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Fernandez Farms Order of Reference _with Cert_ _1_.pdf

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					JANET M. HEROLD
Regional Solicitor
DAVID KAHN
Counsel for Employment Standards
ABIGAIL DAQUIZ
Trial Attorney
BENJAMIN R. BOTTS
Trial Attorney
UNITED STATES DEPARTMENT OF LABOR
Office of the Solicitor
300 Fifth Avenue, Suite 1120
Seattle, WA 98104
Telephone (206) 757-6753
Fax (206) 757-6761

Attorneys for the Administrator of the Wage and Hour
Division, United States Department of Labor


                      OFFICE OF ADMINISTRATIVE LAW JUDGES
                      UNITED STATES DEPARTMENT OF LABOR

                                                         )
In the Matter of:                                        )   ADMINISTRATIVE PROCEEDING
                                                         )
                                                         )
         FERNANDEZ FARMS, INC., and                      )
         GONZALO FERNANDEZ, an                           )   Case No.
         individual,                                     )
                                                         )
               Respondents.                              )
                                                         )   ORDER OF REFERENCE
                                                         )


TO:    CHIEF ADMINISTRATIVE LAW JUDGE
       Office of the Administrative Law Judges
       United States Department of Labor

       In response to a receipt of timely requests by respondents Fernandez Farms, Inc. and
Gonzalo Fernandez filed in accordance with 29 C.F.R. § 501.33 for a hearing on the assessment
of $819,986.16 in back wages and $1,015,700.00 in civil money penalties against Fernandez
Farms and Mr. Fernandez, the Administrator of the Wage and Hour Division, United States
Department of Labor (the “Administrator”) has determined that a hearing should be held to
inquire into matters arising in this case under the provisions of the Immigration and Nationality
Act, 8 U.S.C. § 1101, et seq. as amended by the Immigration Reform and Control Act of 1986,
Pub L. 99-603, § 301, 100 Stat. 3359, 341 and their implementing regulations.
       On July 31, 2013, the Administrator issued a notice of administrative determination,
alleging that Fernandez Farms violated provisions of 20 C.F.R. part 655 (specifically enumerated
in the administrative determination), and seeking as a remedy $819,986.16 in back wages and
$1,015,700.00 in civil money penalties under 29 C.F.R. §§ 501.16 and 501.19. In the
administrative determination, the Administrator also issued a notice of debarment, alleging that
Fernandez Farms substantially violated material terms and conditions of its temporary labor
certifications with respect to H-2A workers and corresponding workers (specifically enumerated
in the administrative determination), and seeking as a remedy the debarment of Fernandez Farms
from applying to the Department of Labor for H-2A certification for three years under 29 C.F.R.
§ 501.20. On December 4, 2013, the Administrator issued an addendum to the administrative
determination, alleging that Mr. Fernandez was personally liable for the civil money penalties
and back wages owed by Fernandez Farms and should be personally debarred from applying to
the Department of Labor for H-2A certification for three years.
       In accordance with 29 C.F.R. § 501.37, the Administrator hereby refers this matter to the
Chief Administrative Law Judge, who shall designate an Administrative Law Judge to fix the
time and place for the hearing, conduct the hearing, compel the attendance of witnesses, take
testimony under oath, and render a decision embodying his or her findings of fact and
conclusions of law, all in accordance with and pursuant to the provisions of the Immigration and
Nationality Act and the Immigration Reform and Control Act of 1986, and the implementing
regulations.
       Attached hereto are the following exhibits:

       -       Exhibit A is a true and correct copy of the Administrator’s notice of

administrative determination, dated July 31, 2013;

       -       Exhibit B is a true and correct copy of Fernandez Farms’ request for a hearing,

dated August 26, 2013;




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       -       Exhibit C is a true and correct copy of the Administrator’s addendum to the

administrative determination, dated December 4, 2013, notifying Mr. Fernandez of the

Administrator’s determination that he is personally liable for the violations described in the

Administrative determination and should be personally debarred from applying to the

Department of Labor for H-2A certification for three years; and

       -       Exhibit D is a true and correct copy of Mr. Fernandez’s request for a hearing,

dated December 31, 2013.


       Dated and signed at San Francisco, California, on this 15th day of April, 2014.

                                                     M. PATRICIA SMITH
                                                     Solicitor of Labor

                                                     JANET M. HEROLD
                                                     Regional Solicitor

                                                     DAVID KAHN
                                                     Counsel for Employment Standards

                                                     BENJAMIN R. BOTTS
                                                     Trial Attorney




                                                     BY:
                                                           ABIGAIL G. DAQUIZ
                                                           Trial Attorney

                                                     U.S. DEPARTMENT OF LABOR
                                                     Attorneys for Plaintiff




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