Administrative Review Board Decisions

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

Administrator, Office of Foreign Labor Certification, Employment and Training Administration, USDOL v. Central Florida Labor Services, LLC, ARB No. 2025-0026, ALJ Nos. 2023-PED-00011, -00012, -00014, -00015 (ARB Mar. 28, 2025) (Decision and Order Vacating and Remanding)

REMAND; FAILURE TO RESOLVE MATERIAL CONFLICT IN EVIDENCE; FAILURE TO FULFILL DUTY OF EXPLANATION

In Administrator, Office of Foreign Labor Certification, Employment and Training Administration, USDOL v. Central Florida Labor Services, LLC, ARB No. 2025-0026, ALJ Nos. 2023-PED-00011, -00012, -00014, -00015(ARB Mar. 28, 2025), the Administrator of the Office of Foreign Labor Certification (OFLC) of the United States Department of Labor (Administrator) issued a Notice of Debarment to H-2A labor contractors Overlook Harvesting Co., LLC (OHC or Overlook), Central Florida Labor Services, LLC (CFLS), JJT Services, LLC (JJT), and Overlook Harvesting Michigan, LLC (OHM) (collectively, Respondents) on October 6, 2022, for material misrepresentations as to the periods of need stated in their 2020-2021 applications for Temporary Employment Certification. None of the subject applications achieved H-2A labor certification as they were all withdrawn or denied. Based on several Board of Alien Labor Certification (BALCA) decisions, the Administrator found Respondents were joint and single employers without distinct periods of need and debarred them from participating in the H-2A program for the maximum period of three years. It issued a Final Determination on Debarment to Respondents on December 5, 2022. Respondents appealed. An ALJ issued a Decision on the Record Affirming Debarment, and reduced the debarment period from 3 to 1.5 years after finding the violations involved were not the "most egregious."  

CONFLICTING EVIDENCE; ALJ MUST RESOLVE MATERIAL CONFLICT IN EVIDENCE REGARDING PERIODS OF NEED IN H-2A APPLICATIONS OF THREE RESPONDENTS

The Board noted that as a condition for appellate review, the Administrative Procedure Act (APA) required the ALJ to adequately explain a decision which credits certain evidence and discredits other evidence. The reviewing tribunal must be able to understand what the ALJ decided and why. The ARB found that the ALJ failed to fulfill this requirement under the APA in affirming the debarments of OHC, CFLS, and JJT because the ALJ did not resolve a material conflict in the evidence concerning the periods of need for temporary agricultural labor for the same contract in Florida as stated in their H-2A applications.

The Administrator concluded that OHC, CFLS, and JJT violated 20 C.F.R. § 655.182(a) and (d)(4) by materially misrepresenting their periods of need in applications they filed for H-2A certification. The applications sought H-2A labor in Florida for periods covering the months of July and August 2021. The Administrator concluded the stated periods of need were material misrepresentations after an OHC employee testified at a January 2021 BALCA hearing that OHC's true need for H-2A labor for agricultural work to be performed for a contract in Florida in fact ended in June 2021 and that OHC planned to transfer the H-2A labor to worksites in other states during the Florida off-season in July and August 2021. The BALCA ALJ affirmed the OFLC Certifying Officer's denial of the H-2A application in that case for lack of seasonality, found that testimony not credible, and relied on the period of need stated in the subject H-2A application (through mid-September 2021).

In affirming the Administrator's debarment of OHC, CFLS, and JJT, the ALJ in the instant case accepted as true the OHC witness' testimony. Concluding the periods of need in OHC's, CFLS's, and JJT's H-2A applications "contradicted [OHC's] purported off-season of July and August," the ALJ found they contained "an assertion . . . not in accord with the facts," and were "material as a violation" of the debarment regulations.

The ARB found that the ALJ failed to fulfill her duty to resolve conflicting evidence under the APA by not addressing the BALCA ALJ's finding that the OHC witness' testimony was not credible, considering whether it conflicted with any other credibility findings of BALCA ALJs, nor attempting to explain whether such a potential conflict affected Respondents' alleged misrepresentations. Accordingly, the Board vacated the ALJ's determination that OHC, CFLS, and JJT materially misrepresented their periods of need in their respective H-2A applications. The Board remanded for the ALJ: to thoroughly review the BALCA decision involving the OHC witness' testimony as to OHC's period of need in Florida together with the remaining underlying BALCA decisions; to explain her credibility determination; and, to reassess the basis for the Administrator's debarment of OHC, CFLS, and JJT for material misrepresentations of fact in their H-2A applications.

