Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

DeBuse v. Corr Flight S., ARB No. 2023-0036, ALJ No. 2020-AIR-00015 (ARB Feb. 28, 2025) (Order Denying Reconsideration)

RECONSIDERATION; UNTIMELY MOTION FOR RECONSIDERATION; NEW ARGUMENT CANNOT BE RAISED FOR THE FIRST TIME BEFORE THE ARB; ARB CANNOT REWEIGH EVIDENCE UNDER THE SUBSTANTIAL EVIDENCE STANDARD OF REVIEW

In DeBuse v. Corr Flight S., ARB No. 2023-0036, ALJ No. 2020-AIR-00015 (ARB Feb. 28, 2025), the ARB denied Respondent’s request for reconsideration of the ARB’s December 6, 2024 Decision and Order concluding that substantial evidence supported the ALJ’s finding that Complainant engaged in protected activity.

Respondent asserted that the ARB should grant its petition because of an Appointments Clause challenge to the removal provisions governing Department of Labor ALJs. Alternatively, Respondent asserted that the ARB should reconsider its decision because the ALJ did not properly weigh the evidence in finding Complainant engaged in protected activity.

The ARB denied Respondent’s request for reconsideration because (1) Respondent’s motion was untimely (submitted 60 days after the ARB’s decision); (2) Respondent could not raise the ALJ removal argument for the first time on a motion for reconsideration (Respondent already forfeited the argument by not raising it to the ALJ or to the ARB on appeal); and (3) Respondent’s remaining arguments did not justify reversing the previous order because Respondent simply requested the ARB to reweigh the facts underlying the ALJ’s decision which was prohibited by the ARB’s substantial evidence standard of review.

Administrator, Wage and Hour Div., USDOL v. Lucero Pool Plaster, Inc., ARB Nos. 2023-0040, -0045, ALJ No. 2019-TNE-00011 (ARB Feb. 27, 2025) (Decision and Order)

VIOLATIONS OF THE INA AND H-2B REGULATIONS; BACK WAGES; CIVIL MONEY PENALTIES; DEBARMENT

In Administrator, Wage and Hour Div., USDOL v. Lucero Pool Plaster, Inc., ARB Nos. 2023-0040, -0045, ALJ No. 2019-TNE-00011 (ARB Feb. 27, 2025), the ARB affirmed the ALJ’s decision in part, vacated in part, and modified in part.

The H-2B program permits employers to hire temporary foreign workers to perform nonagricultural services or labor in the United States. Employers may only hire foreign workers under the H-2B program if (1) there are not sufficient U.S. workers who are qualified and available to perform the temporary services or labor, and (2) the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers similarly employed.

Under the program’s regulations, employers seeking to employ H-2B workers must obtain a certification from the DOL. To obtain a certification, the employer must file the ETA Form 9142B, Application for Temporary Employment Certification (TEC) with the DOL’s Office of Foreign Labor Certification (OFLC). The employer must sign the TEC under the penalty of perjury, attesting to their knowledge of, and agreeing to comply with, the terms and conditions of the H-2B program. The regulations require an employer to abide by conditions that relate to, inter alia, non-discriminatory hiring practices, prohibition against preferential treatment of foreign workers, rates of pay, area of intended employment, transportation and visa fees, transportation from the place of employment, disclosure of job order, contracts with third parties, and retention of documents and records.

As part of the certification process, the employer must make an effort to recruit U.S. workers to ensure that there are no qualified U.S. workers available for the position it intends to fill with H-2B workers. The employer must submit a job order to the State Workforce Agency (SWA) serving each geographical area of intended employment listed in the TEC. A job order is a document containing all the material terms and conditions of employment for the position(s) for which H-2B workers are sought. The employer must also advertise the position(s) to U.S. workers, and the advertisements must describe the geographical area of intended employment “with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor.” The employer must offer the same wage and other benefits and terms and conditions of employments to U.S. workers that it will offer H-2B workers.

On January 26, 2016, Respondent filed a TEC with the OFLC. OFLC accepted the TEC and granted Respondent’s request to hire twenty construction laborers from April 1, 2016, to September 30, 2016. Respondent signed Appendix B to the TEC under penalty of perjury, attesting to their knowledge of, and agreeing to comply with, the terms and conditions of the H-2B program. On January 12, 2017, Respondent filed another TEC for the 2017 season. OFLC accepted the TEC and granted Respondent’s request to hire twenty construction laborers from April 1, 2017, to September 30, 2017. Respondent again signed Appendix B to the TEC under penalty of perjury, attesting to their knowledge of, and agreeing to comply with, the terms and conditions of the H-2B program.

During both 2016 and 2017, Respondent failed to follow through on several attestations made in the TECs. As discussed in below, Respondent: (1) offered housing to H-2B workers without disclosing that benefit in the job order; (2) assigned H-2B workers to higher-paying union jobs, without advertising the potential for hiring paying jobs to U.S. workers; (3) did not pay H-2B workers the wage rate listed on the TECs for all hours worked; (4) assigned H-2B workers to work outside the geographic areas certified on the TECs; (5) failed to pay all inbound and outbound transportation and subsistence costs; (6) failed to provide H-2B workers with a copy of the job order; (7) failed to contractually prohibit its agents from seeking or receiving fees from H-2B workers; and (8) failed to retain documents related to its TECs for three years.

