of violations. (TR at 230). According to
Ms. Garnett, “the mechanical way” to reduce a penalty is to decrease it by ten percent per
mitigating factor. (TR at 247).
Ms. Garnett did not apply mitigating factors two through seven because of the following:
a substantial number of employees were affected by the violation; the workers lost wages
because they did not earn $9.71 per hour; Respondent never clearly explained why the
individuals were not provided a copy of the work contract; nothing in the file or in her
discussions with Respondent suggested Respondent was trying to correct the violation; and the
workers were injured by not receiving the same wages as the H-2A workers. (TR at 230-232).
On cross-examination, Ms. Garnett explained that workers who did not receive a copy of
the work contract did not get notices about housing, transportation, compensation, and the
number of guaranteed work hours. (TR at 258). She was aware that Respondent used the
services of an attorney to assist with the H-2A application process. (TR at 252). She explained
that once Respondent learned of the violation, it could have remedied it by providing the
corresponding workers a copy of the work contract. (TR at 253-254). Ms. Garnett disagreed
that failure to provide corresponding workers a copy of the work contract was “the least serious
offense,” particularly because corresponding workers were working alongside higher paid H-2A
workers who were “doing the same type of work.” (TR at 256).

As to the $12,000 penalty imposed on Respondent for improperly rejecting a U.S.
worker, Ms. Garnett explained that she started with the maximum penalty, $15,000, as mandated
by 29 C.F.R. § 501.19(f). (TR at 226). She testified that of the mitigating factors listed in 29
C.F.R. § 501.19(b), she found that the first mitigating factor applied because Respondent had no
prior investigative history. (TR at 227). Thus, she reduced the penalty by $3,000. (TR at 229).
13

29 C.F.R. §501.19 (b) provides that in determining the penalty to be assessed for each violation, the Administrator
may consider, but is not limited to, the following mitigating factors: “(1) Previous history of violation(s) of 8 U.S.C.
1188, 20 CFR part 655, subpart B, or the regulations in this part; (2) The number of H-2A 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) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR part 655, subpart B, and the
regulations in this part;(5) Explanation from the person charged with the violation(s); (6) Commitment to future
compliance, taking into account the public health, interest or safety, and whether the person has previously violated
8 U.S.C. 1188; (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.”

- 12 -

 Ms. Garnett described why she did not apply any of the remaining mitigating factors.14
Specifically, she testified that because one worker was unlawfully rejected, the second factor, the
number of U.S. workers affected by the violation, did not apply. (TR at 227). Because of the
harm to the individual who was denied a job opportunity, Ms. Garnett opined that the third
factor, the gravity of the violation, did not apply. Id. Ms. Garnett explained that she did not
apply the fourth mitigating factor because she never got a “good” answer regarding
Respondent’s “commitment to comply with the provisions that require [it] to accept U.S.
workers that are qualified for the position.” (TR at 227-228). As to the fifth mitigating factor,
Ms. Garnett stated that she “never got a real clear answer about why [the U.S. worker] was not
accepted for employment.” (TR at 228). Ms. Garnett specified that because she “never saw a
lawful reason not to hire Ms. Burt,” she did not reduce the penalty based on the sixth mitigating
factor. (TR at 229). Finally, as to the seventh factor, Ms. Garnett stated she “felt that Ms. Burt
was harmed in … that she was denied [] the opportunity to earn wages.” Id. On crossexamination, she stated that, in her opinion, Respondent obtained “financial gain” from lower
labor costs. (TR at 249).
Ms. Garnett explained that after the investigative report showed Respondent was not
committed to either compliance or paying back wages, she held a second level conference with
Case Clay, Respondent’s President, in February of 2012. (TR at 232-233). The purpose of the
second level conference was to review all of the violations the Department found and attempt to
resolve future compliance issues. (TR at 233). Ms. Garnett testified that GX 3, the Summary of
Violations, would have been provided at the second level conference. (TR at 234).
Case Clay’s Testimony
Case Clay, President of Three Chimneys Farm, testified at the hearing on June 11, 2014.
(TR at 264-329). He explained Respondent entered into the H-2A program because of a shortage
of good workers. (TR at 265). He described that from 2010 to 2012, outside clients owned
ninety percent of the horses on the farm. (TR at 266). According to Mr. Clay, clients treat their
horses “like children.” Id. When they come from out of the state or country, they want to learn
about their horses, such as what their horses eat and what their horses’ personalities are like. Id.
Mr. Clay explained that if the employee showing the horses speaks English, the clients have a
better experience and in turn send Respondent more horses. Id. Thus, he said, having Englishspeaking employees who interact well with the clients improves his business. Id.