DUTY OF EXPLANATION; ALJ MUST FULFILL DUTY OF EXPLANATION REGARDING ALLEGED MATERIAL MISREPRESENTATIONS IN FOURTH RESPONDENT'S H-2A APPLICATION

The Board found the ALJ failed to fulfill her duty of explanation under the APA in affirming the Administrator's debarment of OHM. In debarring OHM, the Administrator determined that OHC materially misrepresented the seasonality of single and joint employer OHM's need for H-2A labor for a second Florida contract.

While the ALJ's decision directly quoted the parties' respective arguments, she did not substantively resolve them, and simply concluded that, because OHC and OHM sought "conflicting periods of need on their respective applications," they materially misrepresented their periods of need and violated the H-2A program under 20 C.F.R. § 655.182(d)(4).

The ARB determined the ALJ failed to adequately explain the basis for this conclusion. It further found that although the ALJ reasoned "the true issue is whether [OHC] used [OHM] to materially misrepresent its period of need," the ALJ did not independently reach a finding on it. The ARB concluded that without this factual determination and an explanation of the legal grounds for OHM's debarment for OHC's actions, the ALJ fell short of her duty of explanation under the APA. The ARB therefore vacated the finding that OHM materially misrepresented its period of need for H-2A labor and directed the ALJ on remand to reassess OHM's debarment. 

Debarment; PROPORTIONAL MITIGATION OF DEBARMENT PERIOD IF DEBARMENTS MODIFIED OR REVERSED

The ARB noted that the ALJ reduced Respondents' debarment period from 3 to 1.5 years because two of the seven factors supporting a finding their violations were substantial under 20 C.F.R. §655.182(e) existed (a "[p]revious history of violation(s)" and the "gravity of the violation(s)"). It also noted that the repetition and gravity of the violations involved would be reduced if the ALJ modified or reversed the Administrator's determination to debar any of the Respondents. The ARB instructed that in that event, the ALJ should proportionally mitigate the 1.5-year debarment period. The ARB declined to reach the Respondents' remaining arguments unless and until they reached the ARB on a fully developed record.

CONCURRENCE; DISAGREEMENT WITH ADMINISTRATOR'S CLAIMED AUTHORITY TO DEBAR EMPLOYERS FOR MATERIAL MISREPRESENTATIONS IN UNCERTIFIED H-2A APPLICATIONS

Chief Judge Johnson concurred with the decision's result and analysis. He disagreed with the Administrator's claimed authority to debar Respondents for material misrepresentations in their uncertified H-2A applications. Chief Judge Johnson opined that the language of 20 C.F.R. § 655.182(a) constrained the Administrator's debarment power to instances where the employer "substantially violated a material term or condition of its temporary agricultural labor certification." He noted that a material misrepresentation is one defined "violation" which may arise in the process of applying for certification per 20 C.F.R. § 655.182(d)(4). In his view, the language of 20 C.F.R. §655.182(a) required that the misrepresentation also violate a material term or condition of a granted certification in order for the Administrator to have the power to debar for that misrepresentation. 

Chief Judge Johnson noted this interpretation was consistent with the language of the enabling statute; the structure and context of the debarment regulations; and, that the Administrator had not provided precedent or definitive clarification from the proposed or final rules which would aid in explaining the interaction of the regulatory provisions in question. Chief Judge Johnson also noted that denial of H-2A applications, and penalties for perjury under 18 U.S.C. § 1001, addressed material misrepresentations in the application process to promote program compliance. He reserved final judgment on the issue and remaining issues until the case was before the ARB on a complete record.

Young v. CSX Transportation, Inc., ARB Nos. 2023-0028, -0029, ALJ No. 2021-FRS-00001 (ARB Mar. 27, 2025) (Decision and Order)

AFFIRMATIVE DEFENSE; SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTED ALJ'S CONCLUSION

In Young v. CSX Transportation, Inc., ARB Nos. 2023-0028, -0029, ALJ No. 2021-FRS-00001 (ARB Mar. 27, 2025), the ARB affirmed the ALJ's D. & O. concluding that Respondent established, by clear and convincing evidence that it would have taken the same adverse action absent Complainant's protected activity. Complainant alleged that Respondent terminated his employment because he reported a medical injury, a protected act. Respondent argued that it did not terminate Complainant's employment because he reported a medical injury, but instead because it believed Complainant was dishonest in his report of injury.