On November 14, 2018, the Administrator for the WHD issued a Determination Pertaining to Violations Involving H-2B Nonimmigrant Workers and Notice of Debarment (Determination Letter) to Respondent. The Administrator found that Respondent committed the above violations related to its 2016 and 2017 TECs. The Administrator ordered Respondent to pay $334,195.09 in unpaid wages, $396,440.67 in Civil Money Penalties (CMPs), and debarred Respondent from participating in the H-2B program for three years.

Respondent objected to the Determination Letter and requested a hearing before an ALJ. The ALJ determined that Respondent committed some, but not all, of the violations identified by the Administrator. The ALJ made the following findings:

First, the ALJ found that Respondent failed to advertise the availability of housing to U.S. workers as required; however, the ALJ found that this failure did not violate Attestation 4 of the TEC or 29 C.F.R. § 503.16(q). Similarly, the ALJ found that Respondent’s failure to advertise the possibility of higher paying union jobs also did not violate Attestation 4 of the TEC or 29 C.F.R. § 503.16(q).

Second, the ALJ found that Respondent failed to pay H-2B workers the offered wage because its hourly rates were less than the basic pay and overtime rates, and also failed to pay H-2B workers for all of the hours they worked in violation of Attestation 5 and 29 C.F.R. §§ 503.16(a)(1), (a)(4), and (b).

Third, the ALJ found that Respondent employed H-2B workers outside the area of intended employment in violation of Attestation 11 and 29 C.F.R. § 503.16(x). There was no factual dispute that Respondent placed H-2B workers outside the area of intended employment in 2016 and 2017. The ALJ found that Respondent’s actions demonstrated a reckless disregard for ensuring that H-2B workers stayed within the area of intended employment. The ALJ further found that this was a substantial deviation from the terms and conditions of the TECs because of the large number of times that Respondent sent workers outside of the area of intended employment.

Fourth, the ALJ found that Respondent failed to pay all required inbound and outbound transportation and subsistence costs for H-2B workers’ travel in violation of Attestation 17 and 29 C.F.R. §§ 503.16(j)(1)(i)-(ii). The ALJ found that Respondent paid some but not all inbound transportation and subsistence costs in 2016 and 2017.

Fifth, the ALJ found that that Respondent failed to provide H-2B workers with a copy of the job order in a language they understood in violation of Attestation 19 and 29 C.F.R. § 503.16(l). The ALJ found that Respondent admitted it did not provide any of its H-2B workers in 2016 or 2017 with a copy of the job orders. The ALJ concluded the violation was willful because Respondent chose Monarch, a third-party company, and was aware of its responsibilities to ensure that Monarch complied with the H-2B program’s requirements. The ALJ further concluded that this violation was a significant deviation because the gravity of the violation was severe as none of the workers had information to become aware of the terms and conditions of their employment and their rights under the contract.

Sixth, the ALJ found that that Respondent failed to contractually forbid third parties from seeking payment from H-2B workers in violation of Attestation 22 and 29 C.F.R. § 503.16(p). In 2016 and 2017, Respondent employed Monarch to process visas for its H-2B workers in Monterrey, Mexico. Respondent admitted that it did not have a written contract with Monarch during either year, and thus, did not contractually forbid Monarch from seeking payment from its H-2B workers. The ALJ concluded that Respondent’s actions demonstrated a reckless disregard for ensuring that third parties do not seek payments from employees. The ALJ also concluded that this violation was a significant deviation because Guzman acknowledged that this regulation is meant to protect prospective H-2B workers, and because all H-2B workers were affected.

Seventh, the ALJ found that Respondent failed to retain documents as required by Attestation 26 in violation of 29 C.F.R. § 503.17, which requires employers to retain for three years all documents relating to the TEC and registration, recruitment-related documents, and payroll records. The ALJ found that, although Respondent kept payroll records, Respondent failed to retain all of the required documents, which includes records of H-2B workers’ start and stop times, tasks completed, records showing it reimbursed workers for inbound and outbound travel and subsistence, and records relating to its recruitment efforts of US workers. The ALJ concluded that Respondent knew or should have known that it was required to retain documents, and that Respondent’s failure to do so amounted to reckless disregard. The ALJ further concluded that this was a significant deviation because document retention is critical to the department’s enforcement abilities and weighed Respondent’s failure to do so as significant.

The ALJ ordered Respondent to pay $133,960.50 in back wages to nineteen H-2B workers for 2016, and $167,487.55 in back wages to seventeen H-2B workers for 2017, for a total of $301,448.06. The ALJ also ordered Respondent to pay $5,863.56 in back wages for inbound travel and subsistent expenses in 2016 and 2017. The ALJ also ordered Respondent to pay a CMP of $88,665.37 based on the following mitigating factors: (1) Respondent’s lack of a history of violations; (2) Respondent’s commitment to future compliance demonstrated by changes it made; (3) the relatively small size of Respondent’s business; and (4) the fact that U.S. workers were not harmed.

