USDOL/OALJ Reporter: ARB Decision Caselist -- January 2011

SETTLEMENT; ARB TREATS SEPARATION AGREEMENT AND GENERAL RELEASE AS A SETTLEMENT AGREEMENT

In Anderson v. Schering Corp. , ARB No. 10-070, ALJ No. 2010-SOX-7 (ARB Jan. 31, 2011), after receiving a joint stipulation of dismissal with prejudice, the ARB issued an order directing the Complainant to state which of the grounds for terminating a case prior to final adjudication was applicable: withdrawal of objections to the findings or order; an adjudicatory settlement; or the bringing of an action in federal district court. The ARB directed that if a settlement was involved, a copy of the settlement agreement be submitted for the ARB's review.

The Respondent thereafter submitted a copy of a separation agreement and general release executed by the Complainant. The ARB treated the agreement and release as a settlement. The ARB determined that the agreement was a fair, adequate and reasonable resolution of the matter, approved the agreement, and dismissed the complaint with prejudice.

TIMELINESS OF ADMINISTRATOR'S INITIAL DETERMINATION ON INVESTIGATION OF H-1B COMPLAINT; FAILURE TO MEET REGULATORY DEADLINE IS NOT GROUNDS FOR DISMISSAL OF COMPLAINT

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc. , ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent contended that the Complainant's complaint under the H-1B regulations should be dismissed because the Wage and Hour Administrator failed to timely issue the initial decision. The regulation at 20 C.F.R. § 655.806(a)(3) required a determination within 30 calendar days of the filing of the complaint. The Administrator's decision in this case, however, was issued more than a year following the filing of the complaint. The ALJ denied the motion based on the ARB's ruling in Administrator, WHD v. Synergy Systems, Inc., ARB No. 04-046, ALJ No. 2003-LCA-22, slip op. at 7 (ARB June 30, 2006), that the time limits for processing a complaint under the Immigration and Nationality Act are directional and not jurisdictional. On appeal, the Respondent urged the ARB to reconsider Synergy in light of ARB precedent involving the statute of limitations for filing an INA complaint. The ARB found that the ALJ had correctly described the distinction between the requisites for meeting the statute of limitations deadline for filing a complaint with Wage and Hour and the time prescribed for rendering a decision once the complaint is file. Alternatively, the Respondent argued that Synergy should not be applied because the Administrator's delay was too excessive to be excused. The ARB, however, found that the Administrator's delay did not bar him from processing the complaint.

SUBPOENAS; ARB DECLINES TO REVISIT CHILDERS DECISION, WHICH APPLIES TO FORMAL ALJ HEARINGS UNDER THE IMMIGRATION AND NATIONALIYT ACT, AND WHICH IS NOT LIMITED TO SITUATIONS IN WHICH THE PERSON TO BE SUBPOENED IS UNDER THE CONTROL OF A PARTY

SUBPOENAS; ERROR BY ALJ IN REFUSING TO ISSUE PREHEARING SUBPOENA REMEDIED BY TESTIMONY AT HEARING WHERE NO PREJUDICE TO ABILITY TO MOUNT DEFENSE ESTABLISHED

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc. , ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Complainant was a computer programmer who had been hired as a nonimmigrant worker under the H-1B regulations. He filed a complaint after resigning his employment alleging that the Respondent failed to properly compensate him as required by the labor condition application regulations. The Respondent requested that the ALJ issue a subpoena requiring the Complainant to appear for deposition. The Wage and Hour Administrator - who was the prosecuting party before the ALJ - opposed the motion because the Immigration and Nationality Act does not expressly authorize administrative law judges to issue subpoenas in labor condition application cases. The ALJ agreed and denied the motion. Further, the ALJ found 29 C.F.R. § 18.29(a)(3) inapplicable because the Complainant was under no party's control. Section 18.29(a)(3) is the OALJ rule of practice stating the power of an ALJ to compel the appearance of witnesses in control of the parties. In denying the request for issuance of a subpoena, the ALJ declined to follow the ARB's decision in Childers v. Carolina Power & Light , ARB No. 98-077, ALJ No. 1997-ERA-032 (ARB Dec. 29, 2000), because Childers was decided under the whistleblower provision of the Energy Reorganization Act, and because the individuals sought to be subpoenaed in that case were employees under the respondent's control.

