Administrator, Wage and Hour Div., USDOL v. GoldStar Amusements, Inc.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
ADMINISTRATOR, WAGE AND HOUR
DIVISION, UNITED STATES
DEPARTMENT OF LABOR,
PROSECUTING PARTY,
v.
GOLDSTAR AMUSEMENTS, INC. AND
LEE’S CONCESSIONS, INC.,
RESPONDENTS.
ARB CASE NOS. 2024-0033
2024-0046
ALJ CASE NOS. 2021-TNE-00027,
2021-TNE-00028
ALJ STEVEN D. BELL
DATE: August 31, 2026
Appearances:
For the Prosecuting Party:
Seema Nanda, Esq., Jennifer S. Brand, Esq., Sarah K. Marcus, Esq.,
Rachel Goldberg, Esq., Shelley E. Trautman, 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 March
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 (2026).

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13, 2024, an Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.)
finding that Respondents GoldStar Amusements, Inc. (GoldStar) and Lee’s
Concessions, Inc. (Lee’s) violated provisions of the INA.3 Both Respondents and the
Administrator for the Wage and Hour Division (WHD) of the U.S. Department of
Labor (DOL) appealed to the Administrative Review Board (Board). For the
following reasons, we affirm in part, vacate and modify in part, and vacate and
remand in part.
BACKGROUND
Respondent GoldStar Amusements, Inc. (GoldStar) is an amusement
company that operates carnivals and fairs and is owned by Michael Featherston.4
Respondent Lee’s Concessions, Inc. (Lee’s) provides food and games at carnivals and
fairs and is owned by Connie Featherston, Michael Featherson’s wife.5 Both have
offices in Minnesota.6
Respondents operate seasonally.7 GoldStar and Lee’s frequently, but not
always, presented at the same shows.8 The season typically began in February in
Texas, moved north to Minnesota for the summer, and then retreated to Louisiana
in the fall.9 Peak attendance was during the summer.10
In 2016, GoldStar employed 29 H-2B workers and Lee’s employed 34 H-2B
workers.11 In 2017, GoldStar employed 38 H-2B workers and Lee’s employed 35
3 D. & O. at 1.
4 Id. at 12.
5 Id.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id. at 12-13.
11 Id. at 13.

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H-2B workers.12 Respondents recruited H-2B workers from the Republic of South
Africa.13 Respondents also employed U.S. workers.14
During the summer of 2017, the Administrator began investigating
Respondents.15 Six WHD investigators visited Respondents’ site on August 2,
2017.16 They toured the worksite and interviewed approximately half of
Respondents’ H-2B workers and Melissa Erasmus, who handled payroll.17
On September 16, 2020, the WHD issued a Determination Letter, finding that
during the 2016 and 2017 seasons Respondents committed the following violations:
1. Substantially failed to comply with the prohibition against preferential
treatment of foreign workers in violation of Attestation 4;
2. Substantially failed to pay H-2B workers the wages listed on their
respective I-129 Petitions in violation of Attestation 5;
3. Substantially failed to comply with their respective statements of
temporary need in violation of Attestation 12;
4. Substantially failed to comply with the requirement to provide their
workers with accurate earnings statement in violation of Attestation 17;
5. Substantially failed to pay the outbound travel costs of their H-2B
workers in violation of Attestations 17 and 18; and
6. Substantially failed to pay the inbound travel costs of their H-2B
workers in violation of Attestations 17 and 18.18
Respondents requested a hearing before an ALJ with the Office of
Administrative Law Judges (OALJ), and the matter was assigned to the ALJ on
September 13, 2021.19 With the ALJ’s permission, the Administrator amended the
12 Id.
13 Id.
14 Id. at 19 n.67.
15 Id. at 3.
16 Id.
17 Id.
18 Id. at 3-4.
19 Id. at 4.

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Determination letter on two occasions.20 On October 25, 2021, the Administrator
amended the Determination Letter and reduced back wages related to the alleged
overtime violation; recalculated back wages for GoldStar to include August 8, 2017
to November 14, 2017; recalculated back wages for Lee’s to include August 8, 2017
to November 13, 2017; recalculated back wages for both Respondents to conform
with the Deputy Administrator’s policy against providing credits for overpayments
in some workweeks to cover underpayments in other workweeks; and increased the
Civil Money Penalties (CMPs) due to the increase in back wages associated with
removing credits.21 On October 19, 2022, the Administrator amended the
Determination Letter again to recalculate back wages for GoldStar to five workers
for 2016 and 2016 to correct prior computational errors; removed Missouri state
overtime premiums from the back wages owed under GoldStar’s 2016 TEC and
Lee’s 2017 TEC to correct for instances where nine workers were erroneously double
counted as working for both; and reduced CMPs assessed against GoldStar in 2016
and Lee’s in 2017 to account for these reductions.22
The ALJ held a hearing beginning on January 23, 2023, and resuming on
July 5-11, 2023.23 On March 13, 2024, the ALJ issued a D. & O. finding that
Respondents violated the INA.24 Specifically, the ALJ made the following findings:
1. Respondents did not violate the prohibition against preferential
treatment to foreign workers;25
2. Respondents failed to pay the prevailing wage in 2016 and 2017;26
3. GoldStar did not substantially fail to comply with the periods of
temporary need in 2016 and 2017 and Lee’s did not substantially fail
20 Id.
21 Id. at 4-5.
22 Id. at 5.
23 Id. at 11.
24 Id. at 1, 62-63.
25 Id. at 26.
26 Id. at 37-38.

