USDOL/OALJ Reporter: ARB Decision Caselist - June 2013

JOINT MOTION TO DISMISS FRSA COMPLAINT; MOTION MUST INDICATE WHETHER REQUEST FOR DISMISSAL IS BASED ON SETTLEMENT; IF SETTLEMENT INVOLVED, COPY MUST BE SUBMITTED FOR ARB'S REVIEW

In Carr v. BNSF Railway Co. , ARB No. 13-052, ALJ No. 2012-FRS-14 (ARB June 26, 2013), an FRSA whistleblower appeal, the parties filed a joint motion to withdraw. The ARB noted that "[t]he regulation under which the parties have requested withdrawal provides, 'If objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section.' 29 C.F.R. § 1982.111(c)." The ARB denied the motion because the parties had not specified the basis for their motion, and the ARB could not discern from the motion whether the parties had or intended to resolve the complaint by way of a settlement. The ARB's order permitted the parties to stipulate that they have not and do not intend to enter into a settlement to resolve the FRSA complaint, or to submit a copy of a settlement for the ARB's review.

Summary denial of motion of reconsideration.

Plaintiff sought declaratory relief before OALJ as to whether the manner in which OFCCP selects establishments for compliance reviews violates the Fourht Amendment. The ALJ dismissed the complaint for lack of subject matter jurisdiction on the ground that OALJ only obtains regulatory authority to adjudicate an OFCCP dispute upon the filing of an administrative complaint by OFCCP through the Office of the Solicitor. Plaintiff filed exceptions with the ARB. While the appeal was pending before the ARB, OFCCP that Plaintiff and OFCCP had resolved their dispute, and requested that the ARB exercise its discretion to terminate the proceeding as moot. OFCCP advised that Plaintiff did not oppose the withdrawal of the appeal. Given these circumstances, the ARB dismissed Plaintiff's appeal.

Dismissal of ARB appeal based on Complainant's decision to proceed in federal district court.

Summary denial of Complainant's motion for reconsideration.

WHERE EMPLOYER ENDS EMPLOYMENT RELATIONSHIP PRIOR TO COMMENCEMENT OF H-1B AUTHORIZED EMPLOYMENT PERIOD, BUT FAILS TO EFFECT A BONA FIDE TERMINATION UNDER THE LCA REGULATIONS, EMPLOYER IS LIABLE FOR H-1B WAGES AND OTHER DAMAGES

ARB HOLDS COMPLAINANT TO DAMAGES FOR H-1B WAGES REQUESTED BEFORE ALJ; DOES NOT REACH QUESTION OF WHETHER EMPLOYER IS LIABLE FOR ENTIRE PERIOD OF H-1B EMPLOYMENT WHERE VISA WAS ISSUED BUT EMPLOYMENT NEVER COMMENCED

In Limanseto v. Ganze & Co. , ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the Complainant had been working for the Respondent under an F-1 student visa. Before the Complainant began work under an H-1B visa issued as the result of a LCA filed by the Respondent, the Respondent ended the employment relationship. The ALJ found that the Respondent failed to effect a bona fide termination of employment under the H-1B LCA regulations and therefore the Respondent was liable for wages for the full period of the H-1B employment. On appeal, the Respondent argued that there was no actual employment relationship under the LCA between it and the Complainant, and thus the ALJ erred in applying the "bona fide" termination test and finding it liable for wages during the entire period of H-1B authorized employment. The ARB affirmed the ALJ's finding that the Respondent failed to effect a bona fide termination under the LCA regulations. The ARB noted that the termination notice to the Complainant did not end the Respondent's LCA attestation that for the entire "period of authorized employment," including non-productive time, it will pay the required wage to the H-1B non-immigrant. The ARB noted that an employer may avoid payment of H-1B wages for the entire period if there has been a bona fide termination of the employer, which under the regulations requires three steps: notice to the employee; notice to USCIS, and payment for transportation home under certain circumstances. See 20 C.F.R. § 655.731(c)(7). In the instant case, the Respondent did not notify USCIS until advised to do so by a WHD investigator after the Complainant filed his LCA complaint. Moreover, the Respondent did not pay for the Complainant's return home to Indonesia.