Mr. Clay testified that he hired an attorney with specialized experience because he
wanted assistance with program compliance. (TR at 284). He stated he instructed his managers
and human resources staff to “very strictly comply with the rules and regulations of the H-2A
visa program.” (TR at 285). Furthermore, he had “multiple meetings” with Ms. Williams,
managers, and his attorney emphasizing the need to comply with the H-2A program. (TR at
270). He explained that he “made it very clear that everybody in that room was aware of the
positive recruitment period and there were certain times of the year where we by law had to
14

See Id.

- 13 -

 accept American workers.” Id. He testified that Respondent hired two grooms, one in June of
2011 and the other in December 2011, both of whom were American workers. (TR at 271).
Respondent also hired an American and a U.S. permanent resident for foreman positions in 2011.
Id.
Mr. Clay testified that because the farm is a seasonal business, a groom position is “very
close to always” available on the farm. (TR at 268-269). According to Mr. Clay, neither Mr.
Bodenbender nor Ms. Garnett revealed Ms. Burt’s identity. (TR at 271). He said he would have
liked to have known her identity because he was “looking for American workers” and he was
“not made aware of her name specifically.” Id. Furthermore, he explained that when he was
“told that an American worker had called for the job,” he went back through his log. (TR at 272).
Although he acknowledged his memory had faded, he recalled “Ms. Williams had hand-written
the name and number of this American woman down on a Post-it note and given it to Wayne
Smith, our yearling manager. Wayne Smith called this woman and when he spoke with her, she
said, ‘I already have a job.’ He threw the Post-it note away and that was that.” Id. He testified
that had he known there was still a problem, he would have advised the management team to
contact and interview the woman. Id. Mr. Clay stated that after looking through Respondent’s
files, he never found Ms. Burt’s resume. (TR at 273).
Mr. Clay discussed Ms. Williams’ indictment for embezzlement. (TR at 288). He said
Ms. Williams’ statements in this investigation surprised him. (TR at 290). As to whether
Respondent gave a work contract to its employees, Mr. Clay said it was his “understanding that
there was no work contract.” (TR at 278).
On cross-examination, Mr. Clay reiterated that he was in charge of “overseeing the
operation and the managers of the company.” (TR at 294). He stated that during the positive
recruitment period, he was in charge of asking the managers if they were complying and hiring
American workers. Mr. Clay was asked whether he was aware that if he did not have a work
contract, the Application for Temporary Employment Certification could be used as a work
contract. (TR at 316). He responded, “No, I still don’t frankly.” (TR at 316). Furthermore, he
answered the following questions regarding Respondent’s Application for Temporary
Employment Certification:
Q: Did you read the temporary employment certification? Did you actually read
the document?
A: Did what?
Q: It’s Government Exhibit Number 1. We also refer to it as the tech. I think [it
has] been referred to. It’s the work contract. Did you read that document at the
time that it was certified in January of 2011?
A: And the document would be pages 1 through –
Q: Twenty-six.
A: Oh, all 26 pages?
Q: Did you read any of the pages?
A: Yeah, I read some of the pages.
Q: Okay, because in some of those pages, they spell out some of the regulations
and some of the requirements of the program. Is that correct?
A: Yes.
Q: Okay.
- 14 -

 (TR at 321).
Mr. Clay alleged that Respondent did not receive any financial gain by not providing the
corresponding workers a copy of the work contract. (TR at 278). In fact, he expressed he was
“experiencing financial loss.” (TR at 278-279). Furthermore, he testified that if someone had
told him to provide the contract to the workers, he would have typed the contract and given it to
them himself. (TR at 279). Furthermore, he stated he was unaware that he could have corrected
these violations while the Administrator was conducting the investigation, stating, “clearly I
would have provided a contract to avoid having to pay $60,000.” Id.
Mr. Clay confirmed that he most likely first received GX 2, the Summary of Unpaid
Wages, during his first meeting with Mr. Bodenbender. (TR at 308). Nicole Burt’s name,
address, and the amount of unpaid wages the Administrator assessed appear ninth on the
Summary of Unpaid Wages. (TR at 306; GX 2). When asked whether he had the opportunity to
look at the document and see the list of names, Mr. Clay responded, “Oh sure.” (TR at 313).
When asked whether a forty-eight hour work week was “an accurate work week” for the H-2A
workers, Mr. Clay responded “I believe so, yes.” (TR at 306).
LaTerri Williams’ Statement
Below are portions of the signed statement Ms. Williams made after her telephone
interview with Mr. Bodenbender in April of 2011:
We have 12 H2A workers as well. H2A workers are here 9 months a year from
February until November. This year H2A workers are paid [$]9.71 per hour. In
the past I think they were paid less but I would have to look to see their exact rate.
All H2A workers are paid the same [wage]. The American workers who work as
Grooms or in Maintenance are paid depending on their experience. Maintenance
workers start out at $7.74 and grooms start out at $8.00. The H2A contract is
given to the H2A workers but no one else. Since it has pay information in the
contract we keep it confidential and don’t let anyone else who works on the farm
see the contract. This year the H2A workers arrived late and did not get here until
March 5th. They started work on the 7th I believe.
…
Basically we never hire US workers who are applying but we do consider them.
What ends up happening with the H2A program is that when the ads first go in the
paper this is before the contract date to begin work. So at that time there are no
positions available. So I fill out the sheet with their name and tell them that we
have nothing open at the moment but it will be open as of the start date of the
contract. Then once the H2A workers arrive they fill all of our open positions and
we have nothing left open. So anyone who calls after the H2A workers have
arrived is told that we have no positions available. I don’t bother to fill out the
recruitment point at this time since the positions are no longer open and the H2A
workers have arrived. I don’t conduct interviews or take their applications.
Basically I just tell them we have no openings. If they have a resume I will take it

