USDOL/OALJ Reporter: ARB Decision Caselist - August 2012

Notification that the ARB did not accept the Complainant's petition for review, and that the ALJ's decision dismissing the complaint has become the final order of the Department of Labor.

POSTING-NOTICE REQUIREMENT OF 20 C.F.R. § 655.734; WILFUL VIOLATION WHERE THE RESPONDENT WAS WARNED THAT ITS PRACTICE OF POSTING AT THE HEADQUARTERS WAS INSUFFICIENT; THERE IS NO EXCEPTION TO THE REQUIREMENT THAT THE NOTICE BE POSTED AT THE WORKSITE EVEN THOUGH A CLIENT WOULD HAVE TO POST THE NOTICE

In Administrator, Wage and Hour Div., USDOL v. Camo Technologies, Inc. , ARB No. 11-026, ALJ No. 2010-LCA-23 (ARB Aug. 31, 2012), the ALJ found that the Wage and Hour Division (WHD) Administrator did not establish a willful violation of the Immigration and Nationality Act's notice-posting requirement, and therefore did not affirm the Administrator's assessment of $192,625 in civil money penalties (CMP) and debarment of the Respondent. The ARB reversed the ALJ's decision.

The Respondent was an information technology company that contracted with "direct" or "primary" clients to place its H-1B workers with other secondary clients located throughout the U.S. In 2001, the Respondent was notified by email by a WHD investigator that its practice of posting the required notice to U.S. workers of the impending H-1B filing at the Respondent's headquarters was not in compliance with the regulatory requirement to post such notices at each place of employment where any H-1B nonimmigrant will be employed. The investigator warned about civil penalties and other sanctions. Thereafter, the WHD discussed or investigated the Respondent's notice-posting practices on several occasions. In 2006, the WHD issued a determination letter finding the Respondent in violation of the notice-posting regulation. The Employer admitted that after the 2001 email and the 2006 determination letter, it did not make the required notice-posting at 67 locations; these were locations that the Respondent did not own or operate, but were where the H-1B workers spent the majority of their working hours.

During a 2010 WHD investigation, the Employer stated that it would post notice of the LCA filing at its offices in New Jersey. Where the H-1B worker was to be placed at the direct client's worksite, the Respondent would post notice there after getting permission to post. Where the H-1B worker was to be placed by a direct client at a work location controlled by their client, the Respondent asked the direct client to ask its client for permission to post notice at that worksite. Where permission was granted, the Respondent would provide the H-1B worker with a copy of the relevant LCA and direct that worker to post the LCA when the worker was first required to report for work there. Where the direct client or the secondary client denied permission to post, the Respondent instructed its H-1B workers to report to that worksite anyway. The Respondent documented its success or failure to post notice. During the period relevant to the appeal, the Respondent failed to post notice in connection with 67 LCAs, and it was after the 2010 investigation that the WHD imposed the CMP and debarment.

The ALJ found that the Respondent had not knowingly and intentionally violated the posting requirement, and that it had attempted in good faith to comply with the posting requirements. The ARB, however, found that the ALJ's ultimate conclusions squarely contradicted the stipulated facts of the case: the Respondent had sent its H-1B workers to work at 67 worksites irrespective of whether or not its attempt to meet the notice-posting requirement was successful; moreover the Respondent admitted that it had been advised that its notice-posting practices were insufficient under the regulations. The ARB found that these admissions established as a matter of law that the Respondent willfully violated the posting requirements of 8 U.S.C.A. § 1182(n)(1) and 20 C.F.R. § 655.734. The ARB further noted that the purpose of the notice-posting requirement is the protection of U.S. workers from displacement by H-1B non-immigrant workers. The ARB stated: "The notice-posting requirement precedes the filing of the LCA and precedes the placement of an H-1B nonimmigrant worker � necessarily where its purpose is to prevent displacement of U.S. workers." USDOL/OALJ Reporter at 8 (emphasis as in original). The ARB indicated its agreement with the Administrator that "'the importance of the posting of notice requirement may be gauged by the fact that the regulations contain no exception to such requirement' even where, such as here, the employer had to have its client post the notice." Id. (quoting the Statement of the Acting Administrator, who in turn was quoting 65 Fed. Reg. 80110 (Dec. 20, 2000)).

