USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION IX B -- COMPENSATORY DAMAGES

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the Respondent challenged the ALJ's award of $50,000 for emotional distress. The Respondent based the challenge on the Complainant's failure to proffer medical evidence to support the award. The ARB stated that it has "affirmed compensatory damage awards for emotional distress, even absent medical evidence, where the lay witness statements are credible and unrefuted." USDOL/OALJ Reporter at 7 (citations omitted). Here, the record supported the ALJ's award as the Complainant "provided unrefuted testimony regarding how his discharge has affected his credit, savings, and living circumstances. Id . at 8.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; ARB AFFIRMS $100,000 AWARD BASED ON Complainant's TESTIMONY AND COMPARSION TO SIMILAR PRIOR CASES

PUNITIVE DAMAGES; ARB AFFIRMS $50,000 AWARD WHERE TERMINAL MANAGER FAILED TO MEANINGFULLY CHECK Complainant's CONCERNS ABOUT THE WEATHER AND WHERE THE TERMINAL MANAGER'S CHARACTERIZATION OF THE TERMINATION AS A RESIGNATION PREVENTED PEER REVIEW AND DELAYED RECEIPT OF UNEMPLOYMENT BENEFITS

In Fink v. R&L Transfer, Inc. , ARB No. 13-018, ALJ No. 2012-STA-6 (ARB Mar. 19, 2014), the ARB found that substantial evidence supported the ALJ's finding that the Complainant's refusal to drive due to weather related concerns was based on a reasonable apprehension of serious injury to himself or the public. Further, the ARB affirmed ALJ's legal conclusion that Fink's refusal to drive constituted STAA-protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(ii).

The ARB also affirmed the ALJ's award of compensatory damages in the amount of $100,000.00, and punitive damages in the amount of $50,000.00. Relying on the Complainant's testimony for the compensatory damages award, the ALJ found that the Respondent's termination of the Complainant's employment had a significant emotional impact on the Complainant in the effect it had on his dignity and self-esteem, his ability to support his family, and his vulnerable economic position. The ALJ awarded $100,000 based on a comparison with awards in similar cases.

In regard to the punitive damages award, the ALJ found it significant that the Respondent's terminal manager did not make any attempt to determine if there was any substance to the Complainant's concerns about driving the route in the snowy and icy weather, and only consulted persons in other states about whether the route should be driven. The ALJ also noted that the terminal manager characterized the Complainant's termination as a "resignation," which prevented the Complainant from participation in peer review to retain his job, and which delayed the receipt of unemployment benefits.

The ARB stated that the ALJ's analysis regarding her award amounts was consistent with applicable law:

"Compensatory damages are designed to compensate whistleblowers not only for direct pecuniary loss, but also for such harms as loss of reputation, personal humiliation, mental anguish, and emotional distress. A key step in determining the amount is a comparison with awards made in similar cases. To recover compensatory damages for mental suffering or emotional anguish, a complainant must show by a preponderance of the evidence that the unfavorable personnel action caused the harm." An award of punitive damages may be warranted where there has been "reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law."

Fink v. R&L Transfer, Inc. , ARB No. 13-018, USDOL/OALJ Reporter at 5 (footnotes omitted).

[STAA Digest IX B 1]
DAMAGES; ALJ'S RESPONSIBILITY TO EXPLAIN TO PRO SE COMPLAINANT NEED TO PROFFER EVIDENCE TO SUPPORT BACK PAY AND OTHER DAMAGES

In Kennedy v. Advanced Student Transportation , ARB No. 09-145, ALJ No. 2009-STA-49 (ARB Apr. 28, 2011), the ALJ had explained at the hearing the pro se Complainant's burden of proof to establish the elements of her STAA complaint. The ALJ did not, however, mention or explain the evidence necessary to establish the relief to which the Complainant would be entitled should she prevail. The ALJ ultimately found that the STAA complaint had merit, and awarded reinstatement. The ALJ, however, did not award back pay because the Complainant had not presented any evidence on that element of relief. The ARB remanded to permit the Complainant to submit evidence on back pay and any other damages to which she was entitled. The ARB stated

Although we sympathize with the ALJ's concern that he not become the advocate for a pro se party, in this case we find that it would not be overreaching for the ALJ to explain to Kennedy that she must submit evidence in support of her claim of back pay (and any other damages), just as he explained to her the burden of proof she must carry to prevail on her complaint. We find this to be especially compelling given the STAA's [mandate of back pay and other compensatory damages once it had been determined that the employer violated the STAA]."

USDOL/OALJ Reporter at 10.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; AWARD FOR STRESS BASED SOLELY ON COMPLAINANT'S TESTIMONY

In Barnum v. J.D.C. Logistics, Inc. , ARB No. 08-030, ALJ No. 2008-STA-6 (ARB Feb. 27, 2009), the ARB affirmed the ALJ's award of $5000 based on the Complainant's testimony that he suffered stress from the loss of insurance and other fringe benefits as result of the Respondent's wrongful adverse action.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; VALUE OF ITEMS NOT RETURNED TO THE COMPLAINANT AND EXPENSES INCURRED FOR TRAVEL HOME AFTER DISCHARGE

In Carter v. Marten Transport, Ltd. , ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the ARB affirmed the ALJ's compensatory damages awards for the value of personal items that the Complainant was unable to carry home when discharged and which were not returned to him, and for the expenses he incurred in traveling home after the discharge.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS AWARD GROUNDED IN COMPLAINANT'S TESTIMONY

In Carter v. Marten Transport, Ltd. , ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the ALJ awarded compensatory damages of $10,000 for emotional distress based on the Complainant's testimony about depression and distress he experienced as the result of his discharge, about having to live off his retirement savings as a result of his discharge, and about his continued unemployment. The ARB acknowledged that the Complainant had turned down a comparable job, but nonetheless affirmed the ALJ's award. The ARB also affirmed the ALJ's reliance on his observation of the Complainant's distress during the hearing. On appeal, the Respondent argued that there was no proof that the distress was related to the discharge. The ARB found, however, that substantial evidence supported the ALJ's finding.

[STAA Digest IX b 1]
COMPENSATORY DAMAGES IS SYNONYMOUS WITH ACTUAL DAMAGES, AND HAS THE PURPOSE OF MAKING THE COMPLAINANT WHOLE FOR HARM CAUSED BY THE Respondent's UNLAWFUL ACT

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the ARB defined "compensatory damages" as follows:

The STAA does not define "compensatory damages." Black's Law Dictionary defines the term to mean "[d]amages sufficient in amount to indemnify the injured person for the loss suffered." Compensatory damages is synonymous with "actual damages," which is the amount awarded to "compensate for a proven injury or loss; damages that repay actual losses." The purpose of a compensatory damage award is to make the complainant whole for the harm caused by the employer's unlawful act. Put another way, compensatory damages are meant to restore the employee to the same position he would have been in if not discriminated against. Compensatory damages are designed to compensate discriminatees not only for direct pecuniary loss, but also for such harms as impairment of reputation, personal humiliation, and mental anguish and suffering.

USDOL/OALJ Reporter at 7-8 (footnotes omitted).

[STAA Digest IX b 1]
COMPENSATORY DAMAGES; Complainant's PURCHASE OF A TRACTOR IN ORDER TO OBTAIN WORK FOUND NOT TO BE A LOSS RESULTING FROM THE Respondent's UNLAWFUL ACT

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the ARB found that the ALJ erred in awarding the Complainant the $20,000 he spent to buy a tractor to become an owner/operator (which was a condition to being able to drive for another freight company following his discharge by the Respondent). The ALJ had reasoned that the Respondent's unlawful discharge had put the Complainant in the position where the tractor purchase was necessary to obtain employment. The ARB found that this was error as a matter of law.

The ARB found that the Complainant had not lost a $20,000 tractor as the result of his discharge. Rather, the ARB found that the Complainant chose to buy the tractor to go to work for the other company, and that awarding him $20,000 for the tractor would not restore the Complainant to the same position he would have had but for the discharge, but instead amounted to a windfall.

[STAA Digest IX b 1]
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS AWARD MAY BE BASED SOLELY ON Complainant's CREDIBLE TESTIMONY

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the ARB affirmed the ALJ's award of $5,000 in compensatory damages for stress and anxiety which was based solely on the Complainant's testimony and was not supported by medical evidence. The ARB noted that the ALJ had found the testimony credible, that it was unrefuted, and that the ARB has affirmed reasonable emotional distress awards that had been based solely on the employee's testimony.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS; Complainant's BURDEN TO PROVE

In Simon v. Sancken Trucking Co. , ARB No. 06-039, -088, ALJ No. 2005-STA-40 (ARB Nov. 30, 2007), the ALJ found that the Complainant suffered emotional distress as a result of his termination and inability to find permanent employment, and awarded $5,000.00 in compensatory damages. The ARB found no documentary evidence in the record supporting any loss of reputation or mental anguish, and therefore reversed the compensatory damages award, holding that emotional distress may not be presumed but must be proven.

