November 2019
Administrator, Wage and Hour Div. v. HCL America, Inc., ARB Nos. 2019-0081, 2020-0007, ALJ No. 2018-LCA-00029 (ARB Nov. 27, 2019) (Notice of Intent to Review and Briefing Schedule)
USDOL/OALJ Reporter
Casenote(s):
PETITION FOR REVIEW ACCEPTED ON QUESTION OF WHETHER ALJ PROPERLY DISMISSED CASE WHERE PARTY-IN-INTEREST REQUESTED A HEARING BUT THE WAGE AND HOUR ADMINISTRATOR DECLINED TO PROSECUTE BEFORE THE ALJ
In Administrator, Wage and Hour Div. v. HCL America, Inc., ARB Nos. 2019-0081, 2020-0007, ALJ No. 2018-LCA-00029 (ARB Nov. 27, 2019), the ARB issued notice of intent to review whether the ALJ erred by dismissing the LCA claim because the Prosecuting Party (the WHD Administrator) declined to prosecute Respondent for the entirety of the amount claimed by Petitioner (the H-1B worker/complainant), notwithstanding the request by a party-in-interest (the H-1B worker/complainant) for a hearing. The ARB noted that this was the only issue it would review. The ARB’s notice administratively closed a duplicate petition (2019-0081), and consolidated two other petitions (2019-0067 and 2020-0007).
[Editor’s note: In the case below, the H-1B worker had filed a claim for back wages and a retaliation claim. The Administrator found a back wages violation, but declined to investigate the retaliation claim. The H-1B worker requested a hearing as an interested party. The ALJ first dismissed the retaliation claim because 20 C.F.R. § 655.820(b) only permits a request for a hearing after an investigation and determination by the Administrator. Administrator, Wage and Hour Div. v. HCL America, Inc., ALJ No. 2018-LCA-00029 (ALJ June 25, 2019). As to the back wages matter, the ALJ agreed with Respondent that, although the H-1B worker could file a request for a hearing as a party-in-interest, § 655.820(b)(2) gives the Administrator exclusive power to prosecute the claim. The ALJ disagreed with the party-in-interest that the Administrator must prosecute the claim once an interested party requests a hearing. Id. The ALJ held the back wages claim in abeyance and issued an order to show cause why the case should not be dismissed for failure of the Administrator to prosecute. After the Administrator filed a statement declining prosecution, the ALJ dismissed the back wages case. Administrator, Wage and Hour Div. v. HCL America, Inc., ALJ No. 2018-LCA-00029 (ALJ Oct. 2, 2019).]
Cot v. University of South Carolina, ARB No. 2019-033, ALJ No. 2018-LCA-00030 (ARB Nov. 30, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
STATE PUBLIC UNIVERSITY FOUND TO BE IMMUNE FROM SUIT UNDER ELEVENTH AMENDMENT
In Cot v. University of South Carolina, ARB No. 2019-033, ALJ No. 2018-LCA-00030 (ARB Nov. 30, 2019) (per curiam), Complainant sought an ALJ hearing following the WHD Administrator’s determination that Respondent owed him back wages under the H-1B visa program. Complainant requested a hearing because he believed that the amount awarded was incorrect. Complainant also asked the ALJ to review his visa status and the misuse of government funds. The ALJ asked Complainant to clarify his request for hearing, upon which Complainant identified 20 issues, none of which involved the WHD back wage investigation. The ALJ found that Complainant was no longer seeking review of the Administrator’s findings, and that Complainant should be treated as the Prosecuting Party. Respondent filed a motion for summary decision seeking dismissal of the case because the Eleventh Amendment to the U. S. Constitution granted it immunity from suit. The ALJ granted the motion, finding:
(1) Respondent is an arm of the state of South Carolina, and is therefore entitled to sovereign immunity under the 11th Amendment;
(2) sovereign immunity bars DOL from adjudicating complaints filed by a private party against a nonconsenting state; and
(3) the Prosecuting Party had not shown that South Carolina had expressly waived its sovereign immunity or that Congress had abrogated it.
