USDOL/OALJ Reporter: ARB Decision Caselist -- December 2008

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Summary :

FAILURE TO PAY PREVAILING WAGE STIPULATED ON LCA; LIABILITY FOR BACK WAGES IS NOT DETERMINED BY ALIEN�S FAILURE TO COMPLY WITH IMMIGRATION OBLIGATIONS OR FAILURE TO WORK A FULL-TIME SCHEDULE WHERE HE WAS AVAILABLE AND WILLING TO WORK

In Administrator, Wage and Hour Div., USDOL v. Help Foundation of Omaha, Inc. , ARB No. 07-008, ALJ No. 2005-LCA-37 (ARB Dec. 31, 2008), the ALJ found that the Respondents had failed to pay the Alien, a physician, the prevailing wage as required under the LCA regulations. On appeal to the ARB, the Respondents conceded that it had not paid the wage it had intended to pay pursuant to its LCA, but argued that the ALJ erred in finding that the Alien had worked full-time. The Respondents relied on evidence that the Alien worked in a location that contravened his obligation under a J-1 waiver to work in Council Bluffs, Iowa, and that the Alien did not work enough clinical hours or see enough patients for a minimum of forty hours per week. The ARB held, however, that these circumstances were not determinative of the issue of whether or not the Respondents were liable for the Alien's unpaid wages. Rather, " [i]n signing and filing an LCA, an employer attests that for the entire 'period of authorized employment,' the required wage rate will be paid to the H-1B nonimmigrant. " The Respondents had filed an LCA wherein they represented that the employment would be full-time. The ARB also found that to the extent that the Alien experienced periods of unproductiveness, the reason was not his unavailability or unwillingness to work, but a lack of patients coming to the Respondents� clinics for medical attention. Moreover, the ARB found that the weight of the testimony and documentary evidence showed that the Alien was ready and willing to see patients during all his shifts and was available for work assignments.

BACK WAGES; PRE- AND POST-JUDGMENT INTEREST; LENGTH OF BACK PAY LIABILITY

In Administrator, Wage and Hour Div., USDOL v. Help Foundation of Omaha, Inc. , ARB No. 07-008, ALJ No. 2005-LCA-37 (ARB Dec. 31, 2008), the ARB found that although the INA does not specifically authorize an award of interest on back pay, it would award both pre- and post-judgment compound interest on a back pay award under the LCA regulations. The ARB held that the appropriate interest rate would be the interest rate charged on the underpayment of federal income taxes prescribed under 26 U.S.C. � 6621(a)(2) (Federal short-term rate plus three percentage points.). The ARB set the Respondent's back pay obligation as extending from the date of the ALJ's D. & O. until satisfaction. The ARB went on to consider whether the Respondents had had effected a "bona fide termination" of its employment relationship with the Alien, which can in certain circumstances end an employer's obligation to pay wages to the H-1B nonimmigrant. In the instant case, however, the Employer had only informed the DOL and not DHS that it had terminated the Alien's employment, and had not tendered to the Alien the cost of his return trip home when it terminated his employment before the expiration of his period of authorized employment. The ARB held that in actuality, the Respondent's liability to pay the required wage continued until USCIS actually revoked the H-1B petition upon learning that the Alien's employment had ended. However, �because the parties stipulated to the amount of back wages, the Administrator waived his right to pursue liability beyond that dollar amount.�

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Summary :

Approval of settlement agreement.

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Summary :

ARB found that substantial evidence supported the ALJ's finding that the Respondent terminated the Complainant for insubordination (refusal to drive on a holiday even though it was the Respondent's policy and routine practice that employees must work on holidays when asked), and not for his protected activity.

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; FILING OF COMPLAINT WITH THE NLRB

In Corbett v. Energy East Corp. , ARB No. 07-044, ALJ No. 2006-SOX-65 (ARB Dec. 31, 2008), the Complainant argued that his filing of a claim with the National Labor Relations Board (NLRB) on April 29, 2005 tolled SOX's limitations period. The ARB, however, agreed with the ALJ's finding that the Complainant was not entitled to equitable tolling because his filing with the NLRB "was not the precise statutory claim filed in the wrong forum because it was not a request for SOX relief based on accounting irregularities, but instead a request specifically directed to the NLRB based on negotiation and execution of a labor agreement, and requesting a remedy from the NLRB." USDOL/OALJ Reporter at 6.

