USDOL/OALJ Reporter: ARB Decision Caselist - September 2014

CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF MET BY PROOF THAT THE COMPLAINANT WAS NOT DOING HIS JOB ADEQUATELY

In McLean v. American Eagle Airlines, Inc. , ARB No. 12-005, ALJ No. 2010-AIR-16 (ARB Sept. 30, 2014), the ARB affirmed the ALJ's dismissal of the Complainant's AIR21 complaint in a spilt decision. Two members of the Board agreed with the ALJ that the Respondent had shown by clear and convincing evidence that it would have issued a "Career Decision Day" letter in the absence of protected activity. The lead decision did not determine whether the Complainant engaged in protected activity, finding that it was not necessary to resolve this difficult issue because of the clear and convincing evidence that the Complainant had not adequately performed his work duties. The evidence showed that the Complainant, a quality control inspector, had not accurately measured the size and location of a nick on an impeller blade; had not photographed the damage as required by company policy; and had not viewed a photograph taken during a prior inspection. Moreover, the Complainant's placement of the nick in an area of the impeller requiring the plane to be taken out of operation within 10 flight hours was not because the nick was required to be placed in that area because the manual required it, but only because the Complainant wanted to impose an extra margin of safety. The evidence also showed that the Complainant had failed to notify the MOC as required of a quality control inspector whose inspection causes a borescope time constraint change. The lead opinion stated:

    The AIR 21 statute "renders whistleblowers no less accountable than others for their infractions or oversights." Daniel v. Timco Aviation Svcs., Inc. , ALJ No. 2002-AIR-026, slip op. at 25 (June 11, 2003). "It ensures only that they are held to no greater accountability and disciplined evenhandedly." Id . Based on the evidence in this case, the ALJ reasonably concluded that McLean’s failure to adequately perform his duties was clear and convincing evidence that the Company would have taken the same adverse action against him even absent protected activity. Protected activity will not shield an under-performing worker from discipline. See, e.g., Formella v. U.S. Sec’y of Labor , 628 F.3d 381, 392 (7th Cir. 2010); Kahn v. U.S. Sec’y of Labor , 64 F.3d 271, 279 (7th Cir. 1995) ("We have consistently held that an employee’s insubordination toward supervisors and coworkers, even when engaged in a protected activity, is justification for termination."). See also 135 Cong. Rec. H747 (daily ed. Mar. 21, 1989) (under the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, see 5 U.S.C.A. § 1221(e) (1), Congress explained in the Explanatory Statement on Senate Amendment S. 20 that "this new test will not shield employees who engage in wrongful conduct merely because they have at some point ‘blown the whistle’ on some kind of purported misconduct."). Here, McLean’s failure to follow proper procedures in measuring the nick on the impeller blade of the N399AT aircraft, and failure to notify MOC as required by the Company’s General Procedures Manual warranted the Company’s disciplinary action.

USDOL/OALJ Reporter at 9. One member of the Board concurred with the lead opinion, but wrote separately because he would have reached the protected activity issue and affirmed the ALJ's finding that the Complainant had not engaged in protected activity. A third member of the Board concurred with dismissal of the appeal on procedural grounds -- failure to respond sufficiently to the Board's order to why the matter was properly before the Board while the parties disputed the Complainant's proof of claim in bankruptcy court. This member of the Board dissented from the protected activity and clear and convincing evidence findings of the majority.

The ARB denied interlocutory review, without prejudice, where the Respondent had not persuaded the ARB that amendments to the ERA whistleblower regulations constituted a complete bar to ALJ jurisdiction where a hearing request was not timely. The ALJ had found that equitable tolling should apply. The ARB noted that interlocutory appeals are discretionary in exceptional circumstances and that such circumstances did not exist in the instant case.