The ALJ also ordered Respondent to pay the following CMPs: $9,906.40 for violating 29 C.F.R. § 503.16(x)’s prohibition on employing H-2B workers outside the area of intended employment; $6,667.62 for violating 29 C.F.R. § 503.16(j)(1)(ii)’s requirement that Respondent pay for inbound and outbound transportation and subsistence fees; $7,429.80 for violating 29 C.F.R. § 503.16(l)’s requirement to disclose the job order to H-2B workers in a language they understand; $1,238.80 for violating 29 C.F.R. § 503.16(p)’s requirement to prohibit contracts with third parties; and $9.906.40 for violating 29 C.F.R. § 503.17’s requirement that employers retain records.

The ALJ also debarred Respondent for one year.

Both Respondent and the Administrator appealed to the ARB for review.

RESPONDENT VIOLATED THE INA AND THE H-2B REGULATIONS; PREFERENTIAL TREATMENT OF FOREIGN WORKERS; UNDERPAYMENT OF WAGES; AREA OF INTENDED EMPLOYMENT; TRANSPORTATION AND SUBSISTENCE COSTS; DISCLOSURE OF JOB ORDER; CONTRACTS WITH THIRD PARTIES TO COMPLY WITH PROHIBITIONS; DOCUMENT RETENTION REQUIREMENTS

An employer violates the H-2B program requirements when it substantially fails to comply with any of the terms and conditions of the H-2B registration, application for prevailing wage determination, TEC, or the H-2B petition (H-2B Forms). To be “substantial,” the employer’s failure must be both (1) “willful,” and (2) “a significant deviation from the terms and conditions of [the H-2B Forms].”

A willful violation “occurs when the employer, attorney, or agent knows its statement is false or that its conduct is in violation, or shows reckless disregard for the truthfulness of its representation or for whether its conduct satisfies the required conditions.” In determining whether a violation is also significant, the regulations identify a non-exhaustive list of factors that the Administrator may consider, including: (1) the employer’s previous history of violation(s) under the H-2B program; (2) the number of H-2B workers, workers in corresponding employment, or U.S. workers who were and/or are affected by the violation(s); (3) the gravity of the violation(s); (4) the extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s); and (5) whether U.S. workers have been harmed by the violation.

Pursuant to 29 C.F.R. § 503.16(q), the employer’s job offer to U.S. workers must include “no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2B workers.” Additionally, pursuant to 20 C.F.R. § 655.18(b)(10), an employer’s job order must specify if the employer provides the worker with the option of board, lodging, or other facilities, or intends to assist workers in securing such lodging.

The ALJ found that Respondent’s failure to advertise the availability of housing to U.S. workers was willful, but did not significantly deviate from the terms and conditions of the H-2B program because of its lack of a history of violations under the H-2B program, the gravity of harm was “minimal,” and the Administrator offered “no evidence showing that US applicants were actually deterred” from applying for a position with Respondent due to the perceived lack of available housing.

The ARB agreed with the ALJ that Respondent’s failure to advertise the availability of housing was willful. The ARB also found that Respondent’s failure substantially deviated from the terms and conditions of the H-2B program. The ARB found that the ALJ erred in concluding that Respondent did not have a history of violating the prohibition against the preferential treatment of foreign workers. In Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Butler Amusements, Inc., ARB No. 2021-0007, ALJ No. 2018-TNE-00019 slip op. at 36-37 (ARB July 28, 2023), the Board recognized that, while an employer may not have a history of WHD violations, a record that evidences a broader lack of adherence to the H-2B rules may be considered in assessing the previous history of H-2B violations. Here, testimony demonstrated that Respondent also offered housing in 2015, and that H-2B workers were informed of the availability of housing prior to their arrival in Illinois. Thus, the ARB found this demonstrated a history of a lack of adherence to the H-2B program requirements.

The ARB also found that the gravity of the violation was significant because Respondent’s failure to advertise the availability of housing was not a mere omission. Given that H-2B workers resided in the house in 2015, Respondent knew or should have known that housing was available. However, the job orders specifically stated that “[a]ssistance finding and securing board & lodging is not available” when it was. In addition, the house was also immediately adjacent to Respondent’s shop in 2016, which the ARB found was a significant benefit.

The ARB further found that U.S. workers were harmed by Respondent’s failure to advertise housing. The ARB found that the ALJ erred in holding that a U.S. worker must actually be harmed. The regulations do not require that the Administrator procure a U.S. worker who was deterred, but rather, the prohibition of preferential treatment presumes that U.S. workers are harmed when H-2B workers are offered better pay and/or benefits. Here, H-2B workers were offered better benefits than U.S. workers. The house was immediately adjacent to Respondent’s shop in 2016, a proximity which could have been a benefit to potential applicants. Thus, the ARB found that U.S. workers were harmed by Respondent’s failure to advertise housing.

