February 2019
Burns v. The Upstate National Bank, ARB No. 17-041, ALJ No. 2017-SOX-10 (ARB Feb. 26, 2019) (per curiam) (Final Decision and Order)
Casenote(s):USDOL/OALJ Reporter
SUMMARY DECISION; COMPLAINANT’S FAILURE TO IDENTIFY ANY EVIDENCE TO SHOW THAT NAMED RESPONDENT WAS A COVERED ENTITY UNDER THE SOX RETALIATION PROVISION
In Burns v. The Upstate National Bank, ARB No. 17-041, ALJ No. 2017-SOX-10 (ARB Feb. 26, 2019) (per curiam), the ARB summarily affirmed the ALJ’s dismissal where the Complainant failed to identify any evidence to support a factual finding that the Respondent was a covered entity under the SOX whistleblower provision. The Complainant had not offered registration statements, reports, or documentation showing that the Defendant was registered under Section 12 or required to file reports under Section 15(d).
Henin v. Soo Line Railroad Co., ARB No. 19-028, ALJ No. 2017-FRS-11 (ARB Feb. 26, 2019) (per curiam) (Order Granting Respondent’s Motion to Dismiss Complainant’s Petition as Untimely)
Casenote(s):
TIMELINESS OF PETITION FOR REVIEW; ARB USES FRAP 26(a)(1) TO CALCUATE TIME PERIOD
In Henin v. Soo Line Railroad Co., ARB No. 19-028, ALJ No. 2017-FRS-11 (ARB Feb. 26, 2019) (per curiam), the ARB granted the Respondent’s motion to dismiss the Complainant’s petition for ARB review as untimely. The petition had not been filed within 14 days of ALJ’s decision as required by 29 C.F.R. § 1982.110(a). The ARB, citing OFCCP v. Fla. Hosp. of Orlando, ARB No. 11-011, ALJ No. 2009-0FC-002, slip op. at 4 (ARB July 22, 2013) and the absence of its own rule, used FRAP 26(a)(1) to calculate the time period for filing a petition for the ARB to review an ALJ’s FRSA decision, and found that the petition was three days late. The Complainant had not responded to the Respondent’s motion to dismiss. Pursuant to 29 C.F.R. § 1982.110(b), the ALJ’s decision became the final order of the Secretary.
Rantz v. The Blake School, ARB No. 19-017, ALJ No. 2018-STA-19 (ARB Feb. 21, 2019) (Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice)
Casenote(s):
The ARB approved the parties’ settlement agreement.
Office of Labor-Management Standards, USDOL v. American Federation of Government Employees, Local 3147, ARB No. 19-030, ALJ No. 2018-SOC-2 (ARB Feb. 14, 2019) (Final Decision and Order)
Casenote(s):
Notice to the parties that no exceptions having been filed to the ALJ’s recommended decision granting default judgment against Respondent, the ARB adopted the ALJ’s recommended decision as the final decision in the case.
Brofford v. PNC Investments LLC, ARB No. 18-003, ALJ No. 2017-CFP-2 (ARB Feb. 14, 2019) (Final Decision and Order)
Casenote(s):
UNTIMELY FILING OF COMPLAINT; ALLEGATION THAT RESPONDENT’S REASONS FOR TERMINATING COMPLAINANT WERE PRETEXTUAL IS NOT, IN ITSELF, A GROUND FOR EQUITABLE EXTENSION OF THE FILING PERIOD
In Brofford v. PNC Investments LLC, ARB No. 18-003, ALJ No. 2017-CFP-2 (ARB Feb. 14, 2019), the ALJ granted Respondent’s motion for summary decision based on the fact that the CFPA complaint was filed over three years and ten months after Respondent terminated Complainant’s employment. On appeal, Complainant focused on his belief that Respondent’s proffered basis for the termination was false and had misled him into believing that he had been fired for a violation of a legitimate company policy that mandated termination. The ARB affirmed the grant of summary decision, writing:
We are not persuaded that allegations of a pretextual termination, without more, are sufficient to constitute the compelling circumstances that would justify departure from the statutory filing deadlines applicable to complaints under the CFPA. Many whistleblower complaints allege pretextual termination, and to hold that such allegations are sufficient to excuse untimely filing would create an exception that would largely swallow the rule requiring timely filing of whistleblower complaints.
Slip op. at 3.
Shaikh v. National Bank of Pakistan, ARB No. 17-049, ALJ No. 2017-SOX-25 (ARB Feb. 14, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
COVERED EMPLOYER; SUMMARY DECISION SUPPORTED BY AFFIDAVIT AFFIRMED WHERE COMPLAINANT’S RESPONSE FAILS TO RAISE A GENIUNE ISSUE OF MATERIAL FACT
In Shaikh v. National Bank of Pakistan, ARB No. 17-049, ALJ No. 2017-SOX-25 (ARB Feb. 14, 2019) (per curiam), the Respondent filed a motion for summary decision supported by an affidavit of its Executive Vice President, attesting that Respondent is not a publicly traded company, or an officer, employee, contractor, subcontractor, or agent of a publicly traded company. Complainant’s response was to argue only that the SOX whistleblower protection provisions cover every U.S. employer. The ARB affirmed the ALJ’s grant of summary decision on the ground that Complainant failed to raise a genuine issue of material fact as to coverage of Respondent under SOX.