TIMELINESS OF COMPLAINT; LETTER PLACING COMPLAINANT ON LEAVE OF ABSENCE BECAUSE OF LACK OF SUFFICIENT WORK DID NOT TRIGGER THE SOX LIMITATIONS PERIOD WHERE THE LETTER INDICATED AN ANTICIPATED DATE FOR RETURN TO WORK, EVEN THOUGH IT ALSO STATED THAT REINSTATEMENT COULD NOT BE GUARANTEED

In Poli v. Jacobs Engineering Group, Inc. , ARB No. 11-051, ALJ No. 2011-SOX-27 (ARB Aug. 31, 2012), the ALJ found that the Complainant's SOX whistleblower complaint had not been filed within the applicable limitations period following the Respondent's letter to the Complainant informing him that he had been placed on "Company Convenience Leave (CCL)." The ARB found that the ALJ's finding was incorrect as a matter of law.

CCL was a company procedure to allow a leave of absence for eligible employees temporarily without billable hours. The company policy (which was stated in the letter to the Complainant) was that reasonable efforts would be made to return the employee to the same position if it is available or to a similar available position. The ALJ, analyzing the case under English v. Whitfield , 858 F.2d 957 (4th Cir. 1998), and Rollins v. American Airlines , ARB No. 04-140, ALJ No 2004-AIR-9 (ARB Apr. 3, 2007), concluded that the CCL letter was final and unequivocal notice that if no position was identified within the CCL period, the Complainant would be terminated.

The ARB cited caselaw that acknowledges that employment terminations present widely varying circumstances and the application of general principles for determining the trigger date of a limitations period must necessarily be made on a case-by-case basis. The ARB found that the English and Rollins cases were factually distinguishable. The ARB stated that "[u]nlike in English and Rollins , [the Complainant] received a letter that was described in the company policy as being based on the lack of billable work, and was not due to disciplinary action." USDOL/OALJ Reporter at 6. The ARB noted that the original letter and a revised letter both indicated an anticipated return-to-work date. Moreover, the original letter explained the continued receipt of benefits, allowed for a request for advanced paid time-off, and stated that every reasonable effort would be made to return the Complainant to the same position he held before the leave of absence. The ARB acknowledged that the letter stated that the company could not guarantee reinstatement in all cases, but found that "this does not imbue the letter with the same degree of finality evidenced in English and Rollins ." USDOL/OALJ Reporter at 6-7. The ARB concluded that the CCL letter was insufficient to begin the statute of limitations period, and found instead that the limitations period began on the date that the Complainant received unequivocal notice of his termination from employment. Because the complaint was filed within the limitations period of the termination notice, the ARB found that the complaint was timely, and remanded for further proceedings before the ALJ.

ARB DECLINES INTERLOCUTORY REVIEW OF ALJ'S DENIAL OF PRELIMINARY REINSTATEMENT DURING REMAND

In Prioleau v. Sikorsky Aircraft Corp. , ARB No. 12-098, ALJ No. 2010-SOX-3 (ARB Aug. 30, 2012), the ARB declined to grant interlocutory review of the ALJ's denial of the Complainant's motion for preliminary reinstatement during a remand proceeding. The ARB found that the appeal was neither a proper interlocutory appeal nor an appeal of a collateral order, and that the request for reinstatement was premature based on a misunderstanding of the ARB's remand order in which the ARB had found that the Complainant had proffered sufficient evidence to generate a genuine issue of material fact that he engaged in protected activity.

