Administrative Review Board - December 2020

Manoharan v. HCL America, Inc., ARB No. 2020-0007, ALJ No. 2018-LCA-00029 (ARB Dec. 21, 2020) (per curiam) (Order of Remand)

COMPLAINANT MAY CHALLENGE THE ADMINISTRATOR’S ASSESSMENT OF LCA BACK WAGES PURSUANT TO 20 C.F.R. § 655.820(b)(1); ARB REVERSES ALJ’S ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE, REMANDS FOR HEARING, AND PERMITS THE COMPLAINANT TO ACT AS PROSECUTING PARTY ON BACK WAGES CLAIM

In Manoharan v. HCL America, Inc., ARB No. 2020-0007, ALJ No. 2018-LCA-00029 (ARB Dec. 21, 2020) (per curiam), the Complainant filed a complaint with the Wage and Hour Division (“WHD”), in part alleging that the Respondent failed to pay the required wages. Id., slip op. at 2. Following an investigation, the WHD determined that the Respondent failed to pay the required wage, and awarded the Complainant back wages. Id. The Complainant requested a hearing, challenging the WHD’s assessment as too low and not accurately stating the start date, end date, and duration of the Complainant’s employment. Id. at 2–3. The ALJ determined that the Complainant could not request a hearing on the wage claim because 20 C.F.R. § 655.820(b)(2) (“Subsection 2”), which the ALJ stated “gives [the] Administrator the exclusive power to prosecute” a claim, applied to this matter. Id. at 3. The ALJ concluded that the Complainant could “request a hearing for the back wages claim but may not prosecute it because Administrator is the only party that may do so.” Id. The ALJ thus held the wage claim in abeyance pending a decision by the Administrator whether to prosecute the claim. Id. After the Administrator declined to prosecute, the ALJ dismissed the wage claim, from which the Complainant appealed. Id. The ARB reversed the ALJ’s Order dismissing the back wages claim, and remanded the case for a hearing on the Administrator’s assessment of back wages.

20 C.F.R. § 655.820(b)(2)

The ARB rejected the Complainant’s argument that Subsection 2 allows any interested party to request a hearing upon the Administrator’s finding that a violation occurred, and that either the Administrator must prosecute the claim on behalf of the Complainant or that the Complainant may prosecute the claim. Id. at 5–7. In doing so, the ARB stated that the plain language in Subsection 2—that the “Administrator shall be the prosecuting party and the employer shall be the respondent”—specifically designates the role of the Administrator and the role of the employer who the Administrator found committed a violation, and that it “would be unreasonable to interpret the regulation’s use of ‘shall’ in the subsections to require any interested party to act or allow a complainant to force the Administrator to advance a position that it had already rejected.” Id. at 5. The ARB also rejected the Complainant’s contention that the Complainant may act as a prosecuting party under this subsection because it “derives its ‘properties’” from 20 C.F.R. § 655.820(b)(1) (“Subsection 1”) for the same reasons noted above as well as finding that subsections 1 and 2 apply in different circumstances. Id. at 5–6.

20 C.F.R. § 655.820(b)(1)

The ARB rejected the Respondent’s contention that the ALJ should not have evaluated the Complainant’s request under Subsection 1 because that section applies when no violation is found while Subsection 2 applies if a violation is found. Id. at 7. The ARB found that the Respondent’s interpretation of these subsections would “create[] a sharp imbalance between the rights of H-1B employers and employees in adjudicating complaints under the INA” because “the Administrator would be able to order a remedy that is unequivocally inadequate or even no remedy at all, despite a finding that the employer committed an H-1B violation, with no recourse for the complainant” if an employee is not afforded an opportunity to participate in a hearing on the Administrator’s remedy. Id. at 7–8. The ARB noted several decisions where H-1B complainants requested a hearing to contest the Administrator’s back-wage assessment and there was no suggestion that a complainant may not serve as the prosecuting party. Id. at 8. The ARB thus held that the Complainant was permitted to serve as the prosecuting party to a hearing on the Administrator’s back wages assessment under Subsection 1. Id. at 8–9.

