USDOL/OALJ Reporter: ARB Decision Caselist -- October 2009

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Summary :

Approval of withdrawal of objections to OSHA findings.

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Approval of settlement agreement.

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SUMMARY JUDGMENT PROPERLY GRANTED ON H-1B ALLEGATIONS NOT INVESTIGATED BY WAGE AND HOUR DIVISION

In Jain v. Empower IT, Inc. , ARB No. 08-077, ALJ No. 2008-LCA-8 (ARB Oct. 30, 2009), the Complainant contacted a Wage and Hour Division inspector, and complained about several aspects of his employment as an H-1B worker. Two days later, he filed a formal complaint claiming that the Respondent had not paid him the higher of the prevailing or actual wage, had made illegal deductions from his wages, and had required him to pay all or part of the LCA filing fee. Following an investigation, Wage and Hour found no violation of the laws governing the H-1B nonimmigrant worker program. The Complainant requested a hearing before an ALJ. The ALJ granted summary judgment as to all claims not investigated by Wage and Hour. The ARB affirmed on appeal, finding that an investigation and determination by Wage and Hour is a prerequisite for a hearing before an ALJ. The ARB found that the inspector's "H1B Narrative" made it clear that the only allegation she investigated was the contention that the Respondent did not pay the proper wage. The ARB found that Wage and Hour's authority to decide whether to investigate is discretionary, and the fact that it did not notify the Complainant of a decision not to investigate, does not change the fact that he could not appeal the decision not to investigate.

LIMITATIONS PERIOD RUNS FROM DATE ALLEGED VIOLATION WAS COMMITTED

In Jain v. Empower IT, Inc. , ARB No. 08-077, ALJ No. 2008-LCA-8 (ARB Oct. 30, 2009), the ARB found that the ALJ erred when she held that an H-1B complainant could raise H-1B pay violations that occurred anytime during the period of employment as long as the complaint was filed within 12 months of the employee was last employed under the H-1B visa. The ARB stated that "[t]he INA requires that a complaint alleging violations by an H-1B employer under the LCA program be filed 'not later than 12 months after the latest date on which the alleged violation(s) were committed.'" USDOL/OALJ Reporter at 12 (citing in a footnote, 20 C.F.R. § 656.806(a)(5); see 8 U.S.C.A. § 1182(n)(2)(A)). "Thus, the limitations period begins to run when the violation occurred, not when the "employee was last employed under an H-1B visa." Id. (footnote omitted).

DEDUCTIONS FOR HEALTH INSURANCE PREMIUMS ARE AUTHORIZED; ALLEGATION THAT SUCH DEDUCTIONS VIOLATED EMPLOYMENT CONTRACT IS BEYOND DOL'S JURISDICTION TO CONSIDER

In Jain v. Empower IT, Inc. , ARB No. 08-077, ALJ No. 2008-LCA-8 (ARB Oct. 30, 2009), the Complainant complained to a Wage and Hour investigator that the Respondent had improperly deducted varying amounts from his wages for health insurance premiums. The ARB observed, however, that "employers under the H-1B nonimmigrant worker program ... are authorized to deduct from that worker's wages 'contribution[s] to premium[s] for health insurance policy covering all employees.' 20 C.F.R. § 655.731(c)(9)(ii)." Moreover, although the Complainant had written a letter to a DOL employee alleging that the insurance premium deductions violated his employment contract with the Respondent, the ARB stated that "[p]rivate employment agreements are outside the scope of the INA and are beyond our jurisdiction. See Kersten v. LaGard, Inc. and Masco Corp. , ARB No. 06-111, ALJ No. 2005-LCA-017, slip op. at 7-8 n.23 (ARB Oct. 17, 2008)."