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
[Nuclear and Environmental Whistleblower Digest XI D 1]
"MOTIVATING FACTOR" RATHER THAN "CONTRIBUTING FACTOR" IS COMPLAINANT'S BURDEN OF PROOF IN A FWPCA WHISTLEBLOWER CASE;
EMPLOYER'S BURDEN IN A FWPCA CASE IS TO PROVE THAT IT WOULD HAVE TERMINATED COMPLAINANT IN ABSENCE OF PROTECTED ACTIVITY BY A "PREPONDERANCE OF THE EVIDENCE" RATHER THAN BY "CLEAR AND CONVINCING EVIDENCE"

In Kanj v. Viejas Band of Kumeyaay Indians , ARB No. 12-002, ALJ No. 2006-WPC-1 (ARB Aug. 29, 2012), the ARB affirmed the ALJ's Decision and Order dismissing the Complainant's Federal Water Pollution Control Act whistleblower complaint, largely based on the ALJ's credibility determinations and consequent findings that the Complainant had been fired for performance problems related to a construction project and the Complainant's request to use a full month of vacation leave. The ARB noted that the ALJ had laid out the wrong standard for causation and made some findings that strayed from the relevant whistleblower issues:

    The ALJ stated that a complainant must prove his protected activity was a contributing factor, citing Speegle v. Stone & Webster Constr., Inc. , ARB No. 06-041, ALJ No. 2005-ERA-006, slip op. at 8 (ARB Sept. 24, 2009), when the FWPCA regulations at 29 C.F.R. § 24.109(b)(2) state that a complainant must demonstrate "by a preponderance of the evidence that the protected activity caused or was a motivating factor in the adverse action." The ALJ also wrote on pages 36 and 43 that a complainant must demonstrate by a preponderance of the evidence that the respondent's proffered reasons are merely pretext for retaliation. While "pretext" evidence may be used as circumstantial evidence of true motives, the complainant is not required to show pretext but merely prove that "the protected activity caused or was a motivating factor in the adverse action," even if it was only one of several motivating factors. 29 C.F.R. § 24.109(b)(2). Several of the ALJ's conclusions were unhelpful because they did not conform to the law including his conclusion that Kanj's termination "likely was not the result of any retaliatory motive on the part of his employers," and "the sum total of these reasons provides adequate grounds for Kanj's termination." D. & O. at 43. The issue is what caused the adverse action, more specifically, if protected activity motivated it, not what likely did not cause the adverse action. Further, the Act does not ask whether a respondent had good reasons to discriminate against a person, only whether the discrimination was motivated in any way by protected activity.

USDOL/OALJ Reporter at 6, n.4. Nonetheless, although the ALJ had wrongly employed the "clear and convincing evidence standard" rather than the preponderance of the evidence standard that applies to a FWPCA case, it did not matter because the Respondent met its burden to prove that it would have terminated the Complainant's employment absent any protected activity by a preponderance of the evidence.

[STAA Whistleblower Digest IX A 6]
[STAA Whistleblower Digest IX B 2 b vi]
[STAA Whistleblower Digest IX B 2 b xiii]
COMPENSATION FOR GRATUITIES, ADDITIONAL SEASONAL WORK, AND PAIN AND SUFFERING, ARE AVAILABLE REMEDIES, BUT MUST BE SUPPORTED BY EVIDENCE; ALJ NEED NOT ORDER REINSTATEMENT WHERE COMPLAINANT TESTIFIED THAT SHE DID NOT WANT TO RETURN TO WORK FOR THE RESPONDENT

In Young v. Park City Transportation , ARB No. 11-048, ALJ No. 2010-STA-65 (ARB Aug. 29, 2012), the ALJ found in favor of the Complainant, a seasonal driver for a regional carrier. The Complainant, however, took an appeal challenging the ALJ's award of remedies. The Complainant argued, apparently, that the she should have been awarded compensation for the gratuities she would have received from passengers during the ski season. The ARB agreed that tips and gratuities may be taken into consideration in computing back wages, but also found that the ALJ had in fact included gratuities in the back pay calculation.