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to comply with the periods of temporary need in 2016 but
substantially failed to comply in 2017,27
4. Respondents substantially failed to comply with the requirement to
provide their workers with accurate earnings statements;28
5. Respondents substantially failed to pay the outbound travel costs of
H-2B workers in 2016 and 2017;29 and
6. Respondents substantially failed to pay the inbound travel costs of
H-2B workers in 2016 and 2017.30
The ALJ ordered GoldStar to pay $98,254.57 in back wages and $32,516.00 in
CMPs and ordered Lee’s to pay $47,988.78 in back wages and $31,068.10 in CMPs.31
The ALJ also directed the parties to confer and create a plan for implementing the
ALJ’s order.32
Both parties petitioned the Board to review the D. & O.
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.33
The Board reviews an ALJ’s decision de novo34 and acts with “all the powers
[the Secretary] would have in making the initial decision.”35
27 Id. at 50.
28 Id. at 54-56.
29 Id. at 61.
30 Id.
31 Id. at 62-63.
32 Id. at 63.
33 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).
34 Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Ace Amusements, ARB Nos. 2024-
0019, -0036, ALJ Nos. 2022-TNE-00015, -00016, slip op. at 4 (ARB June 9, 2026) (citations
omitted).
35 Id. (citing 5 U.S.C. § 557(b)); 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)

6
DISCUSSION
Upon review of the D. & O., the parties’ arguments, and the record, the
Board: (1) affirms the ALJ’s findings on all violations; (2) affirms the ALJ’s
determination that Respondents are liable to pay back wages for the failure to pay
the prevailing wage in 2016 and 2017, but vacates the ALJ’s computation and
remands to recalculate the amount of back wages and CMPs Respondents owe; and
(3) modifies the CMPs for Respondents’ substantial failure to provide workers with
accurate earnings statement and increase the CMPs by an additional $4,000.36
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.37
(citing Talukdar v. U.S. Dep’t of Veterans Affairs, ARB No. 2004-0100, ALJ No. 2002-LCA-
00025, slip op. at 8 (Jan. 31, 2007) (the Board applies de novo review in INA cases)).
36 In addition to the arguments set forth below, Respondents make two additional
arguments. Neither of the arguments alter our conclusion. First, Respondents contend that
the ALJ improperly excluded portions of testimony from their advisor, Kathy Pierce,
arguing that her testimony was relevant to her state of mind. Respondents’ (Resp.) Opening
Brief (Br.) at 36. However, we agree with the Administrator that the ALJ did not abuse his
discretion in determining that Pierce’s testimony was not necessary and that he wanted to
make determinations on Respondents’ states of mind based on testimony of their
employees. Administrator’s (Adm’r) Response Br. at 48. Second, Respondents raise
constitutional arguments regarding the Department of Labor’s authority to enforce the
H-2B regulations. Id. at 40. 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. Ace Amusements, ARB Nos. 2024-0019, -0036,
slip op. at 5 n.25.
37 8 U.S.C. § 1101(a)(15)(H)(ii)(b); 29 C.F.R. § 503.1(a).

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Under the H-2B program’s regulations, employers seeking to employ H-2B
workers must obtain a certification from the DOL.38 To obtain a certification, the
employer must file the ETA Form 9142B, Application for Temporary Employment
Certification (TEC) with the DOL’s Office of Foreign Labor Certification (OFLC).39
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.40 The regulations require an employer to abide by conditions that relate
to, among other things, non-discriminatory hiring practices, prohibitions 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.41
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.42 The employer must submit a Job
Order to the State Workforce Agency (SWA) serving each geographical area of
intended employment listed in the TEC.43 A Job Order is a document containing all
the material terms and conditions of employment for the position(s) for which H-2B
workers are sought.44 The employer must also advertise the position(s) to U.S.
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.”45 The employer must offer the same wage and other benefits and terms
and conditions of employments to U.S. workers that it will offer H-2B workers.46
38 29 C.F.R. § 503.1; 20 C.F.R. § 655.1.
39 Id. § 655.15.
40 Id. § 655.18; 29 C.F.R. § 503.19(d).
41 20 C.F.R. § 655.20; 29 C.F.R. §§ 503.16, 503.17.
42 20 C.F.R. § 655.40(a).
43 Id. § 655.16(a)(1).
44 Id. § 655.5.
45 Id. § 655.41(b)(2).
46 Id. § 655.18.

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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).47 To be “substantial,” the employer’s failure must be both (1) “willful,” and
(2) “a significant deviation from the terms and conditions of [the H-2B Forms].”48
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.”49 In determining whether a violation is significant, the
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.50
The ALJ found that Respondents committed the following violations:
(1) Respondents substantially failed to pay the prevailing wages in 2016 and 2017;51
(2) Lee’s substantially failed to comply with the periods of temporary need in 2017
for a portion of its H-2B workers;52 (3) Respondents substantially failed to comply
with the requirement to provide their workers with accurate earnings statements;53
(4) Respondents substantially failed to pay the inbound transportation costs of their
47 8 U.S.C. § 1184(c)(14)(A); 29 C.F.R. § 503.19(a)(2).
48 29 C.F.R. § 503.19(a)(2).
49 Id. § 503.19(b).
50 Id. § 503.19(c).
51 D. & O. at 37-38.
52 Id. at 50-51.
53 Id. at 54-56.