[STAA Whistleblower Digest IV F]
BLACKLISTING; FAILURE OF EMPLOYER TO REMOVE NEGATIVE INFORMATION ABOUT THE COMPLAINANT FROM ITS COMPUTER EMPLOYMENT VERIFICATION SYSTEM FOLLOWING SETTLEMENT OF STAA WHISTLEBLOWER CLAIM THAT INCLUDED A NON-DISPARAGEMENT CLAUSE; COMPLAINANT DOES NOT HAVE BURDEN TO ESTABLISH THAT NEGATIVE INFORMATION ACTUALLY PREVENTED NEW EMPLOYMENT

In Timmons v. CRST Dedicated Services, Inc. , ARB No. 14-051, ALJ No. 2014-STA-9 (ARB Sept. 29, 2014), the Complainant entered into a settlement of his 2012 STAA whistleblower complaint. The settlement included a non-disparagement clause. The Complainant later applied for a truck driver position with another employer, which received an employment verification report from a third party verification provider. That report stated that the Respondent had terminated the Complainant's employment because he did not meet company standards and was not eligible for rehire. The Complainant testified that a representative from the potential new employer told him that he would have been hired but for the reference in the report indicating that the Respondent had terminated him. The Complainant filed a STAA blacklisting claim and following a hearing the ALJ found that the Respondent violated the STAA.

On appeal, the Respondent argued that the Complainant had failed to show that the information in the employment verification report prevented him from obtaining employment. The ARB, applying Earwood v. Dart Container Corp. , 1993-STA-16 (Sec'y Dec. 7, 1994), indicated that the STAA requires a prophylactic rule prohibiting improper references to a complainant's protected activity. Because the negative information had been disseminated and on its face would affirmatively prevent and arguably did prevent the Complainant from finding employment, the ARB affirmed the ALJ's finding of blacklisting.

The Employer next argued that the unfavorable reference was unintentional and was caused by a computer system used for employment verifications. The ARB, however, found that substantial evidence supported the ALJ's finding that the circumstances reflected the company's desire to disseminate disparaging information about the Complainant and that it was "highly unusual" that the company did not have a mechanism to flag and remove the negative information after signing the settlement agreement.

[STAA Digest IX B 2 b i]
BACKWAGES; COMPLAINANT'S HEARSAY TESTIMONY AS BASIS FOR RATE OF PAY

In Timmons v. CRST Dedicated Services, Inc. , ARB No. 14-051, ALJ No. 2014-STA-9 (ARB Sept. 29, 2014), the Respondent argued that the ALJ erred in basing a back pay award on the Complainant's hearsay testimony about the rate of pay he would have made with a new employer had he not been rejected for the new position based on blacklisting by the Respondent. The Complainant had testified that a recruiter for the potential new employer had told him that he would have been paid $1,000 per week. The ARB affirmed the ALJ's backpay award writing:

   Administrative hearings in STAA cases are conducted in accordance with the Rules of Practice and Procedure for Administrative Hearings. See 29 C.F.R. § 1978.106(a) (citing 29 C.F.R. Part 18). Under these rules, hearsay statements are inadmissible unless they are defined as non-hearsay or fall within an exception to the hearsay rule. 29 C.F.R. § 18.802. The ALJ found the testimony of Timmons, who was pro se , credible, and indeed CRST introduced no evidence as to lost wages that contravened Timmons’s testimony. Moreover, pursuant to 29 C.F.R. § 18.803(a)(24), a statement not covered by any of the exceptions to the hearsay rule "but having equivalent circumstantial guarantees of trustworthiness to the aforementioned hearsay exceptions," is admissible "if the judge determines that": (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

    Under the circumstances, the ALJ did not abuse discretion in admitting Timmons’s testimony as to his lost wages. "[A] certain degree of latitude should be afforded such unrepresented parties," Butler v. Andarko Petroleum Corp. , ARB No. 12-041, ALJ No. 2009-SOX-001, slip op. at 3 (ARB June 15, 2012), and here there is nothing in the record that contravenes the ALJ’s reliance on Timmons’s testimony as to the weekly wage he would have received had Howell’s hired him absent CRST’s blacklisting of him.

USDOL/OALJ Reporter at 7 (footnote omitted).