On appeal, the Respondent contended that the ALJ erred in denying its motion to subpoena the Complainant. The Administrator urged the ARB to reexamine and reject Childers as it "is at odds with the well established principle that an ALJ does not have the authority to issue subpoenas absent Congress's clear grant of such authority." USDOL/OALJ Reporter at 7. The ARB, however, declined to reexamine its decision in Childers . The ARB found that, because both the ERA and the INA contain mandates that ALJs provide formal hearings in cases arising under those statutes, the ALJ's distinction of Childers on this basis was not valid. The ARB also held that the Childers rationale was not limited to cases in which the individual to be subpoenaed is under the control of one of the parties.

The Board, however, found that any error by the ALJ made in refusing to follow Childers was harmless because the Complainant testified at the hearing, and the Respondent cross-examined him. The Respondent offered no support for its assertion that it was prejudiced by its inability to subpoena the Complainant prior to the hearing, and therefore the ARB found no due process concerns over the Respondent's ability to mount its defense.

REIMBURSEMENT OF COURT REPORTER COSTS AS SANCTION; SHORT DELAYS IN ARRIVAL OF DEPONENTS FOUND NOT TO JUSTIFY ORDER OF REIMBURSEMENT; ADMINISTRATOR'S COUNSEL DID NOT ENGAGE IN MISCONDUCT IN, EX PARTE, HAVING COURT REPORTER RECORD TIME OF ARRIVAL OF DEPONENT

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc. , ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent sought reimbursement for the cost of the court reporter's services as a sanction on the Administrator's counsel based on the late arrivals of two deponents. The ALJ denied the motion for costs finding that the Respondent's allegations of enormous delays and improper conduct by the Administrator's counsel in requesting the court reporter to record one deponent's late arrival with no one from the Respondent present, were false representations of what had happened. On appeal, the ARB affirmed the ALJ's findings that there had not been extended delays between depositions for the arrival of deponents or that the Administrator's counsel had engaged in misconduct for asking the court reporter to record the arrival time of the last deponent.

MOTION FOR CONTINUATION OF HEARING BASED ON ABSENCE OF ASSISTANT DISTRICT DIRECTOR, WHO HAD BEEN CALLED AS WITNESS; ALJ DID NOT ABUSE DISCRETION IN DENYING MOTION WHERE EXPECTED TESTIMONY OF ASSISTANT DISTRICT DIRECTOR WAS NOT MATERIAL

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc. , ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent argued on appeal that the ALJ erred in proceeding with the hearing despite the fact that one of the witnesses called by the Respondent, the Assistant District Director for the Atlanta Wage and Hour Division office, was not available to testify. The ALJ ruled the Assistant District Director was not a necessary witness. Although the Assistant District Director's signature was on the Wage-Hour determination letter, the ALJ noted that he was not the investigator and there was no showing that he had any first-hand knowledge of the facts uncovered in the investigation. The ALJ also noted that the Wage-Hour determination letter was not binding on him, and that he had an independent responsibility to evaluate the evidence. On appeal the Respondent contended that it had been prejudiced because the testimony of this witness would have established that Wage-Hour determination was so imprecise that the Administrator should be sanctioned, and that a loan tot he H-1B worker should have been deducted from his wages due under the regulations.

The ARB, employing an abuse of discretion standard, found that the ALJ properly assessed the materiality of the Assistant District Director's projected testimony, and found no proof of prejudice to the Respondent. The ARB noted that the Respondent could have proffered the Assistant District Director's deposition, but did not, and that the matter of the loan deduction was a legal interpretation for which the Assistant District Director's testimony would have been immaterial.