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PROTECTED ACTIVITY; COMPLAINT MUST DEFINITIVELY AND SPECIFICALLY RELATE TO THE SOX SUBJECT MATTER

In Lewandowski v. Viacom Inc. , ARB No. 08-026, ALJ No. 2007-SOX-88 (ARB Oct. 30, 2009), the Complainant alleged that the Respondent violated the whistleblower protection provision of the SOX when it fired her after she complained that her supervisor was allegedly providing confidential information to competitors. The Complainant was a Story Editor responsible for reading books and attending theatre productions and then advising Paramount executives through memoranda on the book or production's potential for development into motion pictures. The Complainant reported to the executives that her supervisor was leaking the memos to competitors and the media. The ARB affirmed the ALJ's finding that the Complainant's complaint was not an allegation of wire or securities fraud and was not protected activity under the SOX. In describing the nature of SOX protected activity, the ARB wrote:

Not all employee complaints to management are covered by the SOX. The ARB has said that complaints to management of racial and employment discrimination, personnel actions, and executive decisions and corporate expenditures with which the complainant disagrees are not protected activity under the SOX because they do not directly implicate the categories of fraud listed in the statute or securities violations. "A mere possibility that a challenged practice could adversely affect the financial condition of a corporation, and that the effect on the financial condition could in turn be intentionally withheld from investors, is not enough."

    Thus, to come under the protection of the SOX, the whistleblower must ordinarily complain about a material, misstatement of fact (or omission) about a corporation's financial condition on which an investor would reasonably rely. The protected complaint must "definitively and specifically" relate to the SOX subject matter, be specific enough to permit compliance, and support a complainant's reasonable belief that there is a violation.

USDOL/OALJ Reporter at 7-8 (footnotes omitted). The ARB found that the Complainant's e-mail to Paramount executives and a meeting with an in-house attorney raising a breach of corporate standards and alleging disloyalty did not "definitively and specifically" relate to the use of electronic means to defraud shareholders or others, and thus was not protected activity under the wire fraud provision of SOX. In regard to whether the Complainant's activity constituted a complaint of fraud against shareholders, the ARB wrote:

    Similarly, for a protected complaint based on fraud against shareholders, [the Complainant] must have had a reasonable belief that [her supervisor] was engaged in shareholder fraud and [the Complainant] must have conveyed that complaint "definitively and specifically" to her employer. The elements of a cause of action for securities fraud are rooted in common law tort actions for deceit and misrepresentation. The basic elements include a material misrepresentation (or omission); scienter; a connection with the purchase or sale of a security; reliance; economic loss; and causation a causal connection between the material misrepresentation and the loss. A fact is material if the reasonable investor would consider it significant to his trading decision. With respect to omissions of fact, "there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information made available.

    [The Complainant]'s complaints raising a breach of corporate standards and alleging disloyalty do not "definitively and specifically" relate to defrauding Viacom shareholders or others. Moreover, a mere possibility that [her supervisor]'s alleged disclosure of confidential information to competitors could affect the value of Viacom stock to investors is too attenuated to state a claim for relief under the SOX whistleblower protection provision.

USDOL/OALJ Reporter at 9 (footnotes omitted).

CONVERSION OF MOTION TO DISMISS TO MOTION FOR SUMMARY DECISION WITHOUT NOTICE AND DISCOVERY; ARB WILL NOT REVIEW WHERE ISSUE RAISED FOR FIRST TIME ON APPEAL AND COMPLAINANT DID NOT SHOW HOW ADDITIONAL DISCOVERY WOULD HAVE AVOIDED DENIAL OF COMPLAINT

In Lewandowski v. Viacom Inc. , ARB No. 08-026, ALJ No. 2007-SOX-88 (ARB Oct. 30, 2009), the Complainant argued on appeal that the ALJ's decision to treat the Respondent's motion to dismiss as a motion for summary decision without notice and without discovery was error. The ARB declined to consider the argument because it was raised for the first time on appeal, and because the issue on which the ALJ granted summary decision did not turn on disputed facts. Morever, the Complainant did not articulate how additional discovery would have avoided denial of the complaint.