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H-2B workers in 2016 and 2017;54 and (5) Respondents substantially failed to pay
the outbound transportation costs of their H-2B workers in 2016 and 2017.55
The ALJ found that Respondents did not give preferential treatment to foreign
workers for truck driving or for the two workers who started late56 and that
GoldStar did not substantially fail to comply with their respective statements of
temporary need.57
A. Respondents Violated Five 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 violations
listed above.58 Respondents argue that the willfulness standard set forth in
McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) (Richland Shoe Co.) requires
the Administrator to prove an employer’s specific and subjective knowledge of legal
issues or violations, and that the ALJ erred in finding Respondents’ actions were
willful.59 Respondents contend that an employer must possess actual knowledge or
awareness of a violation, citing the 2017 Davis Bacon and Related Acts definition of
“willfulness.”60 Respondents further argue that a violation cannot be willful when
an employer complied in good faith, repeatedly citing to the Fair Labor Standards
Act (FLSA), and contend that they acted in good faith and had a reasonable basis
for their actions.61
We disagree. The Board recently addressed this precise issue in Ace
Amusements and observed that, pursuant to Richland Shoe Co., a violation of the
54 Id. at 61.
55 Id.
56 Id. at 25-26.
57 Id. at 46-51.
58 Resp. Opening Br. at 14-28.
59 Id. at 14-15.
60 Id. (citing J.D. Eckman, Inc., ARB No. 2017-0023, ALJ No. 2015-DBA-00030, slip op.
at 6 (ARB July 9, 2019) (“In re Disputes Concerning the Payment of Prevailing Wages and
Overtime Pay”).
61 Id. at 17-22.

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FLSA is willful when “the employer either knew or showed reckless disregard for
the matter of whether its conduct was prohibited by statute.”62 The H-2B
regulations define a “willful” violation as one that “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.”63 This definition is consistent with the
longstanding definition in Richland Shoe Co.64
Respondents’ reliance on the FLSA also bears little relevance here.65
One critical factor in the 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].”66 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.67
Likewise, Respondents’ reliance on the 2017 DBRA regulations also bears
little relevance.68 The 2017 DBRA regulations applied an “aggravated or willful”
standard, which was defined as “voluntary, deliberate, intentional, and not
negligent.”69 Unlike the 2017 DBRA regulations, the H-2B’s definition of
62 Ace Amusements, ARB Nos. 2024-0019, -0036, slip op. at 8 (citing Richland Shoe Co.,
486 U.S. at 133).
63 29 C.F.R. § 503.19(b).
64 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.).
65 See Ace Amusements, ARB Nos. 2024-0019, -0036, slip op. at 8.
66 80 Fed. Reg. at 24086-87.
67 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).
68 Respondents’ Opening Br. at 15 (citing J.D. Eckman, Inc., ARB No. 2017-0023,
slip op. at 6).
69 29 C.F.R. § 5.12(a)(1). We note that the DBRA regulations have since been amended.

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“willfulness” includes a showing of “reckless disregard for the truthfulness of its
representation or for whether its conduct satisfies the required conditions.”70
Under the H-2B regulations, “reckless disregard” does not require specific intent.71
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) Respondents substantially failed to pay the prevailing
wages in 2016 and 2017; (2) Lee’s substantially failed to comply with the periods of
temporary need in 2017 by staggering the arrival of eleven of their H-2B workers;
(3) Respondents substantially failed to comply with the requirement to provide their
workers with accurate earnings statements; (4) Respondents substantially failed to
pay the inbound transportation costs of their H-2B workers in 2016 and 2017; and
(5) Respondents substantially failed to pay the outbound transportation costs of
their H-2B workers in 2016 and 2017.72
B. Respondents Did Not Give H-2B Workers Preferential Treatment
Attestation 4 of the TEC and 29 C.F.R. § 503.16(q) prohibits employers from
offering terms, wages, and working conditions to U.S. workers that are less
favorable than those that the employer is offering, intends to offer, or will offer to
H-2B workers or impose restrictions or obligations on U.S. workers that are not also
imposed on foreign workers.
70 29 C.F.R. § 503.19(b).
71 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).
72 The Administrator also contends that the ALJ erred in finding that GoldStar did not
substantially fail to comply with its stated period of temporary need in 2017. Adm’r
Opening Br. at 34-38. However, we find that the ALJ’s analysis is well-reasoned and
supported by the record. As the ALJ found, visa delays contributed in part to the delayed
ability of Respondent’s H-2B workers to begin employment, and all GoldStar’s H-2B
employees were on the job by March 24, 2017, which was during the slower part of their
season. D. & O. at 43-49. Thus, we affirm the ALJ’s conclusion that GoldStar did not
substantially fail to comply with their stated period of temporary need in 2017.

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i. Respondents Did Not Substantially Fail to Comply with the Prohibition
Against Giving H-2B Workers Preferential Treatment for the Failure to
Disclose the Potential to Earn Extra Pay for Driving Trucks
In 2016 and 2017, Respondents sought to hire H-2B workers for one job title:
traveling carnival attendant.73 Respondents had approximately ten trucks for which
they needed drivers.74 Neither the recruitment ads nor the Job Orders indicated
that driving was a potential job duty.75 Respondents did not recruit any workers,
U.S. or foreign, whose job was to primarily drive trucks; they only hired traveling
carnival attendants.76 In 2016, eighteen employees had CDLs, of which seven were
H-2B workers and eleven were U.S. workers.77 The record does not indicate what
percentage of trucks were driven by U.S. workers as compared to H-2B workers.78
Michael Featherston testified that workers could earn extra wages per week for
driving79 and some workers testified that they were told they would receive a
driving bonus at the end of the season.80 However, the record does not show that
any worker received extra weekly wages for driving, and shows that only two
workers received a driving bonus at the end of the season amounting to $1,250
and $1,850.81
The ALJ determined that Respondents did not substantially violate the
prohibition against preferential treatment of foreign workers. The ALJ determined
that Attestation 4 does not define the point in time at which the “job offer” of the
wages or terms of employment is made.82 The ALJ found that the Administrator did
73 D. & O. at 23.
74 Id.
75 Id. at 24.
76 Id.
77 Id. at 19-20.
78 Id. at 23.
79 Id. at 19.
80 Id. at 15-16, 21.
81 Joint Exhibit (JX) 17 at 7, 78.
82 D. & O. at 20.