[Editor’s Note: The Complainant separately petitioned the ARB to review the ALJ’s Order dismissing a retaliation claim. The ARB accepted the petition, and remanded the claim to the WHD to issue a determination whether the Complainant presented reasonable cause for an investigation on the claim as required under 20 C.F.R. § 655.806(a)(2). See Manoharan v. HCL America, Inc., ARB No. 2019-0067, ALJ No. 2018-LCA-00029 (ARB Dec. 7, 2020).]

Thibodeau v. Wal-Mart Stores, Inc., ARB No. 2017-0078, ALJ No. 2015-SOX-00036 (ARB Dec. 17, 2020) (per curiam) (Decision and Order)

PROTECTED ACTIVITY UNDER SOX; WHERE ESTIMATING REVIEWS WERE FOUND TO BE A COST-SAVING ENDEAVOR NOT INVOLVED IN CONTROLLING OR ENSURING THE FAIR AND ACCURATE REPORTING OF RESPONDENT’S FINANCIALS, COMPLAINANT’S REPORTING OF CIRCUMVENTION OF SUCH CONTROLS WAS NOT PROTECTED ACTIVITY

PROTECTED ACTIVITY UNDER SOX; ALJ DID NOT ERR IN CONSIDERING MATERIALITY WHEN ASSESSING THE REASONABLENESS OF COMPLAINANT’S BELIEF THAT RESPONDENT’S REVIEW OF CONTRACTORS’ CHANGE REQUESTS WERE PART OF RESPONDENT’S INTERNAL CONTROLS OVER FINANCIAL REPORTING

Complainant was a Senior Estimator who had the responsibility to evaluate and provide recommendations on change requests submitted by contractors who were building or remodeling stores for Respondent. Complainant asserted that he engaged in protected activity by reporting conduct which he believed violated a SEC rule or regulation-- specifically that “the Estimating Department’s review of change requests was a part of the company’s internal controls over financial reporting.” Slip op. at 7. Complainant contended that the provided information concerning the circumvention of these controls, and thus engaged in protected activity. The ALJ found, however, that the Estimating Department’s review of change requests was not a part of Respondent’s internal controls under SEC rules.

The ARB determined that the record supported the ALJ’s conclusion that “Estimating’s reviews were, instead, a cost-saving endeavor that was not involved in controlling or ensuring the fair and accurate reporting of Respondent’s financials.” Id. at 9-10 (footnote omitted). The ARB stated that “Complainant may have helped Respondent make wise economic decisions, but saving Respondent on construction costs is outside of the scope of the SEC’s rules for internal controls over financial reporting.” Id. at 10 (footnote omitted).

The ALJ had properly gone on to consider whether, “although the Estimating Department’s reviews were not actually internal controls over financial reporting, Complainant might nevertheless be protected by SOX if he reasonably, albeit mistakenly, believed the conduct about which he complained constituted a violation of such controls.” Id. “The ALJ determined that, without question, Complainant subjectively believed Estimating’s reviews were part of Respondent’s internal controls over financial reporting. However, the ALJ determined that Complainant’s belief was not objectively reasonable and that a person in Complainant’s circumstances would not have believed such controls were being violated.” Id. at 10-11. The ARB found that substantial evidence supported the ALJ’s conclusions.

The ARB also determined that the ALJ did not err by considering materiality when assessing the reasonableness of complainant’s belief. The ARB stated:

As quoted above, internal controls over financial reporting include those processes which “provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the issuer’s assets that could have a material effect on the financial statements.” Therefore, in addition to the reasons cited above, the ALJ also considered the materiality of Complainant’s concerns when assessing the reasonableness of Complainant’s belief that Respondent violated internal control rules. The fact that the savings generated by the Estimating Department’s reviews were only a fraction of one percent of Respondent’s total construction and operating costs supported the ALJ’s conclusion, when weighing the totality of the circumstances, that Complainant could not have objectively believed they had a material effect on Respondent’s financial statements.