TIMELINESS OF COMPLAINT; LIMITATIONS PERIOD BEGINS WHEN EMPLOYEE RECEIVED FINAL, DEFINITIVE AND UNEQUIVOCAL NOTICE OF DISCHARGE OR OTHER DISCRIMINATORY ACT

The limitations period for filing a SOX whistleblower complaint under § 1514A(b)(2)(D) runs from the date an employee receives "final, definitive, and unequivocal notice" of a discharge or other discriminatory act. " The date that an employer communicates to the employee its intent to implement the discharge or other discriminatory act marks the occurrence of a violation, rather than the date the employee experiences the consequences." Corbett v. Energy East Corp. , ARB No. 07-044, ALJ No. 2006-SOX-65, USDOL/OALJ Reporter at 4 (ARB Dec. 31, 2008) (citations omitted).

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Summary :

[STAA Digest X A 3]
IF STAA COMPLAINT IS RESOLVED BY ADJUDICATORY SETTLEMENT, IT MUST BE REVIEWED AND APPROVED BY THE ALJ AND THE ARB

In Mann v. Schwan's Food Co. , ARB No. 09-017, ALJ No. 2008-STA-27 (ARB Dec. 31, 2008), the parties informed the ALJ in a letter that they had reached a resolution of the case and would be filing a Withdrawal of Objections and Notice of Dismissal. An attached letter indicated that the resolution was based on a settlement. Thereafter, the ALJ dismissed the case without acknowledging or approving the settlement. On review, the ARB wrote:

Perhaps hoping to keep the settlement confidential, the parties (and the ALJ) concluded that the regulations' requirement of settlement approval were inapplicable if Mann withdrew his objections to the Secretary's findings. However, "[i]n keeping with the statute, a settlement under the STAA cannot become effective until its terms have been reviewed and determined to be fair, adequate, and reasonable, and in the public interest. . . . Consistent with that required review, the applicable regulations specifically provide that �[a] copy of the settlement shall be filed with the ALJ or the Secretary as the case may be.' 29 C.F.R. § 1978.111(d)(2)."

USDOL/OALJ Reporter at 2-3 (footnotes omitted). Because the settlement was in the record, the ARB reviewed it and found that it was fair, adequate, and reasonable, and in the public interest. The Board thus approved the agreement and dismissed the complaint with prejudice.

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Summary :

[STAA Digest II G 1]
ALJ�S RECOMMENDED DECISION ON THE MERITS, BUT RESERVING ISSUE OF DAMAGES, IS NOT YET RIPE FOR ARB REVIEW

In Minne v. Star Air, Inc. , ARB No. 08-131, ALJ No. 2004-STA-26 (ARB Dec. 31, 2008), the ALJ had issued a recommended decision on the merits in a remand proceeding, but had reserved the issue of damages. This recommended decision included a notice of review stating that the decision and Administrative File would be automatically forwarded for review to the ARB. The ARB issued a briefing order. The ALJ then issued an erratum stating that the Notice of Review was in error and that the Decision had not been intended to be an appealable order as it did not dispose of the entire complaint. In view of the erratum, the ARB agreed that the matter was not yet ripe for ARB review and dismissed the appeal.

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Summary :

MOTION FOR SUMMARY DECISION CONCERNING TIMELINESS OF COMPLAINT; RESPONSE BY COMPLAINANT THAT CONTRADICTED EARLIER ADMISSIONS FOUND INSUFFICIENT TO RAISE GENUINE ISSUE OF MATERIAL FACT

In Salian v. Reedhycalog UK , ARB No. 07-080, ALJ No. 2007-SOX-20 (ARB Dec. 31, 2008), the Complainant failed to met his burden of raising a genuine issue of material fact sufficient to defeat the Respondent's motion for summary decision asserting that the complaint was not timely filed, where � although the Complainant denied receiving "unequivocal" notice of his termination � he had admitted that he had received a letter indicating that his position within the company had "become redundant" and that he was being given thirty days, and had admitted that he was escorted from the premises. The Board wrote: "In contradicting his own admissions, Salian's Response could be construed as a false or fraudulent affidavit, and as such, it would be insufficient to defeat ReedHycalog UK's motion for summary decision." USDOL/OALJ Reporter at 6 (footnote omitted).