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not prove that there were actually any U.S. workers who did not pursue the
minimum wage traveling carnival attendant position because of the failure to
disclose the possible extra pay for driving duties in the Job Order.83 He was not
persuaded that a more accurate description would have caused any U.S. worker to
be enticed by the position given that commercial truck drivers typically earn more
than minimum wage.84 The ALJ found that payroll records did not show that
drivers earned a higher hourly wage or received any additional compensation on a
weekly basis.85 Lastly, since only ten percent of workers drove trucks, the ALJ
found that this failure was not a substantial violation.86
The Administrator contends that the ALJ erred in concluding that
Respondents did not violate this provision.87 The Administrator asserts that drivers
earned an extra $20-45 per week and up to a $1,850 bonus at the end of the season
for driving.88 The Administrator acknowledges that once Respondents hired H-2B
and U.S. workers, they offered both groups of workers with driver’s license the
opportunity to drive and earn extra money.89 However, the Administrator contends
that Respondents were required to offer this benefit to U.S. workers during
recruitment, and that by not doing so, Respondents frustrated the requirement that
employers demonstrate that there were not sufficient qualified U.S. workers
available to do the job.90 The Administrator further contends that the ALJ’s
reasoning that U.S. workers would not have been enticed by the opportunity even if
Respondents had disclosed the potential to earn extra in the recruitment materials
was speculative.91 The Administrator also contends that the ALJ erred in reasoning
that WHD must procure a U.S. worker who was actually harmed because the
83 Id. at 22.
84 Id.
85 Id. at 23-24.
86 Id. at 25.
87 Adm’r Opening Br. at 27-31.
88 Id. at 29.
89 Id.
90 Id. at 30.
91 Id. at 30-31.

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prohibition against preferential treatment presumes that U.S. workers are harmed
when H-2B workers are offered better pay and benefits.92
Respondents counter that the Administrator failed to show that they
substantially failed to comply with this provision.93 Respondents contend that the
regulations do not specify what constitutes a job offer, state where and when a job
offer must be disclosed, or indicate to whom the job offer must be provided.94
Respondents also assert that they disclosed that “[h]ours . . . vary . . . [w]ork needs
(i.e. hours . . .) vary. Work needs subject to industry practice . . . extra hours as
required” in the Job Orders.95 Respondents state that the Administrator has not
cited to a requirement to itemize each and every reason why “extra hours” may be
available, and contend that they could not anticipate every such reason.96
Respondents also contend that stating “extra hours” were available sufficiently
conveyed that extra money was available for additional tasks, including driving.97
Respondents further contend that, even if they were required to disclose driving as
one of the reasons for “extra hours,” the omission was not significant because it is
speculative to assume U.S. workers would have applied, driving is industry practice
for a traveling carnival, the driving time was insignificant, the number of workers
affected was low, and the additional wages were insubstantial.98
The regulations require that all the material terms and conditions of
employment, including wages, working conditions, and benefits that are required to
be in the Job Order also be placed in the Job Order.99 The regulations further
92 Id. at 31.
93 Resp. Response Br. at 2-7.
94 Id. at 2.
95 Id. at 4.
96 Id.
97 Id.
98 Id. at 5-6.
99 See 29 C.F.R. §503.4; 20 C.F.R. § 655.5 (defining the “job offer” as an “offer made by
an employer or potential employer of H-2B workers to both U.S. and H-2B workers
describing all the material terms and conditions of employment, including those relating to
wages, working conditions, and other benefits” and the “Job Order” as “the document
containing the material terms and conditions of employment relating to wages, hours,

15
require that all recruitment efforts “contain terms and conditions of employment
that are not less favorable than those offered to the H-2B workers and, at a
minimum, must comply with the assurances applicable to Job Orders.”100
Here, Respondents failed to disclose the potential to earn extra wages for
driving in the Job Order, as well as the recruitment materials.101 Michael and
Connie Featherston signed the 2016 and 2017 TECs under penalty of perjury,
attesting to their knowledge of, and agreeing to comply with, the terms and
conditions of the H-2B program.102
We agree with the Administrator that the ALJ erred in his reasoning that the
Administrator must prove that there were U.S. workers who were deterred from
applying for the position because of Respondents’ failure to include the driving
bonus in the Job Order and recruitment materials to establish harm. The Board has
held that U.S. workers are harmed when H-2B workers are offered better pay
and/or benefits than U.S. workers.103 In addition, the ALJ’s opinion that U.S. truck
drivers were unlikely to be interested in the job opportunity is both speculative and
contrary to his finding that eleven of Respondents’ U.S. workers had CDLs.104
However, while we disagree with the ALJ’s reasoning, we agree with his
conclusion that Respondents’ failure was not substantial. Recently, in Ace
Amusements, the Board held that the employer, who also operated a traveling
carnival, substantially failed to comply with the H-2B program’s requirements for
working conditions, worksite and other benefits, including obligations and assurances”
required under the H-2B program).
100 Id. at § 655.41.
101 D. & O. at 24.
102 Id.
103 Ace Amusements, ARB Nos. 2024-0019, -0036, slip op. at 13, 13 n.85; 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); see also 80 Fed.
Reg. at 24062 (“So long as the employer offers U.S. workers at least the same level of
benefits, wages, and working conditions as will be provided to the H-2B workers, the
employer will be in compliance with [the prohibition against preferential treatment].”).
104 D. & O. at 22.