Id. at 13-14 (emphasis as in original) (footnotes omitted). Complainant argued that “the ALJ erred as a matter of law by considering the negligible impact of Estimating’s reviews on Respondent’s financial condition or financial reports,” citing Sylvester v. Parexel Int’l LLC, ALJ No. 2007-SOX-00039, -00042, slip op. at 2 (ALJ Aug. 31, 2007). Id. at 14. The ARB stated, however, that “our holding in Sylvester did not forbid the ALJ from considering evidence of materiality, among other relevant factors….” The ARB stated:

Sylvester does not operate to exclude relevant facts or to limit the ALJ’s consideration of the facts or the law. The fact that a complainant need not prove each element of the underlying law to establish that he reasonably believed the law was violated does not render the elements of the underlying law irrelevant, as suggested by Complainant. Therefore, an ALJ may, depending on the particular facts and circumstances of the case, consider and weigh, among the other factors, evidence relevant to particular elements of the enumerated law when determining if it was reasonable for a complainant to believe that law had been violated.

Accordingly, we find no error in the ALJ’s consideration of materiality in this case. The ALJ fairly concluded that the concerns expressed by Complainant were so small relative to the overall construction and operational costs that Complainant could not have reasonably believed that the amounts at issue could have materially affected Respondent’s financial statements. Importantly, the ALJ did not hold that the absence of materiality was determinative, or was a threshold deficiency in Complainant’s claim. The lack of materiality was just one factor that the ALJ considered in deciding that Complainant’s belief that Respondent violated rules concerning internal controls over financial reporting was objectively unreasonable.

In fact, the D. & O. suggests that the ALJ would have determined that Complainant’s belief was not objectively reasonable even without reference to the relative impact of the potential savings generated by Estimating on Respondent’s overall operating costs. Similarly, we hold that the other evidence referred to above is substantial, and supports the conclusion that it was not objectively reasonable for Complainant to believe that Respondent was violating internal control rules. Therefore, even if we were to hold that the ALJ erred in considering materiality, the error would be harmless.

Id. at 15-16 (footnotes omitted).

AFFIRMATIVE DEFENSE; RESPONDENT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT (1) COMPLAINANT HAD A HISTORY OF POOR COMMUNICATION, BRUSQUE AND UNACCEPTABLE INTERACTIONS, AND DISOBEYING HIS SUPERVISOR’S INSTRUCTIONS OR REQUESTS—AND (2) THAT IT HAD FOLLOWED A MEASURED PROGRESSION THROUGH A DISCIPLINE POLICY

In Thibodeau v. Wal-Mart Stores, Inc., ARB No. 2017-0078, ALJ No. 2015-SOX-00036 (ARB Dec. 17, 2020) (per curiam), the ARB affirmed the ALJ’s decision dismissing Complainant’s SOX complaint on the grounds that Respondent established its affirmative defense. Specifically, the ARB found that substantial evidence supported the ALJ’s conclusion that Respondent proved by clear and convincing evidence that it would have terminated Complainant’s employment in the absence of his alleged protected activity. The ARB stated that “[t]he ALJ thoroughly recounted the evidence and explained the credibility findings which establish a history of poor communication, brusque and unacceptable interactions with both colleagues and contractors, and multiple instances of disobeying his supervisor’s instructions or requests. The ALJ also found substantial evidence demonstrating Respondent’s measured progression through a discipline policy that ended with the termination of Complainant’s employment.” Slip op. at 17.