EXTRATERRITORIAL APPLICATION OF SOX; COMPLAINANT'S FAILURE TO RAISE A GENUINE ISSUE OF MATERIAL FACT ON WHETHER HE HAD BEEN EMPLOYED BY A U.S. COMPANY

In Salian v. Reedhycalog UK , ARB No. 07-080, ALJ No. 2007-SOX-20 (ARB Dec. 31, 2008), the Complainant failed to met his burden of raising a genuine issue of material fact sufficient to defeat the Respondent's motion for summary decision asserting that the SOX did not cover the complaint because the Complainant was a foreign national employed by a foreign subsidiary of a U.S. company, outside the United States. The Respondent cited Carnero v. Boston Scientific Corp., 433 F.3d 1 (1st Cir. 2006), and submitted sworn affidavits from company officials stating that the Complainant was: (1) a resident of India; (2) directly employed by a United Kingdom-based company; (3) operating out of Dubai, U.A.E.; (4) who performed no work in the United States. In response, the Complainant stated that "for all practical purposes" he was an employee of the U.S. parent, and therefore covered by the SOX. In support, he submitted several documents that mentioned both him and the U.S. parent. The ARB found, however, that these documents did not provide factual support for his contention that he was actually employed by the U.S. parent. Other information provided by the Complainant was not material to the issue, and therefore the ARB found that the Complainant failed to raise a genuine issue of material fact.

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Summary :

Appeal dismissed because the Complainant removed the case to federal district court pursuant to 29 C.F.R. § 1980.114.

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Summary :

Approval of settlement agreement.

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Summary :

[Nuclear & Environmental Whistleblower Digest XVI E 2]
ATTORNEY'S FEES; WORK RELATING TO ACCOUNTING AND TAX CONSEQUENCES OF DAMAGES AWARD IS NOT COMPENSABLE

Time spent by a prevailing complainant's counsel on accounting and tax issues related to a complainant's damages award is not compensable under the ERA whistleblower provision providing for assessment of costs and expenses (including attorneys' and expert witness fees) reasonably incurred. 42 U.S.C.A. § 5851(b)(2)(B). Such work is not related to litigation of the case and therefore not "reasonably incurred" in connection with the complaint. Time spent on coordination of payment of damages and tax consequences of damages is not compensable under the whistleblower laws. Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008).

[Nuclear & Environmental Whistleblower Digest XVI E 4 c]
ATTORNEY'S FEES; RESEARCH CONDUCTED AFTER ARB DECISION BUT BEFORE RESPONDENT ACTUALLY APPEALED TO THE COURT OF APPEALS

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the Respondent contended that time requested as attorney's fees by the prevailing complainant's counsel for researching the issue of deliberate violations was not compensable because it was premature because the Respondent had not yet appealed the issue to the Court of Appeals. The ARB found, however, that since the Respondent did eventually appeal the issue, the time was compensable under the ERA whistleblower provision. 42 U.S.C.A. § 5851(b)(2)(B).

[Nuclear and Environmental Whistleblower Digest XVI E 3 f]
ATTORNEY'S FEES; TIME SPENT PREPARING FEE PETITION AND REVIEWING ALJ'S ATTORNEY FEE ORDER

A prevailing complainant's counsel is entitled to fees for time spent in preparing a fee petition, and for time spent reviewing the ALJ's Attorney Fee Order. Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008).

[Nuclear and Environmental Whistleblower Digest XVI E 3 g]
COSTS THAT ARE NORMALLY A PART OF LAW FIRM OVERHEAD ARE NOT COMPENSABLE ABSENT A SHOWING OF EXTRAORDINARY NEED

Secretarial costs, in-house reproduction, postage, and express mail charges for services are part of the overhead of an attorney's office and are not separately recoverable by a prevailing complainant under the whistleblower provision of the ERA, absent an extraordinary need. Thus, in Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the ARB disallowed a request for photocopying and other secretarial costs where the Complainant's fee petition did not allege an extraordinary need for supplemental secretarial services over and above traditional office overhead allowances.