[STAA Whistleblower Digest IX B 1]
COMPENSATORY DAMAGES; ALLEGATIONS SUPPORTED ONLY BY COMPLAINANT'S TESTIMONY

In Roberts v. Marshall Durbin Co. , ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ALJ awarded $10,000 in compensatory damages based on a finding that Complainant's testimony regarding his humiliation and emotional distress was unrefuted, credible and persuasive. On appeal, the Respondent contended that since no evidence supported the Complainant's bare allegations, the ALJ's award was erroneous. The ARB affirmed the ALJ, finding that he had evaluated the Complainant's testimony and provided a rationale that was supported by substantial evidence.

[STAA Digest IX B 1]
TAX IMPLICATIONS OF WHISTLEBLOWER AWARD

In Murphy v. Internal Revenue Service , No. 05-5139 (D.C.Cir. Aug. 22, 2006), the Plaintiff had been awarded damages in a Department of Labor whistleblower proceeding, which included payments for "emotional distress or mental anguish" and "injury to professional reputation." See Leveille v. New York Air National Guard , ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999). The Plaintiff initially paid taxes on the award, but later filed an amendment seeking a refund. The IRS denied the request for refund, and the Plaintiff filed suit in federal court arguing that the amount should have been excluded from gross income under 26 U.S.C. § 104(a), which provides an exclusion for damages received on account of personal physical injuries or physical sickness, or in the alternative that the I.R.C. provision was unconstitutional to the extent that failed to exclude damages awarded for emotional distress and injury to professional reputation. The District Court rejected both arguments. The Court of Appeals for the District of Columbia also rejected the first argument, but accepted the constitutional argument, finding that damages for matters such as emotional distress and injury to reputation are not income within the meaning of the 16th Amendment to the Constitution. The Department of Justice thereafter petitioned for an en banc hearing. The appeals panel, however, issued an Order on December 22, 2006 vacating the August 22, 2006 decision, and scheduling oral argument. Murphy v. Internal Revenue Service , No. 05-5139 (D.C. Cir. Dec. 22, 2006).

In its decision on rehearing, the Court of Appeals held that the compensatory damages award, "even if it is not income within the meaning of the Sixteenth Amendment, is within the reach of the congressional power to tax under Article I, Section 8 of the Constitution." Murphy v. Internal Revenue Service , No. 03-CV-02414 (D.C.Cir. July 3, 2007), slip op. at 5-6. Moreover, upon close review of the ALJ and ARB decisions, the court found that the Plaintiff compensatory damages award was not "awarded by reason of, or because of, ... [physical] personal injuries," and therefore § 104(a)(2) of the IRC did not permit her to exclude the award from gross income. Id. at 11. The court held that "gross income in § 61(a) must ... include an award for nonphysical damages such as Murphy received, regardless of whether the award is an accession to wealth." Id. at 19.

[STAA Whistleblower Digest IX B 1]
CIVIL RIGHTS TAX RELIEF; DEDUCTION FOR ATTORNEYS' FEES AND COSTS INCURRED BY INDIVIDUALS WHO PREVAIL IN EMPLOYMENT DISCRIMINATION CASES

The American Jobs Creation Act of 2004 includes a "civil rights tax relief" provision at Section 703 , establishing a deduction from gross income for attorneys' fees and court costs incurred by, or on behalf of, individuals who prevail in employment discrimination and other enumerated types of cases. H.R. 4520, signed by the President on October 22, 2004.

[STAA Whistleblower Digest IX B 1]
EMOTIONAL DISTRESS; UNREFUTED TESTIMONY

In Jackson v. Butler & Co. , ARB Nos. 03-116 and 03-144, ALJ No. 2003-STA-26 (ARB Aug. 31, 2004), the ARB affirmed the ALJ's award of $4,000 for emotional distress based on the testimony of the Complainant and his wife, even though that testimony was not supported by evidence of professional counseling or other medical evidence, where the testimony was unrefuted by the Respondent.

[STAA Whistleblower Digest IX B 1 ]
DAMAGES; RETIREMENT PLAN

In Jackson v. Butler & Co. , ARB Nos. 03-116 and 03-144, ALJ No. 2003-STA-26 (ARB Aug. 31, 2004), the ARB awarded the Complainant the amount he would have been entitled to in 401(k) plan contributions up to the time he began participating in a similar plan from a subsequent employer.

[STAA Whistleblower Digest IX B 1]
DAMAGES; HEALTH BENEFITS; LOSSES INCURRED AFTER THE ALJ'S DECISION

In Jackson v. Butler & Co. , ARB Nos. 03-116 and 03-144, ALJ No. 2003-STA-26 (ARB Aug. 31, 2004), the ARB awarded the Complainant the amount he had to pay out-of-pocket for a health plan with a subsequent employer and held that this amount would continue to accrue until the Complainant was reinstated.

The ARB also awarded the Complainant uncontested out-of-pocket medical expenses that were covered under the Respondent's policy but not under his current employer's policy. The ARB noted that the ALJ had correctly declined to award estimated future out-of-pocket expenses incurred after issuance of the Recommended Decision and Order. The ARB, however, granted leave to the Complainant to request modification of the ARB's final decision to establish such indirect health care plan losses between the time of the ALJ's recommended decision and the ARB's final decision.

IX B 1 Hearing confined to calculation of award

In Bascom v. APT Transportation, Inc., 92-STA-32 (Sec'y Nov. 9, 1992), the Regional Administrator of OSHA found the Complainant's STAA complaint to have merit and order back pay of $219.33 per week (average weekly pay received prior to discharge), plus interest.

The Complainant requested a hearing solely as to the amount of the back pay owed to him, contending that there was a large difference between the amount of pay to which he was entitled and the amount he actually received.

Agreeing with the ALJ's calculations with only minor adjustments, the Secretary found that the Complainant was entitled to $141.31 per working day for 41 days, plus interest.

The Respondent did not participate in the hearing process and declined to respond to the ALJ's order to show cause why the case should not be decided based on the existing record.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; OTHER BENEFITS

A complainant who establishes that he or she was terminated from employment as the result of unlawful discrimination on the part of the respondent is entitled to a presumption of full relief. In Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), the ARB ordered the ALJ on remand to determine (1) whether and in what amount Respondent is responsible for payment of medical expenses for which Complainant would have been covered by the health and welfare fund (the Board noting that Respondent must pay sufficient monies into the health and welfare fund to permit Complainant's immediate coverage upon reinstatement); (2) whether and in what amount Complainant is entitled to vacation and holiday pay for the period in which he is entitled to back pay; (3) whether and to what extent Respondent must contribute the necessary pension funds on behalf of Complainant.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; INTEREST ON PURCHASE OF CAR

A complainant is not entitled to recover as compensatory damages interest on an automobile loan where the automobile was purchased prior to his unlawful termination. Jackson v. Protein Express , 95-STA-38 @ 5 (ARB May 29, 1998).

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; MEANING OF "COMPENSATORY"

In Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), Respondent contended that the phrase in 49 U.S.C. § 31105(b)(3)(A) -- "compensatory damages, including back pay" -- does not include damages for emotional suffering, psychic injury, and medical expenses, but only back pay ( i.e., lost wages, salary, or commissions), and other employment-related forms of compensation ( i.e. , fringe benefits, vacation pay, bonuses, sick pay, disability benefits, etc.).

The ARB rejected this contention, holding that the common meaning of compensatory includes both back wages as well as damages for pain and suffering. The ARB noted that both it and the Secretary had consistently held that compensatory damages under the STAA include damages for pain and suffering, mental anguish, embarrassment, and humiliation, and that reviewing courts have affirmed Secretarial orders pursuant to the STAA that required payment of compensatory damages.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS

In Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), the ARB affirmed the ALJ's recommendation of a compensatory damages award of $75,000 where the evidence showed that prior to discharge, Complainant had substantial savings, owned a house, had good credit, and a stable financial position, but after Respondent's unlawful action, Complainant began defaulting on payments, lost his house through foreclosure, his savings, and his ability to obtain credit, and has received public assistance. Complainant also suffered major depression as the result of Respondent's unlawful discharge.

[STAA Digest IX B 1]
COMPARATIVE AWARD; SEVERE EMOTIONAL DISTRESS

In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB Aug. 8, 1997), Complainant was awarded $30,000 in compensatory damages were there was unrefuted evidence that Complainant experience severe emotional distress because of relocation to a different state to take a lower paying job, concerns for his family's survival, difficulties with his marriage, and ongoing peptic ulcer disease -- all proximately caused by his unlawful discharge by Respondent.

IX B 1 Liability for Complainant's mental distress

In Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995), the Respondent relied on Bossalina v. Lever Brothers, 47 Fair Empl. Prac. Cases (BNA) 1264, 1167-68 (D. Md. 1986), to argue that it could not be held accountable for the Complainant's mental distress and that the Complainant must be responsible for his own well being. The Secretary rejected the reliance on Bossalina , noting that it was an Age Discrimination in Employment Act case. Rather, an employer who violates the employee protection provision of the STAA and in so doing caused the employee to experience mental and emotional distress may be held liable for compensatory damages. Slip op. at 23-24 n. 16.

An employer whose discriminatory conduct aggravates an employee's pre-existing condition is liable for the effects of its illegal action on the employee. Slip op. at 26-27.

