USDOL/OALJ Reporter: ARB Decision Caselist - February 2016

PROTECTED ACTIVITY IN AIR21 CASE; COMPLAINANT NEED NOT ACTUALLY CONVEY REASONABLE BELIEF TO HIS OR HER EMPLOYER

PROTECTED ACTIVITY IN AIR21 CASE; COMPLAINANT’S INTERNAL REPORTING TO MANAGEMENT OF POTENTIAL FAA RULES VIOLATION MAY BE SUFFICIENT AND THE FAA NEED NOT ALSO BE INFORMED

In Bondurant v. Southwest Airlines, Inc. , ARB No. 14-049, ALJ No. 2013-AIR-7 (ARB Feb. 29, 2016), the ARB vacated the ALJ’s decision and order granting summary judgment in favor of the Respondents in an AIR21 whistleblower case where a genuine issue of material fact existed that precluded summary decision. The ALJ found that the Complainant may have had a reasonable concern that the Respondent was failing to comply with a requirement to report shipping incidents to the FAA, but that the Complainant must have communicated that concern and that the record showed that the Complainant did not raise concerns about reporting until he was being discharged. The ARB determined that the ALJ erred in focusing on the lack of communication of the concerns. The ARB wrote:

    We hold that the ALJ unduly limited his consideration of protected activity to whether Bondurant communicated to Respondent his reasonable belief that Respondent was failing to report a FAA violation. The ALJ stated: “However, it is not enough that a complainant honestly and reasonably believed there was or would be a violation. He must also have communicated that concern and the essence of Respondent’s Motion is that there is nothing in the record to allow a finding of fact to decide that he did so.” This was error for two reasons. First, we have repeatedly held that a complainant need not actually convey reasonable belief to his or her employer’; “[t]he reasonable belief standard requires an examination of the reasonableness of a complainant’s beliefs, but not whether the complainant actually communicated the reasonableness of those beliefs to management or the authorities.” Second, Bondurant presented evidence that on February 22, 2012, he reported to upper management that Respondent had transported lithium batteries in an unsafe manner. This is sufficient to raise a genuine issue of material fact with respect to protected activity. Protection under the statute may be afforded to reports of information relating to air carrier safety—a complainant need not also report the air carrier’s failure to report such information to the FAA.

USDOL/OALJ Reporter at 5 (footnote omitted) (emphasis as in original).

BACK WAGE LIABILITY IN LCA CASE; UNRELATED INCARCERATION OF H-1B WORKER DID NOT ABSOLVE EMPLOYER OF LIABILITY WHERE IT NEVER EFFECTED A BONA FIDE TERMINATION OF THE H-1B EMPLOYMENT

BACK WAGE LIABILITY IN LCA CASE; RECEIPT BY H-1B WORKER OF INCOME FROM OTHER SOURCES NOT CONSIDERED WAGES UNDER THE REGULATIONS DOES NOT SUPPORT MODIFICATION OF THE BACKPAY AWARD AS “EXCESSIVE”

In Administrator, Wage and Hour Div. and Ingvarsdottir v. Datalink Computer Products, Inc. , ARB No. 14-096, ALJ No. 2012-LCA-57 (ARB Feb. 29, 2016), the ARB affirmed the ALJ’s decision ordering the Respondents to pay back wages and interest to the Complainant for failure to pay wages in contravention of the H-1B statute and regulations. The ALJ found that the Respondents were liable for wages until the end of the LCA period because the Respondents had never effected a bona fide termination of the H-1B employment. The ALJ had not credited the Respondents for payments that could not be documented as having had appropriate employer and employee taxes paid to all appropriate Federal, State and local governments as required by 20 C.F.R. § 655.731(c)(2)(i)-(iv). The ALJ also did not credit payment for housing, debt payments, or otherwise because they did not meet the requirements for “authorized deductions” under 20 C.F.R. § 655.731(c)(9)(iii). The ALJ did give credit for periods of voluntary non-productive status.

During the H-1B employment, the H-1B worker had been incarcerated in Iceland for periods due to crimes in an unrelated matter. On appeal, the Respondents’ argued that the Complainant’s crimes absolved them of liability for the LCA back wages. The ARB, however, affirmed the ALJ’s finding that the Respondents were liable the back wages because a bona fide termination had not been effected. The Respondents also argued that the back pay award was excessive because the H-1B worker had earned income from other sources during the LCA period. The ARB agreed with the ALJ, however, that the Respondents could only receive credit for wages paid as defined under the regulations.