- 15 -

 though. This year we had some calls but most of the calls are always after the
H2A worker[s] ha[ve] arrived and by that time it[’]s to[o] late.”
(GX 8).
LaTerri Williams’ Affidavit
Ms. Williams testified by affidavit on June 28, 2014. She stated, in relevant part, that as
the Human Resources Director at Three Chimneys Farm in 2011, “whenever someone sent in a
resume or applied for a job,” she “made a copy of the resume and gave it to the manager and
placed another copy in the company file.” (RX 14). She stated she “did this every time.” Id.
Furthermore, she said, “[i]f anyone called more than one time seeking employment,” she “would
remember that person.” Id. She testified she did not remember Nicole Burt calling, and she did
“not believe that [Ms. Burt] called more than one time since” she did “not remember her.” Id.
Finally, Ms. Williams testified that if Ms. Burt called once, “she was not persistent in
contacting” her and “did not contact” her “on several occasions.” Id.
Wayne Smith’s Affidavit
Wayne Smith, the Yearling Manager at Three Chimneys Farm, testified by affidavit on
June 10, 2014. (RX 12). He stated Three Chimneys Farm’s management instructed him that if
“qualified U.S. workers did apply for a job, they were to be given the job over any H2A worker.”
Id. In 2011, LaTerri Williams gave Mr. Smith “a Post-It note to call a woman who might be
interested in a job as a groom at Three Chimneys Farm.” Id. Mr. Smith testified that he called
the woman back, and she said she “was not interested in the job because she found another job.”
Id. He testified he no longer has the Post-It note. Id. He stated, he “reviewed the Recruitment
sheets,” his “memory of how few U.S. workers, and even fewer female U.S. workers wanted a
job as a groom,” and “determined” that the woman he called “had to be Nic[]ole Burt.” (RX 12).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Act and regulations are silent concerning the standard of review an Administrative
Law Judge must apply in an H-2A case. However, 29 C.F.R. § 501.33 provides that any person
seeking review of the Administrator’s determination may request a hearing before an
Administrative Law Judge. Furthermore, 29 C.F.R. § 501.34(a) provides that “[e]xcept as
specifically provided in the regulations in this part, the Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law Judges established by the
Secretary at 29 CFR part 18 shall apply to administrative proceedings described in this part.”
Moreover, 29 C.F.R. § 501.34 (b) provides that as provided in the Administrative Procedure Act,
5 U.S.C. 556 “any oral or documentary evidence may be received in proceedings under this
part.” Thus, the regulations imply that the Administrative Law Judge must review the record de
novo. See Peroulis & Sons, 2012-TAE-00004, slip op. at 3 (June 2, 2014). Therefore, the
Administrator bears the burden to show by a preponderance of the evidence that its findings and
penalty assessments are reasonable. See e.g., Administrator, Wage and Hour Div. v. Pegasus