The Complainant argued that she was entitled to back pay for wages she would have received during the following ski season. The ARB agreed that a seasonal worker may receive a back pay award that extends beyond the current season, but noted that where such awards have been made, "credible evidence must exist indicating that the complainant would either have continued his employment beyond the seasonal work or that he would otherwise have been rehired for the next season." USDOL/OALJ Reporter at 4. In the instant case, the Complainant had presented no such evidence and had testified that she was not interested in returning to work for the Respondent.

The Complainant next argued that she should have been awarded reinstatement. The ARB, however, found that the Complainant had voluntarily waived the right to reinstatement, having testified that she did not want to return to work for the Respondent.

Finally, the Complainant argued that she should have been awarded additional compensation and punitive damages based on her having experienced depression and hardship. The ARB agreed that such awards are available if supported by evidence, but found that the Complainant had presented no evidence to support such an award.

Order granting the Complainant's motion to withdraw his petition for ARB review.

DISMISSAL FOR FAILURE TO FILE TIMELY OPENING BRIEF WITH ARB; ARB DOES NOT ACCEPT FILINGS BY EMAIL OTHER THAN THE PETITION FOR REVIEW; WARNING THAT PREFILING RESTRICTIONS MAY BE IMPOSED ON COMPLAINANT WHO FILES DUPLICATIVE COMPLAINTS

In Pittman v. Dell, Inc. , ARB No. 12-065, ALJ No. 2012-SOX-6 (ARB Aug. 16, 2012), the ARB dismissed the Complainant's appeal where he failed to file a brief in compliance with the ARB's briefing order, even after the ARB gave him an enlargement of time to do so. The ARB noted that it had rejected the Complainant's motion to stay appeal because it had been filed by email despite the ARB having specifically informed the Complainant that it would not accept documents other than the Petition for Review by email. The ARB did not stay the appeal, but did give the Complainant one more opportunity to file his opening brief. The Complainant, however, did not file the brief as ordered. In a footnote, the ARB noted the ALJ's observation that the Complainant had filed duplicative complaints and suggestion that the ARB impose prefiling restrictions on the Complainant similar to those imposed on a different complainant. The ARB wrote: "We suggest that Pittman keep this request in mind if he files additional complaints of a 'duplicative' nature with the Department of Labor." USDOL/OALJ Reporter at 3, n.5.

Notification that the ARB did not accept the Complainant's petition for review of the ALJ's "Order Denying Motion to Vacate Dismissal Order."

ARB DISMISSAL OF APPEALS SO THAT THEY MAY BE CONSOLIDATED WITH RELATED DISTRICT COURT ACTION; ARB WILL NOT COUNTENANCE FORUM SHOPPING AND PIECEMEAL LITIGATION

In Jordan v. Sprint Nextel Corp. , ARB Nos. 10-113, 11-020, ALJ Nos. 2006-SOX-98, 2010-SOX-50 (ARB Aug. 6, 2012), the ARB denied the Complainant's motion for reconsideration of notice it had provided in Jordan v. Sprint Nextel Corp. , ARB Nos. 10-113, 11-020, ALJ Nos. 2006-SOX-98, 2010-SOX-50 (ARB June 29, 2012), of its intention to dismiss the Complainant's second and third SOX complaints so that they could be consolidated for adjudication before the district court with the first complaint on which the Complainant had already provided notice of intent to file a complaint in district court. In the decision denying reconsideration, the ARB reiterated the reasoning stated in the June 29, 2012 notice: that the ARB would not countenance forum shopping and piecemeal litigation; that the ARB retains complete discretion whether to accept a complainant's petition for review; and that in the instant case, all three complaints derived from the same or overlapping facts. Accordingly, the ARB ordered dismissal of the appeals.