IX B 1 Compensatory damages; recovery for forced sale of truck; need for credible basis need to establish actual loss

In Ass't Sec'y & Lansdale v. Intermodal Cartage Co., Ltd., 94-STA-22 (Sec'y July 26, 1995), the Secretary recognized that compensatory damages may be recovered by a complainant for losses incurred by the sale by an owner- operator's truck occasioned by his or her financial situation resulting from the Respondent's retaliatory acts. Generally, a forced sale is unlikely to result in a sale for market value, and there is a presumptive loss. Further, the Respondent generally has uncertainty in the amount of damages resolved against it. Where, however, the record fails to provide a credible basis for estimating the value of an actual loss, such an award will not be made.

IX B 1 a Entitlement to compensation must be proven

In Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th Cir. 1991), the Fifth Circuit rejected an argument by the Secretary that evidence of disparate treatment is not a required element of proof for a Surface Transportation Assistance Act claim. Whistleblowers are not entitled to compensation that they were not otherwise entitled to receive. Section 405(b), 49 U.S.C. § 2305(b), guarantees equal economic treatment, not special economic treatment. The statute provides that no person shall discriminate against an employee with respect to the employee's compensation. Whether there is discrimination must, per force, be determined by comparing the denial of compensation to some established or expected norm, i.e., occasions on which compensation is paid.

Thus, where under the terms of a collective bargaining agreement the employer was not required to compensate drivers'for delay time caused by safety concerns where the highway had not been officially closed or another drivers'had previously negotiated the same route, but the record established that the employer had authorized and paid compensation to other drivers'under similar circumstances, the company was found to have discriminated against drivers'who had refused to operate their tractor-trailers during hazardous weather conditions and who had not received authorization for the delays from the dispatcher.

IX B 1 a No special economic treatment

Four employee's refused to drive the company's trucks during a hazardous ice storm. Employer paid the drivers'their regular compensation for the trip, but refused to pay for their overnight layover. employee's filed complaints with the Secretary of Labor arguing that Employer violated section 405(b) of STAA. The court held that section 405(b) guarantees the drivers'equal economic treatment compared to other similarly situated drivers, not special economic treatment. Thus, the Secretary must show some basis for an entitlement to the compensation that these employee's have been denied. The court found that employer discriminated against the drivers'by paying compensation to these and other drivers'under similar circumstances in which it refused to authorize and pay the Complainant's who asserted their rights under STAA. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).

[STAA Digest IX B 2 a]
BACK PAY CALCULATION; ALJ MUST ONLY REACH A REASONABLE APPROXIMATION OF BACK PAY OWED; ARB AFFIRMS CALCULATION THAT WAS BASED ON CONTENTION THAT COMPLAINANT'S DRIVING WOULD HAVE EVENTUALLY BECOME PROFITABLE, BUT ALSO TAKING INTO ACCOUNT THAT SHE HAD NEVER DRIVEN THE AVERAGE NUMBER OF MILES DURING HER TENURE; DEDUCTION FOR ARREARS FROM TRUCK LEASE

In Ferguson v. New Prime, Inc. , ARB No. 12-053, ALJ No. 2009-STA-47 (ARB Nov. 30, 2012), the Complainant had only worked for 16 weeks when she was terminated in violation of the STAA whistleblower provision, and owed the Employer $5,000 due to truck lease obligations.

In determining the back pay award, the ALJ accepted the Complainant's contention that over the long term, she might have become profitable if she had not been improperly terminated. The ALJ also adopted the Respondent's contention that it would be unfair to base the Complainant's wages on the average number of miles the company drivers'drove as they average more than she ever drove. The ALJ therefore used the company drivers'wage per mile multiplied by the Complainant's average miles to calcuate the back pay award. The ALJ deducted from the award the $5,000 the Complainant owed the Employer n arrears.

On appeal, the ARB noted that it has held that "the ALJ must only reach a reasonable approximation of what a complainant would have earned but for the discrimination." USDOL/OALJ Reporter at 4 (citation omitted). The ARB affirmed the ALJ's back pay determination, finding that the ALJ correctly considered the contentions of the parties and used a formula to compute back pay that was supported by the evidence of record.

IX B 2 a i Award of back pay mandatory

An award of back pay under the STAA is not a matter of discretion but is mandated once it is determined that an employer has violated the STAA. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), citing Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 2986), slip op. at 50, aff'd sub nom., Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987).

[STAA Digest IX B 2 a]
BACK PAY AWARDS; LEGAL FRAMEWORK

In Ass't Sec'y & Bryant v Mendenhall Acquistion Corp. , ARB No. 04-014, ALJ No. 2003-STA-36 (ARB June 30, 2005), the ARB summarized the legal background to back pay awards in STAA whistleblower cases:

A wrongfully terminated employee is entitled to back pay. 49 U.S.C.A. § 31105(b)(3). "An award of back pay under the STAA is not a matter of discretion but is mandated once it is determined that an employer has violated the STAA." Assistant Sec'y & Moravec v. HC & M Transp., Inc ., 90-STA-44, slip op. at 10 (Sec'y Jan. 6, 1992). The purpose of a back pay award is to return the wronged employee to the position he would have been in had his employer not retaliated against him. ...

Back pay awards to successful whistleblower Complainant's are calculated in accordance with the make-whole remedial scheme embodied in Title VII of the Civil Rights Act, 42 U.S.C.A. § 2000e et seq. (West 1988). ... Ordinarily, back pay runs from the date of discriminatory discharge until the complainant is reinstated or the date that the complainant receives a bona fide offer of reinstatement. ... While there is no fixed method for computing a back pay award, calculations of the amount due must be reasonable and supported by evidence; they need not be rendered with "unrealistic exactitude." ...

Slip op. at 5-6 (some citations omitted).

[STAA Digest IX B 2 a]
BACK PAY; USE OF TITLE VII AUTHORITY

Back pay awards to victorious whistleblowers in DOL adjudications are to be calculated in accordance with the make whole remedial scheme embodied in § 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . (1988). See Loeffler v. Frank , 489 U.S. 549 (1988).

Polgar v. Florida Stage Lines , 94-STA-46 (ARB Mar. 31, 1996).

IX B 2 a ii Relationship of employer's misconduct to loss of wages

The purpose of a back pay award is to make "persons whole for injuries suffered for past discrimination." Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y Jan. 15, 1988), slip op. at 5, quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). In keeping with the objective, it must appear that the employer's misconduct caused the complainant to lose the wages he claims as back pay. Gaddy v. Abex Corp., 884 F.2d 312, 320 (7th Cir. 1989); cf. Francis v. Bogan, Inc., 86-ERA-8 (Sec'y Apr. 1, 1988), slip op. at 6 (the period of an employer's liability ends when the employee's employment would have ended for reasons independent of the violation found). Thus, where there is uncontradicted testimony tending to show that because of the implementation of a seniority list system of dispatch complainant would not have earned the gross back pay claimed, the ALJ must consider this testimony when calculating the back pay owed.

Hamilton v. Sharp Air Freight Service, Inc., 91- STA-49 (Sec'y July 24, 1992).

[STAA Digest IX B 2 a iii]
BACK PAY; SPECULATION ABOUT POSSIBLE EARNINGS IF COMPLAINANT HAD STAYED WITH THE RESPONDENT

In Simon v. Sancken Trucking Co. , ARB No. 06-039, -088, ALJ No. 2005-STA-40 (ARB Nov. 30, 2007), the Complainant asserted that the ALJ erred in calculating the amount of back pay because he failed to "resolve the uncertainties" in the Complainant's favor if he had stayed with the Respondent. The ARB rejected this contention, stating that it "does not indulge in speculation about what a complainant would have earned in his position if he had not been discharged by the employer. Oliver v. Hydro-Vac Servs., Inc. , ARB No. 97-063, ALJ No. 1991-SWD-001, slip op. at 3 (ARB Jan. 6, 1998), citing Welch v. Univ. of Tex. & Its Marine Sci. Inst. , 659 F.2d 532, 535 (5th Cir. 1981) (back pay awarded from date of constructive discharge to date grant expired because 'it is simply a matter of speculation' whether grantee would have received another grant)."

IX B 2 a iii Uncertainties resolved against respondent

Uncertainties in calculating back pay are resolved against the discriminating party.

Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993).

[STAA Whistleblower Digest IX B 2 a iii]
BACK PAY; REPRESENTATIVE EMPLOYEE METHOD; UNREALISTIC EXACTITUDE NOT REQUIRED

In Johnson v. Roadway Express, Inc. , ARB No. 01 013, ALJ No. 1999 STA 5 (ARB Dec. 30, 2002), the ALJ had employed the "representative employee" method for calculating backpay. Respondent argued that such would result in a windfall to Complainant because his attendance record established that he had never earned total wages similar to those of the representative employees. The ALJ declined to make an adjustment, stating that he would not speculate about Complainant's conduct and would resolve uncertainties against the discriminating employer. The ARB affirmed the ALJ, finding that back pay awards need not be rendered with "unrealistic exactitude, and that the evidence did not permit a trier of fact to actually determine the source of the disparities.