Therefore, the ARB found that Respondent’s failure to advertise the availability of housing is a substantial deviation from the job order, and that Respondent substantially failed to meet the terms and conditions of Attestation 4 in violation of 29 C.F.R. § 503.16(q).

The ARB affirmed the ALJ’s decision on all other violations and found (1) Respondent’s failure to advertise the potential availability of union jobs was a willful violation but did not substantially deviate from the requirements of the H-2B program; (2) Respondent substantially failed to comply with Attestation 5 in violation of 29 C.F.R. §§ 503.16(a)(1), (a)(4), and (b) for not paying the required wage rate; (3) Respondent substantially failed to meet the terms and conditions of Attestation 11 in violation of 29 C.F.R. § 503.16(x) when it employed H-2B workers outside the area of intended employment; (4) Respondent substantially failed to meet the terms and conditions of Attestation 17 in violation of 29 C.F.R. §§ 503.16(j)(1)(i)-(ii) when failed to pay all required inbound and outbound transportation and subsistence costs for H-2B workers’ travel; (5) Respondent substantially failed to meet the terms and conditions of Attestation 19 in violation of 29 C.F.R. § 503.16(l) when it failed to disclose a copy of the job order to H-2B workers in a language they understand; (6) Respondent substantially failed to meet the terms and conditions of Attestation 22 in violation of 29 C.F.R. § 503.16(p) when it failed to contractually forbid Monarch, a third party, from collecting payments from H-2B workers; and (7) Respondent substantially failed to meet the terms and conditions of Attestation 26 in violation of 29 C.F.R. § 503.17 when it failed to retain documents.

REMEDIES; BACK WAGES; CMPS; CONSTITUTIONAL DUE PROCESS

If the Administrator determines that an employer has violated the requirements of the H-2B program, the Administrator may assess remedies, including the recovery of unpaid wages, CMPs, and debarment from the H-2B program.

The Administrator may assess a CMP for each violation that is either a willful misrepresentation of a material fact; a substantial failure to meet any of the terms and conditions of the H-2B forms; or a willful misrepresentation of a material fact to the Department of State during the H-2B nonimmigrant visa application process. “Each such violation involving the failure to pay an individual worker properly or to honor the terms or conditions of [the aforementioned H-2B forms] constitutes a separate violation.”

For violations related to wages, impermissible deductions, or prohibited fees and expenses, Section 503.23(b) provides that the Administrator may assess CMPs “that are equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker(s),” subject to a maximum of $12,383. Back wages further the purposes of the H-2B program by reducing the employer’s incentive to bypass U.S. workers in order to hire H-2B workers who are more easily exploited.

Respondent challenged the ALJ’s imposition of CMPs. Respondent contended that the INA does not mandate CMPs and that, if CMPs are assessed, the Administrator must provide a reason in the determination letter. Respondent argued that the Administrator’s failure to provide a reason raised constitutional concerns.

The ARB found that the regulations provide that the Administrator may assess a CMP for each violation that is a substantial failure to meet any of the terms and conditions of the H-2B forms. The ARB also found that the Administrator and ALJ’s imposition of CMPs against Respondent for their numerous violations of the H-2B program was consistent with the INA. In addition, the ARB further found that Respondent was reasonably apprised of the issues in controversy and had an opportunity to be heard, satisfying constitutional due process.

Respondent next argued that the ALJ should have used the three guideposts laid out by the Supreme Court in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-18 (2003) and BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996), which include: (1) the degree of reprehensibility of the conduct; (2) the disparity between the harm or potential harm and the penalty; and (3) the difference between the remedy imposed and the penalties imposed in comparable cases. Respondent contended that, under these guideposts, CMPs should not have been awarded for any of the violations.

However, the cases Respondent relied on pertained to punitive damages awarded in jury trials, and these guideposts were analyzed to determine whether a punitive damage award is excessive. Punitive damage awards are common law creations guided by general principles of reasonableness. Because CMPs are dictated by statute or regulation, that framework did not apply here.

In the alternative, Respondent contended that the ALJ failed to analyze the seven Section 503.23(e) factors. The language of the regulations state that the Administrator “may consider” the seven factors listed above. As such, the ARB found that these factors are nonmandatory. Consideration of these factors must be reasonably related to determining whether the employer significantly deviated from their obligations.

The ARB found that ALJ properly determined the amount of back wages owed. Respondent contended that the ALJ erred in ordering back wages because the ALJ failed to find a Section 503.19 violation or the underlying determinations of “willfulness” and “significant deviation.” However, the Board has repeatedly acknowledged the Administrator’s authority to reconstruct hours worked and payments made to determine back wages when the employer’s records are unreliable. The Board found that Respondent’s records were unreliable, and that Respondent substantially failed to both pay H-2B workers the offered wage rate and failed to pay H-2B workers for all hours worked in violation of Attestation 5 and 29 C.F.R. §§ 503.16(a)(1), (a)(4), and (b). The Administrator reconstructed the hours worked by H-2B workers, as a matter of just and reasonable inference, based on the weekly average hours of U.S. workers who performed the same work as H-2B workers. The Administrator then recalculated the amount of back wages Respondent owed each H-2B worker, for a total of $133,960.50 in 2016 and $167,487.55 in 2017. The Board found that the Administrator’s recalculation was reasonable and supported by the record, and affirmed the ALJ’s finding that Respondent owed $301,448.06 in back wages.