The ARB adopted the ALJ’s decision as the final agency decision in the matter.
OFCCP v. JPMorgan Chase & Co., ARB No. 2020-0011, ALJ No. 2017-OFC-00007 (ARB Nov. 26, 2019) (Order Denying Defendant’s Petition for Interlocutory Review)
Casenote(s):
INTERLOCUTORY REVIEW; 41 C.F.R. § 60-30.19(b) UNAMBIGUOUSLY RESTRICTS THE ARB FROM INTERLOCUTORY REVIEW OF ALJ RULINGS, DESPITE THE GENERAL AUTHORITY OF THE ARB TO PERFORM INTERLOCUTORY REVIEW FOUND IN SECRETARY’S ORDER 01-2019
INTERLOCUTORY REVIEW; ALTHOUGH ARB DENIES INTERLOCUTORY REVIEW, IT SUGGESTS THAT THE ISSUES OF DELEGATED DISCRETION, SYSTEMIC COMPENSATION DISCRIMINATION, AND IDENTIFICATION OF STATUTORY AUTHORITY TO PROCEED WITHOUT A STATUTE OF LIMITATIONS, ARE NOT EXCEPTIONAL CIRCUMSTANCES THAT WOULD WARRANT INTERLOCUTORY REVIEW
INTERLOCUTORY REVIEW OF CONSTITUTIONAL ISSUE; ALTHOUGH ARB DENIES INTERLOCUTORY REVIEW, IT NOTES LACK OF SHOWING THAT IT HAS JURISDICTION TO PASS ON THE CONSTITUTIONAL VALIDITY OF CONTESTED SECRETARIAL ACTIONS
In OFCCP v. JPMorgan Chase & Co., ARB No. 2020-0011, ALJ No. 2017-OFC-00007 (ARB Nov. 26, 2019), the ALJ denied Defendant’s motion to dismiss Plaintiff’s E.O. 11246 complaint. Defendant then petitioned for interlocutory review by the ARB of four issues:
- Whether the delegated discretion alleged by Plaintiff states a claim upon which relief can be granted;
- Whether the systemic compensation discrimination alleged by Plaintiff states a claim upon which relief can be granted;
- Whether Plaintiff must identify statutory authority to proceed without any statute of limitations; and
- Whether the instant proceedings before the ALJ and this Board continue to violate Article II of the United States Constitution.
Slip op. at 2. Defendant relied on the fact that Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (April 3, 2019), had been relied upon by the ARB in the past to review interlocutory rulings in cases arising under E.O. 11246. Plaintiff responded that 41 C.F.R. § 60-30.19(b) specifically limits the authority of the ARB to hear interlocutory appeals. The ARB applied the canon of construction that—when there is a conflict between a general provision and a more specific provision, the specific provision generally prevails—and found that in the instant case the general provision of the Secretary’s Order must yield to the specific and unambiguous restriction of the regulation. The ARB declined to credit prior decisions of the ARB to the contrary in the face of the unambiguous regulatory prohibition. In a footnote, the Board noted that the decision to deny interlocutory review was unanimous.
Despite the denial of interlocutory review, the ARB commented on Defendant’s petition in a footnote:
In light of this disposition, the Board need not address Defendant’s arguments concerning the legal sufficiency of the allegations against it or Plaintiffs assertion that the Board could not grant the requested relief in an appropriate circumstance. But even if the Board were inclined to look beyond the prohibition of interlocutory review in § 60-30.19(b), it must be noted that a panel of this Board previously denied interlocutory review to the same petitioner in the same case raising largely indistinguishable issues based on the decision of a previous ALJ. Office of Federal Contract Compliance Programs v. JPMorgan Chase & Co., ARB No. 17-063, ALJ No. 2017-OFC-007 (ARB October 5, 2017). The Board held that “none of the recognized possible ‘extraordinary circumstances’ for interlocutory review have been established” in the case. Id. at 8. If the relevant non-constitutional circumstances were determined by the Board to be unexceptional in 2017, it is unlikely that they have become more exceptional with the passage of time. As for the constitutional challenge to the ongoing adjudication, the complaint is noted for the record. However, there has been no showing that the Board has any jurisdiction to pass on the constitutional validity of contested secretarial actions, and, in the absence of such showing, the issues raised must be resolved in a court of the United States with jurisdiction over matters arising under the federal Constitution.
