USDOL/OALJ Reporter: ARB Decision Caselist - February 2018

FAILURE TO PAY REQUIRED WAGE UNDER AN LCA; THE LAW RECOGNIZES ONLY TWO EXCEPTIONS TO THE BENCHING PROVISION; SUCH EXCEPTIONS OR EXCUSES DO NOT INCLUDE — DOWNTURN IN BUSINESS, H-1B WORKER’S FAILURE TO MITIGATE BY FINDING OTHER WORK OR RETURNING TO HOME COUNTRY, UNDOCUMENTED ALTERNATIVE COMPENSATION, AND WAGE HOUR DIVISION’S ALLEGED EXCEEDING SCOPE OF ITS INVESTIGATORY AUTHORITY

“An employer is required to pay its H-1B nonimmigrant employees the required wage, including for so-called ‘nonproductive time,’ for the entire duration of the H-1B visa, unless the employer can show that one of the two exceptions to the benching provision applies.” Administrator, Wage and Hour Div. v. Government Training, LLC , ARB No. 16-049, ALJ No. 2015-LCA-5 (ARB Feb. 23, 2018), slip op. at 6 (footnote omitted) (citing 20 C.F.R. § 655.731(b)(7)(ii)). In Government Training, LLC , the Respondent did not argue that it paid the H-1B worker the required wage for certain periods during two Labor Condition Applications (LCA) or that either of the two regulatory exceptions to the benching provision applied. Rather, the Respondent argued before the ALJ that “it should be excused from paying for various reasons. These reasons included a downturn in business, that Sharma should have mitigated his damages by finding other work or returning to India, that Sharma took more time off of work than the Administrator accounted for (eight days), and that the Administrator exceeded its authority by assessing back wages for a two-year period of time.” Slip op. at 5. The ALJ rejected these excuses on the ground that none of them relieved the Respondent from the obligation to pay required wages under the LCA. The ALJ also found that the Respondent failed to submit any documentation that any other benefits that could be viewed as compensation (health insurance, car, cell phone) were ever recorded or reported either on the payroll or to the IRS, as required by the regulations.

On appeal to the ARB, the Respondent repeated “the arguments it made to the ALJ about mitigation; impracticability; and payments it allegedly made for Sharma’s health insurance, a car, and cell phone….” Id . at 6. The ARB found that none of these arguments speak to the law’s two available exceptions, found that the ALJ had addressed all of these arguments, and affirmed the ALJ’s findings that the Respondent failed to pay the H-1B worker required wages.

SCOPE OF INVESTIGATION AND BACK WAGE LIABILITY; WAGE AND HOUR DIVISION ADMINISTRATOR HAS THE DISCRETION TO LIMIT TIME PERIOD INVESTIGATED AND ORDER BACK WAGES FOR THAT LIMITED TIME PERIOD, EVEN THOUGH ADMINISTRATOR HAS THE DISCRETION TO ORDER BACK WAGES FOR ENTIRE PERIOD OF FIRST AND SECOND LCAS

In Administrator, Wage and Hour Div. v. Government Training, LLC , ARB No. 16-049, ALJ No. 2015-LCA-5 (ARB Feb. 23, 2018), the ARB indicated that although the Wage and Hour Division (WHD) Administrator had the discretion to order the Respondent to pay back wages for the entirety of two sequential Labor Condition Applications (LCA) until the date the H-1B worker quit his employment, the WHD also had the discretion to limit its investigation to the two years prior to the H-1B worker’s resignation. The ARB found that the ALJ properly awarded back wages for the time period covered by the Administrator’s order.

ARGUMENT FIRST MADE ON APPEAL; ARB DENIES WAGE AND HOUR DIVISON ADMINISTRATOR’S REQUEST FOR REMAND TO RECALCULATE BACK WAGES WHERE THE ADMINISTRATOR RAISED CONTENTION FOR THE FIRST TIME ON APPEAL THAT THE REQUIRED WAGE SHOULD BE THE PREVAILING WAGE BECAUSE THE H-1B’S POSITION WAS UNIQUE; THE ARB FOUND — THAT THE ALJ HAD GRANTED THE BACK WAGES AS SOUGHT IN THE ADMINISTRATOR’S MOTION FOR SUMMARY DECISION BASED ON A HIGHER ACTUAL WAGE REPORTED ON THE LCA — THAT THE RECORD INDICATED THE EXISTENCE OF SIMILARLY EMPLOYED WORKERS — THAT THE RESPONDENT WOULD BE HELD TO THE ACCURACY OF ITS ATTESTATIONS IN THE LCA ABOUT THE ACTUAL WAGE — THAT ALLOWING A REMAND ON A CONTENTION NOT RAISED BELOW THAT WOULD POTENTIALLY LOWER BACK PAY AWARD BE UNFAIR TO THE H-1B WORKER

In Administrator, Wage and Hour Div. v. Government Training, LLC , ARB No. 16-049, ALJ No. 2015-LCA-5 (ARB Feb. 23, 2018), the Wage and Hour Division (WHD) Administrator had ordered back wages based on the required wage (based on the actual wage reported by the Respondent) on two sequential two Labor Condition Applications (LCA) filed by the Respondent. The actual wage reported by the Respondent for the first LCA was $65,000, and the prevailing wage was reported as $55,806. The Respondent reported both the actual and prevailing wage as $38,500 for the second LCA. The ALJ ordered this amount as the back wages due when granting the Administrator’s motion for summary decision. On appeal, the WHD Administrator sought a remand to the ALJ for recalculation of back wages based on the contention that, because the Respondent never paid the H-1B worker (who the Administrator asserted was the only employee in the position) more than the prevailing wage, the prevailing wage was the actual wage, and because the actual wage was less than the prevailing wage, the prevailing wage becomes the “required wage.”

