USDOL/OALJ Reporter: ARB Decision Caselist - January 2018

FAIR LABOR STANDARDS ACT CIVIL MONEY PENALTY FOR REPEATED AND WILLFUL VIOLATIONS; ALJ PROPERLY AFFORDS COLLATERAL ESTOPPEL TO FINDING OF DISTRICT COURT IN RELATING PROCEEDING THAT RESPONDENTS’ VIOLATIONS WERE REPEATED AND WILLFUL

In Administrator, Wage and Hour Div., USDOL v. ZL Restaurant Corp. , ARB No. 16-070, ALJ No. 2016-FLS-4 (ARB Jan. 31, 2018), the ALJ granted the Administrator’s motion to stay the FLSA proceedings while the Secretary of Labor prosecuted a related action against Respondents in the U.S. District Court for the District of New Mexico. After the District Court entered judgment, the ALJ granted partial summary decision on the issue of whether Respondents engaged in repeated and willful violations, holding that he was bound by the district court’s decisions. The ARB affirmed this ruling finding that collateral estoppel prevented the Respondents from relitigating these issues.

FAIR LABOR STANDARDS ACT CIVIL MONEY PENALTY FOR REPEATED AND WILLFUL VIOLATIONS; MITIGATING FACTORS OF SMALL BUSINESS SIZE AND FACT THAT RESPONDENTS HAD PROVIDED CONSIDERABLE NON-CASH BENEFITS TO AFFECTED EMPLOYEES SUFFICIENT TO SUPPORT ALJ’S REDUCTION OF CMP

In Administrator, Wage and Hour Div., USDOL v. ZL Restaurant Corp. , ARB No. 16-070, ALJ No. 2016-FLS-4 (ARB Jan. 31, 2018), the ALJ granted the Administrator’s motion to stay the FLSA proceedings while the Secretary of Labor prosecuted a related action against Respondents in the U.S. District Court for the District of New Mexico. After the District Court entered judgment, the ALJ granted partial summary decision on the issue of whether Respondents engaged in repeated and willful violations, but conducted a hearing on the amount of CMPs for these violations, which had not been resolved by the District Court. The WHD had determined that certain violations were repeated and willful and assessed a total of $2,200 in CMPs for two violations (the maximum penalty at the time for these FLSA violations). Following the hearing, the ALJ reduced the amount of the penalty to $1,000. The WHD appealed to the ARB. The ARB affirmed the ALJ’s reduction of the penalty:

The ALJ analyzed factors relevant to an assessment of civil money penalties. He took into account the seriousness of the violations, their repeated and willful nature, and that Respondents failed to pay back wages as ordered at the end of the first investigation, and also the mitigating factors that Respondents are/have a small business and provided considerable non-cash benefits to the affected employees. Based on these considerations, the ALJ determined that a reduction in the penalty WHD assessed was appropriate and ordered Respondents to pay the Prosecuting Party a total of $1,000.00. We affirm.

USDOL/OALJ Reporter at 5-6 (footnotes omitted).

UNDERPAYMENT OF REQUIRED WAGE FOR SURGEON BASED ON CONTINGENT CLINCIAL COMPENSATION; IN CERTAIN CIRCUMSTANCE, CONTINGENT COMPENSATION MAY BE COUNTED AS WAGES WHERE IT WAS ACTUALLY PAID AND RECORDED AND REPORTED AS REQUIRED BY REGULATIONS

UNDERPAYMENT OF REQUIRED WAGE FOR SURGEON BASED ON CONTINGENT CLINCIAL COMPENSATION; REASONABLE AND CUSTOMARY DEDUCTIONS ARE AUTHORIZED ONLY IF EVIDENCE SHOWS WHAT THE PRACTICE IS IN THE COMMUNITY IN GENERAL

UNDERPAYMENT OF REQUIRED WAGE FOR SURGEON BASED ON CONTINGENT CLINCIAL COMPENSATION; AUTHORIZED DEDUCTIONS MUST BE “PRINCIPALLY FOR THE BENEFIT OF THE EMPLOYEE”

