Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Schweyer v. Bank of America Corp., ARB No. 2024-0065, ALJ No. 2024-SOX-00018 (ARB Oct. 22, 2024) (Order of Administrative Closure)

ADMINISTRATIVE CLOSURE; CASE ADMINISTRATIVELY CLOSED FOR FAILURE TO FILE PETITION FOR REVIEW PER ARB ORDER

The ARB ordered the administrative closure of Schweyer v. Bank of America Corp., ARB No. 2024-0065, ALJ No. 2024-SOX-00018 (ARB Oct. 22, 2024), after Complainant failed to file a petition for review as ordered by the ARB.

On September 9, 2024, an ALJ issued a decision and order dismissing the complaint, which alleged violations arising under the Sarbanes-Oxley Act, the Consumer Financial Protection Act, the Anti-Money Laundering Act, and the Criminal Antitrust Anti-Retaliation Act. On September 15 and 29, 2024, Complainant filed various documents with the ARB through its electronic filing system, but did not file a petition for review of the ALJ's decision.

On September 30, 2024, the ARB issued an order assigning a case number to the matter and requiring Complainant to file a petition for review with the ARB on or before October 14, 2024, or the matter would be administratively closed. On October 2, 2024, Complainant filed documents from a different legal proceeding. On October 9, 2024, Complainant emailed the ARB a communication appearing to indicate the filing of a complaint with another government agency. As Complainant's submissions did not comply with the ARB's order to file a petition for review by October 14, 2024, the ARB ordered the matter administratively closed.

Xia v. Lina T. Ramey & Associates, Inc., ARB No. 2023-0046, ALJ No. 2022-LCA-00013 (ARB Oct. 7, 2024) (Order Reversing in Part and Remanding in Part)

ABUSE OF DISCRETION; FOREIGN BLOCKING STATUTES; BONA FIDE TERMINATION IN H-1B CASES

In Xia v. Lina T. Ramey & Associates, Inc., ARB No. 2023-0046, ALJ No. 2022-LCA-00013 (ARB Oct. 7, 2024), the ARB reversed in part, and remanded in part, the ALJ's Decision and Order Modifying the Administrator's Determination.

In October 2019, Respondent hired Complainant, a Chinese citizen, to work in the United States as a Design Engineer pursuant to an H-1B visa. Respondent filed a Labor Condition Application (LCA) with the DOL. The United States Citizenship and Immigration Services (USCIS) approved Complainant's H-1B petition for a period of authorized employment from October 3, 2019, through October 2, 2022. According to the LCA, Complainant would work out of the Farmers Branch, Texas office and receive a salary of $70,720.00.

On February 24, 2020, Respondent terminated Complainant's employment. Respondent left a letter memorializing the termination on Complainant's desk. The letter read in relevant part: "This letter confirms our discussion that your employment with [Respondent] is terminated as of today. . . . You are also eligible to receive transportation costs to return abroad. Please notify [Respondent] of your desire to do this by March 1, 2020." Complainant did not open the termination letter, did not take it with her when she left the office, and never returned to work for Respondent.

Complainant e-mailed Respondent on October 27, 2020, requesting payment for her return ticket to China and package delivery fees. Respondent did not respond to Complainant's request. Complainant left the United States on December 8, 2020. On April 7, 2021, Respondent notified USCIS that it terminated Complainant's employment on February 24, 2020. USCIS revoked Complainant's visa on August 20, 2021.

Prior to leaving the United States, Complainant filed a complaint with the DOL's Wage and Hour Division's (WHD) Austin District Office alleging various H-1B violations. Complainant also filed a second complaint comprised of the same allegations with WHD's Dallas District Office.

The WHD investigated Complainant's allegations and the Administrator of the WHD (Administrator) determined Respondent failed to establish a bona fide termination because it failed to notify USCIS and pay return transportation expenses. The Administrator found Respondent owed Complainant $56,304.00 in back wages, accruing from February 24, 2020, to December 8, 2020 (the date Complainant left the United States), and $4,531.41 in travel expenses. The Administrator did not assess civil money penalties.

