USDOL/OALJ Reporter: ARB Decision Caselist - June 2017

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ADVERSE EMPLOYMENT ACTION REQUIRES ALJ TO MAKE A FINDING OF FACT ON WHETHER A TERMINATION OF EMPLOYMENT WAS A VOLUNTARY RESIGNATION OR THE RESULT OF RETALIATORY EMPLOYMENT ACTION TAKEN BY THE RESPONDENT

In Hoffman v. NOCO Energy Corp. , ARB Nos. 15-070, 16-009, ALJ No. 2014-STA-55 (ARB June 30, 2017), the ARB held that the ALJ erred as a matter of law when he held that the Complainant suffered an adverse employment action, within the meaning of STAA, "because whether or not [the Respondent] ‘terminated’ him, his employment ended." The ARB explained:

The STAA whistleblower provision prohibits an employer from taking retaliatory adverse employment action against an employee. Thus, the question to be resolved is whether [the Respondent] took an adverse employment action against [the Complainant]; not whether [the Complainant] experienced an adverse employment action irrespective of any action [the Respondent] took. An employee who resigns from employment without coercion has not been subjected to an adverse employment action within the meaning of STAA’s whistleblower provision.

Slip op. at 4 (emphasis as in original)

Because the ALJ had not made a finding of fact on this question, and the ARB cannot itself make findings of fact, the ARB remanded the case to the ALJ.

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ENFORCEMENT ACTION BROUGHT UNDER LATER VACATED 2008 H-2B RULES AT 20 C.F.R. PART 655, SUBPART A; ALJ PROPERLY GRANTED WHD’S MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE

In Administrator, Wage and Hour Div., USDOL v. Strates Shows, Inc. , ARB No. 15-069, ALJ No. 2014-TNE-16 (ARB June 30, 2017), the Administrator, Wage and Hour Division (WHD) assessed back wages and civil money penalties against the Respondent for several H-2B temporary labor certification violations based on the authority found in 20 C.F.R. Part 655 and 29 C.F.R. Part 503, Subpart C (2008). While the matter was pending before the ALJ, the U.S. District Court for the Northern District of Florida vacated Part 655, Subpart A, of the 2008 H-2B regulations. The court concluded that DOL lacked rulemaking authority to promulgate the 2008 rule, and permanently enjoined DOL from enforcing the H-2B regulations at Subpart A. Perez v. Perez , Case No. 3:14-cv-00682 (N.D. Fla. Mar. 4, 2015). The court issued its ruling on March 4, 2015. On April 29, 2015, DOL and DHS jointly promulgated an interim final rule to replace the invalidated regulations, and on May 12, 2015, the WHD filed a motion with the ALJ seeking dismissal. The WHD sought dismissal without prejudice to allow it to issue “a new Notice of Determination citing nearly identical wage violations as those cited in the 2014 Notice of Determination but in terms of statutory authority not affected by the Perez v. Perez decision. ” Slip op. at 2. The Respondent moved to strike the WHD’s motion and filed its own motion to dismiss with prejudice. The ALJ granted dismissal without prejudice, and the Respondent appealed to the ARB. The ARB affirmed.

Potential complications with any subsequent enforcement action under 2015 rules not relevant to whether ALJ abused his discretion in dismissing action brought under 2008 rules

The Respondent first argued that the 2015 regulations did not authorize retroactive application to reach substantive matters and assessments occurring before April 29, 2015. The WHD argued that the new assessment would only require retrospective application of the procedural parts of the 2015 rule, and that neither the ALJ nor the ARB has authority to rule on the validity of DOL’s 2015 regulations’ authorization of enforcement of violations occurring before April 29, 2015. See 29 C.F.R. § 503.40(b) (2015). The ARB, however, agreed with the ALJ that

… complications concerning application of the April 29, 2015 H-2B regulations are not relevant to this case. The issues raised by the parties may be relevant to any future enforcement action charging violations of Respondent’s I-129 petition, but they are not relevant at this time. The issue here is whether the ALJ abused his discretion in dismissing 2014-TNE-016 without prejudice, which has nothing to do with potential problems that may or may not arise in any subsequent enforcement action ….

Slip op. at 5.

Legal prejudice not shown merely because of prospect of new enforcement action

The Respondent also argued that the ALJ’s grant of voluntary dismissal was inconsistent with FRCP 41(a) because the ALJ failed to take into consideration prejudice to the Respondent and failed to consider balancing remedies FRCP 41(a). The ARB stated that it was not prepared to hold that FRCP 41(a) was applicable, but, assuming that it is, legal prejudice “does not result simply when a ‘defendant faces the prospect of a second lawsuit, ’ or when plaintiff ‘merely gains some tactical advantage. ’ ” Slip at 5, quoting Watson v. Clark , 716 F. Supp. 1354, 1355 (D. Nev. 1989). The ARB also found that the WHD’s motion was not dilatory and that it did not warrant an order of litigation costs and attorney’s fees.

Dismissal without prejudice proper where reason to doubt subject matter jurisdiction

The Respondent also argued that the ALJ was obligated to address the lack of subject matter jurisdiction due to the district court’s vacatur of the 2008 H-2B regulations before addressing the WHD’s motion seeking voluntary dismissal without prejudice. The ARB found that the ALJ had, in effect, addressed subject matter jurisdiction by dismissing the action. The ARB stated: “When a court has reason to doubt that it has subject matter jurisdiction, it is inappropriate to engage in the balancing process required by FRCP 41(a)(2). Dismissal is required and there is simply no discretion to be exercised. ” Slip op. at 6 (citations omitted).

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The ARB denied the Complainant's motion for reconsideration where it was essentially a re-arguing of a contention earlier rejected by the ARB.

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ARB; AUTHORITY TO REVIEW SCA WAGE DETERMINATION DECISION WHILE MATTER IS STILL UNDER INVESTIGATION

In Veteran National Transportation, LLC , ARB No. 17-043 (ARB June 13, 2017), the ARB dismissed the petitioner’s request for review because it failed to respond to the ARB’s order to show cause why the ARB should not dismiss the petition for review on the ground that the ARB lacks authority to consider an appeal in the absence of a final ALJ decision. See 29 C.F.R. § 8.1(b) (2016). The ARB had noted in the order to show cause that no DOL ALJ had issued a final decision for the ARB to review, apparently because DOL had not yet completed 29 C.F.R. Part 6 investigatory procedures.