The ARB found, based on the specific facts in the case, substantial evidence supported the ALJ's finding that Respondent would have fired Complainant for dishonesty absent any protected activity. The ARB noted that although the evidence in this case could have supported a ruling for Complainant if the case was before the ARB de novo, the ARB affords great deference to an ALJ's credibility findings. The ARB found that the ALJ's credibility findings in this case (crediting the testimony of Respondent's decision-makers that they believed Complainant was dishonest regarding his injury) were not inherently incredible, but instead eminently reasonable. The ARB noted that the ALJ also did not solely rely on Respondent's policy regarding dishonesty, but also on other evidence in the record, including Complainant's medical records demonstrating that Complainant reported an alternative cause of his injury other than the workplace incident and Respondent's comparator evidence.

Worksource East Central Georgia v. Employment and Training Administration, USDOL, ARB No. 2025-0018, ALJ No. 2024-WIA-00003 (ARB Mar. 19, 2025) (Decision and Order)

DECISION AND ORDER; JURISDICTION

In Worksource East Central Georgia v. Employment and Training Administration, USDOL, ARB No. 2025-0018, ALJ No. 2024-WIA-00003 (ARB Mar. 19, 2025), the ARB affirmed the Chief ALJ's Order of Dismissal on the ground that the Department's Office of Administrative Law Judges (OALJ) lacked jurisdiction to hear the matter. Complainant is a local workforce development board that was sanctioned by the State of Georgia (the State) for failing to select an organization to serve as a fiscal agent and failing to maintain continued operation of a one-stop delivery system as required under the Workforce Innovation and Opportunity Act (WIOA). Complainant appealed the sanction to the Department's Employment and Training Administration (ETA), which issued a Determination upholding the sanction. Complainant then sought review of ETA's Determination by OALJ. After issuing an Order to Show Cause, the Chief ALJ issued an Order of Dismissal, finding that OALJ lacked jurisdiction to hear appeals of sanctions that were imposed by States and upheld by ETA.

The ARB affirmed the Chief ALJ's decision, finding that Section 186 of the WIOA only confers OALJ with jurisdiction to hear appeals of sanctions directly imposed by the Secretary of Labor. The ARB looked at the plain text of the WIOA and its implementing regulations and concluded that they do not provide OALJ with jurisdiction to hear appeals of sanctions imposed by a State and then upheld by ETA. The ARB recognized that OALJ is a tribunal of limited jurisdiction and has only such adjudicatory jurisdiction as is conferred on it by statute. The ARB also rejected Complainant's argument that the WIOA's nondiscrimination provisions provide OALJ with jurisdiction, finding that it was not supported by the text of the WIOA or its implementing regulations.

Jahanbin v. The Boeing Company, ARB No. 2024-0035, ALJ No. 2023-AIR-00023 (ARB Mar. 13, 2025) (Decision and Order)

TIMELINESS; CONTINUING VIOLATIONS DOCTRINE; EQUITABLE ESTOPPEL; EQUITABLE TOLLING

In Jahanbin v. The Boeing Company, ARB No. 2024-0035, ALJ No. 2023-AIR-00023 (ARB Mar. 13, 2025), the ARB affirmed the ALJ's Order Granting Summary Decision dismissing the complaint as untimely. On January 28, 2021, Respondent terminated Complainant's employment and designated him as "ineligible for rehire." Later in 2021, a contractor of Respondent hired Complainant. On December 14, 2021, however, the contractor discovered Complainant's "ineligible for rehire" status, confiscated Complainant's security badge, and ended his employment. Complainant reapplied in January 2022, but was not hired.

On February 9, 2022, 377 days after Respondent terminated Complainant's employment, Complainant filed an AIR21 whistleblower complaint with OSHA. OSHA dismissed the complaint as untimely. Complainant appealed to the Office of Administrative Law Judges. Respondent filed a motion for summary decision which the ALJ granted on April 1, 2024, dismissing the complaint as untimely.