FEDERAL UNION ELECTION VOIDED WHERE UNION PROVIDED DEFECTIVE MAILING LIST TO CANDIDATE

In Chief, Div. of Enforcement, OLMS, USDOL v. Local 12, AFGE , ARB Nos. 13-094, 14-081, ALJ No. 2013-SOC-1 (ARB Sept. 24, 2014), three parties of candidates were running for union elections within the U.S. Department of Labor. The candidate for president of one of the parties purchased from the Union a membership list so that campaign literature could be sent out. The Union provided a copy of mailing labels that had been used to send out election notices. Shortly after providing the copy, the Union became aware of defective addresses, and sought to correct the information and to update the membership list. However, the Union did not notify the candidate who purchased the mailing labels, or anyone in her party, about the errors. When the election took place, the party lost each race except one. Once the errors in the membership list became known, the party filed a complaint with the Office of Labor-Management Standards (OLMS), which was eventually heard by a DOL ALJ. The ALJ granted summary decision in favor of OLMS. The ARB summarized the ALJ’s holding:

The ALJ determined, inter alia, that the Union violated Section 401 of the LMRDA, and the CSRA implementing regulation, 29 C.F.R. § 458.29, by "failing to provide [a candidate for Union office] with the mailing address[es] for all union members in good standing." … The ALJ further determined that this violation "may have affected the outcome of the officer election." … The ALJ found that "at least 273 members who were eligible to vote were not on the list" provided to Ordynsky and the Unifiers party and that the "margins of victory for each officer position . . . all were below 273." … Based on this violation, the ALJ recommended that the February 29, 2012 election be rendered void in its entirety, and ordered a new election supervised by the OLMS.

USDOL/OALJ Reporter at 2 (citations to the record omitted).

On appeal, the ARB affirmed the ALJ’s decision. The ARB found that there was no dispute that the Union failed to provide a membership list with the correct names and addresses of Union members in good standing to the candidate, and that this failure was a clear violation of the Act. Although the Union argued that the ALJ erred in determining that the mistake may have affected the election, it presented no documentation showing that the mistake did not affect the election. The Union argued that a comparison of the margins of victory with the number of persons who failed to receive the campaign literature did not establish that the election outcome may have been affected. The ARB found, however, that the undisputed evidence showed that the mistake prevented 273 union members in good standing from receiving the party’s campaign literature, a number far greater than the margins of victory for each position up for election.

OLMS argued that the ALJ abused his discretion by invalidating the entire election, even though one candidate for the party that had not been provided with an accurate membership list won the election for treasurer. The ARB agreed that the ALJ was not compelled to invalidate the entire election, but stated that it was within the ALJ’s discretion to do so. The ARB declined to assume how the campaign literature would have influenced voters, noting that the literature could have caused voters to disfavor the party’s candidates.

The ARB was not persuaded by the Union’s contention that the ALJ was biased because he decided the case on summary decision and because the Union Local represents employees at OALJ and ALJs are considered part of management. The ARB found that there was not genuine issue of material fact that precluded summary decision, and that the ALJ correctly found that the Union’s allegation of bias was conclusory and without merit. The ARB found that the Union failed to show that the ALJ had any personal bias against it based on any extra-judicial source. The ARB also found that the Union had failed to show any systemic bias against it by OALJ or the ARB.

Finally, the ARB rejected the Union’s argument that the need for a new, supervised election was mooted by a subsequent election, citing Wirtz v. Glass Bottlers Local 125, Laborers Int’l Union , 389 U.S. 463 (1968).

The ARB had remanded the matter to the ALJ for further findings on the Complainant's whistleblower claim and for recalculation of certain damages. The Respondent then sought review of the ARB decision in the Southern District of New York (No. 14-cv-4790). The ALJ granted the Respondent's motion to hold the remand proceedings in abeyance pending a decision from the district court, and denied the Complainant's motion for reconsideration of the order granting the abeyance. The Complainant asked the ARB to summarily reverse the ALJ's abeyance order. The ARB denied the motion, stating that once it remanded the matter it divested itself of jurisdiction.