ARB grants Petitioner’s unopposed motion to withdraw its petition for review of Administrator’s denial of conformance request for power equipment operator classifications rates.

ARB REJECTS “EMPLOYER’S KNOWLEDGE” AS A SEPARATE ELEMENT OF A SOX WHISTLEBLOWER COMPLAINT

In Folger v. SimplexGrinnell, LLC , ARB No. 15-021, ALJ No. 2013-SOX-42 (ARB Feb. 18, 2016), the ARB described a SOX whistleblower complaint as requiring the complainant to establish three elements:

   To prevail on his SOX whistleblower complaint, [the complainant] must prove by a preponderance of the evidence that (1) he engaged in activity or conduct that SOX protects; (2) [the respondent] took some adverse personnel action against him; and (3) [the complainant’s] protected activity was a contributing factor in [the respondent’s] adverse personnel action.

USDOL/OALJ Reporter at 2 (footnote omitted). In a footnote, the ARB rejected “employer’s knowledge” as a separate element of a SOX whistleblower complaint:

… The ALJ and the parties cite four prongs, tracking the requirements necessary to raise an inference for an OSHA investigation, with the employer’s “knowledge” as a separate requirement. See 29 C.F.R. § 1980.104(e) (2015). Courts have at times also described the law as having four requirements. See, e.g., Halliburton, Inc. v. Admin. Review Bd. , 771 F.3d 254, 259 (5th Cir. 2014). We avoid that formulation here. For one, the statute does not include any explicit knowledge requirement, see 18 U.S.C. § 1514A; see also 49 U.S.C. § 42121 (2012), although it might be implicit in the causation requirement, see 18 U.S.C. § 1514A(a) (violation only if adverse personnel action taken “because of” whistleblowing); 49 U.S.C. § 42121(b)(2)(B)(iii) (violation only if complainant establishes that whistleblowing was a “contributing factor” in adverse personnel action). Second, there are times when the complainant need not show that the ultimate decision maker in fact had knowledge of the protected activity. See, e.g., Bobreski v. J. Givoo Consultants, Inc. , ARB No. 09-057, ALJ No. 2008-ERA-003 (ARB June 24, 2011) (under the whistleblower provisions of the Energy Reorganization Act (ERA), knowledge of the protected activity on the part of an individual who has some influence on the ultimate decision maker can suffice to satisfy the complainant’s burden to show the protected activity was “a contributing factor” in the adverse personnel action, even if the ultimate decision maker had no knowledge of the protected activity); cf. also Staub v. Proctor, Hosp. , 562 U.S. 411 (2011) (similarly interpreting Uniformed Services Employment and Reemployment Rights Act, a law prohibiting employment discrimination “on the basis of” membership in, or obligation to perform services, for a uniformed service).

Id . at 2, n.3.

ARB REVIEWS ALJ’S FACTUAL FINDINGS BASED ON A SUBTANTIAL EVIDENCE STANDARD; COMPLAINANT’S ARGUMENT ON APPEAL THAT THE RECORD WAS SUFFICIENT TO RAISE AN INFERENCE THAT PROTECTED ACTIVITY CONTRIBUTED TO THE ADVERSE ACTION IS IRRELEVANT

In Folger v. SimplexGrinnell, LLC , ARB No. 15-021, ALJ No. 2013-SOX-42 (ARB Feb. 18, 2016), the Complainant argued on appeal that “the record is sufficient to raise an inference that [his] protected activity was likely a contributing factor in the unfavorable employment action by Simplex.” USDOL/OALJ Reporter at 3 (quoting Complainant). The ARB found that this argument reflected a misunderstanding of the ARB’s standard of review on appeal, which requires that the ARB review the ALJ’s finding of fact for substantial evidence. The ARB thus stated that whether the record is sufficient to raise an inference is irrelevant. The ARB stated: “After an ALJ has made factual findings, the question is simply whether, when viewing the record as a whole, there is substantial evidence to support those findings. Thus, Folger needs to show not that the record is ‘sufficient to raise an inference’ in his favor, as he argues, but instead that the record is insufficient to support the ALJ’s finding that Folger’s protected activity was not a contributing factor in his termination.” Id . (footnote omitted).

In Folger , the ARB found “plenty” of evidence to support the ALJ’s findings: lack of evidence that any decision maker involved in termination of the Complainant’s employment knew that he had engaged in protected activity; sufficient evidence for the ALJ to believe the Respondent’s non-retaliatory reasons for the termination; sufficient evidence to support the ALJ’s findings of a timeline that undermined causal connection.