COMPANY POLICY NOT TO COMPENSATE EMPLOYEES FOR TRAVEL TIME IS NOT AN EXCEPTION TO AN H-1B EMPLOYER'S OBLIGATION TO PAY H-1B WORKERS THEIR WAGES

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc. , ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent argued that the ALJ erred in ordering compensation for the Complainant H-1B worker for two days of travel to install a computer system. The project required the Complainant to travel from Georgia to Phoenix. Two days were travel days, and two days were working onsite. The Respondent argued that its company policy directs that travel time is "banked" towards personal time off and is not compensated. The ARB held that "[e]ven accepting as true that Integrated's policy is not to compensate its employees for travel time, a company policy is not among the exceptions to an H-1B employer's obligation to pay H-1B nonimmigrant workers their wages." USDOL/OALJ Reporter at 14.

LOAN OBLIGATION THAT PREDATED THE LCA AUTHORIZED WORK PERIOD IS BEYOND DOL'S AUTHORITY TO ENFORCE; ACCORDINGLY THE ARB DECLINED TO PERMIT PAYROLL DEDUCTIONS FROM LCA WAGES TO RECOUP LOAN

In Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc. , ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), the Respondent argued that $1,500 it loaned to the H-1B worker for a car could be withheld from the last three paychecks to recoup the loan. The ALJ held that no more than 25 percent of the last three paychecks could be withheld to recoup the loan pursuant to 20 C.F.R. § 655.731(c)(9)(iii)(E). On appeal the Respondent argued that it should be entitled to deduct 100 percent of the loan under 20 C.F.R. § 655.731(c)(9)(ii), or in the alternative, that DOL lacks the authority to address loans and deductions made under an agreement outside of the labor condition application. The ARB noted that DOL's jurisdiction under the Immigration and Nationality Act extends only to employment relationships that arise under, or are terminated pursuant to the INA's H-1B provisions. The ARB found that the parties had signed the promissory note for the loan prior to the period of the worker's authorized employment as an H-1B nonimmigrant worker, and therefore the agreement fell outside the H-1B program and was beyond the ALJ's and this Board's authority under the INA to enforce. The ARB thus reversed the ALJ's finding that the Respondent could recoup the loan by making deductions from the worker's wages.

[STAA Digest V A]
PROTECTED ACTIVITY; REFUSAL TO DISCLOSE NAMES OF COWORKERS WHO WERE ALLEGEDLY PRESSURING THE COMPLAINANT TO VIOLATE THE HOURS OF SERVICE REGULATION DID NOT PREVENT THE COMPLAINANT FROM PREVAIILNG ON A STAA COMPLAINT

In Williams v. Domino's Pizza , ARB No. 09-092, ALJ No. 2008-STA-52 (ARB Jan. 31, 2011), during a meeting to discuss the Complainant's hotline complaint, the Complainant informed a supervisor and a manager that he was being pressured to work outside of the allowable hours of service. He explained the complaint but declined to provide his coworkers' names. The Respondent argued that the Complainant did not assist its investigation of his allegations and therefore, he did not engage in protected activity and was precluded from satisfying his prima facie case. The ARB held that simply refusing to name coworkers who pressured him did not preclude the Complainant from prevailing on a STAA whistleblower complaint.

[STAA Digest V B 2 d]
PROTECTED ACTIVITY; HOTLINE COMPLAINT

An internal complaint through the Respondent's compliance hotline is protected activity under the STAA. Williams v. Domino's Pizza , ARB No. 09-092, ALJ No. 2008-STA-52 (ARB Jan. 31, 2011).