OF REQUIRED WAGE FOR SURGEON BASED ON CONTINGENT CLINCIAL COMPENSATION; ALJ MAY USE COMPARATOR PHYSICIANS TO SET REQUIRED WAGE IF SUCH IS BORNE OUT BY THE RECORD EVEN IF H-1B WORKER IS ONLY EMPLOYEE IN PRECISE POSITION

In Ahad v. Southern Illinois University School of Medicine , ARB Nos. 16-064, -065, ALJ No. 2015-LCA-23 (ARB Jan. 29, 2018), the ALJ concluded that the Respondent violated the H-1B program’s required wage obligation when it underpaid an H-1B nonimmigrant worker for both her academic and clinical work during her employment on an H-1B visa. Both the worker and the Respondent appealed to the ARB.

The worker was engaged by the Respondent as an Assistant Professor of Surgery/Bariatric Surgeon. Under a private employment agreement, the University paid the worker separately for academic work ($125,000 per year for each year) and clinical work ($125,000 per year for two years, upon which this compensation became contingent on clinical incentives and became subject to deductions for failing to meet those incentives). The appeals focused on the clinical compensation.

Contingent Compensation, Once Paid, Counts As Wages As Long As It Meets the Requirements of § 655.731(c)(2)(i)(iv)

The worker’s appeal was based on the argument that none of the clinical incentive compensation wages she was paid could be credited towards the Respondent’s wage obligation because this compensation was contingent on “relative value units” (RVUs) earned monthly, as well as other factors, and as such did not count as wages under 20 C.F.R. § 655.731(c)(2)(v). The ARB rejected this argument:

    [The H-1B worker] assigns error to the ALJ’s interpretation of 20 C.F.R. § 655.731(c)(2)(v) to the effect that while future, unpaid, yet to-be-paid bonuses or similar compensation may be credited toward satisfaction of the wage obligation if they are assured and not conditional or contingent, once paid such compensation counts as wages as long as it satisfies the requirements of subsections (c)(2)(i) through (iv), namely that the compensation is recorded and reported as “earnings” with appropriate taxes and withholdings. The ALJ found, “Here, though the wages were contingent on [the H-1B worker]’s RVUs, they were not future wages as they had been paid.” … The ALJ thereby applied the regulation as it is written, and the regulation plainly does not provide, as [the H-1B worker] urges, that contingent compensation can never be counted towards fulfillment of the wage obligation. Rather, the regulation imposes the requirement that certain contingent compensation, once paid, counts as wages as long as it meets the requirements of 20 C.F.R. § 655.731(c)(2)(i)(iv).

Slip op. at 5. The ARB also held that the ALJ correctly distinguished the ALJ’s decision in Administrator v. Aleutian Capital Partners, LLC , 2014-LCA-00005 (ALJ July 9, 2014), on the ground that in that case, it was not the contingency of the wages that that was at issue, but that the employee did not receive 1/12 of his annual salary each month as required for a salaried employee. In the instant case, the H-1B worker’s contingent wages were not future wages because they had been paid. The ARB summarized: “the ALJ’s decision to count as wages the clinical incentive compensation the University paid to [the H-1B worker] is consistent with the regulatory scheme. 20 C.F.R. § 655.731(c)(2); see generally Aleutian , (ARB June 1, 2016) slip op. at 5 n.6 (certain qualifying bonus payments count as wages paid).” Id . at 6.

Reasonable and customary deductions not allowed where Respondent only showed what its customary practice was and not that of the community in general

The Respondent argued on appeal that the ALJ should have allowed certain deductions to the H-1B’s clinical compensation, based on the Respondent’s contention that it is typical in a multispecialty group medical practice to enter into an agreement similar to the parties’ agreement—which allows for deductions from wages for failure to meet clinical incentive goals. The ALJ declined to consider this argument for the reason that the Respondent only offered evidence of what was customary at the Respondent University and not evidence of customary practice throughout the medical school community. The ARB affirmed the ALJ’s ruling, finding that the Respondent’s evidence failed “to demonstrate that these deductions were ‘reasonable and customary’ within the meaning of 20 C.F.R. § 655.731(c)(9)(ii).” Id . at 6 (footnote omitted).