The ARB also found that the ALJ’s calculation of back wages owed for inbound and outbound transportation and subsistence costs was reasonable, and affirmed the ALJ’s finding that Respondent owes $5,863.56 in back wages for inbound travel and subsistence expenses in 2016 and 2017 and $5,249.13 in back wages for outbound travel and subsistence expenses for 2016.

The ARB found that Respondent was liable for CMPs. Because the ARB found that Respondent failed to comply with the requirement that housing be advertised to U.S. workers, the ARB determined that CMPs were warranted. The ARB also found that Respondent did not make a good faith effort to comply. The record demonstrated that Respondent knew prior to the 2016 season that housing was available, but specifically said it was not available in the job orders for both 2016 and 2017. Respondent also failed to point to anything that would demonstrate that it acted in good faith. Respondent also did not offer an adequate explanation for its actions. Although Guzman testified that he did not know housing would be available until he returned to Chicago in 2016 to find H-2B workers residing in his uncle’s house, the record shows that H-2B workers stayed in that house in 2015 as well. As such, the ARB found that Respondent’s explanation was not credible. In addition, Respondent offered no explanation regarding the 2017 season. Thus, the ARB ordered Respondent to pay $3,095.75 for 2016 and $3,095.75 for 2017, for a combined total of $6,191.50.

The ARB also ordered Respondent to pay CMPs for failing to pay the offered wage. The ALJ had reduced the Administrator’s initial assessment based on several mitigating factors, which included: (1) Respondent’s lack of a history of violations; (2) Respondent’s commitment to future compliance demonstrated by changes it made; (3) the relatively small size of Respondent’s business; and (4) the fact that U.S. workers were not harmed.

The ARB found that the ALJ erred in considering these factors because the Section 503.23(e) factors only apply to Section 503.23(d), and do not apply to Section 503.23(b) wage violations. For wage violations, the Administrator may assess CMPs equal to the back wages owed. In addition, Section 503.23(a) states that “[e]ach such violation involving the failure to pay an individual worker properly or to honor the terms or conditions of [the aforementioned H-2B forms] constitutes a separate violation.” The ARB further found that the H-2B regulations do not provide for an employer’s business size, revenue, or financial hardship as a mitigating factor. Therefore, The ARB vacated the ALJ’s finding and ordered Respondent to pay $133,960.50 in CMPs in 2016 and $161,590.73 in CMPs in 2017 for Respondent’s failure to pay the wage listed on the TEC, for a total CMP of $295,551.23.

The ARB further ordered Respondent to pay CMPs for employing H-2B workers outside the area of intended employment. The ARB determined that the Section 503.23(e) factors weighed against Respondent. First, every H-2B worker was affected during 2016 and 2017. Second, the gravity of this violation was significant. The regulations require employers to identify the area of employment so that the DHS and DOL can determine whether qualified U.S. workers cannot be found in the U.S. prior to approving an H-2B petition. Respondent failed to identify forty-five cities across four states in which H-2B workers worked outside the areas of intended employment during 2016 and 2017. Because Respondent failed to identify these additional locations, DHS and DOL were unable to assess whether qualified U.S. workers were available in these locations. Third, Respondent did not make a good faith effort to comply. Fourth, the ARB was not persuaded by Respondent’s explanations that its employment of H-2B workers outside the area of intended employment was of brief duration and sporadic, that it was unaware that it was required to specify all locations, or that it was impossible to ascertain that it would send workers outside the area of intended employment. Thus, the ARB concluded that $6,191.50 per violation was appropriate.

Next, the ARB found that the ALJ erred in holding that it was unreasonable to multiply the penalty by the number of states outside the area of intended employment that Respondent sent workers. Section 503.23(a) states that each violation involving the failure to pay an individual worker properly constitutes a separate violation. In addition, in 5 Star Forestry, ARB No. 2013-0056, slip op. at 6, the ARB held that each location outside of the area of intended employment constituted a separate violation. Thus, the ARB found that Respondent committed a separate violation for each state in which Respondent placed H-2B workers that was outside the area of intended employment. Accordingly, the ARB vacated the ALJ’s finding and ordered Respondent to pay $6,191.50 per violation, for a total of $18,574.50 in CMPs for 2016 and $18,574.50 for 2017.

The ARB ordered Respondent to pay CMPs for failing to disclose a copy of the job order. The ARB agreed with the ALJ’s analysis and found that it was well reasoned and supported by the record. Thus, the ARB ordered Respondent to pay $7,429.80 for their substantial failure to comply with 29 C.F.R. § 503.16(l).