16
failing to disclose driving as a job duty and the potential to earn more.105 There, the
employer paid every driver an extra $50 per week, the employer had specifically
recruited foreign workers with CDLs, at least one H-2B worker was under the
impression that he was hired exclusively as a driver, and drivers spent
approximately twenty to thirty percent of their time driving.106 Thus, the Board
concluded that the employer’s failure to disclose the potential to earn extra from
driving was a substantial failure.107
The present matter differs from Ace Amusements for several reasons.
The record here does not show that any driver received extra pay on a weekly basis
for driving in either 2016 or 2017. As for bonuses, in 2016, only two out of the
eighteen workers with CDLs108 received a driving bonus at the end of the season.109
No worker received a driving bonus in 2017. In addition, Respondents did not
recruit any H-2B worker to work exclusively as a driver and there is no evidence
that Respondents directed driving opportunities, and therefore a potential bonus,
toward H-2B workers over U.S. workers.110 Further, the record does not
demonstrate the amount of time workers spent driving. Workers who drove trucks
also performed other duties of a traveling carnival attendant.111 Unlike in
Ace Amusements, where driving duties were routine and represented a more
significant portion of workers’ overall job duties,112 here, the Administrator has not
shown that driving duties were routine and significant enough that Respondents
were obligated to include it in the advertisements. While there is some testimony
from workers who drove, driving also included convenience travel for trips to
105 Ace Amusements, ARB Nos. 2024-0019, -0036, slip op. at 11-14.
106 Id.
107 Id. at 14.
108 Eleven of the employees with CDLs were U.S. workers, while the remaining seven
were H-2B workers. D. & O. at 19-20.
109 JX 17 at 7, 78.
110 D. & O. at 25.
111 Id. at 24.
112 See Ace Amusements, ARB Nos. 2024-0019, -0036, slip op. at 11.

17
grocery stores and laundromats.113 As such, the gravity of the violation is low.
In addition, Respondents have no previous history of violations under the H-2B
program and did not achieve a financial gain.
Thus, we conclude that Respondents’ failure to disclose the potential to earn
extra pay from driving was not a significant deviation from the terms and condition
of the H-2B program’s requirements. Therefore, we affirm the ALJ’s conclusion that
Respondents did not substantially fail to comply with the prohibition against giving
H-2B workers preferential treatment for the failure to disclose the potential to earn
extra pay for driving trucks.
ii. Respondents Did Not Substantially Fail to Comply with the Prohibition
Against Giving H-2B Workers Preferential Treatment by Beginning
Work Later in the Season
In 2017, Respondents allowed two H-2B workers to start working in July
despite the season beginning in February.114 Neither of these workers received any
pay from Respondents for the months in which they did not work.115 The ALJ
determined that H-2B and U.S. workers were only paid for weeks they worked, and
that the two H-2B workers in question did not receive any benefit by their late
arrival.116 Thus, the ALJ determined that Respondents did not substantially fail to
comply with the prohibition against preferential treatment by permitting two H-2B
workers to arrive late.117
The Administrator contends that the ALJ erred, and that this special
arrangement for H-2B workers was not offered to U.S. workers.118
The Administrator asserts that those who worked during Respondents’ peak season
113 D. & O. at 15-16, 18-21, Hearing Transcript (Tr.) at 93, 150, 201, 247, 272, 302-03,
362, 445, 453, 714, 1007, 1262.
114 Id. at 22-23, 25.
115 Id. at 25.
116 Id. at 25-26.
117 Id. at 26.
118 Adm’r Opening Br. at 31.

18
had the potential to earn more because Respondents paid a higher fixed weekly
amount, and that U.S. workers may have applied for the job had they been aware of
the opportunity to work for a shorter period of time.119 The Administrator contends
that when U.S. workers are unaware of the true nature of a job opportunity, they
cannot accurately evaluate whether to apply for it, which hampers the Department
of Labor’s (DOL) ability to determine whether the employment of H-2B workers
adversely affects the employment of U.S. workers.120
Respondents counter that they did not give preferential treatment to these
two workers by allowing them to start late.121 Respondents assert that these two
H-2B workers were very inexperienced and had to complete a prior employment
contract before they could start working for Respondents.122 Respondents contend
that this did not mean that flexibility was a term or condition of employment.123
Respondents also contend that they did not willfully attempt to discourage U.S.
applicants from applying, and that allowing these two workers to start late was
within their discretion.124 Respondents further assert that, even if this did run
contrary to the H-2B program’s requirements, the failure to comply is not
substantial because it did not benefit these workers.125
Respondents’ job ad states that employees must be available to work all
season.126 Despite this, Respondents permitted two H-2B workers to start late.127
There is nothing in the record to show that they also offered a late start date to
prospective U.S. workers. Although these two H-2B workers earned less overall
than those who worked all season, U.S. workers cannot accurately determine
whether to apply for a job opportunity if they are not aware of all pay, benefit, and
119 Id. at 32-33.
120 Id. at 33-34.
121 Resp. Response Br. at 7-8.
122 Id. at 7.
123 Id.
124 Id. at 7-8.
125 Id. at 8.
126 JX 2, JX 3, JX 4.
127 D. & O. at 22-23, 25.