Complainant timely appealed the Administrator's Determination and requested a hearing before the Office of Administrative Law Judges (OALJ). Prior to the hearing, Respondent voiced concerns with taking Complainant's testimony remotely due to his characterization of a Chinese law, commonly referred to as a blocking statute, that he asserted prohibits Chinese citizens, in effect, from ever testifying in foreign proceedings from mainland China. The ALJ agreed with these concerns, and advised Complainant that she would need to travel to the United States or a special administrative region of China to testify at the hearing.

The ALJ issued several orders advising Complainant that if she planned to testify remotely from a special administrative region of China, she would need to provide: (1) the precise location from which she would be joining remotely; and (2) a certification from a local attorney or official that all applicable legal requirements concerning her testimony had been satisfied, including requirements concerning the administration of an oath to a witness. 

Complainant submitted a compliance certification alleging she met the ALJ's requirements. On April 12, 2023, the ALJ issued an Order Setting In-Person Hearing holding Complainant was unable to participate at the hearing because she: (1) submitted a facially deficient certification; (2) failed to seek assistance with providing foreign testimony or make travel plans to testify in the United States; and (3) failed to show good cause justifying her participation remotely. Complainant was permitted to appear at the hearing telephonically as "an observer," but was not permitted to provide an opening statement, respond to arguments, or testify.

Following the hearing, the ALJ issued the D. & O. and ordered Respondent to pay Complainant $78,914.00 in back wages, accruing from February 25, 2020, through April 7, 2021 (the USCIS notification date), and $3,140.15 in transportation costs, plus interest.

Complainant timely filed a Petition for Review with the ARB generally challenging the D. & O. and specifically arguing that barring her from testifying at her own hearing violated due process.

ABUSE OF DISCRETION; ALJ ABUSED HIS DISCRETION BY DENYING COMPLAINANT THE ABILITY TO PARTICIPATE AT THE HEARING WITHOUT FOLLOWING BINDING PRECEDENT; FOREIGN BLOCKING STATUTES APPLICATION AND ENFORCEMENT IN U.S. LITIGATION

The ARB held that the ALJ abused his discretion by denying Complainant the ability to participate at the hearing without following binding precedent. The ALJ cited to and relied upon the OALJ Rules of Practice and Procedure to bar Complainant's testimony. The relevant regulation, 29 C.F.R. § 18.81(c), states "[f]or good cause and with appropriate safeguards, the judge may permit a party to participate in an open hearing by contemporaneous transmission from a different location."

Although the ALJ cited to 29 C.F.R. § 18.81(c), the decision to bar Complainant's testimony was based on his perception that Chinese law categorially prohibits testimony from mainland China and that Complainant had failed to satisfy the extra-statutory conditions he had imposed to allow her to testify from Macau. The ARB noted, in making those determinations, the ALJ ignored the framework a U.S. tribunal must first follow under binding Supreme Court precedent prior to enforcing a foreign blocking statute in U.S. litigation.

Although foreign blocking statutes typically are framed in absolute terms, U.S. courts have been far from absolute regarding their enforcement in U.S. litigation. In Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct for S. Dist. of Iowa, the U.S. Supreme Court held that "[foreign blocking] statutes do not deprive an American court of the power to order a party subject to its jurisdiction" to provide testimony even if the testimony "may violate that statute." The Aerospatiale Court established a straightforward procedure that must be followed in deciding whether to enforce a foreign blocking statute or follow U.S. law. Any party seeking enforcement of the blocking statute first bears the burden of demonstrating that the foreign law bars the production of evidence or testimony at issue. If the party resisting discovery meets that initial burden, the court must then determine under the particular circumstances of the case whether to order the production of evidence despite it, with the ultimate burden remaining on the party resisting discovery. The Aerospatiale Court instructed lower courts to adjudicate such conflicts based on their "knowledge of the case and of the claims and interests of the parties and the governments whose statutes and policies they invoke."

Since Aerospatiale, courts most frequently have refused to enforce blocking statutes if doing so would: (1) cause no serious foreign state interest to be undermined; and (2) not constitute an undue hardship on litigants. The ARB examined these factors and determined that both factors strongly favored allowing Complainant's testimony in the present case. Thus, the ARB held that the ALJ abused his discretion by not applying Aerospatiale before barring Complainant's testimony.

Accordingly, the ARB vacated the ALJ's findings concerning Complainant's green card fraud claim and requests for fringe benefits and reasonable transportation cost and remanded the case for further proceedings.