[STAA Digest VII B 3]
VICARIOUS LIABILITY UNDER THE STAA WHISTLEBLOWER PROVISION; DIFFERENCE BETWEEN INTEGRATED ENTERPRISE TEST AND JOINT EMPLOYER TEST

In Myers v. AMS/Breckenridge/Equity Group Leasing 1 , ARB No. 10-144, ALJ Nos. 2010-STA-7 and 8 (ARB Aug. 3, 2012), the ALJ found the Respondent AMS was vicariously liable under a STAA whistleblower complaint as a "joint employer" because it had contractually reserved the "ability to control" the Complainant's work, even though it did not "actually" exercise that control. The ARB reversed.

In Myers , AMS was a payroll company for New Rising Fenix, Inc. (NRF). NRF hired the Complainants, ran the day-to-day trucking operations and controlled the Complainants' assignments. Although AMS sometimes leased employee services to NRF, it did not do in the instant case. The Complainants, who worked as a team, were fired by NRF after complaining to dispatch about a malfunctioning truck and contacting the Arizona Department of Public Safety about the problems. The Complainants then filed a complaint with OSHA under the STAA, and later amended the complaint adding and pursuing AMS rather than NRF. After a hearing, the ALJ found that the discharge violated the STAA whistleblower provision, and, relying on ARB precedent, found that AMS was vicariously liable as a joint employer.

On appeal, the ARB noted that its precedent from environmental whistleblower cases had been applied in STAA cases, but admonished that rules developed under one statute should only be applied to another only after careful and critical examination. Before turning to its precedent, the ARB reviewed the STAA statute and the implementing regulations to find that "to the extent that there is 'joint employer liability' under STAA, it must be determined under the gloss of the statutory term 'person.'" Slip op. at 8. The ARB continued: "As collectively defined by the STAA statute and regulations, the term 'person' incorporates two important concepts relevant to this case. First, 'person' expressly includes 'one or more' corporations, meaning a single corporation or combination of corporations. 29 C.F.R. § 1978.101(k). Second, for two or more corporations to constitute a 'person,' the statute implicitly requires that those corporations be so interrelated that they can be fairly considered a single 'person.' This implication is inferred from the plain meaning of the term 'person,' which conjures up a single entity." Slip op. at 8-9 (footnote omitted). The ARB then turned to its own caselaw for guidance on the factors necessary to establish a sufficient relatedness.

The ARB noted the four factor test stated in Palmer v. Western Truck Manpower , 1985-STA-6 (Sec'y Jan. 16, 1987), to determine whether two corporations were so interrelated to justify treating them as one entity (interrelation of operations, common management, centralized control of labor relations, and common ownership).

For cases involving an "integrated enterprise," a corporation may be liable without knowing participation because the act of one corporate entity is necessarily the act of both. In the instant case, however, no party suggested that AMS and NRF were an integrated enterprise, and the ALJ did not so find. Rather, the focus was on joint employer liability.

The ARB, quoting the 10th Circuit's decision in Bristol v. Board of Cnty Comm'rs , 312 F.3d 1213, 1218-19 (10th Cir. 2002), explained the difference between the joint employer test and the integrated enterprise concept. The integrated enterprise test asks whether two nominally separate entities should be treated as one, while the joint employer test assumes that the alleged employers are separate entities. If separate entities, the joint employer test treats them as joint employers if they share or co-determine essential terms and conditions of employment. In the instant case, the ARB determined that, under the facts as found by the ALJ, AMS was not a joint employer. AMS never actually exercised its contractually reserved power to control the Complainants' work. The ARB found that without exercising actual control, AMS "was simply a single corporate 'person' under STAA." Slip op. at 11. AMS did not violate the STAA in its own corporate capacity. It did not control NRF's trucking operations, did not participate in NRF's decision to fire the Complainants, and did not know of the Complainants' protected activity.

One member of the Board wrote a concurring opinion finding that the ALJ correctly determined that AMS and NRF were joint employers, but � relying on NLRB authority in cases involving similar factual circumstances � would have found that AMS was not liable for NRF's retaliatory actions.