[STAA Digest IX B 2 a iii]
BACK PAY; FAILURE OF RESPONDENT TO ESTABLISH PRECISE AMOUNT OF WEEKLY EARNING OF COMPLAINANT BEFORE ALJ

In Murray v. Air Ride, Inc. , ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000), Respondent argued on appeal to the ARB that the ALJ had erred in estimating Complainant's salary at ,000 per week for purposes of calculating back pay, maintaining that pay records showed that the average weekly wage was actually $902.33. The ARB reviewed the relevant exhibit and found that the ALJ's finding was consistent with this evidence. The ARB faulted Respondent for not making its argument before the ALJ.

[STAA Digest IX B 2 a iii]
RELIEF FROM BACK PAY ORDER; POTENTIAL BANKRUPTCY OF RESPONDENT

In Ass't Sec'y & Ferguson v. K & P, Inc. , 96-STA-17 (ARB Oct. 30, 1996), Respondent argued that his company would be bankrupted if it were required to pay over $40,000 in back wages. The Board noted that the Secretary had held that "a defendant seeking relief from a back pay order on the grounds that it would force the company out of business 'must carry a heavy burden of showing inability to comply'". Slip op. at 2, citing OFCCP v. Disposable Safety Wear , 59 Fair Empl. Prac. Cases [BNA] 1597, 1600, Sec'y Dec. Sept. 28, 1992, and cases cited therein. The Board found that Respondent did not make such a showing.

IX B 2 a iii Burden of proof; back pay deductions

Under the STAA, 49 U.S.C. app. § 2305(c), the employer, and not the complainant, bears the burden of proving a deduction from back pay on account of interim earnings. Hadley v. Southeast Coop. Serv. Co., 86-STA-24 (Sec'y June 28, 1991).

IX B 2 a iv Absence of request for consequential damages

In Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y July 13, 1984), the Secretary found that Respondent had violated the employee protection provision of the STAA. Since Complainant was not interested in returning to work for Respondent, reinstatement was not ordered. The Secretary remanded the case to the ALJ for calculation of back pay due, less interim earnings and all legal deductions. The Secretary pointed out that no proof was offered on consequential damages and no request was made for costs and attorneys fees. Since the remand order was limited to calculation of back wages, it appears that the Secretary was not allowing consequential damages or costs and attorneys fees.

IX B 2 a iv Permitting the complainant on remand to put on additional evidence of entitlement to compensatory damages

In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), the Secretary noted that the STAA authorizes compensatory damages, which may be awarded for emotional pain and suffering, mental anguish, embarrassment, and humiliation. The Complainant had not testified concerning any anguish or psychological harm due to his layoff, and the ALJ did not rule on his entitlement to compensatory damages. On remand, the Secretary instructed the ALJ to afford the parties the opportunity to present evidence concerning entitlement to compensatory damages, if any.

[ Editor's note: In an ERA decision, the Secretary found that a Complainant who had not attempted to prove his future medical expenses for mental pain and suffering in the original hearing before the ALJ could not have the amount increased in a motion under Fed. R. Civ. P. 59 or 60. The Complainant in that case was attempting to show his additional expenses from the date of the ALJ's hearing until shortly following a remand from the 6th Circuit, nearly 3 1/2 hears later. In this decision, the Secretary discussed how a plaintiff has the burden of proving each element of damage. Deford v. Tennessee Valley Authority, 81-ERA-1 (Sec'y Aug. 16, 1984) (ruling on motion for reconsideration). Nonetheless, in another, more recent, ERA decision, the Secretary remanded for a hearing on compensatory damages. In that case, however, the ALJ had found that the Complainant had not established a prima facie case. Pillow v. Bechtel Contr., Inc., 87-ERA-35 (Sec'y July 19, 1993). In the instant case, the Secretary had adopted the ALJ's recommendation that the Respondent had violated the STAA. Thus, it appears that Deford is limited closely to its facts, and the failure of a complainant to put on evidence concerning compensatory damages will not result in a closing of the record on that issue in most circumstances.]

IX B 2 a iv Absence of request for consequential damages

In Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984), no proof was offered on the Complainant's consequential damages, if any, and no request was made for costs and attorney's fees, if any. A representation was made that the Complainant had found a full time job and was not interested in returning to work for the Respondent. Thus, upon declining to adopt the ALJ's recommendation of no violation of the Act, the Secretary remanded the case to the ALJ to calculate the back pay due from the date of discharge to the date of full time re- employment, "less interim earnings and all legal deductions."

[Editor's note: The library is missing a March 5, 1985 remand order of the Secretary and the ALJ's recommended order on this second remand, but there is a Final Decision & Order After Second Remand, Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y May 2, 1985), from which it appears that the reason for the second remand was to include prejudgment interest on the back pay award.]

BACK PAY; TOLLING UPON COMPLAINANT'S EMPLOYMENT AT A HIGHER PAYING JOB
[STAA Digest IX B 2 b]

Where the Complainant had obtained higher paying employment prior to receipt of a reinstatement offer from the Respondent it was unnecessary for the ALJ to reach the question of the date the reinstatement offer was properly made to the Complainant by the Respondent for purposes of calculating back pay. The other employment tolled the Respondent's liability for back pay. Ass t Sec'y & Mulanax & Andersen v. Red Label Express , 95-STA-14 and 15 (Sec'y Nov. 1, 1995).

[STAA Digest IX B 2 b]
BACK PAY; ENTITLEMENT TO FULL PAY DURING TRAINING AND EXAM RESULT PERIOD PRIOR TO NEW ASSIGNMENTS UPON REINSTATEMENT

In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB Aug. 8, 1997), Complainant was entitled to full pay during the period of training and awaiting the results of a DOT-required physical examination prior to being assigned to drive.

[STAA Digest IX B 2 b i]
BACKWAGES; COMPLAINANT'S HEARSAY TESTIMONY AS BASIS FOR RATE OF PAY

In Timmons v. CRST Dedicated Services, Inc. , ARB No. 14-051, ALJ No. 2014-STA-9 (ARB Sept. 29, 2014), the Respondent argued that the ALJ erred in basing a back pay award on the Complainant's hearsay testimony about the rate of pay he would have made with a new employer had he not been rejected for the new position based on blacklisting by the Respondent. The Complainant had testified that a recruiter for the potential new employer had told him that he would have been paid $1,000 per week. The ARB affirmed the ALJ's backpay award writing:

Administrative hearings in STAA cases are conducted in accordance with the Rules of Practice and Procedure for Administrative Hearings. See 29 C.F.R. § 1978.106(a) (citing 29 C.F.R. Part 18). Under these rules, hearsay statements are inadmissible unless they are defined as non-hearsay or fall within an exception to the hearsay rule. 29 C.F.R. § 18.802. The ALJ found the testimony of Timmons, who was pro se , credible, and indeed CRST introduced no evidence as to lost wages that contravened Timmons's testimony. Moreover, pursuant to 29 C.F.R. § 18.803(a)(24), a statement not covered by any of the exceptions to the hearsay rule "but having equivalent circumstantial guarantees of trustworthiness to the aforementioned hearsay exceptions," is admissible "if the judge determines that": (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Under the circumstances, the ALJ did not abuse discretion in admitting Timmons's testimony as to his lost wages. "[A] certain degree of latitude should be afforded such unrepresented parties," Butler v. Andarko Petroleum Corp. , ARB No. 12-041, ALJ No. 2009-SOX-001, slip op. at 3 (ARB June 15, 2012), and here there is nothing in the record that contravenes the ALJ's reliance on Timmons's testimony as to the weekly wage he would have received had Howell's hired him absent CRST's blacklisting of him.

USDOL/OALJ Reporter at 7 (footnote omitted).

IX B 2 b i Calculation based on estimated number of trips error; estimated weekly pay should have been used

In Polger v. Florida Stage Lines, 94-STA-46 (Sec'y Apr. 18, 1995), the ALJ calculated the back wage compensation by determining a per trip rate, and then making a number of assumptions about how many trips the Complainant missed because of his unlawful discharge.

The Secretary held that it was not necessary for the ALJ to determine the number of trips per individual month the Complainant would have made had he not been discharges, and noted that such a calculation makes it difficult to award the Complainant the full amount of back pay owed.

Rather, the ALJ should have estimated the number of trips the Complainant made per week, multiplied that number by the per trip rate, and figured an estimated weekly pay.

[STAA Digest IX B 2 b i]
CALCULATION OF BACK PAY

In Ass't Sec'y & Cotes v. Double R. Trucking, Inc. , ARB No. 99-061, ALJ No. 1998-STA-34 (ARB Jan. 12, 2000), the ARB approved the following method for calculation of back pay:

(1) determine the number of straight and overtime hours worked by the complainant during the relevant time period (in the instance case, from the date of Complainant's last raise to his termination from employment)

(2) divide the total hours by the number of weeks in the period to determine an average number of hours worked per week

(3) multiply the weekly average of straight and overtime hours by the complainant's straight time pay rate and his overtime pay rate, producing an average weekly wage

(4) determine the number of weeks in which the complainant lost wages (in the instant case, the weeks from termination until the date Complainant was no longer available for work, when he returned to school and removed himself from the labor market)

(5) multiply the average weekly wage by the number of weeks of lost work. Add straight time pay for holidays that would have been paid.