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PROTECTED ACTIVITY; INFORMATION ABOUT ACTUAL AND POSSIBLE VIOLATIONS OF U.S. EXPORT LAWS FOUND NOT TO BE PROTECTED ACTIVITY

In Joy v. Robbins & Myers, Inc. , ARB No. 08-049, ALJ No. 2007-SOX-74 (ARB Oct. 29, 2009), the Complainant was the Respondent's Director of Internal Audit; he informed senior management that the company had not implemented an export compliance management program, and warned that the Respondent had engaged in "possible violations" of U.S. export laws. The ARB affirmed the ALJ's grant of summary decision on the element of protected activity, writing:

    [I]nformation about actual and "possible violations" of U.S. export laws and what might happen as a result does not definitively and specifically relate to violations of the fraud statutes, SEC rules, or laws concerning fraud against shareholders. Similarly, [the Complainant] 's worries about someone else complaining to the SEC about export compliance does not definitively and specifically implicate those statutes, rules, and laws or convey his own reasonable belief of a violation of those laws or regulations.

USDOL/OALJ Reporter at 6.

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HELPER CLASSIFICATION DENIED WHERE CONTRACTOR FAILED TO SHOW THAT DUTIES WERE CLEARLY DEFINED AND DISTINCT FROM JOURNEYMAN'S DUTIES AND THAT USE OF HELPERS WAS AN ESTABLISHED PREVAILING PRACTICE

In Tasker Homes I#2807-1 , ARB No. 07-102 (ARB Oct. 29, 2009), a roofing contractor petitioned for review of the Wage and Hour Division Administrator's final determination under the Davis-Bacon Act and related acts denying the addition of a roofer helper classification and wage rate to two general wage decisions. The ARB found that the Administrator's decision was within the range of discretion afforded to the Administrator and was not unreasonable. Specifically, the ARB found that the contractor failed to show that the proposed helper's duties were clearly defined and distinct from those of a journeyman roofer, and that the use of helpers on roofing projects was an established prevailing practice in the area. See 29 C.F.R. 5.2(n)(4) (regulation governing helper classifications on wage determinations).

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Summary :

Withdrawal of objections to OSHA findings.

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DISMISSAL FOR CAUSE; FAILURE TO ATTEND HEARING; ALJ'S ABUSE OF DISCRETION IN DISMISSING CLAIM WHERE GOOD CAUSE ESTABLISHED

In Administrator, Wage and Hour Div., Employment Standards Adm., USDOL v. Siliconlinks, Inc. , ARB No. 09-131, ALJ No. 2009-LCA-24 (ARB Oct. 28, 2009), the ARB found that the ALJ abused his discretion is dismissing the claim based on the Regional Solicitor of Labor's (RSOL) failure to attend the hearing. Although the ARB acknowledged that the RSOL might have handled the situation more professionally, it showed good cause for the failure because the RSOL did not have notice of the hearing until the day before it was scheduled to take place. The ARB noted that the Complainant, who was completely without fault in the matter, was prejudiced by the dismissal. The ARB distinguished cases in which a party is held responsible for the deficiencies of his or her counsel, because in the instant case, the RSOL was responsible for prosecuting the complaint. The RSOL was not an attorney of the Complainant's choosing.

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Summary :

Case closed because no party petitioned for review of ALJ's decision.

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Summary :

Case closed because no party petitioned for review of ALJ's decision.

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Summary :

Approval of settlement agreement.

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Summary :

Case closed because no party petitioned for review of ALJ's decision.

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[Nuclear and Environmental Digest XX E]
SOVEREIGN IMMUNITY; INTERLOCUTORY APPEAL ON ISSUE OF WHETHER WHISTLEBLOWER SUIT SEEKING ONLY EQUITABLE RELIEF IS BARRED AS AGAINST A FEDERAL AGENCY

In Mull v. Salisbury Veterans Administration Medical Center , ARB No. 09-107, ALJ No. 2008-ERA-8 (ARB Oct. 7, 2009), the ARB granted interlocutory review of the issue of whether sovereign immunity bars an ERA whistleblower complaint where the Complainant only seeks equitable relief (non-monetary damages) from the Respondent, a federal agency. The ALJ concluded that the ARB's decision in Pastor v. Dept. of Veterans Affairs , ARB No. 99-071, ALJ No. 1999-ERA-11 (ARB May 30, 2003), was distinguishable because in Pastor the complainant had only requested monetary damages.

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Summary :

Appeal dismissed based upon Respondent's failure to file opening appellate brief (failure to prosecute).

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