BONA FIDE TERMINATION; ALJ ERRED IN DETERMINING RESPONDENT EFFECTED A BONA FIDE TERMINATION; RESPONDENT DID NOT ESTABLISH A GOOD FAITH EXCEPTION TO ITS OBLIGATION TO PAY TRAVEL EXPENSES

The ARB reversed the ALJ's finding that Respondent effected a bona fide termination. The ARB noted that the regulations provide two exceptions to an employer's wage-paying obligation. The first exception occurs when an H-1B worker experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from their duties at their voluntary request and convenience. The second exception applies when there has been a bona fide termination of the employment relationship.

A bona fide termination occurs when the employer: (1) gives notice of the termination to the worker; (2) gives notice of the termination to USCIS; and (3) under certain circumstances, provides the non-immigrant with payment for transportation home. If an employer discharges the employee but does not make a bona fide termination, the employer is obligated to pay the employee wages until the expiration of the employee's authorized period of employment.

The ALJ determined that Respondent effected a bona fide termination on April 7, 2021, the date Respondent notified USCIS of Complainant's employment termination. In the D. & O., the ALJ found that Respondent satisfied the third requirement because it made a "good faith attempt" to provide Complainant with transportation costs in the termination letter. On appeal, Complainant argued that Respondent: (1) provided no credible proof it notified her of the termination in February 2020; (2) failed to notify USCIS until April 2021; and (3) never paid for her transportation back to China.

The ARB held that Respondent met the first two requirements. Respondent notified Complainant that it terminated her employment on February 24, 2020, and the termination was memorialized by a letter left on her desk the same day. The record contained a sworn declaration from Respondent's president, the termination letter, and the termination letter's metadata, which verified that the document was created and last modified on the alleged termination date. Additionally, Respondent notified USCIS of the termination on April 7, 2021.

However, as to the third requirement, it was undisputed that Respondent did not pay for Complainant's return transportation costs to China. Upon examining ARB precedent and Respondent's actions following Complainant's termination, the ARB disagreed with the ALJ's assessment that Respondent made a "good faith attempt" to provide Complainant with transportation costs.

First, Respondent only notified Complainant that she was "eligible to receive transportation costs to return abroad," via the termination letter, which it knew Complainant did not open and left on her desk. And even if Complainant read it, it did not satisfy Respondent's obligation to pay her transportation costs. At no time did Respondent produce an actual check or airplane ticket that Complainant could have accepted or denied. Nor did Respondent simply say that if she did not reply in the window it provided, reasonable return costs would be included in her final check. Rather, the ARB found the language in the termination letter—and the failure to pay transportation costs—analogous to the situation in Jinna v. MPRSoft, Inc. In Jinna, the ARB noted that "stating return flights ‘will be provided' does not constitute proof of actual payment of reasonable transportation cost for [the employee's] return to his home country."

Second, the information provided in Complainant's termination letter was conditioned on an arbitrary and unreasonable deadline. The regulations do not authorize employers to limit their liability for reasonable costs of return transportation by imposing rapidly expiring deadlines on terminated employees. Rather, the regulatory burden to pay for return transportation costs—or to demonstrate that a good faith effort was made to pay those costs—remains on the employer; it is not transferred to the employee through arbitrary deadlines.

Third, Complainant requested payment for her return transportation costs on October 27, 2020, long before Respondent notified USCIS in April 2021 of her termination. Respondent did not tender payment or respond to Complainant's request in any manner.

Accordingly, the ARB reversed the ALJ's finding that Respondent effectuated a bona fide termination and ordered Respondent to pay Complainant back wages from February 24, 2020, through October 2, 2022, the authorized period of employment, plus interest.

Halliday v. Transport Express, Inc., ARB No. 2023-0024, ALJ No. 2020-STA-00067 (ARB Oct. 7, 2024) (Decision and Order Affirming in Part, Vacating in Part, and Remanding)

PROTECTED ACTIVITY; CONTRIBUTING FACTOR; AFFIRMATIVE DEFENSE; INDIVIDUAL LIABILITY

In Halliday v. Transport Express, Inc., ARB No. 2023-0024, ALJ No. 2020-STA-00067 (ARB Oct. 7, 2024), the ALJ denied a claim arising under the STAA. Complainant, a commercial motor vehicle driver, alleged his former employer terminated his employment in retaliation for submitting at least eighteen safety complaints to his supervisors, filing a Department of Transportation (DOT) complaint, and refusing to operate equipment assigned to him. The ALJ found that (1) Complainant had not refused to operate assigned equipment; (2) only the internal complaints that Respondent had not addressed and Complainant's DOT complaint were protected under the STAA; (3) only Complainant's DOT complaint was a contributing factor in Respondent's decision to terminate his employment; (4) Respondent showed it would have fired Complainant even had he not engaged in any protected activity, thus avoiding liability under the STAA; and, (5) Complainant's direct supervisor was not subject to individual liability under the STAA.