[STAA Digest III J]
EVIDENCE; ADMISSIBILITY OF UNEMPLOYMENT HEARING TRANSCRIPT; STATEMENTS MADE BY AGENTS OF THE EMPLOYER AS PARTY OPPONENT ARE NOT HEARSAY

In Williams v. Domino's Pizza , ARB No. 09-092, ALJ No. 2008-STA-52 (ARB Jan. 31, 2011), the Respondent argued that the ALJ erred when he admitted an unemployment hearing transcript because using it violated the Respondent's due process right to confrontation, and because it was inadmissible hearsay testimony given in a limited forum held for a different, discrete purpose unrelated to the Complainant's retaliation claim. The ARB noted that STAA administrative hearings are conducted in accordance with the Rules of Practice and Procedure for Administrative Hearings, which substantially follow the Federal Rules of Evidence, and that under those rules hearsay statements are inadmissible unless they are defined as non-hearsay or fall within an exception to the hearsay rule. 29 C.F.R. § 18.802. The Board stated:

    Hearsay is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted by the out-of-court declarant. 29 C.F.R. § 18.801(c). A statement is not hearsay if it constitutes an admission by a party opponent. 29 C.F.R. § 18.801(d)(2).

    In this matter, the prior statements that Williams sought to introduce as evidence were statements by Domino's' agents concerning matters within the scope of the agency, made during the existence of the relationship and were therefore, admissions by a party-opponent and not hearsay. As such, the ALJ did not err in admitting the evidence. Neither did the admissions violate Domino's' right to confrontation, as the statements were made by Domino's itself. Even if the evidence was admitted incorrectly, the ALJ had cited other reasons that discredited Domino's' articulated reasons for terminating Williams's employment. For example, the printout from the PeopleNet system unequivocally demonstrated that, contrary to Domino's' assertions, Williams took adequate steps to report the accident, even if not exactly according to company policies.

[STAA Digest IX A 6]
REINSTATEMENT; COMPLAINANT'S PREFERENCE FOR PAYMENT OF FUTURE EDUCATION EXPENSES

In Williams v. Domino's Pizza , ARB No. 09-092, ALJ No. 2008-STA-52 (ARB Jan. 31, 2011), the ALJ ordered reinstatement of the Complainant to his former position. On appeal the Complainant argued that he did not think it will be safe to return to work for the Respondent, and requested instead payment for future education expenses. The ARB noted that reinstatement is an automatic remedy under the STAA, and found that there was insufficient evidence in the record that reinstatement would be impossible, impracticable, or cause irreparable animosity. The ARB thus affirmed the ALJ's order to reinstate the Complainant rather than to award front pay or expenses for education.

The ARB affirmed the ALJ's finding that the complaint was not timely filed and that the Complainant had not alleged any circumstances justifying waiving or modifying the limitations period.

Approval of settlement agreement.

The ARB found that the ALJ properly granted summary decision in favor of the Respondent where the Complainant failed to present any evidence to create an issue of material fact to counter the Respondent's documentation showing that the Complainant was discharged for failure to comply with the Respondent's leave procedures.

After the ALJ denied a motion for reconsideration, the Respondent renewed an earlier petition for review by the ARB. Before the ARB decided whether to grant the petition, the parties entered into a settlement. The ALJ approved the settlement and dismissed the complaint. Consequently, the ARB closed the case pending before it.

ATTORNEY FEE PETITION; DEDUCTIONS FOR OFFICE CONFERENCES, DUPLICATION OF EFFORT, EXCESSIVE HOURS IN REVIEWING AND DRAFTING APPELLATE BRIEFS

In Clemmons v. Ameristar Airways, Inc. , ARB No. 08-067, ALJ No. 2004-AIR-11 (ARB Jan. 5, 2011), the Respondent challenged the Complainant's attorney fee request for appellate work before the ARB on the ground that many of the time and task entries were too vague and that no more than two attorneys were reasonably required to respond to its appeals to the ARB. The Complainant's lead attorney explained that he engaged three associates on specific research and writing projects "to conserve costs" because their hourly rates were lower than his.

