USDOL/OALJ Reporter: ARB Decision Caselist - November 2017

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AFFIRMATIVE DEFENSE UNDER CLEAR AND CONVINCING EVIDENCE STANDARD, GENERAL STANDARD

In Golub v. F & E Worldwide, Inc. , ARB No. 16-039, ALJ No. 2015-CPS-1 (ARB Nov. 9, 2017), the ARB described the respondent’s affirmative defense in a  Consumer Product Safety Improvement Act (CPSIA) case:

   If the complainant proves that protected activity was a contributing factor in the personnel action, the respondent may nevertheless avoid liability if it proves by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity. “Clear” evidence means the employer has presented an unambiguous explanation for the adverse action in question. Speegle v. Stone & Webster Constr., Inc. , ARB No. 13-074, ALJ No. 2005-ERA-006, slip op. at 11 (ARB Apr. 25, 2014). “Convincing” evidence is that which demonstrates that a proposed fact is “highly probable.” Id . Clear and convincing evidence “denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain.” Id .; see also DeFrancesco v. Union R.R. Co. , ARB No. 13-057, ALJ No. 2009-FRS-009, slip op. at 9-10 (ARB Sept. 30, 2015) ( DeFrancesco II ).

   In assessing Respondent’s burden, the Board uses a case-by-case balancing of three factors: (1) how “clear and convincing” the independent significance is of the non-protected activity; (2) the evidence that proves or disproves whether the employer “would have” taken the same adverse actions; and (3) the facts that would change in the “absence of” the protected activity. Speegle , ARB No. 13-074, slip op. at 12 (internal citations omitted). In DeFrancesco II , the ARB further elaborated that:

[A]nalysis of the employer’s affirmative defense should also carefully assess the employer’s asserted lawful reasons for its action. Such an assessment requires not only a determination of whether there exists a rational basis for the employer’s decision, such as the existence of employment rules or policies supporting the decision, but also a determination of whether the basis for the employer’s decision is “so powerful and clear that [the personnel action] would have occurred apart from the protected activity.”

ARB 13-057, slip op. at 10 (quoting Henderson v. Wheeling & Lake Erie RR , ARB No. 11-013, ALJ No. 2010-FRS-012, slip op. at 14-15 (ARB Oct. 6, 2012)).

USDOL/OALJ Reporter at 5-6.

AFFIRMATIVE DEFENSE UNDER CLEAR AND CONVINCING EVIDENCE STANDARD; FLAGRANT INSUBORDINATION CAN CONSTITUTE AN INDEPENDENT JUSTIFICATION FOR THE EMPLOYER’S ADVERSE EMPLOYMENT ACTION

In Golub v. F & E Worldwide, Inc. , ARB No. 16-039, ALJ No. 2015-CPS-1 (ARB Nov. 9, 2017), the Respondent established that the Complainant had a history of issues with authority figures, including the Respondent’s owner (who was also the Complainant’s cousin).  He also had a history of violence for which he had been previously fired.  In the instant case, the Complainant had complained to the owner about the use of acetone to clean products.  A heated altercation ensued in which the Complainant verbally abused and threatened the owner.  The Complainant was fired, and he then filed a Consumer Product Safety Improvement Act retaliation complaint. The ALJ determined that the Respondent established by clear and convincing evidence that the Complainant would have been fired for insubordinate and abusive behavior even if he  had not complained about the use of acetone.

The ARB found that the ALJ’s determination was supported by substantial evidence. The ARB stated that the facts of the case were distinguishable from a situation in which the protected activity is inextricably intertwined with the alleged adverse action.  The ARB stated that “[h]ere, the supporting context and testimony regarding Golub’s history separates Golub’s outbursts from his protected complaints concerning the use of acetone.”  USDOL/OALJ Reporter at 6.  The ARB explained the law on an affirmative defense based on outrageous or improper conduct of the complainant:

   While whistleblower protections should be broadly construed consistent with the remedial purposes of the Statute, protected activity does not provide immunity from all forms of insubordination. Cf. Am. Nuclear Res., Inc. v. U.S. Dep't of Labor , 134 F.3d 1292, 1296 (6th Cir. 1998) (concluding complainant was fired for “interpersonal problems,” not safety complaints); Gonzalez v. Bolger , 486 F. Supp. 595 (D.D.C. 1980), aff’d , 656 F.2d 899 (D.C. Cir. 1981) (Title VII case). Where an employee’s whistleblowing involves outrageous or improper conduct, the whistleblowing may lose its statutory protection. The outrageous activity can constitute an independent justification for the employer’s adverse employment action.