PROTECTED ACTIVITY; ALJ DETERMINATION THAT COMPLAINANT DID NOT REFUSE TO OPERATIVE VEHICLE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE

The Board affirmed the ALJ's determination that Complainant had not engaged in a "refusal to operate" under 49 U.S.C. § 31105(a)(1)(B). Complainant had informed management of its failure to follow DOT regulations related to Driver Vehicle Inspection Reports (DVIRs) and informed Respondent that he would not drive certain equipment assigned to him unless Respondent certified on a DVIR that conditions which he had earlier recorded were repaired or did not require repair. Yet, Complainant had in fact operated all the equipment assigned to him during the period of time involved, despite his objections to doing so without the DVIR certification. For this reason, the Board found that the ALJ's determination that Complainant had not engaged in activity protected under 49 U.S.C. § 31105(a)(1)(B) was supported by substantial evidence.

PROTECTED ACTIVITY; SEEKING AND FAILING TO OBTAIN CORRECTION OF COMPLAINED OF CONDITIONS NOT REQUIRED UNDER INTERNAL COMPLAINTS PROVISION OF STAA

The Board determined the ALJ erred in finding only the portion of Complainant's internal complaints that were uncorrected were protected activity. The ALJ incorrectly interpreted the STAA and applied the requirement of § 301105(a)(1)(B)(ii) (the "refusal to drive provision," which requires that the employee attempt and be unable to "obtain, correction of the unsafe condition") to Complainant's internal complaints, which were properly analyzed under 49 U.S.C. § 31105(a)(1)(A). The STAA's requirement that an employee first seek and fail to obtain correction of an unsafe condition applies where the employee claims, under § 301105(a)(1)(B)(ii), that they refused to operate equipment because they reasonably apprehended serious injury to themselves or the general public due to the equipment's hazardous safety or security condition. As the STAA, as written, in no way indicates internal complaints lose their protected status once the employer corrects or addresses the conditions leading to them, the ALJ erred in finding only the complaints associated with uncorrected conditions to be protected activity under the STAA.

PROTECTED ACTIVITY; ALJ ERROR IN FAILING TO APPLY REASONABLE BELIEF STANDARD IN PROTECTED ACTIVITY ANALYSIS

The Board found the ALJ erred in failing to examine whether Complainant reasonably believed that the defects he internally complained of related to an actual or potential violation of a motor vehicle safety regulation, standard, or order, under 49 U.S.C. § 31105(a)(1)(A). The Board vacated the ALJ's findings on Complainant's internal complaints and remanded for the ALJ to conduct the reasonable belief analysis as to all of them.

In remanding to the ALJ, the Board explained the employee need not prove an actual violation to demonstrate reasonable belief. The employee need only show their belief there was a violation was subjectively held and objectively reasonable when they submitted their complaint. The employee must show (1) they believed a condition related to a violation of a commercial motor vehicle safety or security regulation, standard, or order existed or would occur as a result of the conditions complained of in good faith (subjectively held belief), and (2) considering the knowledge available to the employee at the time the complaint was filed, a reasonable person with similar training and experience to that of the employee would conclude a violation had or would occur (objectively reasonable belief). The Board also concluded that an employer's steps to correct a condition do not rule out an employee's reasonable belief that a safety violation existed when the employee made their complaint. The Board remanded to the ALJ to conduct this reasonable belief analysis and highlighted facts that could indicate the reasonableness of Complainant's beliefs.