Id. at 4, n.1.
Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam) (Final Decision and Order)
Casenote(s):
AMENDMENT OF PLEADINGS; ALJ DID NOT ABUSE HIS DISCRETION BY AMENDING THE PLEADING IN REGARD TO AN INSTANCE OF PROTECTED ACTIVITY IDENTIFIED DURING PRE-HEARING DISCOVERY (THE FILING OF A WHISTLEBLOWER COMPLAINT)
In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), Respondent contended that the ALJ improperly considered as protected activity the filing of an OSHA whistleblower retaliation claim where Complainant raised the complaint as protected activity for the first time in an interrogatory response while the matter was pending before the ALJ. The ALJ found that the raising of this claim in response to Respondent’s interrogatories was sufficient notice that the issue would be litigated. On appeal, the ARB found that the ALJ’s decision to amend the pleadings to conform to the evidence as permitted by 29 C.F.R. 18.36 was not an abuse of discretion. The ARB noted that Respondent had not contended that it was prejudiced by, or unable to prepare a defense to this additional claim of protected activity identified in pre-hearing discovery.
ADVERSE EMPLOYMENT ACTION; USE OF BURLINGTON NORTHERN STANDARD; CIRCUMSTANCES AND CONTEXT ARE IMPORTANT, INCLUDING INSTANCES OF INTERNAL INVESTIGATIONS AND HEARINGS
In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), Respondent did not contest on appeal that imposition of a “Level S violation” (i.e., a serious violation) as a result of a late injury report, and termination of Complainant’s employment following a second Level S violation, were adverse employment actions. Respondent did, however, argue that the ALJ erred in finding that a 36-month review period (an extended review period attached to a Level S violation due to Complainant’s having reported an injury within the prior five years), and a Notice of Investigation were adverse actions.
The ARB stated that:
In considering whether an action is adverse, the Board has referenced the United States Supreme Court’s decision in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), a case decided under Title VII of the Civil Rights Act of 1964. In describing the injury or harm alleged as retaliation, the Court held that: “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id at 68. Moreover, the Court held that the significance of any given act of retaliation will often depend upon the particular circumstances and context. Id at 69.
Slip op. at 7 (footnote omitted). The ARB thus affirmed the ALJ’s finding that the 36-month review period was an adverse action as it formed part of Complainant’s progressive discipline. The ARB then stated:
We agree that any alleged adverse action must be considered in context, including internal investigations and hearings which may result in the imposition of discipline. See, e.g., Petronio v. Nat’l R.R. Pas. Corp., 2019 WL 4857579 (SDNY 2019) (bringing a disciplinary charge alone, in and of itself, does not automatically constitute an adverse action, although it can constitute one if such action would dissuade a reasonable employee from engaging in the protected conduct).
Id. The ARB, however, concluded that it need not address Respondent’s arguments regarding whether the Notice of Investigation was adverse employment action given the disposition of the case (affirming the ALJ’s determination that Respondent established its affirmative defense burden of proof).
CONTRIBUTORY FACTOR CAUSATION; ARB OVERTURNS PRIOR ARB PRECEDENT ON “CHAIN OF EVENTS” AND “INEXTRICABLY INTERTWINED” ANALYSIS
In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), the ALJ, applying ARB precedent, relied on “chain of events” or “inextricably intertwined” analysis to conclude that Complainant’s protected activity of filing an injury report contributed to a Notice of Investigation and imposition of a violation for untimely filing of the report. The ARB quoted the ALJ’s finding that “there cannot be a late report unless there is a report, and the report is protected.”