- 16 -

 Consulting Group, Inc., ARB No. 05-086, ALJ No. 2004-LCA-21, slip op. at 7 (ARB Apr. 28,
2009) (Board accepted the Administrative Law Judge’s decision to reject the assessed civil
money penalties because the Administrator failed to establish that the respondent’s violations
were willful); see also Peroulis & Sons, slip op. at 3.
Violation of 20 C.F.R. § 655.135(a)
The regulations at 20 C.F.R. § 655.135 state the following:
An employer seeking to employ H-2A workers must agree as part of the
Application for Temporary Employment Certification and job offer that it will
abide by the requirements of this subpart and make each of the following
additional assurances:
(a) Non-discriminatory hiring practices. The job opportunity is, and through the
period set forth in paragraph (d) of this section must continue to be, open to any
qualified U.S. worker regardless of race, color, national origin, age, sex, religion,
handicap, or citizenship. Rejections of any U.S. workers who applied or apply for
the job must be only for lawful, job-related reasons, and those not rejected on this
basis have been or will be hired. In addition, the employer has and will continue
to retain records of all hires and rejections as required by §655.167.
The Administrator alleges that Respondent failed to hire a qualified U.S. worker who
applied for a job at Respondent’s farm. (Secretary’s Post-Hearing Brief at 2; GX 3). As a result,
the Administrator assessed a $16,312.80 unpaid wages penalty and a $12,000 civil money
penalty. Id. Respondent alleges that both the unpaid wages penalty and the civil money penalty
are not warranted. (Brief for Respondent Three Chimneys Farm at 2).
The preponderance of the evidence supports the contention that Respondent rejected Ms.
Burt, a qualified U.S. worker, who applied for a groom position on Respondent’s farm. Nicole
Burt had ten years of experience working with horses. (TR at 25). In March of 2011, she spoke
with Ms. Williams on the phone and faxed in her resume to apply for the groom position. (TR at
26). After a follow-up conversation with Ms. Williams, Ms. Burt was never hired by
Respondent and never told why she was not hired. (TR at 27). Ms. Burt testified she was
available to work at Respondent’s farm; she had her own transportation to get to work; she had
no injuries that prevented her from working; and she was unemployed all of 2011. (TR at 3233). On both cross-examination and redirect examination, she reiterated that she would have
taken the groom job if Respondent had offered it to her. (TR at 52; TR at 60). Her statements to
Mr. Bodenbender, dated May 19, 2011, and August 11, 2011, are consistent with her hearing
testimony. (GX 7).
In addition to Ms. Burt’s testimony, Respondent’s Recruitment Report Log includes an
entry for a “Nicole Bruche.” (GX 5 at 2). The job referral came from the “unemployment
office.” Id. Telephone was listed as the method used to contact the applicant. Id. Finally, a
“NO” was written next to the question “Did you conduct an interview: YES or NO,” and nothing
was written next to “If yes, what were the results of the interview: (Hired, not hired and if not
hired what lawful reason why).” Id. Although Nicole Burt’s name was spelled incorrectly in

- 17 -

 Respondent’s Recruitment Report Log, the document weighs in favor of a finding that Nicole
Burt contacted Respondent by telephone with interest in the groom position.
Respondent argues that it never found the resume Ms. Burt faxed to Ms. Williams,
implying that Ms. Burt never applied for the groom position. (Brief for Respondent Three
Chimneys Farm at 9). In her affidavit, Ms. Williams testified that whenever she would receive a
resume, she would copy it, place it in the company file, and give it to the manager. (RX 14). In
contrast, she told Mr. Bodenbender that once the H-2A workers arrived on the farm, she did not
“bother to fill out the recruitment” log since the positions were “no longer open.” (GX 8).
Nonetheless, she said that if an applicant submitted a resume, she would have taken it. Id. Ms.
Williams’ testimony on this issue is inconsistent. In her affidavit, she stated that she would
always place a resume in the company file, but during the investigation, she told Mr.
Bodenbender that she did not “bother” to fill out the recruitment log if anyone applied after the
H-2A workers arrived. Furthermore, in her affidavit, she said she did not recall that Ms. Burt
called and she did not believe Ms. Burt called more than one time. Id. Ms. Williams then said
“if” Ms. Burt “did call once, she was not persistent,” and Ms. Burt did not contact her “on
several occasions.” Id. Even if Ms. Burt only called Ms. Williams once, the regulations did not
require Ms. Burt to call Ms. Williams several times after applying for the groom position.
Rather, Respondent had an obligation to make the position open to any qualified U.S. worker,
and Ms. Burt was qualified for the position. 20 C.F.R. § 655.135(a). I find Ms. Burt’s testimony
more credible than that of Ms. Williams. I find the preponderance of the evidence supports a
finding that Ms. Burt faxed her resume to Ms. Williams; Ms. Williams and Ms. Burt had a
follow up conversation; and Respondent never hired Ms. Burt for the groom position.
Respondent also alleges that even if Ms. Burt applied for the groom position, Mr. Smith
was under the impression she had found another job. Mr. Smith testified that he called a woman
who applied for a groom position and she said she “was not interested in the job because she
found another job.” (RX 12). He said he reviewed the recruitment sheets and his “memory of
how few U.S. workers, and even fewer female U.S. workers wanted a job as a groom” and
“determined” that the woman he called “had to be Nic[]ole Burt.” Id. However, there were three
women on the Kentucky State Workforce Agency’s list of eight individuals who had inquired
about, and were found eligible for, the groom position at Respondent’s farm. (TR at 74; GX 4).
Mr. Smith did not explain how the name on the Post-It note could not have been one of the other
women on the list, or any other woman who may not have applied through a Kentucky State
Workforce referral. Furthermore, Ms. Burt testified that she did not find other employment in
2011. (TR at 32-33).
Respondent makes various additional arguments on this issue, none of which are
persuasive. For example, it alleges that “given the length of the commute, the cost of daycare,
the loss of her eligibility for food stamps, it would cost Ms. Burt more to work for Three
Chimneys than if she did not work at all.” (Brief for Respondent Three Chimneys Farm at 9).
Furthermore, it argues that “[i]t makes no sense that someone would take a job under” the
“grueling conditions being involved in being a groom.” (Brief for Respondent Three Chimneys
Farm at 10). Respondent’s arguments are misplaced. Regardless of whether Ms. Burt would
have had a long commute or a grueling job, 20 C.F.R. § 655.135(a) placed Respondent under an