The ARB declined to grant a remand. First, the ALJ had ordered the amount the Administrator sought in the motion for summary decision. Second, the ARB found that the record indicated that there were other similarly employed workers and therefore 20 C.F.R. § 655.731(a)(1) (mandating payment of “actual wage” where other employees with substantially similar experience and qualifications do not exist) did not apply. The ARB noted that the Administrator had not argued while the case was before the ALJ that the H-1B worker’s employment was unique, and failed to cite any evidence to support such a contention before the ARB. Third, the ARB held the Respondent to the accuracy of its attestations in the LCA that the actual wage for the first LCA period was $65,000, and that this wage was based on the amount it paid to similarly employed workers. Fourth, the Administrator had not filed a petition for review, and permitting it to now raise an argument not made below before the ALJ would be unfair to the H-1B worker who had not participated in the appeal, but who could have asked to intervene.

The Complainant filed several documents with the ARB in which it was unclear whether his intention was to petition for review of the ALJ’s decision. The filing was also beyond the 14 day period for petitioning for review and had not been served on the opposing party. The ARB issued an Order informing the Complainant of the procedural requirements for an appeal. Later, the ARB dismissed the appeal because the Complainant “failed to comply with both of the Board’s requirements for his appeal to proceed. He neither established that he had served the Respondents’ counsels with the documents he sent to the Board, nor did he show cause why the Board should toll the limitations period.”

ADVERSE ACTION; FAILURE TO ASSIGN COMPLAINANT WHEN SHE REPORTED EARLY FOR DUTY AFTER TAKING SICK LEAVE WAS NOT ADVERSE ACTION UNDER THE NTSSA WHERE WORK SCHEDULES WERE SET BY A CBA AND COMPLAINANT HAD BEEN PAID FOR HER TIME OFF

ADVERSE ACTION; COMPLAINANT’S ASSIGNMENT TO A LESS DESIRABLE POSITION BASED ON SENIORITY FOUND NOT TO BE ADVERSE ACTION UNDER THE NTSSA WHERE COMPLAINANT LEFT THE SHIP BECAUSE SHE WAS NOT FEELING WELL WHILE WAITING FOR RECONSIDERATION OF SENIORITY QUESTION

In Ibale v. Alaska Marine Highway System , ARB No. 16-055, ALJ No. 2014-NTS-4 (ARB Feb. 16, 2018), the Complainant filed a complaint under the employee whistleblower protection provision of the National Transit Systems Security Act alleging that the Respondent violated the Act after she complained to the U.S. Coast Guard and OSHA about asbestos exposure aboard a passenger ferry. The ARB found that substantial evidence supported the ALJ’s findings that the Respondent had not taken adverse action against the Complainant.

The Complainant had raised a concern about cleaning a lounge while the ship was in the shipyard for overhaul because workers had recently removed asbestos and had left a ceiling panel open. The Complainant’s supervisor investigated and determined that the asbestos removal had been completed and that it was safe to clean the lounge. After verifying this with a union representative, the Complainant and a co-worker vacuumed and dry-mopped the room. On the second day of cleaning, the Complainant asked for a respirator, but one was not available. She later complained of respiratory symptoms, filed out an injury report, and was placed on unfit-for-duty status. Later, the Complainant reported to duty but was informed that the ship had left the shipyard and that her crew was not scheduled for work until later. Crews worked on two-week assignments.

The Complainant argued to the ARB that an employee who takes sick leave during a crew’s two-week assignment must be permitted to return and complete that assignment once found fit for duty. The ARB, however, found that substantial evidence supported the ALJ’s finding that the Complainant’s crew was not scheduled for work on the day she first reported for duty. The scheduling of crews was delineated by a collective bargaining agreement, the Complainant conceded her crew was not scheduled until later, and credible evidence showed that she had been paid for her time off on sick leave.