[Nuclear & Environmental Whistleblower Digest XVI E 4 c]
ATTORNEY'S FEE; AUTHORITY OF ARB TO RULE ON PETITION FOR FEES INCURRED BEFORE THE SIXTH CIRCUIT COURT OF APPEALS IN LIGHT OF DEFORD

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the Respondent argued that the Sixth Circuit's decision in DeFord v. Sec'y of Labor, 715 F.2d 231 (6th Cir. 1983), barred the ARB from awarding fees for work before the Sixth Circuit. The ARB, however, ruled that it had found in Scott v. Roadway Express, Inc ., ARB No. 01-065, ALJ No.1998-STA-008, slip op. at 3 (ARB May 29, 2003), that the Secretary of Labor is not foreclosed from awarding attorney's fees to a complainant who prevails in his or her own whistleblower case before the Sixth Circuit.

[Nuclear and Environmental Whistleblower Digest XVI E 3 g]
ATTORNEY'S FEES; TRAVEL EXPENSES FOR ORAL ARGUMENT BEFORE COURT OF APPEALS

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the ARB found that the Complainant's counsel's travel expenses related to oral argument before the Court of Appeals was compensable under the ERA whistleblower provision. 42 U.S.C.A. § 5851(b)(2)(B). The Respondent had argued that such expense should be disallowed as part of a law firm's overhead.

[Nuclear and Environmental Whistleblower Digest XVI E 3 g]
FEE PETITION; USE OF LOWER COST PARALEGAL SERVICES IS TO BE ENCOURAGED

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the Respondent argued that the Complainant's request for reimbursement of certain claimed paralegal expenses should be disallowed because the description of the work revealed it to be secretarial in nature and therefore part of overhead. The ARB, however, found that the descriptions of the paralegal work were, in fact, traditional paralegal work. The Board noted that the use of lower-cost paralegals rather than attorneys should be encouraged.

[Nuclear and Environmental Whistleblower Digest XVI E 3 e ii]
ATTORNEY'S FEE; FEE INCREASE TO COMPENSATE FOR DELAY

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the Complainant requested a fee increase for his counsel equal to the Consumer Price Index to compensate counsel for the delay in his receipt of his attorney's fee award. The ARB noted that it had used a formula for determining the amount of any fee enlargement to compensate attorneys for delay in receiving their fee awards. Such a fee increase should be the lesser of the additions calculated by (1) the number of hours multiplied by the current rates of the attorneys, or (2) the amount of the award plus the amount of the award multiplied by the percentage change in Consumer Price Index All Urban Consumers, U.S. city average (CPI-U). In the instant case, the counsel's current rate was the rate he charged for work before the ARB and Court of Appeals, and the calculation based on the number of hours multiplied by counsel's current rate yielded the lesser amount. The ARB therefore declined to add any increase to the fee award.

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Summary :

FILING OF COMPLAINT IN FEDERAL DISTRICT COURT DEPRIVES DOL OF JURISDICTION; THEREFORE MOTION TO STAY DOL PROCEEDING WILL BE DENIED

In Kelly v. Sonic Automotive, Inc. , ARB No. 08-027, ALJ No. 2008-SOX-3 (ARB Dec. 17, 2008), the Complainant had filed a timely request for a hearing before a DOL ALJ, and about a month later filed a SOX lawsuit in the U.S. district court. He then filed a motion to stay the ALJ proceedings until the federal court "acknowledged jurisdiction" over the SOX claim. The ALJ, however, issued a decision canceling the hearing and dismissing the complaint without prejudice. On appeal, the ARB ruled that "once Kelly filed his action in district court seeking de novo review of his SOX complaint, the Department of Labor was deprived of jurisdiction of Kelly's complaint and thus could not stay the proceedings before the Department." The ARB therefore dismissed the Complainant's appeal of the ALJ's dismissal of his complaint. The Complainant had argued that a stay of a judicial proceeding pending an arbitration is specifically authorized by the Federal Arbitration Act (FAA). The ARB found that it did not need to decide whether the FAA was applicable because the Complainant had not moved before the DOL for a stay pursuant to the FAA. Moreover, the ARB found that even if such a motion had been filed and granted, once the Complainant invoked his right to de novo review in the district court, DOL was deprived of jurisdiction, the stay would no longer have been effective. The ARB stated that the proper procedure for the Complainant would be to request a stay of the district court with jurisdiction over the complaint (which in fact the Complainant had done).