The ARB ordered Respondent to pay CMPs for failing to contractually prohibit third parties from seeking payment from H-2B workers. The ARB agreed with the ALJ’s analysis and found that it was well reasoned and supported by the record. Thus, the ARB ordered Respondent to pay $1,238.30 for Respondent’s substantial failure to comply with 29 C.F.R. § 503.16(p).

The ARB ordered Respondent to pay CMPs for failing to retain documents. The ARB agreed with the ALJ’s analysis and found that it was well reasoned and supported by the record. Thus, the ARB ordered Respondent to pay $9,906.40 for Respondent’s substantial failure to comply with 29 C.F.R. § 503.17.

DEBARMENT

An employer may be debarred from the H-2B program for one to five years if it: (1) committed a willful misrepresentation of a material fact in its H-2B forms; (2) substantially failed to meet any of the terms and conditions of the wage determination, TEC, or H-2B petition; or (3) committed a willful misrepresentation of a material fact during the visa application process. The regulations list twelve violations that may justify debarment, which includes the failure to pay required wages, the employment of H-2B workers outside the area of intended employment, and “[a]ny other act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected.” “The appropriate period of debarment [is] based on the severity of the violation.”

When analyzing the issue of debarment, the ARB must consider two questions: first, do grounds exist to debar the employer; and second, if so, how long should the employer be debarred. The ARB found that Respondent substantially failed to meet the terms and conditions set forth in the H-2B forms for the reasons discussed above for two violations that justify debarment: (1) the failure to pay required wages and (2) employing H-2B workers outside the area of intended employment.

Regarding the length of debarment, the ARB vacated the ALJ’s order of a one-year debarment and order that Respondent be debarred for three years. Although Respondent demonstrated a commitment to future compliance, given the severity of Respondent’s failure to pay the required wage, the number of times it employed H-2B workers outside of the areas of intended employment, and Respondent’s disregard for the rules and regulations of the H-2B program, the ARB found that a three-year debarment was appropriate.

Accordingly, the ARB affirmed the ALJ’s decision in part and vacated and modified in part.

McDowell v. J.B. Hunt Transport, Inc., ARB No. 2025-0007, ALJ No. 2019-STA-00018 (ARB Feb. 11, 2025) (Decision and Order Dismissing Petition for Review)

ORDER OF DISMISSAL; COMPLAINANT FAILED TO FILE A TIMELY OPENING BRIEF AND RESPONSE TO ORDER TO SHOW CAUSE

In McDowell v. J.B. Hunt Transport, Inc., ARB No. 2025-0007, ALJ No. 2019-STA-00018 (ARB Feb. 11, 2025), the ARB dismissed Complainant’s petition for review for failing to file a response to the Board’s Order to Show Cause and an opening brief.

On October 24, 2024, Complainant filed a Petition for Review of the ALJ’s Decision and Order Denying Complaint. The ARB issued a Briefing Order, and Complainant did not file an Opening Brief. Therefore, on January 8, 2025, the ARB issued an Order to Show Cause ordering Complainant to explain why the ARB should not dismiss the appeal for failure to comply with the ARB’s order and briefing requirements. The ARB cautioned complainant that, if the ARB did not receive Complainant’s response and opening brief within fourteen (14) calendar days that the ARB may dismiss the appeal.

Six days after the deadline, the ARB received Complainant’s opening brief. The ARB had previously notified Complainant twice that a document was not filed until it was received by the Clerk’s office. Moreover, Complainant did not offer any explanation as to why he failed to file a timely opening brief. Accordingly, the ARB dismissed the appeal.

McMillan v. American Federation of Government Employees, Local Union 2145, ARB No. 2024-0044, ALJ No. 2021-SOC-00003 (ARB Feb. 27, 2025) (Order Denying Reconsideration)

ORDER DENYING RECONSIDERATION

In McMillan v. American Federation of Government Employees, Local Union 2145, ARB No. 2024-0044, ALJ No. 2021-SOC-00003 (ARB Feb. 27, 2025) Complainant filed a Motion for Clarification stating that the ALJ did not err when he issued a Recommended Decision and Order Awarding Remedy, which the ARB reversed. Complainant also asked the ARB to clarify what effect accepting the reimbursement previously ordered by the ARB would have on other members of Local 2145. The ARB treated Complainant’s motion as a request for reconsideration and denied the request, finding that Complainant failed to demonstrate: (i) material differences in fact or law from those presented to the ARB of which Complainant could not have known through reasonable diligence, (ii) new material facts that occurred after the ARB’s decision, (iii) a change in the law after the ARB’s decision, or (iv) a failure to consider material facts presented to the ARB before its decision. The ARB clarified, however, that the Complainant’s acceptance of the relief ordered by the ARB would have no effect on the rights of non-parties, including other members of Local 2145.

The ARB also denied a series of other post-judgment motions filed by Complainant, as well as one by Deneen Harris, another member of Local 2145. Each of these motions failed to satisfy any of the criteria the ARB looks to when considering whether to reconsider a decision and order.