CLEAR AND CONVINCING EVIDENCE; RESPONDENT MET ITS HEAVY BURDEN OF PROOF WHERE IT PRESENTED EVIDENCE THAT EMPLOYEES WHO ENGAGED IN SERIOUS SAFETY VIOLATIONS SIMILAR TO THAT OF THE COMPLAINANT, AND WHO HAD CHOSEN THE SAME DISCIPLINARY PROCEDURE AS HAD THE COMPLAINANT, WERE GIVEN THE SAME DISCIPLINE OF A SUSPENSION AND PROBATION

CLEAR AND CONVINCING EVIDENCE; WHERE RESPONDENT TERMINATED THE COMPLAINANT'S EMPLOYMENT FOR VIOLATION OF A PROBATIONARY PERIOD, BUT THE "VIOLATION" WOULD NOT HAVE OCCURRED BUT FOR THE COMPLAINANT'S REPORTING OF AN INJURY, RESPONDENT FAILED TO MEET CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF

In Cain v. BNSF Railway Co. , ARB No. 13-006, ALJ No. 2012-FRS-19 (ARB Sept. 18, 2014), the Complainant was involved a truck accident and filled out a standard injury report for a skinned knuckle and a bruised knee. A few weeks later, the Complainant learned that the seatbelt had caused further, more serious injuries. That same day he filed an amended injury report, despite being discouraged to do so by the Respondent. Following an investigation of the accident by the Respondent, the Complainant was suspended and placed on probation for a violation of safety rules. Later, the Respondent concluded that the Complainant had violated a reporting rule by failing to report the extent of his injuries in a prompt manner, and notified the Complainant he was dismissed from employment. The Complainant then filed an FRSA complaint. The ALJ found that the Respondent violated the FRSA, and the Respondent appealed.

The Respondent had stipulated that the first injury report was protected activity but challenged the ALJ's finding that the amended reported was also protected. The ARB found, however, that substantial evidence supported the ALJ's finding that the reports and the investigations were intertwined, and the ALJ’s rejection of the Respondent's contention that the second report was not made in good faith. The ARB also affirmed the ALJ's findings that protected activity contributed to both the investigation that led to suspension and imposition of probation, and the charge of failure to file a timely report which led to the Complainant's termination from employment.

In regard to the Respondent's clear and convincing evidence burden, the ARB noted that this is a high burden of proof, and that the Respondent is required to provide not what "could have" done, but rather what it "would have" done. The ARB stated "As we do not superimpose our opinion on the conclusions of a company’s personnel office, our role is not to question whether the employer’s decision to suspend Cain was wise or based on sufficient 'cause' under BNSF personnel policies, but only whether all the evidence taken as a whole makes it 'highly probable' that BNSF 'would have' suspended Cain for 30 days absent the protected activity." USDOL/OALJ Reporter at 7.

In regard to the suspension and probation, the ARB disagreed with the ALJ's conclusion that a list entered into evidence by the Respondent of employees who had been disciplined for safety violations only established that lesser suspensions or a waiver had been issued for the same or similar conduct. The ARB parsed the list and found that of the nine employees charged with a serious violation and who chose (as had the Complainant) not to pursue alternate handling, eight had been suspended and subjected to 1 to 3 year probations. Only one employee had been given a waiver. The ARB concluded that employees who chose the same disciplinary path as the Complainant, and who were also charged with a serious violation, received the same discipline as the Complainant. The ARB thus found that the Respondent met its burden of proof in regard to the suspension.

In regard to the termination, the ARB found that the evidence showed that the Respondent terminated the employment in part based on the Complainant's violation during a probationary period. The ARB found, however, that "this 'violation' would not have occurred in the absence of the April 8 report and BNSF does not offer an alternative reason that is not connected to the April 8 report for Cain’s dismissal. As there is no allegation that BNSF would have terminated Cain’s employment absent his filing the report on April 8, 2010, we affirm the ALJ’s determination that Respondent failed to establish by clear and convincing evidence that the decision to terminate Cain’s employment was not related to the protected activity." USDOL/OALJ Reporter at 9 (footnote omitted).

WHERE PARTIES STIPULATED TO AMOUNT OF LOST WAGES, THE ARB HELD THAT THEY WERE BOUND TO THAT BARGAIN EVEN THOUGH THE ALJ HAD DECLINED TO DEDUCT THE AMOUNT THE COMPLAINANT RECEIVED IN UNEMPLOYMENT BENEFITS

In Cain v. BNSF Railway Co. , ARB No. 13-006, ALJ No. 2012-FRS-19 (ARB Sept. 18, 2014), the parties stipulated to lost wages in the amount of $5,780.52. The ALJ accepted the stipulated amount but declined to deduct the amount the Complainant received in unemployment benefits. The Board noted that unemployment compensation is not deductible from back pay awards in whistleblower cases, but found that there was no evidence that the stipulation to the amount of lost wages was so contrary to public policy as to warrant nonenforcement of the stipulation. Thus, the Board held that the parties were bound to the stipulated lost wages of $5,780.52.

