USDOL/OALJ Reporter: ARB Decision Caselist - January 2015

In Administrator, Wage & Hour Div., USDOL v. Sirsai, Inc. , ARB No. 12-102, ALJ No. 2011-LCA-1 (ARB Jan. 28, 2015), the ARB summarily affirmed the ALJ's Decision and Order finding that the Respondents violated the H-1B regulations when it misclassified various employees and paid them improper wages; �benched� employees; failed to reimburse employees for business expenses; misrepresented material facts on their LCAs regarding prevailing wages and employees� worker locations; and failed to comply with posting requirements. The ARB also affirmed the ALJ's conclusion that the actions were willful and that CMPs and debarment were appropriate. The ARB rejected the Respondents� argument on appeal that the WHD provided them with insufficient notice of the extent of the violations that WHD was investigating. The ARB agreed with the ALJ that sufficient notice had been provided and that there had been no prejudicial effect of altering the time frame of the period covered on the WH-56. The ARB noted that the Respondents' violations had been �particularly egregious.�

Order granting Respondent-Petitioner's withdrawal of protective appeal.

In Mawhinney v. Transportation Workers Union , ARB No. 15-013, ALJ No. 2012-AIR-14 (ARB Jan. 21, 2015), the ARB dismissed the Complainant's petition for an interlocutory appeal for failure to reply to the ARB's order to show cause why the petition should not be dismissed. It was subsequently determined that the Complainant had, in fact, filed a timely response, and the ARB issued a decision on reconsideration denying the petition based on the Complainant's failure to obtain certification from the ALJ of the issue for interlocutory appeal and failure to demonstrate exceptional circumstances sufficient to invoke the ARB's interlocutory review of the issues presented. See Mawhinney v. Transportation Workers Union , ARB No. 15-013, ALJ No. 2012-AIR-14 (ARB Feb. 3, 2015).

ALJ HAS JURISDICTION TO ISSUE AN ATTORNEY FEE DECISION WHILE APPEAL ON THE MERITS IS PENDING BEFORE THE ARB

An ALJ has jurisdiction to issue an attorney fee award in an AIR21 whistleblower case even though the Respondent's appeal on the merits is pending before the ARB. Luder v. Continental Airlines, Inc. , ARB No. 13-026, ALJ No. 2008-AIR-9 (ARB Jan. 7, 2015).