Administrator, Wage and Hour Div., USDOL v. O’Bryan Composting, LLC, ARB No. 2025-0014, ALJ No. 2023-TAE-00005 (ARB Feb. 27, 2025) (Order Approving Withdrawal of Respondent’s Petition of Review and Dismissing Interlocutory Appeal)

VOLUNTARY DISMISSAL; INTERLOCUTORY APPEAL

In Administrator, Wage and Hour Div., USDOL v. O’Bryan Composting, LLC, ARB No. 2025-0014, ALJ No. 2023-TAE-00005 (ARB Feb. 27, 2025), the ARB granted Respondent’s request to withdraw Complainant’s petition for review and dismiss the interlocutory appeal.

On November 8, 2024, an ALJ issued an Order Denying Respondent’s Motion to Dismiss. Respondent filed a Petition for Review of the ALJ’s ruling, but Respondent subsequently requested to withdraw this petition. Respondent asserted that the ALJ issued an Order Dismissing Alleged Violations Pertaining to TN Workers Due to Lack of Jurisdiction on February 5, 2025, which mooted the ALJ’s prior denial of Respondent’s Motion to Dismiss and therefore also mooted its interlocutory appeal to the ARB. The ARB granted Respondent’s request to withdraw the petition for review and dismissed the appeal.

Priddle v. United Airlines, Inc. ARB No. 2023-0037, ALJ No. 2020-AIR-00013 (ARB Feb. 21, 2025) (Decision and Order)

UNTIMELY FILING OF COMPLAINT

In Priddle v. United Airlines, Inc., ARB No. 2023-0037, ALJ No. 2020-AIR-00013 (ARB Feb. 21, 2025) the ALJ denied a claim arising under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21). Complainant alleged Respondent took retaliatory adverse actions against her for diverting aircraft she piloted during two in-flight emergencies in 2014 and 2015.

Complainant alleged several adverse actions, including that she received non-standard grading during the in-flight training to upgrade to flying Boeing 777s, that her training was unfairly suspended, and that it was medically non-standard for Respondent to require Complainant to undergo a United Pilot Agreement Section 14 examination with a Company Medical Examiner who was an aviation psychiatrist in the absence of substantiated medical indications.

The ALJ found the complaint time barred as the complaint was filed on May 15, 2019, more than 90 days after Complaint received a January 17, 2019 letter informing her of Respondent’s decision to send her for a Section 14 physical examination with an aviation psychiatrist pursuant to the United Pilot Agreement (UPA) (collective bargaining agreement) and to place her in unpaid status for failure to do so. The ALJ alternatively denied the complaint on the merits, having found Complainant failed to establish by a preponderance of the evidence that her protected activity was a contributing factor in Respondent’s adverse actions, and that Respondent established via clear and convincing evidence it would have taken the same adverse actions in the absence of that activity.

Complainant first argued the ALJ miscalculated the Complaint filing deadline because he ignored evidence she did not receive Respondents’ January 17, 2019 and March 1, 2019 letters which informed her Respondent continued to require her examination by an aviation psychiatrist until “much later” due to FedEx delivery issues. The ARB found that regardless of any delay in Complainant’s receipt of the January 17 and March 1, 2019 letters, the record showed Complainant received final, definitive, and unequivocal notice of Respondent’s decision to require the psychiatric examination in Respondent’s January 24, 2019 letter to Complainant. The ARB also found any delayed delivery of the January 17 and March 1, 2019 letters did not affect timeliness as Complainant had not specified when she received the letters and the record did not support her assertion they were delivered “much later.”

Complainant asserted before the ARB that she did not become aware of the medically non-standard and thus adverse nature of the aviation psychiatric examination Respondent required her to undergo until well after February 2019. The ARB noted that the limitations period begins to run once a complainant receives final, definitive, and unequivocal notice of the adverse action -- “not when [complainant] realize[s] that the reason given by the employer for the adverse action might not be the real reason.” The ARB thus found that as a legal matter, the clock started ticking the date Respondent definitively notified Complainant it had designated the aviation psychiatrist to perform Complainant’s Section 14 examination instead of the date Complainant first suspected retaliatory motives drove Respondent’s selection of the aviation psychiatrist.

The Board further found Complainant demonstrated awareness of the alleged non-standard nature of a Section 14 exam with an aviation psychiatrist when her aeromedical representative objected to the examination two days after Respondent’s December 3, 2018 notification to Complainant that it had settled on that physician as the examiner and objected again in January 2019.

Complainant argued the ALJ erred in finding her complaint untimely because she indicated at the hearing that prior to her receipt of the January 24, 2019 letter, her supervisor verbally told her to disregard it. The Board noted that no other evidence in the record supported Complainant’s assertion she was told to disregard the letter, and that her supervisor had refused to provide written confirmation he had rescinded the contents of the January 24, 2019 letter. The ARB also noted that the ALJ in his discretion found Complainant’s testimony to be of reduced credibility, a rational credibility finding it did not have the authority to disturb. The ARB therefore found equitable modification principles did not apply, and that the ALJ determination the complaint was untimely was supported by substantial evidence. The ARB thus affirmed the ALJ’s Decision and Order dismissing the complaint for untimeliness.