- 18 -

 obligation to interview her and hire her if she was qualified, or provide a lawful, job-related
reason for not hiring her.
Having reviewed all of the evidence of record, I find the preponderance of the evidence
demonstrates Respondent failed to hire Ms. Burt, a qualified U.S. worker, and failed to offer a
lawful, job-related reason for not hiring her. Thus, Respondent violated 20 C.F.R. § 655.135(a).
Unpaid Wages Penalty for Failing to Comply with 20 C.F.R. §655.135(a)
The Administrator assessed a $16,312.80 unpaid wages penalty for Respondent’s failure
to comply with 20 C.F.R. §655.135(a). As summarized in detail above, Mr. Bodenbender
explained how he calculated Ms. Burt’s unpaid wages. (TR at 87; GX 10). He multiplied the
hourly rate the H-2A workers received, $9.71, by forty-eight hours per week, to arrive at a gross
weekly rate of $466.08. (TR at 87, 175). Mr. Bodenbender then multiplied that amount by
thirty-five weeks, the number of weeks between the week after Ms. Burt sought employment
with Respondent until the end of the work contract on November 20, 2011. (TR at 88). Thus,
thirty-five multiplied by $466.08 equals $16,312.80 in back wages. (TR at 88, 176; GX 10). At
the hearing, Mr. Clay agreed that forty-eight hours was an accurate description of the number of
hours the H-2A workers worked each week. (TR at 306). I find that Mr. Bodenbender’s
calculation was reasonable and consistent with the evidence. Thus, I find the $16,312.80 unpaid
wages penalty the Administrator assessed is appropriate.
Civil Money Penalty for Violating 20 C.F.R. § 655.135(a)
29 C.F.R. § 501.19 (a) permits the Administrator to assess a civil money penalty “for
each violation of the work contract, or the obligations imposed by 8 U.S.C. 1188, 20 CFR part
655, subpart B, or the regulations in this part.” 29 C.F.R. § 501.19 (f) provides that a “civil
money penalty for improperly rejecting a U.S. worker who is an applicant for employment, in
violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, shall not
exceed $15,000 per violation per worker.”
Furthermore, 29 C.F.R. § 501.19 (b) permits the Administrator to consider various
mitigating factors, including: “(1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part
655, subpart B, or the regulations in this part; (2) The number of H-2A 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) Efforts made in good faith to comply with 8 U.S.C. 1188, 20
CFR part 655, subpart B, and the regulations in this part;(5) Explanation from the person charged
with the violation(s); (6) Commitment to future compliance, taking into account the public
health, interest or safety, and whether the person has previously violated 8 U.S.C. 1188; (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.” Thus, I must review the Administrator’s
consideration of the relevant mitigating factors listed in 29 C.F.R. § 501.19(b).
At the hearing, Karen Garnett explained how she reduced the maximum penalty, $15,000,
by $3,000 because Respondent had no prior investigative history. (TR at 227, 229). I find that
the Administrator’s determination to reduce the maximum penalty by $3,000 based on
Respondent’s history is both reasonable and appropriate.