The ARB, however, reduced the damages award to the amount requested while the case was pending before the ALJ. In this regard, the ARB noted that the Complainant's attorney had requested only that the Complainant be compensated for his unpaid H-1B salary up to the date he returned home. The attorney also indicated that the Complainant was not seeking damages for the three month period when he worked for another company. Thus, before the ALJ the Complainant only sought damages for wages for 220 work days. On appeal, the Complainant shifted his position and urged the ARB to affirm the ALJ's award in its entirety. The ARB however, held the Complainant to the relief he sought before the ALJ. The ARB stated that �the relief [the Complainant] requested at the ALJ hearing is a consequence that reasonably flows from [the Respondent's] failure to properly effect a bona fide termination. We also find that it is appropriate to hold [the Complainant] to the relief he requested and modify the ALJ's order without deciding (1) whether [the Respondent's] failed attempt to terminate the H-1B employment would have required payment of the entire three years promised in the LCA or (2) whether offsets for other wages earned and the duty to mitigate may be considered in H-1B wage disputes.�

The ALJ had not awarded the cost of transportation home as damages because he had ordered payment of wages for the entire three year period of authorized H-1B employment. The ARB, because it had reduced the damages award for the wages, awarded the Complainant the actual cost of his air fare home, not to exceed the $1,000 originally requested before the ALJ. The ARB affirmed the ALJ's conclusions that the Complainant was also entitled to reimbursement of $1,500 in legal fees during the H-1B application process; that the Respondent was not entitled to offset the balance of a tuition loan it had made to the Complainant; and that pre- and post-judgment interest were applicable (26 U.S.C.A. § 6621(a)(2)(federal short-term rate plus three percentage points)).

WHERE RESPONDENT DID NOT RAISE TIMELINESS OF COMPLAINT ISSUE BEFORE THE ALJ, THE ARB REFUSED TO CONSIDER THE ISSUE ON APPEAL

In Limanseto v. Ganze & Co. , ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the Respondent argued on appeal that the Complainant's LCA complaint should be dismissed as untimely filed because it fired the Complainant on August 14, 2008, and he did not file a claim until October 26, 2009. The ARB noted a complaint must be filed no later than 12 months after the latest date on which the alleged violations were committed, which would be the date on which the employer allegedly failed to perform an action or fulfill a condition specified in the LCA. 20 C.F.R. § 655.806(a)(5). The ARB refused to address the issue, however, because the Respondent admitted that it had not raised it with the ALJ. Adm'r v. Am Truss , ARB No. 05-032, ALJ No. 2004-LCA-12, slip op. at 4-5 (ARB Feb. 28, 2007).

ALJ IS NOT REQUIRED TO GIVE DEFERENCE TO WAGE AND HOUR DIVISION ADMINISTRATOR�S �NO VIOLATION� DETERMINATION

In Limanseto v. Ganze & Co. , ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the H-1B worker filed an LCA complaint with the Wage and Hour Division. The WHD Administrator found no violation of the LCA. The ALJ, however, determined that the Respondent failed to effect a bona fide termination under the LCA regulations, and ordered payment of damages. On appeal, the Respondent contended that the ALJ should have deferred to the Administrator's determination. The ARB rejected this contention: �There is no applicable regulation or statute requiring such deference in H-1B cases. Under 20 C.F.R. § 655.840(b), an ALJ "may affirm, deny, reverse, or modify in whole or in part" the Administrator's decision. Under 20 C.F.R § 655.820(a), if a timely request for an administrative hearing is filed, the Administrator's determination is inoperative unless and until the case is dismissed or the ALJ issues an order affirming the decision. We disagree that the ALJ must give deference to the Administrator in these cases.� USDOL/OALJ Reporter at 6, n.23.