19
terms of the job opportunity, and, thus, the DOL is unable to accurately determine
whether there are no qualified U.S. workers available to work.
However, Respondents’ allowing two H-2B workers to start late does not
arise to a significant deviation. As noted above, Respondents do not have a previous
history of violating the H-2B program’s requirements. In addition, only two workers
were affected, and they did not financially benefit by arriving late. Given these
factors, the gravity of the violation is low. Thus, we find that Respondents’ failure to
disclose the possibility of a late start date does not amount to a significant deviation
from the terms and conditions of the H-2B program. Therefore, we affirm the ALJ’s
conclusion that Respondents did not substantially fail to comply with the
prohibition against giving H-2B workers preferential treatment for allowing two
workers to begin working later in the season.
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.128
A. Respondents are Liable for Back Wages
Based on the above violations, the ALJ determined that Respondents were
liable and owed back wages and CMPs. For Respondents’ substantial failure to pay
the prevailing wage, the ALJ ordered GoldStar to pay $12,397.17 in back wages for
2016 and $80,107.44 for 2017, and Lee’s to pay $8,210.10 in back wages for 2016
and $33,053.68 for 2017.129 For Respondents’ failure to pay inbound transportation
costs, the ALJ ordered GoldStar to pay $608 in back wages for 2016 and $843 for
2017, and ordered Lee’s to pay $714 in back wages for 2016 and $1,127 for 2017.130
For Respondents’ failure to pay outbound transportation costs, the ALJ ordered
128 29 C.F.R. § 503.20(a).
129 D. & O. at 61-62.
130 Id.

20
GoldStar to pay $1,770 in back wages for 2016 and $2,529 for 2017, and ordered
Lee’s to pay $1,503 in back wages for 2016 and $3,381 for 2017.131
Respondents contend that the ALJ erred in determining that they are liable
for back wages.132 For the failure to pay the prevailing wage, Respondents contend
that the ALJ failed to address overpayments and credits.133 Respondents contend
that they overpaid workers in some weeks for underpayments that they made in
other weeks, and that the ALJ should have offset these overpayments from the back
wages owed to workers.134 Respondents also contend that the WHD’s reconstruction
improperly added an extra day of work to every worker as well as an extra week of
work, the ALJ failed to credit the costs Respondents paid for local convenience
travel and mobile housing for their workers, and that the ALJ failed to address
improperly applied Minnesota state law regarding overtime pay.135 Lastly,
Respondents argue that the ALJ should not have found them liable for back wages
for the failure to pay the prevailing wage and the failure to pay inbound travel
expenses and outbound travel expenses because Respondents did not knowingly and
willfully violate these provisions.136
As the ALJ found, Respondents failed to keep accurate records.137 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.138 Under the
Mt. Clemens Pottery Co. framework, if the employer’s records are “inaccurate 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
131 Id.
132 Respondents’ Opening Br. at 1.
133 Id. at 9-13.
134 Id. at 9-11.
135 Id. at 12-13.
136 Id. at 14-28.
137 D. & O. at 16, 36.
138 Lucero Pool Plaster, Inc., ARB Nos. 2023-0040, -0045, slip op. at 18.

21
inference.”139 If the Administrator meets its burden, then the burden shifts to the
employer to produce evidence of the precise amount owed.140 If the employer fails to
do so, the court may award damages “even though the result may be only
approximate.”141
The Administrator showed that Respondents’ H-2B workers performed work
for which they were improperly compensated, and we agree with the ALJ that the
Administrator’s methodology for calculating back wages was reasonable and
reliable given Respondents’ lack of accurate records. As such, the burden shifts to
Respondents to produce evidence of the precise amount shown. Respondents argue
that the ALJ failed to consider several factors. First, Respondents contend that the
ALJ failed to address overpayments and credits.142 Respondents contend that they
overpaid workers in some weeks to make up for the underpayments in other weeks,
and that the ALJ should have offset these overpayments from the back wages owed
to workers.143 As the ALJ found, Respondents did not submit any record of a
“prepayment plan.”144 Respondents failed to provide documentation that any
overpayments were made. Thus, we find that Respondents are not entitled to these
offsets.145
139 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).
140 Id. at 687-88.
141 Id. at 688.
142 Resp. Opening Br. at 9-13.
143 Id. at 9-11.
144 D. & O. at 29.
145 Respondents cite to Singer v. City of Waco, Tex., 324 F.3d 813, 828 (5th Cir. 2003), in
which the Fifth Circuit Court of Appeals found that the employer’s “overpayments”
amounted to “pre-payments” of the employer’s obligation. Resp. Opening Br. at 11.
However, Singer has limited value here. First, Singer concerned overtime payment
obligations under the FLSA. Singer, 324 F.3d at 816. Here, Respondents’ obligations are
governed by the INA. Second, the wages at issue in Singer were overtime wages, not the
minimum wage. Third, the Fifth Circuit later clarified that Singer was a “narrow exception”
to the rule that set offs are impermissible under the FLSA and was due to the uniqueness
of that case. Martin v. PepsiAmericas, Inc., 628 F.3d 738, 742 (5th Cir. 2010).

22
Second, Respondents contend that the ALJ failed to credit the costs
Respondents paid for mobile housing for their workers.146 We disagree. Costs
incurred for facilities that are primarily for the benefit or convenience of an
employer will not be recognized and may not be charged to workers.147 As the
preamble to the 2015 Rule states, “housing that is provided by employers with a
need for a mobile workforce, such as those in the carnival or forestry industries
where workers are in an area for a short period of time, need to be available to work
immediately, and may not be able to procure temporary housing easily, is primarily
for the employer’s benefit and convenience and cannot be charged to the
workers.”148 Thus, Respondents are not entitled to credits for their mobile housing.
Third, Respondents contend that the ALJ failed to credit the costs
Respondents paid for local convenience travel.149 We disagree. Even if this travel
primarily benefited workers, an employer is required to maintain records showing
the wage deductions on a workweek basis.150 Here, Respondents did not keep any
records of who took convenience travel, where they went, or how many trips they
took.151 Thus, we find that Respondents are not entitled to credits for the cost of
local convenience travel.
Fourth, Respondents contend that the ALJ failed to address state law
regarding Minnesota overtime pay.152 Respondents take issue with the
Administrator amending the Determination Letter to allege the failure to pay
overtime pursuant to Minnesota law.153 However, an ALJ may allow parties to
146 Resp. Opening Br. at 12-13.
147 29 C.F.R. § 531.3(d)(1); see also 29 C.F.R. 503.16(b) (incorporating the deduction
principles set forth in C.F.R. Part 531).
148 80 Fed. Reg. at 24063 (emphasis added).
149 Resp. Opening Br. at 12.
150 See 29 C.F.R. § 531.28 (special recordkeeping requirements must be met for
employers to claim deductions from wages); 29 C.F.R. § 516.27(b)(2) (an employer must
maintain records showing weekly wage deductions).
151 Tr. at 1336.
152 Resp. Opening Br. at 13-14.
153 Id. at 13.