AN AWARD OF COMPENSATORY DAMAGES, EVEN A DE MIMIMUS ONE, MUST BE SUPPORTED BY THE EVIDENCE

In Cain v. BNSF Railway Co. , ARB No. 13-006, ALJ No. 2012-FRS-19 (ARB Sept. 18, 2014), the ALJ awarded compensatory damages in the amount of $1, even though the Complainant had not offered any evidence or testimony on such damages. On appeal, the ARB agreed with the Respondent that "Any award of compensatory damages, even a de minimus one, must be supported by the evidence." The Board therefore vacated the $1 award.

PUNITIVE DAMAGES REDUCED WHERE ALJ FOUND NOT TO HAVE ADEQUATELY EXPLAINED WHY HE AWARDED THE STATUTORY MAXIMUM

In Cain v. BNSF Railway Co. , ARB No. 13-006, ALJ No. 2012-FRS-19 (ARB Sept. 18, 2014), the ARB found that substantial evidence supported the ALJ's determination that punitive damages were warranted, but reduced the amount awarded from $250,000 to $125,000 finding that the ALJ had not provided sufficient justification for the $250,000 award. The ARB appears to have agreed with the ALJ that the amount of lost wages for which the Respondent was liable was insufficient to have a deterrent effect on the Respondent, and with the ALJ's taking into consideration that several employees were involved in the decision to retaliate against the Complainant. The ARB found, however, that the ALJ erred by considering a reassignment of the Complainant, an action the ALJ considered to be "wanton and willful and an equivalent to an intentional tort." The ARB noted that the Complainant had not raised the reassignment as an adverse employment action and that this issue had not therefore been adjudicated. The ARB's explanation for its decision to half the punitive damages award was a bit ambiguous. The Board stated only: "The ALJ devoted half of his summary analysis to his determination that BNSF must pay $250,000 in punitive damages. Therefore, we reduce his award by $125,000." USDOL/OALJ Reporter at 12.

LIABILITY OF UNION UNDER AIR21 DEPENDS ON WHETHER A COLLECTIVE BARGAINING AGREEMENT OR OTHER CONTRACT IMPOSES SAFETY SENSITIVE FUNCTIONS ON THE UNION OR ITS MEMBERS

RELIEF AGAINST UNION FOR VIOLATION OF AIR21 DEPENDS OF ROLE OF UNION IN REGARD TO COMPLAINANT'S EMPLOYMENT

In Mawhinney v. Transportation Workers Union , ARB No. 12-108, ALJ No. 2012-AIR-14 (ARB Sept. 18, 2014), the Complainant filed an AIR21 complaint against American Airlines, the Transportation Workers Union (TWU), several named members of the union, and an American Airlines employment. The ALJ severed the case against American Airlines (which was in bankruptcy) and placed that case in abeyance. In regard to the case against TWU and the named individuals, the ALJ issued an order to show cause why that case should not be dismissed. After reviewing the responses, the ALJ found that neither TWU nor the named individuals were "air carriers" for the purposes of AIR21; that neither the TWU nor its members could be held liable as a contractor or subcontractor; and that AIR21 does not provide for individual liability. The ARB vacated and remanded.

In regard to individual liability, the ARB found that the Complainant had not raised the issue of personal liability under AIR21. The ARB found that the complaint named the individuals in the context of their roles as agents of, or on behalf of, the company or the union. The ARB wrote:. "Mawhinney did not thereby seek to pursue personal liability against the named individuals. Although Mawhinney may name individuals as respondents in their official capacities, individual respondents are unnecessary since Mawhinney also sued American and the Union." USDOL/OALJ Reporter at 4.