The ARB observed that in Hensley v. Eckerhart , 461 U.S. 424, 434 (1983), the Supreme Court "emphasized that fee awards may be reduced for inadequately documented hours or for hours that were not �reasonably expended' due to overstaffing or inexperience. Also excluded is time attributed to office conferences, supervision, and training, and review and revision, since such time is not normally billable to private clients." USDOL/OALJ Reporter at 5 (footnotes omitted). The ARB reviewed the Complainant's fee petition, and found that it showed three office conferences among three attorneys during the Respondent's first appeal to the ARB, some duplication of effort in researching and drafting the brief, and an excessive number of hours for revising and editing the response brief. The ARB revised the fees accordingly. The ARB also found in regard to a second appeal some duplication of effort and many hours spent reviewing and revising a brief by two of Complainant's attorneys. Further, the ARB stated that "spending more than 60 hours to draft a response brief in a second appeal with issues similar to those in the first appeal is excessive." Id . The ARB therefore made additional deductions from the requested fee award.

ATTORNEY FEE PETITION; BLOCK BILLING DISFAVORED UNLESS SUFFICIENT SPECIFICITY ESTABLISHED

In Clemmons v. Ameristar Airways, Inc. , ARB No. 08-067, ALJ No. 2004-AIR-11 (ARB Jan. 5, 2011), the ARB reiterated that it "requires that an attorney's time and task entries be sufficiently detailed to demonstrate their reasonableness. Thus, we disfavor the use of block billing (the practice of grouping multiple tasks into a single time entry), and may make a percentage reduction of the requested fees in lieu of attempting to excise surgically those that are not properly billed." USDOL/OALJ Reporter at 6 (footnote omitted). In the instant case, however, the ARB denied the Respondent's request for a reduction for block billing because, "when read in the context of the billing statement as a whole and in combination with the timeline of the litigation, [the billing entries at issue] do provide enough specificity to determine that the services rendered are compensable and in furtherance of [the Complainant's] defense against [the Respondent's] two appeals." Id . (footnote omitted).

ATTORNEY FEE PETITION; ATTORNEY FEES DISPROPORTIONATE TO DAMAGES AWARDED TO COMPLAINANT

In Clemmons v. Ameristar Airways, Inc. , ARB No. 08-067, ALJ No. 2004-AIR-11 (ARB Jan. 5, 2011), the Respondent challenged the Complainant's attorney fee request for appellate work before the ARB on the ground that the requested fees were disproportionate to the amount of damages awarded to the Complainant. The ARB stated that it has declined to reduce attorney's fee awards solely because the amount is larger than the damages recovered. See Hoffman v. Boss Insulation & Roofing, Inc. , ARB Nos. 96-091, 97-128; ALJ No. 1994-CAA-4, slip op. at 5 (ARB Jan. 22, 1997) (policy against chilling attorneys from taking moderately complicated cases where the complainant earned modest wages and hence the back pay sought would be small in relation to the attorney time expended; standard that degree of a plaintiff's success is crucial factor). In the instant case, the ARB found that the Complainant's attorneys achieved essentially complete relief under AIR21, and therefore denied the Respondent's request to reduce the attorney fee award based on its disproportionate size.

COSTS NORMALLY PART OF OVERHEAD COMPENSABLE WHERE COMPLAINANT WAS DIRECTLY BILLED FOR SUCH EXPENSES

In Clemmons v. Ameristar Airways, Inc. , ARB No. 08-067, ALJ No. 2004-AIR-11 (ARB Jan. 5, 2011), the Respondent argued that the Complainant's request for $1,252.04 in costs should be rejected because photocopying, postage, research, and delivery expenses are part of the attorney's hourly fee and are not compensable. The ARB acknowledged that it has generally affirmed an ALJ's deduction of expenses associated with on-line legal research, photocopies, and postage because they are normally part of a firm's overhead and reflected in an attorney's hourly rate. In the instant case, however, the Complainant's attorney pointed out that his firm bills its clients directly for such expenses, and provided a declaration of the firm's administrative director showing that the Complainant had been so billed. The ARB thus, approved the request for $1,252.04 to compensate the Complainant for out of pocket expenses.

The ARB found that substantial evidence supported the ALJ's finding that the Complainant was fired for threatening behavior rather than protected activity.