23
amend their filings.154 Here, the ALJ operated within his discretion to allow the
Administrator to amend the Determination Letter after consulting with the State of
Minnesota.
Respondents also contend that the WHD did not accurately calculate
Minnesota’s overtime law, and that if they do owe any overtime, credit from
providing bunkhouses covers their obligation.155 We disagree. As discussed above,
Respondents are not entitled to credit from housing. In addition, after consulting
with Minnesota officials, the Administrator determined that under Minnesota law
Respondents owed overtime.156 H-2B employers are required to comply with all
applicable federal, state, and local employment-related laws during the period of
employment.157 H-2B employers are also required to pay at least the offered wage,
which is defined as equaling or exceeding the highest of the prevailing wage, or the
applicable federal, state, or local minimum wage.158 Respondents counter that they
did not employ workers in Minnesota for thirty weeks and thus did not owe
overtime under Minnesota law.159 In support, Respondents cite testimony by the
WHD investigator.160 The Administrator answers that Respondents misunderstand
both the WHD investigator’s testimony and Minnesota law.161
Respondents have failed to persuade us that the Administrator and ALJ
erred in finding Respondents liable for Minnesota overtime. Respondents cite
interpretations of the WHD investigator’s testimony as to the status of Minnesota
law. Thus, we are not persuaded by Respondents’ argument.
154 29 C.F.R. § 18.36 (OALJ Rule of Practice and Procedure stating that “[t]he judge
may allow parties to amend and supplement their filings.”).
155 Resp. Opening Br. at 13-14.
156 Adm’r Response Br. at 31-33.
157 29 C.F.R. § 503.16(z).
158 Id. at § 503.4.
159 Resp. Opening Br. at 13.
160 Id.
161 Adm’r Response Br. at 31-33.

24
Fifth, Respondents contend that the WHD’s reconstruction of back wages
improperly added an extra day of work to every worker as well as an extra week of
work, citing testimony from Melissa Erasmus and WHD Investigator Matt Jones.162
Erasmus testified that auditors wrongly listed the payday as being at the end of the
week when their schedule ran from Monday through Sunday with payment being
made the following Monday.163 Erasmus contended that, because of this error,
auditors counted Monday twice, wrongly adding an extra day of wages.164 Erasmus
also testified that auditors also added a week where most workers had off.165
WHD Investigator Jones acknowledged that the calculations were inadvertently one
day off for nearly all workers.166 Jones also acknowledged that the back wages
should have changed for the week where workers did not work.167 The ALJ did not
address these errors when adopting the WHD’s calculations.168 On appeal, the
Administrator does not dispute Respondents’ argument. Accordingly, we find that
the WHD’s back wages computation failed to account for these errors. Thus, we
affirm the ALJ’s determination that Respondents are liable to pay H-2B workers
back wages, but vacate the ALJ’s calculation and remand to the ALJ to recalculate
the amount of back wages in accordance with this evidence.
B. 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.169 “Each such violation involving the failure to pay an individual worker
162 Resp. Opening Br. at 12.
163 Tr. at 1242.
164 Id.
165 Id. at 1243-47.
166 Id. at 1443-45.
167 Id. at 1445.
168 See D. & O. at 37-38.
169 29 C.F.R. at §§ 503.19, 503.23(a).

25
properly or to honor the terms or conditions of [the aforementioned H-2B forms]
constitutes a separate violation.”170
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
$12,383.171 Back wages also “further the purposes of the H-2B program by reducing
the employer’s incentive to bypass U.S. workers in order to hire H-2B workers who
are more easily exploited.”172
For all other violations, Section 503.23(d) provides that the Administrator
may assess CMPs up to the maximum of $12,383 per violation.173 Section 503.23(e)
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.174 The highest penalties are reserved for willful
failures to meet any of the conditions in the TEC and H-2B petition that “involve
harm to U.S. workers.”175
170 Id. § 503.23(a).
171 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).
172 Butler Amusements, ARB No. 2021-0007, slip op. at 31.
173 29 C.F.R. § 503.23(d).
174 Id. § 503.23(e).
175 8 U.S.C. § 1184(c)(14)(C); 29 C.F.R. § 503.23(e).