- 19 -

 Ms. Garnett explained that none of the remaining mitigating factors applied. Having
reviewed all evidence of record, I agree with many of the Administrator’s assessments.
However, I note that only one individual was harmed by Respondent’s violation of 20 C.F.R. §
655.135(a). Thus, I find the mitigating factor at 29 C.F.R. § 501.19(b)(2) is applicable.
Furthermore, I find that Respondent has shown it has made efforts to comply with the
INA and the regulations. Respondent hired an attorney to assist it with the H-2A application
process. (TR at 252). Mr. Clay testified that he had “multiple meetings” with Ms. Williams,
managers, and his attorney emphasizing the need to comply with the H-2A program. (TR at
270). Wayne Smith’s affidavit corroborates Mr. Clay’s statement that he encouraged his
employees to comply with the H-2A program. (RX 12). I find that Mr. Clay’s testimony was
credible. Thus, I find the mitigating factor at 29 C.F.R. § 501.19(b)(4) is applicable.
I also find that Respondent’s explanation for the violation is reasonable. Mr. Clay
repeatedly testified that he wanted to hire U.S. workers, particularly because of their Englishlanguage skills. (TR at 266, 271). He said English speakers are better able to communicate with
clients, which in turn improves his business. He testified that after looking through
Respondent’s files, he never found Ms. Burt’s resume. (TR at 273). Furthermore, he said that
had he known there was a problem, he would have advised the management team to contact and
interview the applicant. (TR at 272). I find that Mr. Clay’s testimony demonstrates he was
invested in hiring U.S. workers and made efforts to comply with the H-2A program. Thus, I find
the mitigating factor at 29 C.F.R. § 501.19(b)(5) is also applicable.
In sum, Respondent’s violations only affected one individual. Furthermore, Respondent
stated it has a dedicated interest in hiring U.S. workers and it has made efforts to comply with the
INA and the regulations. Having carefully considered all of the mitigating factors, I find that
three additional mitigating factors are applicable. After applying the first mitigating factor listed
in 29 C.F.R. § 501.19(c), the Administrator reduced the penalty by $3,000. Thus, applying three
additional mitigating factors, I reduce the penalty by an additional $9,000. I find that a $3,000 15
civil money penalty is both reasonable and appropriate for Respondent’s violation of 20 C.F.R. §
655.135(a).
Violation of 20 C.F.R. § 655.122(q)
The regulations at 20 C.F.R. § 655.122(q) state the following:
(q) Disclosure of work contract. The employer must provide to an H-2A worker
no later than the time at which the worker applies for the visa, or to a worker in
corresponding employment no later than on the day work commences, a copy of
the work contract between the employer and the worker in a language understood
by the worker as necessary or reasonable. For an H-2A worker going from an H2A employer to a subsequent H-2A employer, the copy must be provided no later
than the time an offer of employment is made by the subsequent H-2A employer.
At a minimum, the work contract must contain all of the provisions required by
15

A $12,000 civil money penalty assessed by the Administrator minus $9,000 equals a $3,000 civil money penalty.

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 this section. In the absence of a separate, written work contract entered into
between the employer and the worker, the required terms of the job order and the
certified Application for Temporary Employment Certification will be the work
contract.
The Administrator alleges that Respondent failed to provide twenty-three workers in
corresponding employment a copy of the work contract, as required by 20 C.F.R. § 655.122(q).
(Secretary’s Post-Hearing Brief at 3; GX 3). Accordingly, the Administrator assessed a $31,050
civil money penalty. Respondent argues insufficient evidence exists to show that the twentythree workers were not given copies of the work contract, and further alleges that 20 C.F.R. §
655.122(q) is unconstitutionally vague and overbroad.16 (Brief for Respondent Three Chimneys
Farm at 13, 16).
The parties have stipulated that there were twenty-three workers in corresponding
employment during the 2011 contract period. (JX-1 at 3). The regulations define corresponding
employment as:
The employment of workers who are not H-2A workers by an employer who has
an approved H-2A Application for Temporary Employment Certification in any
work included in the job order, or in any agricultural work performed by the H2A workers. To qualify as corresponding employment the work must be
performed during the validity period of the job order, including any approved
extension thereof.
20 C.F.R. § 655.103(a)(b)(3).
The preponderance of the evidence establishes that Respondent violated §20 C.F.R.
655.122(q). Both Mr. Bodenbender and Ms. Garnett explained that although Respondent had
forty-eight workers working in corresponding employment, only twenty-three earned less than
$9.71 per hour, which is the amount the H-2A workers earned. (TR at 113, 223). Mr.
Bodenbender testified that he interviewed workers in corresponding employment and found they
“were not aware of the H-2A program or that they were corresponding workers and had not
received a copy of the contract and w[ere] not aware that there was an H-2A contract in place.”
16