Summary decision is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to decision as a matter of law." Employees alleging employer retaliation in violation of AIR21 must file their complaints with OSHA within 90 days of the alleged retaliatory act. The statute of limitations begins to run on the date an employee receives "final, definitive, and unequivocal notice" of an adverse employment decision. The claim accrues on "[t]he date that an employer communicates a decision to implement such a decision, rather than the date the consequences of the decision are felt." The ARB may modify a filing deadline under equitable tolling or equitable estoppel principles.

The ARB found that Complainant's complaint was untimely. Respondent suspended Complainant on December 7, 2020, and terminated his employment with an "ineligible for rehire" status on January 28, 2021. Applying the 90-day period for filing, Complainant was required to file a complaint with OSHA no later than April 28, 2021. Complainant did not file his complaint until 377 days after he was terminated. Neither party disputed these facts.

Complainant contended that the deadline should be extended based on the continuing violations doctrine, equitable estoppel principles, and equitable tolling principles.

CONTINUING VIOLATIONS DOCTRINE; COMPLAINANT DID NOT ESTABLISH GROUNDS FOR APPLICATION OF CONTINUING VIOLATIONS DOCTRINE

The ARB determined that Complainant did not establish that the continuing violations doctrine applied. The continuing violations doctrine may allow an employee who ordinarily would be unable to recover damages for discrete acts of discrimination falling outside the limitations period to avoid that bar if those acts are shown to be part of a pattern of discrimination anchored by acts that occurred within the limitations period. The ARB found that an employer refusing to rehire a complainant who was designated as "ineligible for rehire" when terminated does not inherently amount to a continuing violation because the focus remained on the discriminatory nature of the original termination for timeliness purposes. The ARB concluded that the refusal to rehire Complainant did not amount to a pattern of ongoing discrimination that would make his complaint timely.

EQUITABLE ESTOPPEL; GROUNDS FOR EQUITABLE ESTOPPEL DID NOT EXIST

The ARB also determined that Complainant did not establish that equitable estoppel applied. Equitable estoppel applies where the employer has acted deliberately to deceive, mislead, or coerce the employee into not filing a claim in a timely manner. The ARB found that Complainant's inability to access documentation to support his claim did not equitably estop the deadline because such documentation is not necessary to file an OSHA complaint. The ARB also found that Complainant did not present any evidence that Respondent misled him and prevented him from filing an OSHA complaint.

EQUITABLE TOLLING; GROUNDS FOR EQUITABLE TOLLING DID NOT EXIST

The ARB further determined that Complainant did not establish that equitable tolling applied. A complainant's inability to meet a deadline may be equitably tolled due to "plaintiff's excusable ignorance of the employer's discriminatory act." The ARB has recognized several principal situations in which the limitations period may be tolled, including: (1) when the movant has raised the precise statutory claim in issue but has done so in the wrong forum; (2) when the movant has in some extraordinary way been prevented from filing; and (3) when the movant has some excusable ignorance of the respondent's discriminatory act. However, the ARB found that Complainant failed to establish that any of these grounds applied.

Thus, the ARB concluded that there were no genuine disputes as to any material fact and Respondent was entitled to a decision as a matter of law.

Thomas v. Dupont Specialty Products USA, LLC, ARB No. 2023-0055, ALJ No. 2023-WPC-00004 (ARB Mar. 11, 2025) (Order Denying Reconsideration)

RECONSIDERATION; ARB WILL NOT RECONSIDER SAME ARGUMENTS MADE IN ORIGINAL APPEAL

In Thomas v. Dupont Specialty Products USA, LLC, ARB No. 2023-0055, ALJ No. 2023-WPC-00004 (ARB Mar. 11, 2025), the ARB denied Complainant's request for reconsideration of the ARB's February 19, 2024 Decision and Order affirming the ALJ's conclusion that Complainant's complaint was untimely.

The ARB will reconsider a decision only under limited circumstances. In considering whether to reconsider a decision, the ARB considers whether the movant has demonstrated: (i) material differences in fact or law from those presented to the ARB of which the moving party 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) failure to consider material facts presented to the ARB before its decision.

The ARB determined that Complainant's motion did not fall within any of the limited circumstances warranting reconsideration. Her sole argument was that the ARB failed to consider material facts that were known to the ARB prior to making its decision. However, Complainant simply repeated arguments that she raised in her original appeal to the ARB that the ARB considered and rejected. Thus, the ARB declined to address them again on reconsideration.