H-1B worker’s signing of compensation package that included certain incentive goals found not to validate authorized deductions because the regulation authorizes deductions “principally for the benefit of the employee” and not, as here, where the compensation was tied to generating revenue for the entity

The ARB also affirmed the ALJ’s rejection of the Respondent’s argument that the deductions were “authorized” under 20 C.F.R. § 655.731(c)(9)(iii)(A) because the H-1B worker signed the compensation agreement accepting same. The ARB wrote:

The ALJ properly noted that under this section, deductions must be “principally for the benefit of the employee” and here, the ALJ determined, they were not. Rather, the ALJ determined that the deductions allowed the University to pay [the H-1B worker] only “when she generated revenue for the entity and not for other duties such as providing postoperative care for bariatric patients and the time [the H-1B worker] spent marketing the program to doctors in the local area. … These deductions from [the H-1B worker]’s clinical compensation were unauthorized and, as such, are considered nonpayment of that amount of wages. 20 C.F.R. § 655.731(c)(11).

Id . at 7.

Fact that H-1B worker was the only bariatric surgeon it employed during her H-1B employment did not prevent ALJ from using comparator physicians to set required wage where record supported such

The ARB found that the record amply supported the ALJ’s setting the required wage using comparator physicians, despite the Respondent’s argument on appeal that the H-1B worker was the only bariatric surgeon it employed during her H-1B employment and therefore the required wage had to be what she was actually paid as opposed to what the comparator physicians were paid. The ARB stated that it would not re-weigh the evidence.

PRE- AND POST-JUDGMENT INTEREST AWARD; ARB AFFIRMS ALJ’S DIRECTION THAT THE WAGE AND HOUR ADMINISTRATOR CALCULATE THE INTEREST

In Ahad v. Southern Illinois University School of Medicine , ARB Nos. 16-064, -065, ALJ No. 2015-LCA-23 (ARB Jan. 29, 2018), the ALJ concluded that the Respondent violated the H-1B program’s required wage obligation when it underpaid an H-1B nonimmigrant worker for both her academic and clinical work during her employment on an H-1B visa. When the ARB issued a Notice of Intent to Review, it specified in part that it would review whether the Respondent was liable for the underpaid wages in the amount found by the ALJ “plus prejudgment compound interest on the back pay owed and postjudgment interest until satisfaction in full.” In its Final Decision and Order, the ARB affirmed the ALJ’s finding of underpayment, and specifically affirmed the ALJ’s direction that the Wage and Hour Administrator, “shall make such calculations with respect to back pay and interest necessary to carry out this order.”

[STAA Digest V B 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; COMPLAINANT’S REFUSAL TO DRIVE WAS OBJECTIVELY REASONABLE WHERE LOAD WAS OVERWEIGHT AT THE TANDEM AXLE, DESPITE THE GROSS WEIGHT BEING PERMISSIBLE WHEN AN APU EXEMPTION WAS TAKEN INTO ACCOUNT; ARB CONCLUDES THAT REGULATION PROVIDING 2-3% LEEWAY IN THE MEASUREMENT OF A TRUCK’S WEIGHT IS A DISCRETIONARY ENFORCEMENT PROVISION AND NOT A MEANS TO PREVENT A REFUSAL TO DRIVE FROM BEING PROTECTED UNDER THE STAA

In Sinkfield v. Marten Transportation, Ltd. , ARB No. 16-037, ALJ No. 2015-STA-35 (ARB Jan. 17, 2018), the Complainant refused to drive a truck with a load that was 40 pounds over the gross weight limit, and at least 800 pounds over the tandem axle weight limit. The truck was equipped with an auxiliary power unit (APU) weighing approximately 400 pounds. The Respondent contended that the Complainant’s refusal was not objectively reasonable because Federal law permits an APU exemption up to the weight of the unit, and each of the states through which the Complainant would travel had an APU exemption by law or through a non-enforcement policy. The ARB was not persuaded by this argument because the tandem axle weight was still at least 800 pounds over the limit, violating federal law and the law in those states that follow federal law. The Respondent pointed to 23 C.F.R. § 658.17(g) which provides a 2-3% leeway in the measurement of a truck’s weight. The ARB, however, stated: “This leeway may be appropriate for officials exercising discretion over whether to cite a driver with a violation, but not as a provision intended to prevent a finding of protected activity under the STAA. ” The ARB thus found that the ALJ properly concluded that the Complainant engaged in protected activity under the STAA’s refusal protection at 49 U.S.C.A. § 31105(a)(1)(B).