(6) deduct interim earnings

[STAA Digest IX B 2 b i]
BACK PAY CALCULATIONS; IRREGULAR WORK SCHEDULE; USE OF CALENDAR WEEKS REASONABLE

In Cook v. Guardian Lubricants, Inc. , 95-STA-43 (ARB May 30, 1997), the ALJ's use of calendar weeks, rounded to the closest full week, as the basic computation unit was reasonable in view of Complainant's irregular work schedules. The Board noted that back pay calculations must be reasonable and supported by the evidence of record, but need not be rendered with "unrealistic exactitude." Slip op. at 11-12 n.12.

IX B 2 b i Calculation of back wages based on quarters for seasonal work and estimate for increase in work

In Polgar v. Florida Stage Lines, 94-STA-46 (Sec'y June 5, 1995), the Secretary modified his Final Decision and Order based on a clarification that the Complainant had worked only 20 weeks rather than 52 weeks in 1994. In the original Final Decision and Order, the Secretary calculated weekly earnings based on 52 weeks.

In the modified decision, the Secretary divided the total number of trips by the number of weeks actually worked, multiplied by the earnings per trip. Added to the calculation were weekly tips.

The Secretary made adjustments for (1) the seasonal nature of the Respondent's business by computing back pay on a quarterly basis, and (2) evidence of an increase in work at the time of the discharge not attributable to the season by estimating an 50 percent increase in the number of trips over the prior year (1993) where 1994 data was not available.

IX. B. 2. b. 1 Computation of back pay

Back pay continues to accrue until paid. Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994).

IX B 2 b 1 Uncertainties resolved against discriminating employer

In Clay v. Castle Coal & Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994), the ALJ found Complainant entitled to lost regular or "straight-time" pay. The ALJ computed this pay by multiplying the regular hourly rate by an eight-hour work day and a five-day workweek for the two-year back pay period.

On review, the Respondent argued that this overstated the number of hours by assuming that Complainant "would have worked 40 hours every week of the year," and pointed to Complainant's work history and to the histories of several drivers'which show that they did not work the maximum possible hours.

In adopting the ALJ's computation, the Secretary concluded that the disparity was not great, and that, because as a full-time employee scheduled to work at least an eight-hour workday, Complainant conceivably could have worked each workweek in its entirety or near entirety, there should be not speculation on the amount of any reduction.

The Secretary noted that Back pay awards are, at best, approximate and any "uncertainties in determining what an employee would have earned but for the discrimination should be resolved against the discriminating employer." Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260-261 (5th Cir. 1974).

IX.B.2.b.i. Quarterly base period; overtime calculation

In Clay v. Castle Coal & Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994), the Secretary adopted the ALJ calculation of lost overtime pay by estimating that Complainant would have worked 8.5 hours of regular overtime each workweek based on an extrapolation from the Complainant's final two quarters of employment with Respondent.

The Respondent argued that the ALJ's method overstated the yearly overtime hours because Respondent's seasonal business, the delivery of heating oil, peaked during the winter months examined by the ALJ. Complainant countered that the winter was uncharacteristically mild, and less overtime than usual was available.

The Respondent argued further that overtime calculations should be premised on the overtime actually worked by Complainant during the three-year period preceding his discharge. The Secretary, however, concluded that such period was unrepresentative because shortly before the discharge Respondent agreed to increase Complainant's weekday overtime.

In addition, the Secretary noted that a a comparison of the ALJ's calculations with the overtime hours actually worked during the relevant period by three other comparable drivers'was persuasive of the reasonableness of the ALJ's calculations. Finally, the Secretary noted that double overtime hours, while apparently available, were not factored into the back pay equation, and that this omission offered a further reason to afford Complainant inclusive recovery of regular wages.

IX B 2 b i Back pay computation; base period

Where a complainant becomes entitled to back pay as the result of an employer's STAA violation, the gross back pay award should be computed using a quarterly base period. This approach assumes that the interim earnings in one particular quarter have no effect on an employer's back pay liability for any other quarter, and is consistent with the practice of the National Labor Relations Board and the Department of Labor in other discrimination areas. Polewsky v. B & L Lines Inc., 90-STA-21 (Sec'y May 29, 1991), citing NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 345-50 (1989); City of Passaic, 78-CET-122 (Sec'y Apr. 25, 1990), slip op. at 13, aff'd, No. 90-3393 (3d Cir. Jan. 17, 1991); OFCCP v. Washington Metropolitan Area Transit Auth., 84-OFC-8 (Sec'y Dec. on Back Pay and Remand Order Aug. 23, 1989), slip op. at 12 and (Sec'y Order Denying Motion to Amend Aug. 23, Order, Nov. 17, 1989), slip op. at 9, appeal docketed, No. 91-5050 (D.C. Cir. Mar. 5, 1991).

IX B 2 b ii Representative employee method not used when uncertain whether that employee is truely representative

Although it is proper to calculate back pay by using the wages of a representative employee, see, e.g., Assistant Secretary and Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992), slip op. at 7, the ALJ properly used unrefuted evidence of the Complainant's actual earnings before discharge and after reinstatement to establish an average weekly wage for the back pay period where the Respondent's evidence of the 1992 earnings of two employee's with similar seniority to the Complainant failed to indicate whether those employees consistently worked weekends, as the Complainant did. Uncertainties in calculating back pay are resolved against the discriminating party. Thus, because it was uncertain whether the other employees' pay reflected the same willingness to work that the Complainant exhibited, the uncertainty was resolved against the Respondent. Hamilton v. Sharp Air Freight Service, Inc., 91-STA-49 (Sec'y Nov. 25, 1992).

[STAA Digest IX B 2 b ii]
BACK PAY CALCULATION FOR A "LEASED" DRIVER; IF THE ALJ USES THE REPRESENTATIVE EMPLOYEE METHOD FOR APPROXIMATING BACK WAGES, THE ALJ MUST EXPLAIN WHY THAT METHOD WAS CHOSEN UNDER THE FACTS OF THE CASE

In Ferguson v. New Prime, Inc. , ARB No. 10-075, ALJ No. 2009-STA-47 (ARB Aug. 31, 2011), the Complainant's line haul employment for the Respondent included an arrangement where the Complainant leased a truck from the Respondent. A weekly rental payment and the truck's operating expenses were deducted from pay. The Complainant had a negative balance for her entire 16 weeks of employment. The ARB affirmed the ALJ's findings that the Complainant had been terminated in violation of the STAA whistleblower provision. The ALJ based the back pay award on the amount company drivers'were paid per mile, deducting out the amount the Complainant had in arrears for deductions and advances. The ARB remanded for further proceedings because the ALJ had not explained the basis for his back pay determination. The ARB wrote:

While the Board has held that a formula for computing back pay keyed to the earnings of a representative employee may give a reasonable approximation of what a complainant would have earned but for the discrimination, Reed v. National Minerals Corp. , No 1991-STA-034 (Sec'y July 24, 1992), the ALJ did not explain the reason for choosing a company driver's wages to calculate the amount of the back pay award, rather than a leased driver. The Administrative Procedure Act (APA) requires that decisions rendered on the record provide the "findings and conclusions, and the basis therefor, on all the material issues of fact, law or discretion presented on the record . . . ." 5 U.S.C.A. § 557(c)(3)(A) (West 1996); see Lockert v. Sec'y of Labor , 867 F.2d 513, 517 (9th Cir. 1989) (arising under Energy Reorganization Act, 42 U.S.C. § 5851 (1988)). Consistent with the mandate of Section 557(c)(3)(A), the ALJ's findings of fact must provide an explanation for the resolution of conflicts in the evidence and must reflect proper consideration of evidence that could support contrary findings. See NLRB v. Cutting, Inc. , 701 F.2d 659, 667 (7th Cir. 1983); see also 29 C.F.R. § 18.57(b)(2010) (summarizing contents of ALJ decisions). As the ALJ did not provide a rationale for his determination of the amount due for back pay, we vacate the ALJ's finding that Ferguson would have earned an average of $509.70 per week had New Prime not discriminated against her, and remand the issue of the amount of back pay to which Ferguson is entitled for reconsideration based upon further findings and explanation.

USDOL/OALJ Reporter at 7.

[STAA Digest IX B 2 b ii]
BACK PAY; PROMOTION; USE OF REPRESENTATIVE EMPLOYEE TO DETERMINE THAT COMPLAINANT WOULD HAVE BID ON AND RECEIVED PROMOTION

In Clifton v. United Parcel Service , 94-STA-16 (ARB May 14, 1997), Complainant's back pay award was adjusted for a promotion based on the experience of a representative employee: the fellow employee who was ranked in seniority just below Complainant at the time Complainant was fired. That representative employee was given a full-time position after Complainant was terminated.

The record indicated that Complainant had bid on three positions in prior years, and had held two part-time positions at the time he was fired. The Board concluded that this evidence proved Complainant's desire to obtain full-time employment and that he would have bid on the position awarded to the representative employee.

The record also indicated that Respondent had a collective bargaining agreement with the Teamsters Union, which made positions available to employee's according to seniority. Respondent did not offer any evidence that there were circumstances where the most senior employee bidding on the position did not receive the job. Thus, the Board concluded that Complainant would have been awarded the job had he not been wrongfully discharged.