   Nevertheless, appellate court authority and ARB precedent require that we carefully scrutinize Respondent’s claimed factual basis for an adverse employment action and ensure that insubordination is not serving as a pretext for retaliation. In Am. Telephone & Telegraph v. NLRB , 521 F.2d 1159 (2d Cir. 1975), the Second Circuit noted this challenge in a case arising under the National Labor Relations Act. “A certain amount of salty language or defiance will be tolerated in bargaining sessions with respect to grievances . . . . However, if the employee’s conduct becomes so flagrant that it threatens the employer’s ability to maintain order and respect in the conduct of his business, it will not be protected.” Id . at 1161 (internal citations omitted). The same concerns and balancing are required in the whistleblower context, where the line between insubordination and whistleblowing may be thin or even nonexistent. See, e.g., Kenneway v. Matlack , No. 1988-STA-020, at 6-7 (Sec’y June 15, 1989) (noting that intemperate language, impulsive behavior, and even alleged insubordination are often associated with protected activity). In Kenneway , the Secretary stated that “[t]he right to engage in statutorily-protected activity permits some leeway for impulsive behavior, which is balanced against the employer’s right to maintain order and respect in its business by correcting insubordinate acts.” Id . at 3. Factors the Secretary considered included whether the conduct was private, or “on the floor of the plant.” Id . at 5 (quoting Crown Central Petroleum Corp. v. NLRB , 430 F.2d 724, 731 (5th Cir. 1970)). Ultimately, in determining “whether an employee’s actions are indefensible-under the circumstances,” the analysis “turns on the distinctive facts of the case.” Id . at 3 (internal citations omitted).

   Federal appellate courts have affirmed the Secretary’s determination that the respondent legitimately discharged an employee despite his participation in protected activity where the conduct included “[a]busive or profane language coupled with defiant conduct or demeanor.” Dunham v. Brock , 794 F.2d 1037, 1041 (5th Cir. 1986) (“an otherwise protected ‘provoked employee’ is not automatically absolved from abusing his status and overstepping the defensible bounds of conduct”). In Dunham , the employee’s insubordinate conduct included “foul language and disdainful conduct,” uttering “an obscene expletive,” and informing a manager to “walk him to the gate.” The ALJ concluded that this behavior, which was interpreted as informing the supervisor “to ‘take his job and shove it,’ provided a genuine overriding impetus for Dunham’s termination.” Id . at 1039. See also Kahn v. United States Sec’y of Labor , 64 F.3d 271, 279 (7th Cir. 1995) (affirming Secretary’s determination that auditor’s abusive and inappropriate manner while making protected complaints was the legitimate, nondiscriminatory reason for his firing).

Id . at 6-7.  In the instant case, the ARB found that substantial evidence supported the ALJ conclusion that the Complainant’s conduct was insubordination.  The ARB also indicated that it was significant that the conduct took place in public.

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BACK WAGES FOR UNPRODUCTIVE STATUS; LCA EMPLOYER CANNOT AVOID LIABILITY BASED ON H-1B WORKER’S NOT BEING AVAILABLE TO TAKE ASSIGNMENTS WITHOUT FIRST ESTABLISHING THAT IT ASSIGNED THE WORKER DUTIES CONSISTENT WITH THE LCA; LCA EMPLOYER MAY DISCIPLINE OR FIRE H-1B WORKER WHO FRUSTRATES ASSIGNMENT OF DUTIES