Onysko v. State of Utah Dept. of Environmental Quality, ARB No 2019-0042, ALJ Nos. 2017-SDW-00002, 2017-SDW-00003 (ARB Dec. 16, 2020) (per curiam)

SUMMARY DECISION; DECLARATION SUBMITTED IN OPPOSITION TO MOTION FOR SUMMARY DECISION IS INSUFFICIENT WHERE IT MERELY CONTAINED GENERAL ALLEGATIONS AND NONSPECIFIC DENIALS

In Onysko v. State of Utah Dept. of Environmental Quality, ARB No 2019-0042, ALJ Nos. 2017-SDW-00002, 2017-SDW-00003 (ARB Dec. 16, 2020) (per curiam), the ARB affirmed and adopted the ALJ’s Decision and Order Granting Respondent’s Motion for Summary Decision. The ARB found the ALJ’s decision to be a well-reasoned ruling based on undisputed facts and the applicable law. The ALJ had found that all but six of the adverse actions alleged by Complainant were untimely and not actionable, and Respondent had made a showing on summary decision establishing its affirmative defense on the remaining six actions. The ALJ found that Complainant had not raised a genuine issue of material fact as to the affirmative defense. The ARB specifically noted that Complainant’s Declaration submitted in opposition to the motion for summary decision had been inadequate, and that Complainant’s argument on appeal that the ALJ had impermissibly stricken his Declaration was not accurate:

While Complainant submitted a Declaration and other materials in opposition to the motion for summary decision, the Declaration contained “nothing more than general allegations and nonspecific denials which d[id] not directly address the facts Respondent contend[ed] [we]re undisputed.”[4] Nor did any of Complainant’s submissions raise a genuine issue of material fact. For these reasons, the ALJ properly concluded that Respondent established that there is no genuine issue as to any material fact and is entitled to summary decision as a matter of law. None of Complainant’s arguments on appeal persuade us otherwise.
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[4] D. & O. at 8. On appeal, Complainant has argued that the ALJ impermissibly struck his Declaration. However, the ALJ did not strike the Declaration, but instead thoroughly reviewed it. While it would have been error to have stricken the Declaration for the reason that it was not signed under oath or under penalty of perjury, the ALJ did not take this action. See Hukman v. U.S. Airways, Inc., ARB No. 2018-0048, ALJ No. 2015-AIR-00003, slip op. at 7-8 (ARB Jan. 16, 2020) (in which the ARB held that the ALJ erred in refusing “to credit or even consider several of Complainant’s submissions because they were not ‘affidavits’ or ‘sworn statements’” on summary decision). Rather, the ALJ considered the Declaration, but perceived it to be lacking because it contained only nonspecific allegations and denials, rather than raising any genuine issue of material fact, as it was required to do in order to survive Respondent’s summary decision motion.

Slip op. at 3 and at 3, n.4.

[Editor’s note: In the ALJ’s decision, he stated that he was “disregarding” Plaintiff’s Declaration for two reasons: (1) for failing to be signed under oath or under penalty of perjury as the ALJ had required in a prior Order, and (2) “more importantly” because it contained only general allegations and non-specific denials. ALJ D. & O. at 10-11.]

Griffith v. S.H.I. Logistics, ALJ No. 2019-0026, ALJ No. 2017-STA-00046 (ARB Dec. 15, 2020) (Decision and Order)

CONTRIBUTORY FACTOR CAUSATION; ARB FINDS THAT SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT COMPLAINANT WAS NOT REHIRED DUE TO CONDITIONS HE PUT ON REEMPLOYMENT RATHER THAN FOR PAST STAA PROTECTED ACTIVITY

In Griffith v. S.H.I. Logistics, ALJ No. 2019-0026, ALJ No. 2017-STA-00046 (ARB Dec. 15, 2020), Complainant drove trucks for Respondent over two periods of employment, voluntarily resigning after each period of employment. Respondent’s president and owner advised Complainant that he would not rehire him after a second resignation. During the first period of employment, Complainant had objected to showing his commercial driver’s license when delivering product to one Respondent’s customers, for fear of potential identity theft. During the second period of employment, a shipment of plants and the trailer were damaged when Complainant drove out of an underground tunnel. Complainant later asked to be rehired. After Complainant was not rehired, he filed a STAA complaint alleging retaliation for protected activity. The ARB affirmed the ALJ’s finding that Complainant did not establish by a preponderance of the evidence that Complainant’s report of the plant hauling incident was a contributing factor in Respondent’s refusal to rehire.