IX B 2 b ii "Representative employee" formula

A formula for computing back pay keyed to the earnings of a "representative employee" gives a reasonable approximation of what a complainant would have earned but for the discrimination. Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y June 26, 1990), slip op. at 7, appeal pending, No. 92-70231 (9th Cir. Apr. 13, 1992).

Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992).

IX B 2 b ii Representative employee method

That the amount of overtime a complainant would have worked, but for the discrimination, cannot be determined with certitude does not deprive the complainant of all compensation for overtime hours lost. It is appropriate to use a representative employee method for determining overtime the complainant would have worked but for the discrimination. Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y June 26, 1990), vacated on other grounds sub nom., Western Truck Manpower, Inc. v. United States Dep't. of Labor, 943 F.2d 56 (1991) (table case; unpublished decision available at 1991 U.S. App. LEXIS 21675), readopted, (Sec'y Mar. 13, 1992).

IX B 2 b ii Representative employee/seniority formula

Where an award of back pay "can be only a close approximation," it has been held that "the use of a seniority formula to compute the earnings of a 'representative employee' gives a reasonable approximation of what [a complainant] would have made but for the discrimination." NLRB v. Superior Roofing Co., 460 F.2d 1240, 1241 (9th Cir. 1972), cited with approval in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 901 n.11 (1984). Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y June 26, 1990), vacated on other grounds sub nom., Western Truck Manpower, Inc. v. United States Dep't. of Labor, 943 F.2d 56 (1991) (table case; unpublished decision available at 1991 U.S. App. LEXIS 21675), readopted, (Sec'y Mar. 13, 1992).

IX B 2 b ii Averaging of wages

Given that the Respondent's drivers'are not paid a fixed rate and work no set hours, but rather, are paid by the trip, and trips are determined by drivers'seniority, the ALJ averaged the wages of three drivers'above and five drivers'below the Complainant on the seniority roster. This calculation would minimize the difference in wages due to individual drivers' preference and the average so obtained would constitute a reasonable approximation of what the Complainant would have earned. The ALJ noted that this method is reasonable and uses a formula which has had prior court approval. See NLRB v. S.E. Nichols of Olno, Inc. , 704 F.2d 921 (6th Cir. 1983). The Respondent urged that only the Complainant's prior earnings be considered. The ALJ, while finding logic in the argument, rejected this method because the Respondent did not produce any such figures for calculation. Stone v. Nu-Car Carriers, Inc. , 86-STA-16 (ALJ Dec. 28, 1988).

[STAA Digest IX B 2 b iii]
BACK PAY; ENROLLMENT IN COLLEGE DOES NOT END BACK PAY LIABILITY WHERE COMPLAINANT ONLY ENROLLED AFTER A FRUITLESS SEARCH FOR COMPARABLE EMPLOYMENT, AND WHERE RESPONDENT DID NOT REINSTATE COMPLAINANT AFTER ALJ ORDERED REINSTATEMENT

In Cole v. R. Construction Co. , ARB Nos. 12-037, 12-039, ALJ No. 2011-STA-22 (ARB July 31, 2013), the ALJ used the date the Complainant started college as the end date for a back pay award. The ARB held that this was error where the Complainant requested back pay beyond the date he became a full-time student, following a fruitless search for comparable employment, and after entry a reinstatement order by the ALJ. The Complainant had requested reinstatement soon after the ALJ's order, but the Respondent did not respond to the request. The ARB distinguished Ass't Sec'y & Cotes v. Double R. Trucking, Inc., ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999), on the ground that the Complainant in that case had not requested backpay beyond the date he voluntarily became a full-time student.

[STAA Digest IX B 2 b iii]
BACK PAY AWARD TERMINATION DATE IS DATE OF BONA FIDE, UNCONDITIONAL OFFER OF REINSTATEMENT, NOT WHEN THE BACK PAY AWARD IS REMITTED

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ALJ erred in awarding back pay for the period from termination (discounting subsequent interim employment) through the date the Respondent remits payment of the award plus prejudgment interest. Rather, the back pay liability ends when the employer makes a bona fide, unconditional offer of reinstatement (or, in very limited circumstances, when the employee rejects a bona fide offer) plus pre- and post-judgment interest.

IX B 2 b iii Back pay computation; continuation until reinstatement offer is made

Where an employer is found to have violated STAA, 49 U.S.C. app. § 2305, and the complainant is found to be entitled to an offer of reinstatement to his or her former position and to back pay, the employer's liability for back pay continues until such time as the employer reinstates the complainant or makes him a bona fide offer of reinstatement. Polewsky v. B & L Lines Inc., 90-STA-21 (Sec'y May 29, 1991).

[STAA Digest IX B 2 b iii]
BACK PAY; LIABILITY FOR BACK PAY ENDS UPON A BONA FIDE OFFER OF REINSTATEMENT, NOT UPON THE Complainant's OBTAINING A COMPARABLE JOB

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the ALJ erred in awarding back pay from the date of discharge to the date when the Complainant found comparable work. The ARB stated that "[b]ack pay liability ends when the employer makes a bona fide, unconditional offer of reinstatement or, in very limited circumstances, when the employee rejects a bona fide offer, not when the employee obtains comparable employment." USDOL/OALJ Reporter at 5 (footnote omitted). The ARB vacated the ALJ's back pay award, and instead ordered back pay from the date of discharge to the date of a bona fide offer of reinstatement, with a reduction in liability for other earnings, but enhanced by pre-judgment and post-judgment interest.

[STAA Whistleblower Digest IX B 2 b iii]
BACK PAY; LIABILITY FOR DIFFERENCE BETWEEN PAY WITH RESPONDENT AND SUBSEQUENT EMPLOYER CONTINUES UNTIL REINSTATEMENT OR COMPLAINANT DECLINES REINSTATEMENT

In Densieski v. La Corte Farm Equipment , ARB No. 03-145, ALJ No. 2003-STA-30 (ARB Oct. 20, 2004), the ALJ awarded back pay from the date of the Complainant's discharge to the date of his reemployment with another company, less the amount he received in unemployment insurance. The ARB adopted that ruling. In addition, the Complainant was entitled as part of the back pay award to the difference between his rate of pay with the Respondent and what he had earned with his subsequent employer. The ARB stated that this obligation would cease as of the date of reinstatement or the date the Complainant declined a good faith offer of reinstatement.

[STAA Digest IX B 2 b iii]
BACK PAY; ALJ IS REQUIRED TO MAKE A FINDING ON THE DATE THAT BACK PAY LIABILITY ENDS

In Dale v. Step 1 Stairworks, Inc. , ARB No. 04-003, 2002-STA-30 (ARB Mar. 31, 2005), the ALJ erred by failing to determine when the Respondent's back pay liability ended. Back pay liability ends when the employer makes a bona fide unconditional offer of reinstatement or when the complainant declines such an offer.

[STAA Digest IX B 2 b iii]
BACK PAY; DATE ELIGIBILITY FOR BACK PAY ENDS; WAIVER OF REINSTATEMENT NOT VALID UNLESS EMPLOYER MADE UNCONDITIONAL OFFER OF REINSTATEMENT

In Ass't Sec'y & Burke v. C.A. Express, Inc. , 96-STA-5 (ALJ May 20, 1997), the ALJ had accepted the OSHA investigator's calculation of back pay as it was the only evidence of record on the issue. Id . @ 13; slip op. at 15. In the ARB's decision adopting the ALJ's decision on the merits, the ARB indicated that this calculation was based on the period from termination of employment to an alleged waiver of reinstatement. Ass't Sec'y & Burke v. C.A. Express, Inc. , 96-STA-5, slip op. at 3 (ARB Sept. 17, 1997). The ARB found that a waiver of reinstatement is valid only when an employer has made an unconditional offer of reinstatement, and since there was no evidence of such an offer in the instant case, held that the appropriate cut-off date for back pay is the date of hire at a commensurate rate of pay.

[STAA Digest IX B 2 b iii]
BACK PAY; OFFER OF REINSTATEMENT DOES NOT TERMINATE LIABILITY WHERE OBJECTIVE REASONABLE PERSON WOULD HAVE DECLINED THE OFFER

In Michaud v. BSP Transport, Inc. , 95-STA-29 (ALJ June 12, 1997), the ALJ recommended a back pay award from date of termination of employment through and until Respondent pays the award to Complainant, even though Respondent had made an unconditional offer of reinstatement. The ALJ concluded that the rule to be applied was whether an objective reasonable person would have refused the offer of reinstatement. The ALJ found that back pay liability was not tolled in this case because an objective reasonable person would not have accepted Respondent's offer based on the advice of a treating physician that such a position would be too stressful for Complainant and would not make good psychological sense.

IX B 2 b iii Back pay; termination upon unconditional offer of reinstatement; tolling if offer is invalid

In Ass't Sec'y & Lansdale v. Intermodal Cartage Co., Ltd., 94-STA-22 (Sec'y July 26, 1995), the Complainant, an owner-operator, was offered reinstatement on July 15, 1994. Because he had sold his trucks because of financial problems related to his discharge, however, he was unable to resume employment until August 24, 1995 when he succeeded in replacing his truck. The Secretary held that, while the back pay period usually is tolled upon an unconditional offer of reinstatement, the period is not tolled where the offer is invalid, such as where immediate resumption of employment is not feasible. The Secretary concluded that under the circumstances, the back pay period in this matter should be extended to August 24, 1994.