When the Complainant returned to work, the crew list assigned her to head waiter, but she was instead assigned to a cashier position because an employee with greater seniority took the head waiter position. While waiting for a new chief steward to check on seniority status, the Complainant informed the chief steward that she felt sick and was getting off the ship. The ARB found that substantial evidence supported the ALJ’s finding that even if the Complainant had been placed in the wrong job position, she left the ship due to feeling “ sick and for no other reason. ”

TIMELINESS OF PETITION FOR ARB REVIEW; EQUITABLE TOLLING; UPON LEARNING OF DEFICIENCY IN SERVICE ON COUNSEL, AND THERE IS STILL TIME TO FILE A TIMELY APPEAL, TOLLING IS NOT AUTOMATIC, AND A PARTY’S OPTIONS ARE TO (1) GO AHEAD AND FILE A PETITION FOR REVIEW, OR (2) FILE A MOTION FOR AN ENLARGEMENT OF TIME; ARB FINDS THAT FAILURE TO DO SO IS A FAILURE TO EXERCISE DUE DILIGENCE

TIMELINESS OF PETITION FOR ARB REVIEW; TIME PERIOD FOR FILING PETITION IS 14 DAYS FROM DATE OF ALJ’S DECISION, NOT 14 DAYS FROM DAY OF RECEIPT OF DECISION

In Madison v. Kenco Logistics , ARB No. 18-018, ALJ No. 2016-FDA-4 (ARB Feb. 15, 2018), the Complainant filed a petition with the ARB more than 14 days after the date of ALJ’s decision and order under the whistleblower protection provisions of the FDA Food Safety Modernization Act, 21 U.S.C.A. § 399d. Under the applicable regulation, a party must file a petition for review within 14 days of the date of the ALJ’s decision. 29 C.F.R. § 1987.110(a)(2017). The ARB issued an Order to Show Cause why the petition should not be dismissed as untimely. In response, the Complainant averred that the ALJ served the decision on Complainant’s counsel at an incorrect address, that when the ALJ became aware of the error he re-served the decision, and that the petition for review was timely because it was filed within 14 days of the date when her counsel received the re-served decision. The Respondent contested the timeliness of the petition. The ARB found that the Complainant failed to establish grounds for equitable tolling. The ARB stated:

   Furthermore, “extraordinary circumstances” is a very high standard that is satisfied only in cases in which even the exercise of diligence would not have resulted in timely filing. Madison’s counsel was informed no later than December 1, 2017, that the ALJ had issued his decision. He had five days of the original fourteen in which to act and two legitimate choices—he could either file the petition for review or he could file a motion for an enlargement of time to file the petition for review—he did neither. Instead, he unilaterally decided, without consulting the Board, that (1) Madison was entitled to toll the due date for filing because the original decision was sent to the wrong address, and (2) that he had fourteen days from the date he received the decision, rather than fourteen days from the date the ALJ issued it, to file the petition. Counsel was incorrect on both counts. Had Madison’s counsel contacted the Board and explained the reasons for requiring an enlargement of time, it is likely that the Board would have granted the request, but he failed to ask for such an enlargement and thereby has failed to establish due diligence.

Slip op. at 3 (footnotes omitted).

COVERED RESPONDENT; SUMMARY DECISION GRANTED TO COLLEGE WHICH PRODUCED AFFIDAVITS STATING THAT IT IS NOT REGISTERED UNDER SECTION 12, AND IS NOT REQUIRED TO FILE REPORTS UNDER SECTION 15(d); COMPLAINANT’S RESPONSE THAT THE RESPONDENT SHOULD HAVE BEEN REGISTERED FOUND TO BE CONCLUSORY AND MISPLACED

In Nortell v. North Central College , ARB No. 16-071, ALJ No. 2016-SOX-13 (ARB Feb. 12, 2018), the Complainant filed SOX whistleblower complaint alleging that the Respondent, North Central College, “retaliated against him in violation of SOX when it terminated his employment for reporting what he believed to be fraudulent conduct in the College’s charitable gift annuity and donation accounting practices. Prior to termination, Nortell had been the Director of Planned Giving.” USDOL/OALJ Reporter at 1-2. The ALJ granted summary decision in favor of the Respondent on the ground that the Complainant had not demonstrated a genuine issue of material fact showing that the Respondent was a covered entity under 18 U.S.C.A. #167; 1514A. The ARB affirmed the ALJ’s decision.

The ARB noted that “[p]ursuant to 29 C.F.R. § 18.72, an ALJ may enter summary decision for either party if the pleadings, affidavits, material obtained by discovery, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.” Id . at 2. The ARB also noted that in assessing an ALJ’s grant of summary decision, it “views the evidence, along with all reasonable inferences, in the light most favorable to the non-moving party.” Id . The ARB observed that “[c]overage under SOX’s whistleblower provisions is . . . limited to companies registered under Section 12 and those required to file reports under Section 15(d) of the Securities Exchange Act (Exchange Act).” Id . at 3 (citations omitted). In the instant case, the Respondent provided several affidavits stating that it is not registered under Section 12, and is not required to file reports under Section 15(d). The Complainant did not provide evidence that the Respondent is registered or required to file reports, but instead asserted that the Respondent should be registered because it fails to satisfy an exemption for charitable entities. The ARB found the Complainant’s allegations to be conclusory and misplaced.

The parties informed the ARB that they agreed that the Respondent's Petition for Review should be dismissed on the grounds that the Wage and Hour Division had not yet issued a final ruling in this matter, which is a prerequisite to ARB review under the Davis-Bacon and Related Acts and implementing regulations. The ARB thus dismissed the appeal without prejudice.