H-1B WAGES DAMAGES CALCULATED BASED ON THE HIGHER OF THE ACTUAL WAGE OR THE PREVAILING WAGE

In Limanseto v. Ganze & Co. , ARB No. 11-068, ALJ No. 2011-LCA-5 (ARB June 6, 2013), the Complainant's attorney stated at the ALJ hearing that the H-1B wage was $23.00 an hour. In response to the ALJ's post-hearing order, the attorney indicated that the appropriate hourly rate was the Complainant's actual wage when the Respondent fired him, $25.30. The ALJ based his damages calculation on this amount. On appeal, the ARB also calculated the award at the higher rate, stating �Under 8 U.S.C.A. § 1182(n)(1)(A)(i), the employer's enforceable wage obligation is the actual wage or the prevailing wage, whichever is greater.� USDOL/OALJ Reporter at 8, n.29.

[STAA Digest VII B 3]
RESPONDENT THAT CONTRACTED WITH LEASING FLEET NOT SHOWN TO BE A JOINT EMPLOYER OR AGENT WHERE INDEPENDENT CONTRACTOR OPERATING AGREEMENT SHOWED THAT LEASING FLEET HAD SOLE RESPONSIBILITY FOR ITS EMPLOYEES, AND WHERE CIRCUMSTANCES AND TIMELINE SHOWED THE RESPONDENT PLAYED NO ROLE IN THE DISCHARGE

In Smith v. CRST International, Inc. , ARB No. 11-086, ALJ No. 2006-STA-31 (ARB June 6, 2013), the Complainant was an over-the-road truck driver for Lake City Enterprises, Inc. (LCE), which was a small leasing fleet under contract with the Respondent, CRST. LCE had discharged the Complainant after he complained about the faulty condition of a trailer. In a separate STAA proceeding, LCE was found to have violated the STAA in firing the Complainant. In the instant case, the Complainant contended that CRST had collaborated with LCE in his termination. The ALJ granted summary decision in favor of CRST on the ground that CRST had shown that it was not the Complainant's employer, and the Complainant had not established why CRST should not be granted summary decision on this ground. On appeal, the Complainant argued that LCE was CRST's agent when it fired him, and that CRST employees acted within the scope of their agency when they collaborated to accomplish the discharge. The ARB determined, however, that undisputed evidence supported the ALJ's conclusions that CRST was not a joint employer and that LCE did not act as CRST's agent when it fired the Complainant.

CRST and LCE's independent contractor operating agreement provided that LCE would use its equipment and drivers to transport, load, and unload freight such as steel coils and bars on CRST's behalf. While LCE's drivers had to submit to required federal and state physical examinations and comply with CRST's drug and alcohol policy, the agreement provided that LCE had sole responsibility for its employees and that no person LCE might engage shall be considered CRST's employee. The ARB agreed with the ALJ that, under the agreement, CRST did not delegate to LCE the authority to make employment decisions on its behalf. In addition, other provisions of the exclusive agent agreement supported the conclusion that LCE had complete and sole responsibility over hiring; setting wages, hours, and working conditions; adjusting any grievances; and supervising, training, disciplining, and firing all employees. Finally, the ARB found the factual circumstances showed that only LCE's owner was motivated to fire the Complainant, and the timeline of events showed that CRST placed no role in LCE's discharge of the Complainant.

[STAA Digest IX C]
ATTORNEY FEES; UNOPPOSED FEE PETITION MUST NONETHELESS BE REVIEWED BY THE ARB TO ENSURE COMPLIANCE WITH APPLICABLE STANDARDS

In Youngermann v. United Parcel Service, Inc. , ARB No. 11-056, ALJ No. 2010-STA-47 (ARB June 5, 2013), the Complainant's counsel filed a fee petition to which the Respondent did not file an oppostion. The ARB stated that "Even though the fee petition was unopposed, we have an obligation to ensure that it follows applicable standards. Moder v. Village of Jackson , ARB Nos. 01-095, 02-039; ALJ No. 2000-WPC-005, slip op. at 1 (ARB Oct. 28, 2003)." USDOL/OALJ Reporter at 2, n.1. The ARB stated: " An attorney seeking a fee award must submit evidence documenting the hours worked and the rates claimed, as well as records identifying the date, time, and duration necessary to accomplish each specific activity and all claimed costs. In addition, the attorney must demonstrate the reasonableness of his hourly fee by producing evidence that the requested rate is in line with fees prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, -161; ALJ No. 2003-STA-055, slip op. at 3 (ARB Apr. 3, 2008). " USDOL/OALJ Reporter at 2.