In its en banc decision, the ARB announced that it was overturning its prior rulings on “inextricably intertwined” and “chain of events” causation analysis. See, e.g., DeFrancesco v. Union R.R. Co., ARB No. 10-114, ALJ No. 2009-FRS-00009 (ARB Feb. 29, 2012). The ARB stated:
We take this opportunity to clarify that we no longer require that ALJs apply the “inextricably intertwined” or “chain of events” analysis. We note that the plain language of the statute does not include the term “inextricably intertwined.” Rather, this is a construction that substitutes for, and in some cases circumvents, the ALJ’s contributing factor or affirmative defense analyses.
By placing the focus on how the employer came to learn of the employee’s wrongdoing rather than the employer’s actions based on that wrongdoing or protected activity, “chain of events” causation departs from the statute’s “contributing factor” text. In Gunderson v. BNSF Ry. Co., the Eighth Circuit noted that Congress did not intend to insulate wrongdoing because the employee engaged in protected activity. 850 F.3d 962, 969-70 (8th Cir. 2017) (“An employee who engages in protected activity is not insulated from adverse action for violating workplace rules, and an employer’s belief that the employee committed misconduct is a legitimate, non-discriminatory reason for adverse action.”). The Seventh Circuit has also criticized the inextricably intertwined doctrine, noting that reporting the injury is not a proximate cause to the termination when the employee is terminated for carelessness in creating the injury or for some other conduct discovered as part of the review process initiated by the report of the injury. Koziara v. BNSF Ry. Co., 840 F.3d 873, 877 (7th Cir. 2016) (“[p]roximate causation creates legal liability, ‘proximate’ denoting in law a relation that has legal significance”). We agree with this analysis.
This is not to say that an ALJ may not find that an adverse action and protected activity are intertwined such that contributing factor causation is factually established. For these cases, the ALJ must explain how the protected activity is a proximate cause of the adverse action, not merely an initiating event. Koziara, 840 F.3d at 877 (finding that the district court erred in relying on the fact that the “injury report initiated the events that led to his discipline”). In Koziara, the Seventh Circuit held that the “[the district court] failed to distinguish between causation and proximate causation. The former term embraces causes that have no legal significance. Had the plaintiff never been born or never worked for BNSF he would neither have been hurt by the plank flung at him by the energetic front-end loader nor have stolen railroad ties from the railroad. But that doesn’t mean that his being born or his being employed by the railroad were legally cognizable [proximate] causes of his being fired.” Id. at 877.
Slip op. at 10-11 (footnote omitted).
AFFIRMATIVE DEFENSE; CLEAR AND CONVINCING EVIDENCE ESTABLISHED THAT BNSF DISCIPLINED COMPLAINANT SOLELY BECAUSE HIS INJURY REPORT WAS LATE, AND NOT BECAUSE HE FILED AN INJURY REPORT; ARB AFFIRMS ALJ’S REJECTION OF COMPLAINANT’S CONTENTION THAT ENFORCEMENT OF BNSF’S TIMELY REPORTING POLICY IS UNREASONABLE AND UNDULY BURDENSOME
In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), the ALJ determined that Respondent established by clear and convincing evidence that it disciplined Complainant in January 2011 because his report of injury on November 22, 2010, was late, not because he reported an injury. The ALJ had found overwhelming evidence that Defendant does not impose discipline when a report is timely and imposes discipline when the report is not timely. Moreover, the ALJ noted that in the instant case, Complainant himself had filed seven injury reports but was not disciplined, except for the instance when the report was late. Also, Defendant presented evidence of 17 other workers who were not disciplined for filing injury reports in 2011, and seven Public Law Board decisions that upheld Defendant’s decisions to discipline employees for late reporting of an injury. The ALJ gave some weight to the Public Law Board’s decision. The ALJ found no evidence of pretext or personal animus.