In regard to contractor liability, the ARB rejected the ALJ's conclusion that a union is not a "company" and therefore could not be a contractor or subcontractor under AIR21. The ARB noted that it has an obligation to interpret AIR21 broadly to facilitate critical air safety policies, and that Black's Law Dictionary's definition of "company" is "a corporation – or, less commonly, an association, partnership, or union – that carries on a commercial or industrial enterprise." Black's Law Dictionary at 318 (9th ed. 2009). The ARB also found that the common legal definition of "contractor" includes labor unions, and that a collective bargaining agreement is by definition a contract. Under AIR21 contractors that perform safety-sensitive functions by contract for an air carrier are subject to suit, and thus the inquiry is whether the CBA (or any other contract) between TWU and American Airlines in effect during the period of the Complainant's employment provided for TWU or its members to perform safety-sensitive functions.

The ARB noted that if on remand the ALJ found that TWU is liable under AIR21, the ALJ must consider the appropriate remedy given the role of a union with regard to the Complainant's employment. The ARB provided as an example the question of whether employment with American Airlines is dependent on being a member in good standing with the union.

[STAA Digest II L]
DISMISSAL OF STAA ADMINISTRATIVE ACTION BASED ON BANKRUPTCY COURT'S NOTICE THAT IT WOULD ADJUDICATE THE STAA COMPLAINT

In Yusim v. Midnight Sun Tours , ARB No. 14-007, ALJ No. 2010-STA-66 (ARB Sept. 18, 2014), the ARB affirmed the ALJ's dismissal of the Complainant's STAA complaint based on a bankruptcy court's notice that it would adjudicate the STAA complaint, and the Respondent's liquidation of assets.

ARB AFFIRMS WAGE AND HOUR DIVISION ADMINISTRATOR'S IMPOSITION OF $10,000 CIVIL MONEY PENALTY FOR STONEWALLING AND DECEPTIVE TACTICS IN RESPONSE TO THE WHD' S DOCUMENT REQUESTS

In Administrators, Wage and Hour Div. and Office of Foreign Labor Certification v. Peter's Fine Greek Food, Inc. , ARB No. 14-003-B, ALJ Nos. 2011-TNE-2, 2012-PED-1 (ARB Sept. 17, 2014), the Wage and Hour Division (WHD) Administrator had imposed a $10,000 civil money penalty (CMP) against the Respondent for failure to cooperate during the WHD investigation. Following a hearing, the ALJ reduced this CMP to $1,000 because the ALJ found that the Respondent had cooperated with the WHD in several important ways and had failed to turn over all of the documents requested by the WHD in part due to the fact that some of requested documents did not exist. The ARB reinstated the WHD's $10,000 CMP. The ARB noted that the ALJ's findings established numerous ways that the Respondent's responses to the WHD's document requests frustrated the WHD's investigation. The ARB found that the Respondent's stonewalling and deceptive tactics supported a finding that the Respondent willfully failed to cooperate in response to the WHD investigation, and supported the $10,000 CMP.

[Nuclear and Environmental Digest XX E]
SOVEREIGN IMMUNITY; TVA ACT’S "SUE OR BE SUED" LANGUAGE WAIVES IMMUNITY WITH RESPECT TO ERA WHISTLEBLOWER COMPLAINT

In Elliot v. Tennessee Valley Authority , ARB No. 14-020, ALJ No. 2013-ERA-6 (ARB Sept. 17, 2014), the issue of the sovereign immunity of the Tennessee Valley Authority in an ERA whistleblower proceeding was certified by the ALJ for interlocutory review, and the ARB granted the TVA's petition. The ARB held that the TVA is an employer, and the Complainant is an employee subject to the ERA's employee protection provisions. The ARB distinguished the Supreme Court decision in United States v. Bormes , __ U.S. __, 133 S. Ct. 12, 17 (Nov. 13, 2012), on the ground that Congress’s authorization for TVA to "sue and be sued" constitutes a waiver of sovereign immunity. The ARB also found that its holding that the TVA Act’s "sue and be sued" language waives immunity with respect to the Complainant’s ERA administrative whistleblower complaint, does not conflict with the Board’s precedent in Mull v. Salisbury Veterans Admin. Med. Clinic , ARB No. 09-107, ALJ No. 2008-ERA-8 (ARB Aug. 31, 2011), because the TVA Act contains an express waiver of immunity, and because employees of TVA are employees of a hybrid agency that operates in many respects like a private corporation.