As to Respondent’s argument that 20 C.F.R. § 655.122(q) is unconstitutional, I note that Administrative Law
Judges are neutral fact finders who apply the law and regulations as interpreted by the agency. See Bolton Spring
Farm, 2008-TLC-00028 (BALCA May 16, 2008); Gibas v. Saginaw Mining Co., 748 F.2d 1112 (6th Cir. 1984). If a
party seeks “to overturn an agency decision because it has acted ultra vires in terms of creating and promulgating
regulations, interpreting statues, or constitutional constraints,” it must resort to Article III courts. Peroulis & Sons,
2012-TAE-00004, slip op. at 29 (Oct. 23, 2014). Here, the regulations require the Employer to provide a
corresponding worker a copy of the work contract no later than on the day work commences. 20 C.F.R. §
655.122(q). In the preamble to the final H-2A regulation, the Department clarified that “[f]or a worker in
corresponding employment, a copy [of the work contract] needs to be provided no later than the day on which work
begins, although employers may be obligated to provide written disclosure sooner to migrant or seasonal agricultural
workers covered by MSPA [Migrant and Seasonal Agricultural Worker Protection Act].” 75 Fed. Reg. 6,916 (Feb.
12, 2010). Based on the plain language of the regulation and the preamble to the final regulation, I find the agency
intended 20 C.F.R. § 655.122(q) to apply to both H-2A workers and corresponding workers. Thus, I find that
Respondent was obligated to provide a copy of the work contract to all corresponding workers.

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 (TR at 90). He said he did not speak with any workers in corresponding employment who had
received either the work contract or the Application for Temporary Employment Certification.
(TR at 94, 193, 196, 199). Mr. Bodenbender acknowledged he did not have the name of every
individual he interviewed, and he could not say whether he spoke to the twenty-three individuals
whom the Administrator alleges did not receive a work contract. (TR at 113). Nonetheless, he
stated that all of the corresponding workers he did interview “had the same statement” that they
were not aware of the contract conditions or the H-2A program and they did not receive a copy
of the contract. (TR at 115). Similarly, Ms. Garnett was not aware of any corresponding
workers who received a copy of the work contract. (TR at 224).
Statements from Ms. Williams provide further evidence that Respondent failed to provide
the corresponding workers a copy of the work contract. According to Mr. Bodenbender, Ms.
Williams “indicated that not only was [the contract] not provided [to U.S. workers], but that
information was considered confidential and it’s not something that [Respondent] would wish to
have the other employees [] see.” (TR at 92). Ms. Williams’ statement implies that no
employees other than the H-2A workers received a copy of the work contract.
Finally, Mr. Clay’s testimony establishes that Respondent did not even have an H-2A
work contract. When asked whether Respondent gave work contracts to employees, Mr. Clay
said it was his “understanding that there was no work contract.” (TR at 278). Moreover, when
asked whether he was aware that, in the absence of a work contract, he could have given the
corresponding workers a copy of the Application for Temporary Employment Certification, as
permitted by 20 C.F.R. § 655.122(q), Mr. Clay responded, “No, I still don’t frankly.” (TR at
316). Mr. Clay’s testimony weighs in favor of a finding that even if Respondent did not have a
work contract, it did not give corresponding workers a copy of the Application for Temporary
Employment Certification.
Based on the foregoing, and having reviewed all evidence of record, I find the
Administrator has proven by a preponderance of the evidence that none of the corresponding
workers at Respondent’s farm received a copy of the work contract or, in the alternative, a copy
of the Application for Temporary Employment Certification. Thus, Respondent violated 20
C.F.R. § 655.122(q).
Civil Money Penalties for Violating 20 C.F.R. § 655.122(q)
The regulations at 29 C.F.R. § 501.19 (c) provide that the Administrator may assess “a
civil money penalty for each violation of the work contract or a requirement of 8 U.S.C. 1188, 20
CFR part 655, subpart B, or the regulations in this part will not exceed $1,500 per violation,”
with two exceptions that are inapplicable to this case.
At the hearing, Karen Garnett explained how she assessed a $31,050 civil money penalty
for Respondent’s violation of 20 C.F.R. § 655.122(q). (TR at 229-230). She started with $1,500
per violation, as permitted by the regulations. After considering the first mitigating factor, she
reduced the penalty to $1,350 per violation because the Respondent had no prior violations. (TR
at 230).