The ARB affirmed the ALJ’s rejection of Complainant’s argument that Defendant’s enforcement of its timely reporting policy is unreasonable and unduly burdensome. The ARB noted:
The ALJ found that so long as a rule is lawful, an employer is entitled to its disciplinary rules even if the rules are unwise, counterproductive, or arbitrary. “’Courts do not sit as a super-personnel department that re-examines an employer’s disciplinary decisions.” See Kuduk, 768 F.3d at 792. The ALJ noted that “[w]hen a worker reports an injury, the railroad is in a position to investigate to determine whether there are unsafe conditions that must be corrected for the protection of the public and of rail workers. Without notice of an injury, a railroad cannot take these steps.” D. & O. at 23.
Slip op. at 12. The ARB found that the ALJ’s findings were supported by substantial evidence, and affirmed the ALJ’s “finding that Respondent established by clear and convincing evidence that it would have disciplined Complainant with a Level S violation for the sole reason that his report was late, not because he reported an injury.” Id.
AFFIRMATIVE DEFENSE; CLEAR AND CONVINCING EVIDENCE ESTABLISHED THAT BNSF WOULD HAVE DISCHARGED COMPLAINANT UNDER ITS PROGRESSIVE DISCIPLINE POLICY EVEN IN THE ABSENCE OF PROTECTED ACTIVITY
In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), Defendant imposed a “Level S” (i.e., serious) violation on Complainant and a coworker for a safety incident involving serious charges, including failure to sound the whistle when passing through a crossing. The ALJ found it undisputed that the incident would have resulted in a Level S violation in the absence of protected activity. Complainant was already under a 36-month review for a prior Level S violation (untimely reporting of an injury), and the ALJ found that part of BNSF’s progressive discipline policy was to terminate an employee for receiving a second Level S violation within the review period. The ARB found that substantial evidence supported the ALJ’s findings. The ARB had earlier in its decision affirmed the ALJ’s conclusion that Defendant showed by clear and convincing evidence that it would have disciplined Complainant with a Level S violation for the untimely reporting of an injury. The ARB affirmed the ALJ’s finding that Defendant would have imposed a second Level S discipline, and that Defendant would have terminated Complainant’s employment following his second Level S violation, even absent the protected injury report or his filing a claim with OSHA.
AFFIRMATIVE DEFENSE; DEFENDANT FAILED TO ESTABLISH AFFIRMATIVE DEFENSE FOR ITS LENGTHENING OF PERIOD COMPLAINANT WAS UNDER REVIEW FOR A PRIOR POLICY VIOLATION; HOWEVER, BECAUSE COMPLAINANT’S SECOND VIOLATION WAS STILL WITHIN REGULAR 12-MONTH REVIEW PERIOD, NO DAMAGES RESULTED
ALJ LACKS AUTHORITY TO ORDER DEFENDANT TO “CEASE AND DESIST” FROM POLICY THAT LENGTHENED PERIOD AN EMPLOYEE WAS UNDER REVIEW FOR A SERIOUS VIOLATION WHERE THE REASON FOR LENGTHENING WAS A PRIOR INJURY REPORT
In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), at the time in question, Defendant’s policy was to impose a 12-month review period following a “Level S” (i.e., serious) violation for “injury free” and “discipline free” employees. In the instant case, Defendant’s General Manager imposed a 36-month review period on Complainant following a “Level S” violation for untimely reporting of an injury. The 36-month period was imposed because Complainant had filed an injury report within the prior five years. The ALJ found that imposition of the 36-month review period based on a prior injury report did not meet Defendant’s burden on an affirmative defense. The ALJ also found, however, that Complainant had not established damages on the lengthened review period because he had a second Level-S violation within the 12-month review period, and—under Defendant’s progressive discipline policy—Complainant would have been discharged regardless of the lengthening. The ARB affirmed the ALJ’s finding. Although the ALJ noted that Defendant had since discontinued the practice, the ALJ ordered that BNSF cease and desist from imposing the 36-month review period for solely because the employee receiving discipline had reported an injury prior to receiving that discipline. Defendant argued on appeal that the cease and desist order was beyond the ALJ’s powers. The ARB agreed and vacated the ALJ’s order, finding that it was ultra vires.