BONA FIDE TERMINATION; WHERE COMPLAINANT HAD MARRIED A U.S. CITIZEN AND INFORMED THE RESPONDENT THAT HE DID NOT INTEND TO RETURN TO PAKISTAN IN VIEW OF HIS ENSUING CHANGE IN IMMIGRATION STATUS, IT WAS SUFFICIENT TO NOTIFY USCIS OF THE TERMINATION OF EMPLOYMENT TO EFFECT A BONA FIDE TERMINATION AND END THE RESPONDENT'S H1B WAGE LIABILITY

In Puri v. University of Alabama Birmingham Huntsville , ARB No. 13-022, ALJ Nos. 2008-LCA-38, -43, 2012-LCA-10 (ARB Sept. 17, 2014), the ARB affirmed the ALJ's determination that the Respondent effected a bona fide termination of the Complainant's H1B employment on the date it notified the USCIS of the termination of employment. The date of the bona fide termination ended the Respondent's liability for wages for an H1B worker in nonproductive status. The Complainant, prior to his discharge, had notified the Respondent that he had married a U.S. citizen and that in light of the marriage and ensuing change in immigration status, he did not intend to return to Pakistan. The Complainant argued that the Respondent not effected a bona fide termination until it rendered the reasonable cost of return transportation.

The Board wrote:

    The Board held in Amtel Group of Fla., Inc. v. Yongmahapakorn , ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006) that employers must meet three requirements to effect a bona fide termination of H-1B employment and end their obligation to pay wages promised under the Labor Condition Application(s): (1) expressly terminate the employment relationship with the H-1B nonimmigrant; (2) notify USCIS of the termination so that the petition may be cancelled, and; (3) provide the nonimmigrant with the reasonable cost of return transportation to his or her home country. But the Board recently recognized that the material facts of a case may warrant an exception to a strict application of these requirements in compliance with the H-1B visa program’s statutory and regulatory scheme. Batyrbekov v. Barclays Capital , ARB No. 13-013, ALJ No. 2011-LCA-025 (ARB July 16, 2014)( Amtel definition of bona fide termination cannot be strictly applied to cases involving multiple H-1B employers).

    The ALJ’s determination that the criteria for effecting a bona fide termination are flexible, see D. & O. at 8, is consistent with the Board’s recent decision in Barclays Capital . The ALJ permissibly ruled that the University effected a bona fide termination of Puri’s employment on July 30, 2007, when it informed USCIS that Puri no longer worked for the University and requested that the agency revoke its approval of the H-1B petition the University had filed to hire Puri. Id . at 10. The ALJ rationally determined that the "clear intent" of the regulations at 20 C.F.R. § 655.731(c)(7)(ii) and 8 C.F.R. § 214.2(h)(4)(iii)(E) is to "prevent H- 1B employees from remaining in the United States illegally once their petitions have been revoked." Id . at 8. The ALJ noted the exact language of Section 655.731(c)(7)(ii) that the employer’s obligation to provide reasonable return transportation costs arises "only under certain circumstances" as when, the ALJ indicated, "the nonimmigrants have not otherwise obtained lawful status." Id . at 9. The ALJ rationally found that the Department of Labor’s comments in the Federal Register to the preamble for Section 655.731(c)(7)(ii) provide support for this interpretation of the regulation where they make clear that "an H-1B worker must either leave the United States or seek a change in immigration status once its employment relationship has been terminated." Id . at 8 ( citing 65 Fed. Reg. 80,171 (Dec. 20, 2000)). The ALJ properly concluded that awarding Puri back wages beyond the University’s July 30, 2007 notice to USCIS and until 2009 when the University provided the cost of return transportation, would contravene the purposes of the Act and regulations where the facts are that Puri’s May 2007 marriage to a United States citizen made him eligible for a change in immigration status and formed the basis for his decision not to return to his home country, a decision of which he informed the University before his discharge.

USDOL/OALJ Reporter at 8.