26
The ALJ determined that Respondents were liable to pay CMPs.176
For Respondents’ substantial failure to pay the prevailing wage in 2016 and 2017,
the ALJ ordered GoldStar to pay $12,383 for 2016 and 2017, and Lee’s to pay
$8,210.10 for 2016 and $12,383 for 2017.177 For Lee’s substantial failure to comply
with the period of temporary need, the ALJ ordered Lee’s to pay $1,750.178 For the
substantial failure to provide workers with accurate earnings statements, the ALJ
reduced the CMPs to $1,000 per year for GoldStar and $1,000 per year for Lee’s due
to the overlap between the failure to provide earnings statements and the failure to
pay H-2B workers the offered hourly wage.179 The ALJ reasoned that he did not
want to punish Respondents “twice for the same or allied conduct” given the overlap
between the two violations.180 For the failure to pay inbound transportation costs,
the ALJ ordered GoldStar to pay $608 for their 2016 violation and $843 for 2017,
and Lee’s to pay $714 for 2016 and $1,127 for 2017.181 For the failure to pay
outbound transportation costs, the ALJ ordered GoldStar to pay $1,770 for their
2016 violation and $2,529 for 2017, and ordered Lee’s to pay $1,503 for 2016 and
$3,381 for 2017.182
The Administrator contends that the ALJ erred in reducing the CMPs for
Respondents’ failure to provide accurate earnings statements.183 The ALJ reasoned
that a reduction in CMPs was warranted because Respondents were already
punished for their failure to pay workers the offered hourly wage, and there as
overlap between the two violations.184 The Administrator argues that the ALJ's
reasoning is flawed because the failure to pay the offered wage and the failure to
provide workers with accurate earning statements are distinct violations that
176 D. & O. at 61.
177 Id. at 61-62.
178 Id. at 62.
179 Id. at 54-56.
180 Id.
181 Id. at 61-62.
182 Id.
183 Adm’r Opening Br. at 40-43.
184 D. & O. at 54-55.

27
warrant separate CMP assessments independent of each other.185
The Administrator asserts that Respondents’ failure to provide workers with an
accurate earnings statement occurred independently of Respondents’ failure to
properly compensate workers even if both of these violations stem from poor and
inaccurate record keeping.186
We agree that the ALJ erred in reducing the CMPs. Although workers’
payroll cards were inaccurate because Respondents substantially failed to pay their
H-2B workers all the wages owed and Respondents showed the payroll cards to
their respective H-2B employees, Respondents failed to give copies of the payroll
cards to their H-2B employees.187 The Section 503.23(e) factors weigh against
Respondents. Although Respondents have no history of prior violations of the H-2B
program and implemented a system to accurately record workers’ hours, all workers
were affected, it played a significant role in workers’ underpayment, allowed
Respondents to realize a financial gain, and the gravity of the violation is
substantial. As such, we amend the ALJ’s CMP by adding an additional $1,000 per
Respondent per year for a total increase of $4,000 in CMPs. We find that this figure
is reasonable given Respondents’ violations and application of mitigating factors.
The Administrator also contends that the ALJ erred in reducing the CMPs
for Lee’s substantial failure to comply with its stated period of temporary need in
2017.188 The Administrator argues that the ALJ reduced the CMP on a per worker
basis and erred by assuming the Administrator originally calculated the CMP on a
per worker basis.189 Rather, the Administrator contends that they calculated the
CMP based on a single violation, not a per worker basis.190 The Administrator
further contends that the ALJ failed to properly consider the gravity of the
185 Adm’r Opening Br. at 41-42.
186 Id. at 43.
187 D. & O. at 53-54.
188 Adm’r Opening Br. at 38-40.
189 Id. at 39.
190 Id.

28
violation.191 For these reasons, the Administrator requests that the Board reinstate
their original CMP of $5,572.35.192
Respondents counter that the ALJ rubberstamped the Administrator’s
calculations for all CMPs, and that these calculations were arbitrary.193
Respondents also contend that the ALJ failed to consider the Section 503.23(e)
factors.194
The ALJ’s determination that Lee’s pay $1,750 in CMPs is reasonable given
that Lee’s does not have a previous history of violating the H-2B program, Lee’s
staggered only eleven out of thirty-five workers’ arrival, the gravity of the violation
is moderate, and Lee’s has demonstrated their commitment to future compliance
based on other actions they have taken to address the violations. As such, we affirm
the ALJ’s order that Lee’s pay $1,750 in CMPs for their substantial failure to
comply with their stated period of temporary need in 2017.
We also find that the amount of CMPs that the ALJ ordered for Respondents’
failure to pay inbound and outbound transportation costs in 2016 and 2017 is
reasonable. Respondents have not made any specific arguments pertaining to the
amount of CMPs for the substantial failure to pay inbound and outbound
transportation costs, aside from their general argument that the Administrator’s
methodology is arbitrary and that the ALJ failed to consider the Section
503.23(e).195 However, the Section 503.23(e) factors do not apply to CMPs for
violations pertaining to wages, impermissible deductions, or prohibited fees and
expenses. Rather, 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 $12,383.196 Here, the amount of CMPs that ALJ ordered Respondents
191 Id.
192 Id. at 40.
193 Resp. Opening Br. at 28-31.
194 Id. at 31-34.
195 See id. at 28-34.
196 29 C.F.R. § 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,

29
to pay directly correlated with the back wages that are owed for these violations.197
Thus, we affirm the ALJ’s order.
Lastly, the ALJ determined that Respondents were liable to pay CMPs for
their substantial failure to pay the prevailing wage in 2016 and 2017.198 We agree
with the ALJ’s finding that Respondents are liable to pay CMPs. However, because
we vacate and remand the ALJ’s calculation of back wages, we also vacate and
remand the ALJ’s calculation of CMPs for Respondents’ substantial failure to pay
the prevailing wage in 2016 and 2017. On remand, the ALJ is instructed to
recalculate the amount of CMPs to account for the recalculation of back wages.
CONCLUSION
Accordingly, we AFFIRM the ALJ’s Decision and Order in part, VACATE and
MODIFY in part, and VACATE and REMAND in part.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge
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).
197 D. & O. at 61-62.
198 Id. at 37-38.