Bailey v. Metropolitan Transit Authority, ARB No. 2018-0072, ALJ No. 2018-NTS-00001 (ARB Feb. 12, 2019) (Order of Dismissal)
Casenote(s):
The ARB dismissed the appeal because the Complainant filed to response to the ARB's order to show cause why the case should not be dismissed for failure to file an opening brief.
Administrator, Wage and Hour Div., USDOL v. Three D Farms, LLC, ARB Nos. 16-092 and -093, ALJ No. 2016-TAE-3 (ARB Feb. 12, 2019) (Final Decision and Order)
Casenote(s):
PREFERENTIAL TREATMENT FOR H-2A WORKERS; REQUIREMENT THAT U.S. WORKER POSSESS A DRIVER’S LICENSE WHEN SUCH A REQUIREMENT HAD NOT ORIGINALLY BEEN IMPOSED ON H-2A WORKERS; REQUIREMENT THAT U.S. WORKER BE ABLE TO LIFT MORE WEIGHT THAN REQUIRED IN EARLIER H-2A JOB ORDER
PREFERENTIAL TREATMENT FOR H-2A WORKERS; MERE FACT THAT H-2A WORKERS HAD OBTAINED NOW REQUIRED EQUIPMENT EXPERIENCE DURING PRIOR H-2A JOB ORDER DID NOT ESTABLISH VIOLATION; RATHER THE ANALYSIS IS WHETHER THE EXPERIENCE REQUIREMENT IS CONSISTENT WITH THOSE OF EMPLOYERS OF NON-H2A WORKERS
BACK WAGES; FACT THAT U.S. WORKER HAD TAKEN ANOTHER JOB AT THE TIME THE H-2A JOB ORDER BEGAN DID NOT RENDER A NOT-HIRED U.S. WORKER INELIBILE FOR A MAKE-WHOLE REMEDY OF BACK WAGES
In Administrator, Wage and Hour Div., USDOL v. Three D Farms, LLC, ARB Nos. 16-092 and -093, ALJ No. 2016-TAE-3 (ARB Feb. 12, 2019), the ARB affirmed the ALJ’s finding that the Employer’s requirement of a North Carolina driver’s license was not bona fide and therefore unlawfully preferential treatment for H-2A workers. The ARB noted that the H-2A workers did not have N.C. driver’s licenses when hired, and that the U.S. worker had three Montana licenses (regular, commercial and bus). The ARB also affirmed the ALJ’s finding that the Employer required U.S. workers to be able to lift 100 pounds, whereas a prior H-2A job order only required ability to lift and carry 60 pounds.
The ARB rejected the ALJ’s holding that, unless the employer could establish that it is impractical to train new employees, a requirement of 3 months of experience in a certain type of farm equipment was giving unlawfully preferential treatment to the H-2A workers because those workers had gotten that training and experience during the prior work contract period. The Employer argued on appeal that the H-2A statute and regulations do not include this standard, and that the only standard is whether the job requirement is consistent with the qualification that employers of non-H-2A workers require in the same or comparable occupations and crops. The ARB agreed, noting that the ALJ had apparently applied an analysis from the PERM program.
The ARB also rejected the ALJ’s holding that, because a U.S. worker applicant had taken another job at K-Mart, he was not “wiling and available” to work at the time the H-2A contract began, and therefore the Administrator’s imposition of back wages pursuant to 20 C.F.R. § 655.135(d) could not be sustained. In this regard, the ALJ had relied on evidence that when a N.C. employment service official made a follow up call to the U.S. worker, the worker informed her that he had taken the K-Mart job, so the N.C. official marked him as “not hired” and not available for work. The ARB found that the U.S. worker had never been given a hiring commitment by the Employer as required by the regulations, and that “the ALJ erred in relying upon the testimony of [the N.C. employment service official] as a substitute for Three D's obligations to affirmatively offer [the U.S. worker] a job. ” The Administrator had argued on appeal that a U.S. worker could seek alternative employment and still qualify for a make-whole relief of back wages, and that that the K-Mart job was part-time, paid less, did not offer benefits, and offered fewer hours than the H-2A employer would have provided.
The ARB affirmed the ALJ’s finding that the Administrator’s CMP assessment was not an abuse of discretion. The Employer had not challenged this determination on appeal.
OFCCP v. Google, Inc., ARB No. 17-059, ALJ No. 2017-OFC-4 (ARB Feb. 1, 2019) (Opinion)
Later history: OFCCP v. Google, Inc., ARB No. 2017-0059, ALJ No. 2017-OFC-00004 (ARB July 29, 2019) (Final Administrative Order)
Casenote(s):
In OFCCP v. Google, Inc., ARB No. 17-059, ALJ No. 2017-OFC-4 (ARB Feb. 1, 2019), the ARB granted OFCCP’s motion for a voluntary dismissal of its appeal in the matter.
[Editor's note: This dismissal was later converted to a Final Order pursuant to 41 C.F.R. § 60-30.30. see OFCCP v. Google, Inc., ARB No. 2017-0059, ALJ No. 2017-OFC-00004 (ARB July 29, 2019)]