Complainant argued on appeal that Respondent made the decision not to rehire at the time of the second resignation, within weeks of the plant hauling incident, and not when he sought reemployment 8 months later. The ARB, however, noted that Respondent’s president testified that he made a decision not to rehire Complainant at the time of reemployment because Complainant had placed conditions on his reemployment of not being required to show his commercial driver’s license and not having to haul plants which Complainant considered dangerous. The ARB noted that the ALJ correctly determined that Complainant had not submitted evidence of disparate treatment merely by showing that Respondent hired an ex-employee on a third occasion.

The ARB found that the record supported the ALJ’s finding that Respondent did not rehire Complainant solely for non-retaliatory reasons. Although Complainant denied sending a letter to Respondent’s president placing conditions on his rehire, the ARB noted that the ALJ credited the testimony of Respondents’ witnesses over Complainant, and found that Complainant sent a hostile letter conditioning his reemployment on not having to haul plants or to show his commercial driver’s license to Respondent’s customers. The ARB noted the ALJ’s careful review of the testimony and the record, and found that substantial evidence supported the ALJ’s findings that a letter and faxes sent by Complainant to Respondent would discourage Respondent from a rehire.

Ziegenhorn v. Ruan Logistics Corp., ARB No. 2019-0076, ALJ No. 2017-STA-00077 (ARB Dec. 15, 2020) (per curiam) (Decision and Order)

CONTRIBUTORY FACTOR CAUSATION; EVIDENTIARY WEIGHT OF CIRCUMSTANTIAL EVIDENCE OF CLOSE TEMPORAL PROXIMITY BETWEEN PROTECTED ACTIVITY AND DISCHARGE UNDERCUT BY SUBSEQUENT INTERVENING EVENT OF INFORMATION THAT CONFIRMED RESPONDENT’S SUSPICION THAT COMPLAINANT WAS SOURCE OF ANONYMOUS DEFAMATORY LETTERS TO RESPONDENT AND ITS CLIENTS

AFFIRMATIVE DEFENSE; CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT DISCHARGED COMPLAINANT ON THE HONESTLY HELD BELIEF THAT COMPLAINANT AUTHORED ANONYMOUS DEFAMATORY LETTERS TO RESPONDENT AND ITS CLIENTS

In Ziegenhorn v. Ruan Logistics Corp., ARB No. 2019-0076, ALJ No. 2017-STA-00077 (ARB Dec. 15, 2020) (per curiam), Complainant (Ziegenhorn) filed a FMCSA complaint on July 15, 2016 about an hours-of-service incident which he alleged was due to poor dispatching practices by Respondent (Ruan). On September 23, 2016, Respondent received an anonymous letter -- the most recent in a series of letters to Respondent and its clients alleging a variety of serious misconduct by Respondent. This letter, unlike the earlier letters, included a handwritten envelope. Respondent investigated the charges in the letters but found that they were meritless. A Senior Executive of Respondent (Hanson) who had been separately investing the letters since 2015, and who suspected that Complainant was the source of the letters, obtained samples of Complainant’s handwriting, and concluded after comparing the handwriting that Complainant had in fact drafted the letters. Respondent terminated Complainant’s employment on October 7, 2016. Complainant filed a STAA whistleblower complaint. After a hearing, the ALJ determined that Complainant failed to prove contributory factor causation by a preponderance of the evidence. The ALJ found that the close temporal proximity between the FMCSA complaint and the discharge was undercut by the subsequent intervening event of the handwriting assessment. The ALJ found that the Executive credibly testified how he had independently determined that Complainant authored the letters, which was the sole reason for Complainant’s discharge. The ALJ also determined that Respondent established by clear and convincing evidence that it would have discharged Complainant on the belief that he was the source of the defamatory letters, even in the absence of protected activity.