REMAND FOR ALJ TO CONSIDER ADDITIONAL INSTANCES OF PROTECTED ACTIVITY

In 2016, the ARB had affirmed the ALJ’s dismissal of the Complainant’s STAA complaint on the ground that the Complainant failed to prove that his protected activity of refusing to drive while fatigued was a contributing factor in his termination of employment. On appeal, the Fourth Circuit determined in an unpublished decision that the ALJ had overlooked additional instances of protected activity and remanded. Carter v. CPC Logistics, Inc. , No. 17-1095 (4th Cir. Sept. 5, 2017) (per curiam) (unpublished) (2017 U.S. App. LEXIS 17118; 2017 WL 3867816). Consistent with the Fourth Circuit’s opinion, the ARB vacated its Final Decision and Order of December 22, 2016, and remanded this case for further proceedings before the ALJ. Carter v. CPC Logistics, Inc. , ARB No. 15-050, ALJ No. 2012-STA-61 (ARB Jan. 12, 2018)

CLEAR AND CONVINCING EVIDENCE; ARB FINDS THAT WHERE ALJ FOUND THAT PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR IN THE ADVERSE PERSONNEL ACTION, AND BUT FOR THE COMPLAINANT’S REPORT THE RESPONDENT WOULD NOT HAVE ISSUED A LETTER DISQUALIFYING THE COMPLAINANT FROM EMPLOYEE-IN-CHARGE ASSIGNMENTS, THE ALJ’s ADDITIONAL FINDING THAT THE RESPONDENT MET ITS BURDEN OF PROOF THAT IT WOULD HAVE TAKEN THE SAME ACTION IN THE ABSENCE OF THE PROTECTED ACTIVITY IN LIGHT OF WHAT THE COMPLAINANT TOLD HIS DIRECT SUPERVISOR ABOUT HIS LACK OF COMFORT IN PERFORMING A PARTICULAR TASK WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

In Holmquist v. Wisconsin Central Ltd. , ARB No. 16-006, ALJ No. 2014-FRS-57 (ARB Jan. 12, 2018), the Complainant had been ordered to act as an Employee-in-Charge (EIC) and pilot a rail grinding train on a portion of the railroad. The Complainant informed his direct supervisor that "he was uncomfortable and felt he was not qualified to function as an employee in charge of a rail grinding train.” The Complainant relayed those same concerns to the Respondent’s risk management (RM) specialist. The RM specialist told the Complainant that he would get someone else to act as EIC for the rail grinding train. The RM specialist then called the district Senior Manager and told him that the Complainant had been asked to act as EIC for the rail grinding train but told the RM specialist that "he didn't feel qualified or comfortable doing it." The RM specialist did not tell the Senior Manager that the Complainant said he could not act as an EIC in general. The Complainant’s director supervisor also talked to the Senior Manager and recommended that the Complainant be disqualified from acting as an EIC. The Senior Manager then disqualified the Complainant from all positions requiring track authority, which precluded him from occupying all EIC positions. No one ever told the Senior Manager that the Complainant did not feel safe obtaining track authority for a specific piece of equipment. The Complainant was transferred to a position that did not result in any loss of pay or reduction in benefits. The Respondent later removed the disqualification, and except for job assignments, the disqualification had no other impact on the Complainant’s employment. The Complainant filed an FRSA complaint alleging that the disqualification was in retaliation for refusing to operate the rail grinding train. The ALJ concluded that the Complainant engaged in FRSA-protected activity that contributed to an adverse employment action, but that the Respondent proved that it would have taken the same action in the absence of the protected activity. The ALJ had concluded that the Respondent had provided by clear and convincing evidence that it was reasonable to remove the Complainant from all EIC positions in light of his communications with his direct supervisor. The ARB reversed the ALJ’s conclusion that the Respondent met its burden in this way, stating:

But such a conclusion does not establish that [the Respondent] would have disqualified [the Complainant] if he had not engaged in those communications. The ALJ's conclusion contradicts his specific findings regarding the effect of [the Complainant]'s protected activities:

In other words, if [the Complainant] had not told Mr. Hardy on July 9, 2013 that he felt that it was not safe for him to pilot the rail grinding train and his refusal to do so the next day, Wisconsin Central management would not have initiated the subsequent informal investigation, and would not have disqualified Complainant from all EIC positions. In other words, I find the protected activity was a contributing factor in the adverse personnel action because, but for Complainant's report, Respondent would not have issued the disqualification letter . . . Complainant's raising legitimate concerns to his supervisor regarding his discomfort and inability to pilot the rail grinder was the only reason Bjork subsequently disqualified Complainant.

   The Board therefore reverses the ALJ's legal conclusion that [the Respondent] met its burden of proof absolving it of liability because the foregoing findings of fact (which are supported by substantial evidence) establish, contrary to the ALJ's conclusion, that [the Respondent] would not have taken the same adverse action in the absence of [the Complainant]'s protected activity. Judgement for [the Complainant] is accordingly awarded.

Slip op. at 4-5 (quoting ALJ’s decision) (footnote omitted).

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY UNDER THE SDWA AND FWPCA; A COMPLAINANT IS NOT REQUIRED TO EXPLICITLY MENTION THE STATUTES BY NAME OR TO OTHERWISE ALLEGE A VIOLATION OF THE STATUTE TO ENGAGE IN PROTECTED ACTIVITY; RATHER COMPLAINANT ONLY NEEDS TO SHOW THAT HE REASONABLY BELIEVED HE WAS RAISING ENVIRONMENTAL OR PUBLIC HEALTH AND SAFETY CONCERNS

In Wright v. Railroad Commission of Texas , ARB No. 16-068, ALJ No. 2015-SDW-1 (ARB Jan. 12, 2018), the Complainant filed a SDWA and FWPCA retaliation complaint alleging that the Respondent Railroad Commission retaliated and discriminated against him because he raised concerns about requiring oil and gas operators to comply with rules regulating drilling wells to protect sources of underground drinking water.

Background

The record showed that the Railroad Commission had counseled the Complainant about complaints from the regulated community that he was difficult to work with. The SDWA/FWPCA complaint centered on a later incident in which a consultant for a regulated operator submitted a casing exception request using a form that the Complainant’s supervisor had approved. The Complainant informed the consultant that she needed to use an older form to list the correct number of centralizers. The Complainant’s supervisor learned that the Complainant had asked that the consultant use the old form and told her that she did not have to. He also told the consultant that she could email or call the Complainant to inform him how many centralizers were required. The Complainant’s supervisor emailed the Complainant and told him that the new form contained enough information to approve the consultant’s request. The Complainant responded by email that the new form did not provide enough information because “operators made errors in the past that did not comply with the regulations intended to protect fresh water. ” The Complainant “allegedly insisted on using the January form to protect underground sources of drinking water in furtherance of the Safe Drinking Water Act. ” In the email to his supervisor, the Complainant stated that it appeared that the supervisor was telling him that he could not “request information from the operators regarding whether they were planning on using sufficient amounts of cement to comply with the rules,” and was therefore restricting him from doing his job. The supervisor recommended further disciplinary action against the Complainant based on this incident. The Railroad Commission then fired the Complainant for refusing “to comply with Commission directives to work with management and staff and to assist operators in resolving compliance problems, including the most recent issue of assisting an operator on how to resolve a casing exception request.” The ARB stated that the Complainant’s request to the consultant, which according to the Commission exemplified the Complainant’s misconduct, ultimately led (or contributed) to his termination.

The ALJ’s Findings

The ALJ found that the Complainant had not engaged in protected activity because there was no evidence that the Complainant ever “referred specifically to the two statutes in this case, ever notified or accused the Railroad Commission of any violations of these specific statutes, ever refused to engage in any practice made unlawful by the statutes, or filed or testified before Congress or in any other proceedings regarding any provision of the statutes.” Slip op. at 7 (footnote omitted).

