FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PERSIAN BROADCAST SERVICE No. 22-55254 GLOBAL, INC., a California corporation, D.C. No. 2:21-cv-00229- Plaintiff-Appellant, CAS-GJS v. OPINION MARTIN J. WALSH, Secretary of Labor; U.S. DEPARTMENT OF LABOR, Defendants-Appellees. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding Submitted June 29, 2023 * Pasadena, California Filed August 1, 2023 * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 PERSIAN BROAD. SERV. GLOBAL, INC. V. WALSH Before: N. Randy Smith, Kenneth K. Lee, and Lawrence VanDyke, Circuit Judges. Opinion by Judge VanDyke SUMMARY ** Wages/Labor Condition Applications The panel affirmed the district court’s summary judgment upholding an Administrative Review Board (“ARB”) order awarding backpay plus pre-and post- judgment interest to Majid Varess, an Australian citizen and E-3 visa-holder who was employed as a sports reporter and producer by Persian Broadcast Service Global (“Persian Broadcast”). To employ Varess, Persian Broadcast filed and received approval for a Labor Condition Application (LCA) through the U.S. Department of Labor (“Department”), first in 2011 and again in 2013. An LCA binds an employer to pay the required wages for the period of authorized employment, and only two exemptions can eliminate an employer’s legal obligations: when an employee is nonproductive for personal reasons or there has been a bona fide termination of the employment relationship. 20 C.F.R. § 655.731(c)(7)(ii). In February 2015, Varess filed an administrative complaint with the Department, arguing that ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PERSIAN BROAD. SERV. GLOBAL, INC. V. WALSH 3 Persian Broadcast failed to pay him the full amount of his wages as specified in the two LCAs. First, the panel held that Varess’s February 2015 complaint was not time barred. The ARB reasonably relied on the LCAs rather than Varess’s visa to determine the period of authorized employment and Persian Broadcast’s wage obligations. By failing to pay Varess the reported wage under the second LCA period, Persian Broadcast continued to violate the wage requirement until the LCA period ended on September 12, 2015. Second, the panel held that Varess’s circumstances did not meet either of the statutory exemptions to the LCA wage requirement because, by continuing his reporting work, Varess remained in productive status and there was never a bona fide termination. Finally, given Persian Broadcast’s failure to pay Varess the LCA wages for the period of authorized employment, the ARB did not abuse its discretion by awarding backpay plus pre- and post-judgment interest. COUNSEL Ira J. Nasserian, Ira Nasserian A Professional Corporation, Rolling Hills Estates, California, for Plaintiff-Appellant. Matthew J. Smock, Assistant United States Attorney; David M. Harris, Assistant United States Attorney, Civil Division Chief; E. Martin Estrada, United States Attorney; Office of the United States Attorney; Los Angeles, California; for Defendants-Appellees. 4 PERSIAN BROAD. SERV. GLOBAL, INC. …
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