The ARB found that the ALJ’s decision was supported by substantial evidence. The ARB stated:

We agree with the ALJ’s finding that Ziegenhorn did not carry his burden to prove that his protected activity was a contributing factor in the termination of his employment. We further agree with the ALJ that Ruan would have taken the adverse action even if Ziegenhorn had not engaged in protected activity because the defamatory letters were a very serious concern for the company, and Hanson had an “honestly held belief” that Ziegenhorn authored the letters.

Slip op. at 5 (footnote omitted).

Administrator, Wage and Hour Div., USDOL v. Doctor's Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024 (ARB Dec. 9, 2020) (Decision and Order)

FAILURE OF RESPONDENT TO PAY REQUIRED WAGES TO COMPLAINANT IN NON-PRODUCTIVE STATUS PRIOR TO BONA FIDE TERMINATION; ARB SUMMARILY AFFIRMS DECISION AND ORDER AWARDING BACK WAGES

In Administrator, Wage and Hour Div., USDOL v. Doctor’s Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024 (ARB Dec. 9, 2020), the Complainant filed a complaint with the Wage and Hour Division (“WHD”), alleging that the Respondent failed to pay the required wage rate, the cost of legal representation, and the H-1B visa application fee. Slip op. at 3. Following an investigation, the WHD determined that the Respondent failed to pay the required wages, and ordered reimbursement of the fees, from which the Respondent requested a hearing before an ALJ. Id. Following the hearing, the ALJ awarded back wages. Id.

The ARB summarily affirmed, agreeing that the Respondent did not effectuate a bona fide termination until the Complainant voluntarily returned to Brazil and the Respondent subsequently terminated her and informed the Department of Homeland Security’s United States Citizenship and Immigration Services of the termination. Id. at 4–5. Although the Respondent contended that the Complainant “never worked” for the Respondent, the ARB also agreed that the Complainant was entitled to back wages because the record demonstrated that she worked “at least some hours” and, importantly, she was in non-productive status under the INA’s “no benching provision” while in the United States. Id. at 5; see also 8 U.S.C. § 1182(n)(2)(C)(vii)(I) (requiring H-1B employers to pay required wages, even during non-productive status, due to a decision, such as a lack of assigned work, by the employer); 20 C.F.R. § 655.731(c)(7)(i) (same). The ARB noted that the Respondent stipulated to repayment of the fees at the hearing, but emphasized that H-1B employees are prohibited from paying the H-1B visa application fee and H-1B employers must pay attorney fees. Slip op. at 5 n.26; see also 20 C.F.R. § 655.731(c)(9)(ii), 655.731(c)(10)(ii).

ARB’S STANDARD OF REVIEW IN LCA CASE; DIFFERING VIEWS ON WHETHER DE NOVO REVIEW IS LIMITED TO CONCLUSIONS OF LAW, OR FOR BOTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

In Administrator, Wage and Hour Div., USDOL v. Doctor’s Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024 (ARB Dec. 9, 2020), a two-member panel of the ARB summarily affirmed the ALJ’s Decision and Order awarding back wages to an H-1b worker based on the LCA “no benching” provision. The two members wrote separate concurrences to address the ARB’s standard of review in LCA cases. Judge Haynes stated that the ARB should adopt a de novo review standard for ALJ conclusions of law, and a substantial evidence review standard for findings of fact where the applicable statutes or regulations do not provide a standard of review. Judge Burrell stated that the ARB’s standard of review of ALJ findings of fact and legal conclusions should be de novo, although on the record that was before the ALJ. Slip op. at 6–11.