The ARB’s Findings

The ARB found that the ALJ’s ruling on protected activity was in error:

   The ALJ’s restrictive view of protected activity is not legally sustainable. A complainant is not required to explicitly mention the statutes by name or to otherwise allege a violation of the statute to engage in activity the SDWA protects. The language of the SDWA simply prohibits employers from discriminating against employees who have “participated in activities to carry out the purposes” of the act. This is broad language, some of the broadest of any of the statutes the ARB has the responsibility to adjudicate. While the FWPCA’s language is not as broad, neither the SDWA nor the FWPCA’s language requires a complainant to cite the statute specifically or to report a “violation.” And under both statutes, a “proceeding” does not have to be a formal proceeding.

Id . at 8 (footnotes omitted). The ARB found that it did not have enough information to determine whether the Complainant’s request that the consultant submit the older version of the form itself was protected activity, but found that his email to the supervisor was “clearly a protest that he is being restricted from doing his job, of which one of his primary duties was to secure compliance by operators with the statutes at issue in this case.” The ARB found that the Complainant’s e-mail to his supervisor “was in furtherance of the SDWA and therefore constitutes protected activity, if Wright reasonably believed that he was doing so” and “would also constitute protected activity under the FWPCA, as it was a ‘proceeding resulting from the administration or enforcement of the’ FWPCA, again, if [the Complainant] had the reasonable belief that he was raising environmental or public health and safety concerns.” Id . at 9 (footnotes omitted). In view of its rulings, the ARB remanded for the ALJ to consider whether the Complainant’s direction to use the old form, and his subsequent email to his supervisor, were protected activity.

[STAA Digest V B 2 d]
PROTECTED ACTIVITY; COMPLAINANT NEED NOT EXPRESSLY MENTION HOURS-OF-SERVICE VIOLATION; RATHER A COMPLAINANT NEED ONLY DEMONSTRATE THAT HE OR SHE HAD A REASONABLE BELIEF THAT THE CONDUCT COMPLAINED OF VIOLATED PERTINENT LAW OR REGULATIONS; THAT REASONABLE BELIEF NEED NOT HAVE BEEN COMMUNICATED TO MANAGEMENT

In Newell v. Airgas, Inc. , ARB No. 16-007, ALJ No. 2015-STA-6 (ARB Jan. 10, 2018), the Complainant filed a STAA whistleblower complaint alleging that the Respondent fired him after his repeated complaints about hours-of-service violations and refusals to drive in violation of the hours limitations. The ALJ dismissed the complaint. On appeal, the ARB vacated the ALJ’s decision and remanded for further proceedings. One of the reasons the ARB remanded was that the ALJ too narrowly defined protected activity to require express mention of hours-of-service violation.

The ALJ found that the Complainant engaged in protected activity on multiple occasions when he complained about the Respondent’s hours-of-service violations, but also found that on three specific dates protected activity had not occurred because the Complainant had not specifically complained to his manager that he would violate the hours-of-service limitation if he made assigned deliveries. The ALJ concluded that even if the Respondent knew about a violation, that fact alone does not establish that the employee complained to the employer about the violation. The ARB disagreed with the ALJ’s analysis, writing:

   We find that the ALJ erred in requiring [the Complainant] to articulate a specific hours-of-service violation (1) to [his direct manager] on October 13, 2013, and March 21-22, 2014, and (2) to the [higher level] managers on the conference call on March 28. The Board has held that a complainant alleging protected activity need not expressly describe an actual violation of law. Rather, a complainant need only demonstrate that he or she had a reasonable belief that the conduct complained of violated pertinent law or regulations. This standard requires both a subjective belief and an objective belief. Thus, [the Complainant] must show that he actually believed that making the mandated call-out deliveries violated the hours-of-service regulations and that a reasonable person with his training and experience would know that making those deliveries was a violation.”

   Further, [the Complainant] need not show that he “actually conveyed his reasonable belief to management.” While [the Complainant] must show that his belief was reasonable, “it does not follow that he must have necessarily conveyed a notion to have reasonably believed it . . .” to his supervisors. Consequently, the ALJ erred in finding the evidence “insufficient to establish” that [the Complainant] communicated any objection about hours-of-service violations.