IX.B.2.b.iii. Back pay accrual; relation to reinstatement

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994), the Secretary noted that he had followed earlier decisions in ordering in this case that the back pay continues to accrue until payment of the award. In Dutile, the Complainant had indicated at hearing that he did not want reinstatement.

The Secretary noted that in the past, the Secretary has found that where the complainant states that he does not desire reinstatement, back pay continues to accrue until compliance with the order.

Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), slip op. at 9, appeal docketed, No. 94-3334 (8th Cir. Sept. 21, 1994); Gagnier v. Steinmann Transportation, Inc., 91-STA-46 (Sec'y July 29, 1992), slip op. at 6; Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), slip op. at 20, 22.

Nonetheless, in scrutinizing the policy of honoring a discharged employee's statement that he or she does not seek reinstatement, the Secretary noted that he had become aware that a complainant who is not ordered to be reinstated may gain a windfall as back pay continues to accrue during the pendency of remanded issues such as calculation of the exact amount of back pay and related benefits. If instead reinstatement is ordered in such cases, the respondent will have the obligation to make a bona fide reinstatement offer. The respondent's back pay liability would terminate upon the declination of the offer.

The Secretary directed that in the future, when a complainant states at the hearing that he does not desire reinstatement, the parties or the ALJ should inquire as to why. If there is such hostility between the parties that reinstatement would not be wise because of irreparable damage to the employment relationship, the ALJ may decide not to order it. If, however, the complainant gives no strong reason for not returning to his former position, reinstatement should be ordered.

The Secretary noted that while it may seem harsh in this case that back pay continues to accrue despite the Respondent's attempt to pay the award in November 1993, the Respondent had not availed itself of several means to terminate its back pay liability, such as immediately complying with the November 29, 1993, Decision and Order, which set forth the formula for computing back pay and interest and was issued a few weeks after the Complainant rejected the tendered award.

In addition, if the Respondent voluntarily had made a bona fide offer of reinstatement, the Complainant's rejection of the offer would have terminated back pay.

See Asst. Secretary and Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993), slip op. at 14; Phillips v. MJB Contractors, 92-STA-22 (Sec'y Oct. 6, 1992), slip op. at 4-5 (Respondent owes back pay until reinstatement or declination of offer).

IX B 2 b iii Continuance of backpay

See Gagnier v. Steinmann Transportation, Inc., 91-STA-46 (Sec'y July 29, 1992), casenoted at IX A 6 in regard to the effect of the complainant's decision not to seek reinstatement.

[STAA Digest IX B 2 b iv]
DEDUCTION FROM BACK PAY AWARD BASED ON HOURS WORKED BY COMPLAINANT WITH SUBSEQUENT EMPLOYER THAT WERE LONGER THAN THE COMPLAINANT WOULD HAVE WORKED FOR THE RESPONDENT HAD IT NOT FIRED THE COMPLAINANT; SPLIT OPINION ON WHETHER IT MAKES A DIFFERENCE WHETHER THE SUBSEQUENT WORK WAS PAID BY THE HOUR OR BY VIRTUE OF A SALARY

In Abdur-Rahman v. DeKalb County , ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3 (ARB Oct. 9, 2014), the Complainant's' challenged the ALJ's back pay award, arguing that pursuant to the ARB's decision in Moder v. Village of Jackson, Wis. , ARB Nos. 01-095, 02-039; ALJ No. 2000-WPC-5, slip op. at 9 (ARB June 30, 2003), the ALJ should have deducted from his calculation of interim earnings a percentage of their actual earnings for additional hours worked for subsequent employer's compared to the hours they would have worked for the Respondent had it not fired them. The ALJ had concluded that under Moder , and in light of the ARB decision in Hobby v. Georgia Power Co. , ARB Nos. 98-166, 98-169; ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), aff'd sub nom. Georgia Power Co. v. United States Dep't of Labor , 52 Fed. Appx. 490 (table) (11th Cir. 2002), only where an employee is paid by the hour and works overtime can that overtime pay be ignored and not counted in the calculation of what a complainant earned with subsequent employer's.

In the lead opinion of a split decision, Chief Judge Igasaki determined that the Complainant's had not presented any records to support a different amount of earnings from subsequent employer's for purposes of comparison, and because of this failure of proof, it was not necessary to rule on the application of Moder to the instant case. Judge Brown concurred in the affirmance of the ALJ's order for the reasons set forth in the ALJ's order. Judge Corchado wrote a concurring and dissenting opinion to make the point that "note that the ARB's holdings in Moder and Hobby do not change the overarching principle that victims of whistleblower retaliation must be made whole and not penalized for working more hours to earn the same pay they earned before suffering discrimination." USDOL/OALJ Reporter at 10.

[STAA Digest IX B 2 b iv]
BACK PAY; ALJ ERRED IN DEDUCTING FROM BACK PAY AWARD Complainant's INTERIM EARNINGS AS OWNER OPERATOR WHERE COMPLAINANT HAD NO TAXABLE INCOME FROM THOSE EARNINGS AND IN FACT REPORTED A LOSS DURING THE RELEVANT PERIOD

In Smith v. Lake City Enterprises, Inc. , ARB No. 11-087, ALJ No. 2006-STA-32 (ARB Nov. 20, 2012), the ALJ awarded the Complainant back pay up to the date of the Respondent's dissolution, but deducted the amount the Complainant had earned during that period while driving as an owner-operator. On appeal, the Complainant argued that that the ALJ erred in deducting $46,000.00 from his back pay award because the record shows that he suffered a net loss of income while working as an owner-operator before selling his truck in April 2008. The ARB observed that back-pay awards are ordinarily reduced by the amount of an employee's interim earnings prior to reinstatement, but found that in the instant case where the Complainant proffered evidence that he had no taxable income from his earnings as an owner-operator during the relevant period (but in fact reported a loss of $21,400 on his income taxes), the ALJ erred in deducting the Complainant's earnings as an owner-operator.

IX B 2 b iv Back pay; offset for interim earnings

Upon proving a violation of the STAA, the complainant is entitled to back pay. The back pay award is offset by a complainant's interim earnings in positions he or she could not have held had his or her employment with Respondent continued. Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995).

IX B 2 b iv Deduction of interim earnings; rate of interest

In Ass't Sec'y & Kerrick v. JLC Industries, Inc., 94-STA-33 (Sec'y Jan. 24, 1995), the Secretary adopted the ALJ's finding that the Respondent violated the STAA whistleblower provision when it discharged the Complainant for refusing to drive a vehicle.

In his Recommended Decision and Order, the ALJ had recommended ordering the Respondent, inter alia, to "[p]ay directly to Complainant back wages plus interest, adjusted by interim earnings." Ass't Sec'y & Kerrick v. JLC Industries, Inc., 94-STA-33 (ALJ Oct. 13, 1994). The Secretary further clarified this order, discussing evidence of average weekly wage adduced by the Assistant Secretary, noting that the Complainant 1994 W-2 form did not reveal the amount of interim earnings and ordering that Complainant provide Respondent with this form so that these interim earnings (there was testimony of about two weeks of work in 1994) could be deducted from the back pay award. The Secretary also clarified the rate of interest as that specified in 26 U.S.C. § 6621.

IX.B.2.b.v. Back pay computation; part-time earnings

Where a complainant became entitled to back pay as the result of an employer's STAA, 49 U.S.C. app. § 2305 violation, the complainant's gross back pay award was reduced only by his full time, post discharge earnings because, although the complainant had post-discharge part-time earnings, the Employer-respondent had not proven or shown that the complainant could not have achieved those part-time earnings had he continued to work for the employer. The back pay should be computed using a quarterly base period. This approach assures that the interim earnings in one particular quarter have no effect on an employer's back pay liability for any other quarter.

Polewsky v. B & L Lines Inc., 90-STA-21 (Sec'y May 29, 1991).

IX B 2 b vi Computation of back pay award where impossible to determine which job complainant would have worked

Where there is no way of determining which jobs the complainant would have worked had there been no discrimination, the following principles should be applied in computing a back pay award: (1) unrealistic exactitude is not required, (2) uncertainties in determining what an employee would have earned but for the discrimination should be resolved against the discriminating employer. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260-261 (5th Cir. 1974). Thus, in Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), where it was not possible to know whether the complainant would have been employed during off months at a seasonal logging operation as a log truck drivers'at another site or as an over- the-road driver, the Secretary used the average monthly wages for the remainder of the year to calculate back wages for the off- season months.

[Editor's Note: The Secretary's decision does not state how the Pettway principles were applied].

[STAA Whistleblower Digest IX B 2 b vi]
COMPENSATION FOR ADDITIONAL SEASONAL WORK IS AN AVAILABLE REMEDY, BUT MUST BE SUPPORTED BY EVIDENCE

In Young v. Park City Transportation , ARB No. 11-048, ALJ No. 2010-STA-65 (ARB Aug. 29, 2012), the ALJ found in favor of the Complainant, a seasonal drivers'for a regional carrier. The Complainant, however, took an appeal challenging the ALJ's award of remedies. The Complainant argued that she was entitled to back pay for wages she would have received during the following ski season. The ARB agreed that a seasonal worker may receive a back pay award that extends beyond the current season, but noted that where such awards have been made, "credible evidence must exist indicating that the complainant would either have continued his employment beyond the seasonal work or that he would otherwise have been rehired for the next season." USDOL/OALJ Reporter at 4. In the instant case, the Complainant had presented no such evidence and had testified that she was not interested in returning to work for the Respondent.