CONTRIBUTING FACTOR CAUSATION; QUESTION OF EMPLOYER’S ACTUAL KNOWLEDGE REQUIRES A FACTUAL DETERMINATION; QUESTION OF EMPLOYER’S CONSTRUCTIVE KNOWLEDGE REQUIRES A LEGAL DETERMINATION

In Folger v. SimplexGrinnell, LLC , ARB No. 15-021, ALJ No. 2013-SOX-42 (ARB Feb. 18, 2016), the ARB reviewed the record to determine whether the ALJ’s finding of fact that protected activity was not a contributing factor in the Complainant’s termination was supported by substantial evidence. The ARB found that one of the circumstances supporting the ALJ’s finding was lack of evidence that any decision maker involved in termination of the Complainant’s employment knew that he had engaged in protected activity. In a footnote, the ARB clarified that the ALJ was wrong in finding that the Respondent had neither actual nor constructive knowledge of the Complainant’s protected activity. The ARB wrote:

… Although we conclude that the ALJ had substantial evidence (in fact, as best we can tell, all the evidence) to support her finding that Simplex had no actual knowledge, we make no conclusion on the question of constructive knowledge. The ALJ’s decision wrongly assumed that a lack of evidence of actual knowledge suffices to demonstrate lack of constructive knowledge, … and the parties seem to conflate the two questions as well. Constructive knowledge is a “should have known” standard, not a “did know” standard. See BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “constructive” as “legally imputed; existing by virtue of legal fiction though not existing in fact ” (emphasis added)). Constructive knowledge is a legal determination, not a factual determination, and so evidence about lack of actual knowledge is insufficient for establishing whether Simplex had constructive knowledge. Because we conclude that the record contains substantial evidence to sustain the ALJ’s finding that Folger’s protected activity was not a contributing factor in his termination, we need not make any determination about whether Simplex should have known, as a matter of law, about Folger’s protected activity.

USDOL/OALJ Reporter at 3-4, n.6 (emphasis as in original).

CONTRIBUTING FACTOR CAUSATION; INFERENCE OF TEMPORAL PROXMITY IS NOT IN ITSELF SUFFICIENT TO ESTABLISH CONTRIBUTING FACTOR IN THE FACE OF COUNTERVAILING EVIDENCE

An inference created by temporal proximity is not, by itself and as a matter of law, conclusive evidence sufficient to meet a complainant’s burden to show that his protected activity was in fact a contributing factor in his termination. Factors that can overcome such an inference include continuing to receive favorable evaluations after the protected activity began; the length of time between the protected activity and the adverse action; and existence of a plausible intervening non-retaliatory cause. See Folger v. SimplexGrinnell, LLC , ARB No. 15-021, ALJ No. 2013-SOX-42 (ARB Feb. 18, 2016).

The ARB had earlier granted the Respondents’ motion to dismiss the Complainant’s ERA appeal before the ARB on the ground that the Complainant had filed an action in U.S. district court. The Complainant filed a pleading that the ARB construed as a motion for reconsideration of the ARB’s Order of Dismissal. The Complainant admitted that he had filed an ERA whistleblower complaint in district court regarding the same facts and events that were the subject of the complaint filed with DOL, but asked the ARB not to dismiss his DOL case “based on literal code interpretations and practices.” The ARB found that the Complainant failed to cite any authority that would permit it to retain jurisdiction, and therefore denied reconsideration.

The ALJ affirmed the WHD’s finding that a second-tier subcontractor on two renovation projects in Euclid, Ohio failed to pay five electricians the prevailing wage rates and fringe benefits for electricians. The ALJ listed 28 findings of fact in support of his conclusion that the WHD proved that the five workers had been misclassified and paid as laborers rather than electricians. On appeal, the ARB found that the ALJ’s findings of fact were supported by substantial evidence, that the ALJ’s legal analysis and conclusions of law were in accordance with applicable law, and that the second-tier subcontractor failed to demonstrate reversible error.

The ARB denied the Complainant’s second motion for extension of time for filing of his appellate brief because the Complainant did not serve the Respondent. The Complainant did not want to inform the Respondent of the basis for this second request. The Complainant filed a motion for reconsideration of the denial of the extension, but indicated that he remained adamantly opposed to serving the Respondent. The ARB denied the motion for reconsideration noting that it could not engage in ex parte communications. When the Complainant failed to file a timely brief, the ARB issued an order to show cause why the appeal should not be dismissed. The Complainant did not respond, and the ARB dismissed the appeal for failing to respond to the order to show cause.