Slip op. at 10 (footnotes omitted). The ARB listed facts in the case that the ALJ should consider on remand, and summarized that “[o]n remand, the ALJ should reconsider, first, whether [the Complainant]’s complaints about driving excessive hours on October 25, 2013, and/or March 21-22, 2014, constituted protected activity notwithstanding that he did not expressly mention that the additional driving would be an hours-of-service violation and within the context of his repeated past hours-of-service complaints and his reasonable belief that [the Respondent] expected him to make call-out deliveries and would possibly fire him if he refused.” Id . at 11.

[Editor’s note: Although the ARB’s decision is not clear on the point, it appears that context is relevant and that a complainant must have made some sort of protest. The ARB pointed out that (1) the Complainant in this matter had complained about driving excessive hours on the days in question (albeit not specifically mentioning that the complaint was about an hours of service violation) and (2) the Complainant had made express complaints in the past.]

[STAA Whistleblower Digest IV A 2 d]
CAUSATION; EMPLOYER’S KNOWLEDGE OF PROTECTED ACTIVITY IS NOT A SEPARATE ELEMENT OF A STAA WHISTLEBLOWER CLAIM, BUT INSTEAD IS PART OF THE CAUSATION ANALYSIS; ALJ MUST CONSIDER THE RECORD AS A WHOLE AND NOT FOCUS TOO SPECIFICALLY ON THE DECISIONMAKER’S PURPORTED LACK OF KNOWLEDGE OF COMPLAINANT’S PRIOR PROTECTED COMPLAINTS OR DIRECT MANAGER’S PURPORTED LACK OF UNDERSTANDING OF APPLICABLE RULES

In Newell v. Airgas, Inc. , ARB No. 16-007, ALJ No. 2015-STA-6 (ARB Jan. 10, 2018), the Complainant filed a STAA whistleblower complaint alleging that the Respondent fired him after his repeated complaints about hours-of-service violations and refusals to drive in violation of the hours limitations. The ALJ dismissed the complaint. On appeal, the ARB vacated the ALJ’s decision and remanded for further proceedings.

One of the reasons the ARB remanded was that the ALJ failed to consider whether the Complainant’s statements to the Respondent’s management “constituted protected activity in light of the circumstantial evidence of record, when considered as a whole .” Slip op. at 9 (emphasis as in original).

The ARB noted that it “has held that an employer’s knowledge of protected activity is not a separate element, but instead forms part of the causation analysis. Bobreski v. J. Givoo Consultants, Inc. , ARB No. 09-057, ALJ No. 2008-ERA-003, slip op. at 13, 16 (ARB June 29, 2011) ( Bobreski I ) (The issue of knowledge is a necessary part of the single question of causation and similarly requires that the evidence be considered as a whole.). See also Moon v. Transp. Drivers, Inc. , 836 F.2d 226, 229 (6th Cir. 1987) (citing three elements for a whistleblower claim under the STAA).” Id . at 8, n.34. The ARB also stated:

[A] respondent’s knowledge of the protected activity need not be specific, and a complainant need not prove that a respondent knew that the complaint involved an express violation. Finally, proof that an employee’s protected activity contributed to the adverse action does not necessarily rest on the decision-maker’s knowledge alone, but may also be established by evidence demonstrating “that at least one individual among multiple decision-makers influenced the final decision and acted at least partly because of the employee’s protected activity.”

Id . at 13-14 (footnotes omitted).

In the instant case, the ARB found that the ALJ had focused too narrowly on the “supposed” lack of knowledge of managers who made the decision to terminate the Complainant’s employment of the Complainant’s prior complaints about hours of service violations, and the Complainant’s direct manager’s seeming lack of understanding of the basic hours-of-service rules. The ARB stated that the ALJ should have instead made a determination on the “cumulative effect of the circumstantial evidence.” Id . at 13 and n.54 (citing Bobreski v. J. Givoo Consultants, Inc. , ARB No. 13-001, ALJ No. 2008-ERA-003, slip op. at 18, n. 63 (ARB Aug. 29, 2014)( Bobreski II )).