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 Ms. Garnett did not apply mitigating factors two through seven because a substantial
number of employees were affected by the violation; the workers lost wages because they did not
earn $9.71 per hour; Respondent never provided a clear explanation as to why the individuals
were not provided a copy of the work contract; nothing in the file or in her discussions with
Respondent suggested it was trying to correct the violation; and the workers were injured by not
receiving the same wages that the H-2A workers earned. (TR at 230-232).
Having reviewed all evidence of record, I agree with many of the Administrator’s
assessments. A large number of workers, twenty-three, were affected by the violation, and many
were financially harmed by reduced wages. Furthermore, I agree with Ms. Garnett’s testimony
that the work contract is vital because it includes information regarding wages, housing,
guaranteed hours, and transportation. (TR at 258).
However, I find that the Administrator’s assessment of $1,350 per worker is
unreasonable.17 In this case, Mr. Clay hired an attorney to assist with H-2A program
compliance. (TR at 284, 285). Respondent has shown a dedicated interest in abiding by the INA
and the regulations. Thus, I find the mitigating factor at 29 C.F.R. § 501.19(b)(4) is applicable.
Furthermore, the evidence of record suggests that Ms. Williams made numerous errors in
the administration of the H-2A program. Although Respondent undoubtedly needed better
oversight of the H-2A program, Mr. Clay’s explanation of the violations suggests that none of
the violations were made with intent to harm the corresponding workers. Thus, I find the
mitigating factor at 29 C.F.R. § 501.19(b)(5) is applicable.
Additionally, Mr. Clay testified Respondent did not receive a financial gain by failing to
give the corresponding workers a copy of the work contract. (TR at 278). Rather, he said the
violation has cost him a great deal of financial loss. (TR at 278-279). Thus, I find the mitigating
factor at 29 C.F.R. § 501.19(b)(7) is applicable.
Finally, I note that the list of mitigating factors at 29 C.F.R. § 501.19(b) is not
comprehensive. Mr. Clay’s testimony clarifies that the reason for Respondent’s violation was a
lack of knowledge of the H-2A program requirements. He testified that had he been aware of the
penalties for not providing the work contract, he would have immediately given the contract to
the corresponding workers. (TR at 279). As discussed, I find that Mr. Clay’s testimony was
credible. Thus, I consider this an additional mitigating factor.

Having considered all of the mitigating factors listed in 29 C.F.R. § 501.19(c), in addition
to other factors, I have found that four additional mitigating factors are applicable. After
applying the first mitigating factor listed in 29 C.F.R. § 501.19(c), the Administrator reduced the
penalty by $150 per violation, from $1,500 to $1,350. Thus, I hereby reduce the $1,350 penalty
by an additional $600, for a total penalty of $750 per violation. The parties have stipulated, and I
17

See Theaders Hall, 92-TAE-00005, slip op. at 3 (Sept. 21, 1992) (Administrative Law Judge held penalty for
failure to provide work contract was harsh, and reduced it from $50.00 to $25.00 per worker); see also Global
Horizons Manpower, 2009-TAE-00002, slip op. at 18 (Dec. 2, 2011) (Administrative Law Judge held penalty of
$100 per worker for failure to provide work contract was proper).

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 agree, that Respondent employed twenty-three workers in corresponding employment during the
2011 contract period. (JX-1 at 3). I find that a $17,25018 civil money penalty is both reasonable
and appropriate for Respondent’s violation of 20 C.F.R. 655.122(q).
Accordingly, I find Respondent owes a $17,250 civil money penalty for violating
§655.122(q).
ORDER
1. The Consent Findings and Order are hereby adopted and APPROVED in their entirety;
2. The assessed violations under 20 C.F.R. § 655.135(a) and § 655.122(q) are AFFIRMED;
3. Respondent is HEREBY ORDERED to pay a $16,312.80 in unpaid wages to the
Administrator for delivery to Nicole Burt for failing to comply with 20 C.F.R.
§655.135(a);
4. Respondent is HEREBY ORDERED to pay a $3,000 civil money penalty to the
Administrator for violating §655.135(a); and
5. Respondent is HEREBY ORDERED to pay a $17,250 civil money penalty to the
Administrator for violating 20 C.F.R. § 655.122(q).

Digitally signed by Larry Merck
DN: CN=Larry Merck,
OU=Administrative Law Judge, O=Office
of Administrative Law Judges,
L=Cincinnati, S=OH, C=US
Location: Washington DC

LARRY S. MERCK
Administrative Law Judge

NOTICE OF APPEAL RIGHTS:
To appeal, you must file a Petition for Review (“Petition”) that is received by the Administrative
Review Board (“Board”) within thirty (30) days of the date of issuance of the administrative law
judge’s decision. See 29 C.F.R. § 501.42(a). The Board’s address is: Administrative Review
Board, U.S. Department of Labor, Suite S-5220, 200 Constitution Avenue, NW, Washington,
DC 20210. The Respondent, Administrator, or any other party desiring review of the
18

Twenty-three violations multiplied by $750 per violation equals a $17,250 civil money penalty.

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 administrative law judge’s decision may file a Petition. 29 C.F.R. § 501.42(a). Once an appeal is
filed, all inquiries and correspondence should be directed to the Board.
At the time you file the Petition with the Board, you must serve it on all parties to the case as
well as the administrative law judge. 29 C.F.R. § 501.42(a).
If no Petition is timely filed, or the ARB does not accept the Petition for review, the
administrative law judge’s decision becomes the final agency action. See 29 C.F.R. §501.42(a).
Even if a Petition is timely filed, the administrative law judge’s decision becomes the final order
of the Secretary of Labor unless the Board issues an order within thirty (30) days of the date the
Petition is filed notifying the parties that it has accepted the case for review. See 29 C.F.R. §
501.42(a).

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