Mehra v. West Virginia University, ARB No. 2017-0058, ALJ No. 2017-LCA-00002 (ARB Nov. 21, 2019) (per curiam) (Decision and Order Affirming in Part, Reversing in Part, and Remanding)
Casenote(s):
UNTIMELY COMPLAINT; EQUITABLE TOLLING BASED ON “PRECISE-STATUTORY CLAIM FILED IN WRONG FORUM”; FILING WITH OFFICE OF THE INSPECTOR GENERAL FOUND SUFFICIENT DESPITE COMPLAINANT’S CITATION OF WRONG REGULATIONS
In Mehra v. West Virginia University, ARB No. 2017-0058, ALJ No. 2017-LCA-00002 (ARB Nov. 21, 2019) (per curiam), Complainant filed a complaint against Respondent on April 16, 2014 with the U.S. Department of Labor, Office of the Inspector General (OIG) alleging failure to pay the correct salary. On August 21, 2014, OIG referred the complaint to the Wage and Hour Division (WHD). OIG had delayed the referral because Complainant had notified OIG that he would be out of the country. On March 9, 2016, the WHD determined that reasonable cause existed to conduct an investigation. On October 4, 2016, the WHD district director concluded that Respondent had committed no violations.
In the meantime, on October 8, 2014, Complainant filed an additional complaint, this time addressed to the Secretary of Labor and other offices. This complaint was acknowledged as received by WHD on October 24, 2014. The WHD advised Complainant that no investigation would be conducted because more than 12 months had passed since his H-1B employment had ended.
Complainant filed objections and a request for an ALJ hearing following the district director’s October 4, 2016 determination. The ALJ granted Respondent’s motion for summary decision, finding that the October 8, 2014 complaint was untimely and that the OIG filing was not an adequate basis for equitable tolling. On appeal, the ARB affirmed the ALJ’s holding that that the October 8, 2014 complaint was not timely, but reversed in regard to equitable tolling.
Complainant contended that his April 2014 complaint fit the equitable category of precise statutory complaint but filed in the wrong forum, while Respondent contended that OIG does not meet the definition of “forum” defined as “a court or other judicial body.” The WHD Acting Administrator, appearing as amicus, asserted that
Respondent’s argument that OIG is not a forum “relies on an unduly narrow understanding of what constitutes a forum that is inconsistent with Board precedent and antithetical to the principles of equitable tolling and the statutory structure and purpose of the H-1B program . . . .”
Slip op. at 4 (quoting Amicus brief, citation by Amicus omitted). The ARB noted that the Acting Administrator also asserted that
Like the Wage & Hour Division, OIG is authorized to accept complaints and conduct investigations related to H-1B visa violations, albeit a narrower range of such violations.
Id. The ARB agreed with Complainant and the Acting Administrator and found that equitable tolling applied.
Respondent also argued that the “precise-statutory-claim” equitable principle did not apply because Complainant cited the H-2A rather than the H-2B regulations. The ARB, however, agreed with the Acting Administrator that: “Complainant’s citation to the H·2A regulation does not affect this analysis because the complaint is measured using the standards normally used to evaluate aggrieved party complaints which are informal, filed for the purpose of initiating an investigation and are only required to set forth sufficient facts for the Administrator to determine whether there is cause to believe that a violation has been committed.” Id. at 5, n.2.
Newell v. Airgas, Inc., ARB No. 2018-0062, ALJ No. 2015-STA-00006 (ARB Nov. 21, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
The ARB summarily affirmed the ALJ’s decision on remand concluding that Complainant failed to prove contributing factor causation by a preponderance of the evidence, where substantial evidence supported the ALJ’s findings that—while Complainant had engaged in protected activities on several occasions, he was fired for knowingly violating the hours of service rules—and none of the decision-makers knew that Complainant had ever objected to violating hours of service rules.