Administrator, Wage and Hour Div., USDOL v. The Edgewood Co., LLC, ARB No. 2025-0017, ALJ No. 2024-TNE-00004 (ARB Feb. 28, 2025) (Decision and Order Denying Interlocutory Appeal)

ORDER OF DISMISSAL; INTERLOCUTORY APPEAL; JURY TRIAL

In Administrator, Wage and Hour Div., USDOL v. The Edgewood Co., ARB No. 2025-0017, ALJ No. 2024-TNE-00004 (ARB Feb. 28, 2025), Respondent filed a petition for interlocutory appeal with the ARB to review an ALJ’s order denying its demand for a jury trial.

On October 28, 2024, the ALJ denied Respondent’s request for a jury trial, finding that the applicable regulations do not provide for a jury trial, nor is there any other authority that would enable the ALJ to grant a jury trial. Respondent filed a petition for review with the ARB and subsequently filed a motion to certify the issue for interlocutory review with the ALJ. The ALJ issued an Order Granting Respondent’s Motion to Certify Controlling Question of Law for Interlocutory Review on December 18, 2024.

When determining whether to accept an interlocutory appeal, the ARB follows the procedures provided in 28 U.S.C. § 1292(b). Interlocutory review requires two separate actions: (1) the ALJ must certify that the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, and (2) when those elements are met, the ARB then exercises its unfettered discretion in deciding whether to accept or reject the petition for review.

Respondent asserted that the ARB should grant its petition because an ALJ is not precluded from addressing issues that raise constitutional concerns.

The ARB found that it may consider “as applied” constitutional challenges but may not consider facial challenges. The ARB found that Respondent’s position did not appear to present an as applied constitutional argument as neither the applicable statute nor regulations allow for jury trials as written. The ARB found that accepting the appeal would not have materially advance the ultimate termination of the litigation because of the ARB’s limited authority concerning the facial constitutionality of the statutes and regulations it administers.

Thomas v. DuPont Specialty Products USA, LLC, ARB No. 2023-0055, ALJ No. 2023-WPC-00004 (ARB Feb. 19, 2025) (Decision and Order)

UNTIMELY COMPLAINT; EQUITABLE MODIFICATION DOES NOT APPLY

In Thomas v. DuPont Specialty Products USA, LLC, ARB No. 2023-0055, ALJ No. 2023-WPC-00004 (ARB Feb. 19, 2025), the ARB affirmed the ALJ’s dismissal of Complainant’s untimely complaint. The ARB determined that Complainant had thirty days from the date of her termination from employment on April 11, 2022 to file her retaliation complaint under the CAA, FWPCA, and TSCA. Because Complainant did not file her complaint until May 4, 2023, the ARB found that Complainant failed to file her claim within the time limitation. The ARB also found that Complainant had not established that she was entitled to equitable modification of the filing deadline. The ARB explained that Complainant did not argue, nor did the evidence of record demonstrate, that equitable tolling or estoppel principles applied. Regarding Complainant’s sole argument for equitable modification, which was that OSHA improperly docketed her March 21 and April 12, 2022 OSHA complaints only under Section 11(c) of the OSH Act, the ARB found that OSHA properly docketed Complainant’s 2022 complaints as the complaints did not assert public health and safety concerns under the CAA, FWPCA, and TSCA.

Wyderka v. Energy Transfer, ARB No. 2025-0033, ALJ No. 2023-PSI-00001 (ARB Feb. 24, 2025) (Decision and Order Denying Interlocutory Appeal)

INTERLOCUTORY APPEALS; CONSTITUTIONAL CHALLENGES

In Wyderka v. Energy Transfer, ARB No. 2025-0033, ALJ No. 2023-PSI-00001 (ARB Feb. 24, 2025), Respondent filed a Motion to Dismiss while its case was pending before an ALJ. Respondent sought to have the case dismissed on the ground that the ALJ lacked subject-matter jurisdiction pursuant to the Supreme Court’s decision in SEC v. Jarkesy. The ALJ denied Respondent’s motion to dismiss and Respondent filed a Petition for Interlocutory Review requesting that the ARB review the ALJ’s order. At Respondent’s request, the ALJ certified for appeal the “issue of whether Respondent is entitled to a jury trial under the Seventh Amendment.”

The ARB noted that, pursuant to the authority delegated to it by the Secretary of Labor, it has the discretionary authority to review interlocutory rulings in exceptional circumstances. This authority is entirely discretionary, and the ARB determined that this case was not an exceptional case warranting the exercise of this discretion. In reaching this decision, the ARB noted that it has long held it does not have the power to pass on the constitutional validity of the statutes and regulations it administers. In a recent decision, the ARB clarified that although it may consider “as applied” constitutional challenges, it may not consider facial challenges to the constitutionality of a regulatory or statutory provision. This prohibition against ruling on the validity of the Department’s appropriately promulgated regulations weighed against granting interlocutory review. The ARB noted that, in denying the, it categorically did not reach the merits of Respondent’s arguments.