In Administrator, Wage and Hour Div. v. Parsetek, Inc. , ARB No. 16-001, ALJ No. 2013-LCA-10 (ARB Nov. 7, 2017), the Respondent’s business was to place H-1B employees with third party customers.  The Respondent employed the H-1B worker as a computer programmer for the period of the wage claim before the ARB.  The worker had moved from Virginia to Chicago to be with a boyfriend whom she later married.  The couple later moved to Texas because of the worker’s husband’s work for one of the Respondent’s customers.  The Respondent unsuccessfully marketed the worker for placement with customers for programming work in different states.  The Respondent did not assign the worker any computer programming work during her employment, and eventually effected a bona fide termination of her employment.  The worker filed a complaint the USDOL Wage and Hour Division (WHD) for back wages. The WHD found that the Respondent owed the worker over $58,000 in back wages, and the Respondent requested an ALJ hearing.  The ALJ found that the Respondent established that the worker was in nonproductive status due to reasons of her own that were unrelated to her employment for a portion of the back wage period.  The ALJ determined that the worker had frustrated the Respondent’s attempts to place her by not responding to (or rarely responding to) emails, by disconnecting her phone, by moving from the Respondent’s guest house, and by moving to another state.  The ALJ concluded that the worker was obligated to remain available and in communication so that the Respondent could market her, place her, and recoup her wages.  The ALJ concluded that the worker had preferred to avoid placement that would separate her from her boyfriend/husband.  The WHD Administrator appealed arguing that the ALJ’s decision is inconsistent with applicable statutory and regulatory law as well as the ARB’s decision in Gupta v. Compunnel Software Group, Inc. , ARB No. 12-149, ALJ No. 2011-LCA-45 (ARB May 29, 2014).  The ARB agreed with the Administrator, reversed the ALJ’s finding, and remanded for calculation of additional wages and benefits.

The ARB explained:

   Under the [INA and the implementing regulations], an H-1B employee’s non-productivity caused by the H1B employer, and particularly due to a “lack of assigned work,” results in the continuing obligation to pay wages. If, however, during a period of non-productivity, the H-1B employee has “assigned work” duties that he is not performing, then the focus turns to the reasons that take him away from those duties. Subsection 655.731(c)(7)(i) makes clear that the employer is liable for any reason that takes the employee away from his duties “except” those specified in subsection 20 C.F.R. § 655.731(c)(7)(ii). Under 20 C.F.R. § 655.731(c)(7)(ii), to be relieved from paying wages for nonproductive periods the H-1B employer must prove: (1) the existence of conditions unrelated to the employee’s employment that either; (2) took the employee away from his/her duties at his or her request and convenience; or (3) otherwise render the employee unable to work. A “condition unrelated to employment” cannot take an employee “away from his duties” if the employee has no duties. Logically, to invoke the unavailability exception to wage liability, the employer must prove that the H-1B employee had assigned work. Then, the employer must prove that the worker requested to be away from those duties for reasons unrelated to work or that conditions unrelated to work rendered him “unable” to do those assigned duties.

   We agree with the Administrator that the ALJ committed legal error by failing to analyze how Parsetek could avoid its obligation to pay Maniyanakunnath her wages given its admitted failure to ever assign her any work—work for which she was hired under the H-1B program. The ALJ merely analyzed whether Maniyanakunnath was unavailable to work for reasons unrelated to her employment. D. &. O. at 19-21. Under Gupta, Parsetek cannot logically claim that it was relieved of its liability to pay wages for the period in question because Maniyanakunnath was in nonproductive status and away from her work duties for reasons unrelated to her employment and under conditions effectively making her unavailable for work, without first establishing that it assigned her computer programming work duties. The ALJ did not address the issue of how Maniyanakunnath could be away from work duties if Parsetek never assigned her any. On this record and given Parsetek’s admitted failure to assign work, we hold that Parsetek cannot meet its legal burden to make a showing otherwise.

USDOL/OALJ Reporter at 8 (footnotes and citations omitted). The ARB found that the record showed that the Respondent was not unable to assign the worker computer programming—it just never did. 

The ARB indicated that the Respondent could have fired or disciplined an H-1B worker who frustrated its ability to assign work, and that—in this particular case—it could have terminated the worker’s employment much earlier than it did.