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Summary :

CONFORMANCE PROCESS FOR SERVICE CONTRACT ACT WAGE RATE; ON-SITE INVESTIGATION OF DUTIES; REFERENCE TO SCA DIRECTORY OF OCCUPATIONS; USE OF CHART TO COMPARE DoD CIVILIAN WAGES TO WAGES OF NON-FEDERALLY EMPLOYED WORKERS

In Bionetics Corp. , ARB No. 06-135 (ARB Dec. 16, 2008), the Petitioners were employees working at an Air Force base performing the job of "Metrology Technician." The Petitioners challenged the SCA wage determination issued by the Wage and Hour Division in a conformance proceeding (i.e., a determination for a job not addressed by the wage determination issued on the contract). Applying a deferential standard of review to the Wage-Hour Administrator's determination, the ARB found that the Deputy Administrator's decision to conform the Metrology Technician classification to the Electronics Technician, Maintenance II (ETM II) classification rather than the Engineering Technician IV (ET IV) classification as urged by the Petitioners, was supported by a preponderance of the evidence developed in an on-site investigation of the duties involved in the Metrology Technician position. The ARB also found that the Deputy Administrator's decision was supported by the Service Contract Act Directory of Occupations. The ARB found that the Deputy Administrator had adequately explained the decision, having used a chart to compare the wages that DoD civilian employees receive to the wages that non-federally employed workers receive at other locations. The ARB found that such a chart was specifically allowed under 29 C.F.R. § 4.6(b)(iv)(A).

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Summary :

TIMELINESS; EQUITABLE TOLLING; ALLEGATION THAT ALJ'S DECISION WAS TARDY

In Administrator, Wage and Hour Div., USDOL v. Food Pro International, Inc. , ARB No. 09-014, ALJ No. 2008-LCA-5 (ARB Dec. 12, 2008), the Respondent failed to file a petition for review with the ARB in a timely manner. The ARB issued an Order to Show Cause to provide the Respondent with an opportunity to establish grounds for equitable tolling. The Respondent complained that the hearing was unfair and that the ALJ incorrectly decided the case, but only addressed the timeliness issue by asserting that the ALJ's D & O was "tardy." The Respondent, however, acknowledged that it had received the ALJ's decision four days after it was issued, and that it had sufficient time to write to the ALJ requesting advice 15 days after issuance of the decision. The ARB found that the Respondent was not entitled to tolling of the limitations period.

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Summary :

Errata to correct numbering of footnotes in the ARB decision originally issued on October 31, 2008. See the October ARB case summaries for casenotes.

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Summary :

[STAA Digest IX A 11]
REINSTATEMENT; PUBLIC SAFETY

In Cefalu v. Roadway Express, Inc. , ARB No. 08-110, ALJ No. 2003-STA-55 (ARB Dec. 10, 2008), the Seventh Circuit had remanded the case for the ALJ to reconsider whether, in view of the Complainant's arguably unsafe driving record, reinstatement was an appropriate remedy. The Respondent submitted notices of discharge to four other drivers for recklessness in support of its argument that it routinely fired employees who were involved in preventable accidents caused by reckless driving. The Complainant, however, submitted the declarations of eight employees and union stewards who recounted numerous incidents of drivers involved in far more serious accidents than the Complainant. The ARB found that this evidence supported the ALJ's conclusion that the Respondent, following its grievance procedure, retained the services of many employees involved in serious and preventable accidents. The Respondent also produced evidence of the Complainant's driving record since reinstatement -- three accidents and two warning letters. The record, however, indicated that these did not occur on public roads and only involved property damage (none of which resulted in the vehicle being taken out of service) and not personal injury. The ARB found that the Respondent had not demonstrated that the Complainant's reinstatement posed a substantial threat to the driving public.

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