CONTRIBUTING FACTOR; ALJ ERRED BY NOT CONDUCTING CONTRIBUTING FACTOR ANALYSIS FOR ALL FORMS OF PROTECTED ACTIVITY

The Board found the ALJ also erred in failing to conduct the requisite contributing factor analysis as to Complainant's internal complaints, even though the ALJ had found five of at least eighteen internal complaints were protected. The Board remanded for the ALJ to conduct that analysis because all protected activity must be assessed as to whether it was a contributing factor in the decision to take the adverse action against the complainant. The Board reiterated that the contributing factor analysis must involve careful review to determine whether complainant met their burden to show by a preponderance of the evidence that the protected activity played any role in the employer's decision to take the adverse action.

The Board also highlighted evidence the ALJ could consider when conducting the contributing factor analysis on remand. First, the Board noted that direct evidence could indicate the protected activity was a contributing factor in the termination of Complainant's employment. Respondent's management testified it fired Complainant in part because Complainant complained about Respondent's equipment, was unhappy in Respondent's employ, was vocal about that unhappiness to management, and displayed an attitude that he was more knowledgeable about his responsibilities than Respondent's management.

The Board also noted that circumstantial evidence could be found to exist and support the determination that Complainant's protected activity of filing internal complaints was a contributing factor in Respondent's decision to terminate his employment. It noted that pretext and shifting explanations existed, as Respondent concealed its true reasons for terminating Complainant and gave him different explanations for first cancelling his line hauls (equipment needed repair) and then ending his employment (reduction in freight tonnage). The Board also noted that temporal proximity existed because Complainant was fired only four days after submitting his last internal complaint to Respondent.

AFFIRMATIVE DEFENSE; ALJ’S AFFIRMATIVE DEFENSE ANALYSIS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

The Board next found that the ALJ's analysis as to whether the Respondent met its affirmative defense burden was based on legal error and unsupported by substantial evidence. An employer establishes their affirmative defense if they show clearly and convincingly that they would have taken the adverse action in the absence of the employee's protected activity. The Board found that because the ALJ had not factored all of Complainant's protected activity into the affirmative defense stage of the analysis, that analysis was fundamentally flawed.

The Board also held that the ALJ's affirmative defense analysis ignored countervailing evidence, so that it was unsupported by substantial evidence. In reaching the affirmative defense finding, the ALJ only cited Respondent's testimony that it fired Complainant for having a poor attitude on the job, and for his comments that he would leave assigned equipment behind at a truck stop if the equipment had even minor defects such as an inoperable license plate light or if Respondent's method of paying for fuel did not work when he needed to refuel his assigned truck again.

The Board found that the ALJ failed to acknowledge and contend with Respondent's other testimony potentially linking its assertion that it terminated Complainant's employment because of his poor attitude with his engagement in protected activity (filing internal safety complaints). The ALJ also did not consider the temporal proximity, shifting explanations and pretext surrounding Respondent's firing of Complainant. In addition, apart from management's testimony, Respondent had not presented direct or circumstantial evidence showing it still would have fired Complainant had he never engaged in protected activity, such as (1) evidence of the temporal proximity between the non-protected conduct and the adverse actions; (2) the employee's work record; (3) statements contained in relevant office policies; (4) evidence of other similarly situated employees who suffered the same fate; and (5) the proportional relationship between the adverse actions and the bases for the actions.

The Board also remanded for the ALJ to review whether Complainant was entitled to leeway in voicing his safety complaints. It highlighted Board and Seventh Circuit precedent establishing that, under the STAA, complainants are entitled to some leeway or latitude for impulsive behavior in making safety-related complaints, such that they do not lose the protection of the statute when they "stray beyond the boundaries of workplace propriety."

INDIVIDUAL LIABILITY; ALJ DID NOT ERR IN FINDING DIRECT SUPERVISOR NOT SUBJECT TO INDIVIDUAL LIABILITY UNDER THE STAA

The Board affirmed the ALJ's determination that Complainant's direct supervisor was not subject to individual liability under the STAA. The Board noted that the plain language of the STAA provides that a "person," such as a manager like Complainant's supervisor can be held liable, if the person has the authority to make decisions concerning the employee's pay, terms, or privileges of employment. Complainant's direct supervisor informed Respondent's owner and general manager about Complainant's performance and the owner and general manager relied on this information in deciding to fire Complainant. Because the power to reach the final decision to terminate Complainant belonged to and was exercised by Respondent's owner and general manager, and not Complainant's direct supervisor, the ALJ did not err in finding that Complainant's direct supervisor was not subject to individual liability.