Mawhinney v. Transport Workers Union, Local 591, ARB No. 2019-0018, ALJ No. 2012-AIR-00014 (ARB Dec. 9, 2020) (Decision and Order)

The ARB adopted the ALJ’s decision granting summary decision in favor of Respondent.

OFCCP v. Oracle America, Inc., ARB No. 2020-0072, ALJ No. 2017-OFC-00006 (ARB Dec. 9, 2020) (Order of Case Closing)

The ARB closed the case after the OFCCP informed the ARB that it will not be filing exceptions to the ALJ’s September 22, 2020 Recommended Decision and Order.

Manoharan v. HCL America, Inc., ARB No. 2019-0067, ALJ No. 2018-LCA-00029 (ARB Dec. 7, 2020) (Order of Remand)

FAILURE OF THE WAGE AND DIVISION TO INFORM COMPLAINANT WHETHER IT FOUND REASONABLE CAUSE TO INVESTIGATE RETALIATION COUNT OF LCA COMPLAINT, OR TO ISSUE A DETERMINATION ON THAT COUNT; ARB FINDS THAT REGULATIONS MANDATE SUCH ACTIONS BY THE WHD, AND THAT A REMAND WAS REQUIRED FOR THE WHD TO ISSUE THE REQUIRED DETERMINATION

In Manoharan v. HCL America, Inc., ARB No. 2019-0067, ALJ No. 2018-LCA-00029 (ARB Dec. 7, 2020), Complainant, an H-1B worker, filed a complaint with the Wage and Hour Division (WHD), alleging that Respondent failed to pay him the required wage rate and retaliated against him for protected conduct. The WHD investigated, and issued a determination letter finding several violations of the INA by Respondent. The WHD, however, did not address the retaliation complaint. Complainant requested an ALJ hearing. The ALJ found that that he did not have jurisdiction to consider the retaliation complaint because the WHD had neither conducted an investigation nor issued a determination on that complaint. The ARB reversed and remanded “because the WHD failed to follow its basic regulatory requirements,” which require the WHD division to make a reasonable cause determination on whether to investigate, and to notify the complainant of its determination and to permit the complainant to submit a new complaint with additional necessary information. If the WHD Administrator determines that an investigation is warranted, the WHD is required to conduct that investigation and issue a determination. The ARB found these requirements to be mandatory and not subject to the agency’s discretion. The ARB found that the WHD clearly failed to adhere to the regulations in this matter. The ARB did not decline jurisdiction, as had the ALJ, stating:

If the ALJ’s reasoning here were to stand, Complainant would be left with no process to vindicate his claims of retaliation and be caught in a “Catch-22,” because the failure of the agency to respond with any determination at all precludes any avenue of relief—a situation particularly egregious here where the Complainant has no private right of action in court. Phrased another way, the agency could insulate itself from review by its complete failure to take any action whatsoever. We shall not allow Complainant to “be penalized” and foreclosed from pursuing any avenue for possible relief by the agency’s failure to follow its own rules.

Slip op. at 6 (footnotes omitted). The ARB noted:

On remand the Administrator may indeed determine that an investigation is not warranted, which would end the enforcement process because that decision is not reviewable. Gupta v. Headstrong, Inc., ARB Nos. 2011-0065, -0008, ALJ No. 2011-LCA-00038, slip op. at 8 (ARB June 29, 2012); 20 C.F.R. § 655.806(a)(2). If the Administrator does find reasonable cause to investigate, the WHD would then be required to conduct an investigation and issue a determination as to whether retaliation occurred. § 655.806(a)(2) & (3). If the Administrator determines no retaliation occurred after the investigation, Complainant could then have that decision reviewed by an ALJ. § 655.820(b)(1).

Id. at n. 28.

[Editor’s note: The ARB indicated that, although it had earlier consolidated Complainant’s appeals of the ALJ’s determinations on the retaliation and back wages issues, it was vacating the order of consolidation, and would separately consider the back wages issue in ARB Case No. 2020-0007.]