IX B 2 b vi Entitlement to back pay where work was seasonal

Where it was established that the work complainant was performing, log truck driving, was seasonal and that respondent did not guarantee work after the season was over, the Secretary nonetheless found that the complainant would have worked year round and was entitled to back pay for such work because (1) most of respondent's log truck drivers'continued to work during the off season either at other logging sites or as over-the-road drivers, (2) the complainant had an excellent recommendation as an over-the-road driver, (3) respondent usually re-hired those drivers'laid off in the winter. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992).

IX B 2 b vii Unemployment compensation; not deducted from back pay award

In Moravec v. HC & M Transportation, Inc., 90- STA-44 (Sec'y Jan. 6, 1992), the Secretary ordered that any sums received by the complainant as unemployment compensation were not to be deducted from his back pay award.

IX B 2 b 7 Back pay; deduction of unemployment compensation improper

Any unemployment compensation complainant received for the back pay period, shall not be deducted from back pay awarded pursuant to STAA, 49 U.S.C. app. § 2305. Nidy v. Benton Enter., 90-STA-11 (Sec'y Nov. 19, 1991), citing Hadley v. Southeast Coop. Servs. Co., 86-STA-24 (Sec'y June 28, 1991) and the cases cited therein.

IX B 2 b vii Back pay deductions; unemployment compensation

Under the STAA, 49 U.S.C. app. § 2305(c), employment compensation is not deductible from the amount due for back pay. Hadley v. Southeast Coop. Serv. Co., 86-STA-24 (Sec'y June 28, 1991).

IX B 2 b vii Unemployment compensation not deductible

Under the STAA, unemployment compensation is not deductible from the amount due for back pay. Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y June 26, 1990), vacated on other grounds sub nom., Western Truck Manpower, Inc. v. United States Dep't. of Labor, 943 F.2d 56 (1991) (table case; unpublished decision available at 1991 U.S. App. LEXIS 21675), readopted, (Sec'y Mar. 13, 1992).

IX B 2 b vii STAA; Back pay awards and unemployment compensation benefits

Where a complainant is awarded back pay under STAA, unemployment compensation benefits are not deductible from the amount due for back pay. Smith v. Specialized Transp. Servs., 91- STA-0022 (Sec'y Nov. 20,1991) citing Palmer v. Western Truck Manpower, Inc., 85-STA-16, (Sec'y June 26, 1990), appeal docketed Western Truck Manpower, Inc. v. U.S. Department of Labor, No. 90-70430 (9th Cir. Sept. 6, 1991).

IX B 2 b vii Unemployment compensation not deducted

In STAA cases, unemployment compensation is not deducted from a back pay award. Phillips v. MJB Contractors, 92- STA-22 (Sec'y Oct. 6, 1992).

[STAA Digest IX B 2 b viii]
CALCULATION OF INTEREST ON BACK PAY; WHERE THE RESPONDENT FILED A MOTION FOR RECONSIDERATION CONTENDING THAT THE ALJ'S CALCULATION OF INTEREST HAD BEEN IN ERROR, AND Complainant's AGREED WITH THAT ASSESSMENT, AND THE ALJ GRANTED THE MOTION BASED ON THE PARTIES AGREEMENT (DESPITE RESERVATIONS ABOUT WHETHER THERE ACTUALLY HAD BEEN AN ERROR), THE ARB UPHELD THAT ALJ'S GRANT OF THE MOTION DESPITE Complainant's LATER MOTION TO AGAIN RECONSIDER THE BACK PAY INTEREST CALCULATION

In Abdur-Rahman v. DeKalb County , ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3 (ARB Oct. 9, 2014), the Respondent sought reconsideration of the ALJ's damages decision arguing that the ALJ had miscalculated the interest due by using annual rates rather than quarterly rates. The Complainant's responded and agreed with the Respondent. The ALJ granted reconsideration and adjusted the interest award given the agreement of the parties, but observed that the original calculation may have been correct under ARB precedent. The Complainant's then asked for reconsideration arguing that counsel for the parties made a mutual mistake concerning the interest calculation. Respondent's counsel responded that it had not made a mistake and continued to believe that the ALJ's original calculation was in error. The ALJ declined to reconsider a second time. On appeal, the Complainant argued that the ALJ's original calculation was correct and urged the ARB to reinstate it notwithstanding its error in agreeing with the Respondent's motion for reconsideration. The Respondent agreed that the Complainant's were due interest compounded quarterly, but disagreed with the manner of calculation proffered by the Complainant's. The ARB affirmed the ALJ's decision to grant the Respondent's motion for reconsideration, finding that since the parties had agreed, there was no dispute for the ALJ to settle. The ARB noted that the parties had been represented by counsel. The ARB declined toe rule on the substantive merits of the parties' agreement.

IX B 2 b viii Entitlement to interest

Once entitlement to back pay is found, it is error for the ALJ to deny interest on the back pay -- interest should be added to recompense the employee for loss suffered because his employer unlawfully deprived him of the use of his money. Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1987).

[STAA Digest IX B 2 b viii]
PRE- AND POST-JUDGMENT INTEREST; ALJ MUST CALCULATE; INTEREST COMPOUNDS QUARTERLY

In Dale v. Step 1 Stairworks, Inc. , ARB No. 04-003, 2002-STA-30 (ARB Mar. 31, 2005), the ARB found that the ALJ had committed several errors in calculating the back wages owed the Complainant, and remanded for further proceedings. Part of the Board's instructions relating to remand involved the calculation of interest. The Board wrote:

Furthermore, the ALJ should determine the pre-judgment and post-judgment interest on the back pay award. See Murray v. Air Ride, Inc. , ARB No. 00-045, ALJ No. 99-STA-34, slip op. at 9 (ARB Dec. 29, 2000). In calculating the interest on back pay awards under the STAA, the rate used is that charged for underpayment of federal taxes. See 26 U.S.C.A. § 6621(a)(2) (West 2002); Drew v. Alpine, Inc., ARB Nos. 02-044, 02-079, ALJ No. 2001-STA-47, slip op. at 4 (ARB June 30, 2003). Moreover, the interest accrues, compounded quarterly, until Step 1 pays the damages award. Assistant Sec'y & Cotes v. Double R. Trucking, Inc. , ARB No. 99-061, ALJ No. 1998-STA-34, slip op. at 3 (ARB Jan. 12, 2000); see Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, 00-012, ALJ No. 89-ERA-22, slip op. at 18-21 (ARB May 17, 2000) (outlining the procedures to be followed in computing the interest due on back pay awards).

To the same effect Ass't Sec'y & Bryant v Mendenhall Acquistion Corp. , ARB No. 04-014, ALJ No. 2003-STA-36 (ARB June 30, 2005).

[STAA Digest IX B 2 b viii]
POST-JUDGMENT INTEREST

A complainant who is successful on the merits is entitled to post-judgment interest, calculated in the same manner as pre-judgment interest, for any period between the issuance of the ARB's final order and the payment of the back pay award. Murray v. Air Ride, Inc. , ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000).

[STAA Digest IX B 2 b viii]
INTEREST ON BACK PAY

"Interest is due on back pay awards from the date of discharge to the date of reassignment. Prejudgment interest is to be paid for the period following [a complainant's] termination ... until the ALJ's order of reinstatement. Post-judgment interest is to be paid thereafter, until the date payment of back pay is made. ... The rate of interest to be applied is that required by 29 C.F.R. §20.58(a)(1999) which is the IRS rate for the underpayment of taxes set out in 26 U.S.C.A. §6621 (1999). ... The interest is to be compounded quarterly." Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), slip op. at 17-18 (citations omitted).

[STAA Digest IX B 2 b viii]
INTEREST ON BACK PAY; QUARTERLY COMPOUNDING OF INTEREST

The rate of interest to be applied on a back pay award under the whistleblower provision of the STAA is that required by 29 C.F.R. § 20.58(a)(1999) that is, the IRS rate of underpayment of taxes set out in 26 U.S.C.A. §6621 (1999). The interest is compounded quarterly. Ass't Sec'y & Cotes v. Double R. Trucking, Inc. , ARB No. 99-061, ALJ No. 1998-STA-34 (ARB Jan. 12, 2000).

[STAA Whistleblower Digest IX B 2 b viii]
BACK PAY AND FRONT PAY; INTEREST; PREJUDGMENT COMPOUNDED QUARTERLY AT RATE DETERMINED UNDER 26 U.S.C. §6621(b)(3) PLUS THREE PERCENTAGE POINTS

In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB wrote: "In light of the remedial nature of the ERA's employee protection provision and the 'make whole' goal of back pay, we hold that the prejudgment interest on back pay ordinarily shall be compound interest. Our reasoning applies equally to back pay awards under analogous employee protection provisions of the other federal statutes under which we issue administratively final decisions [the CAA, CERCLA, FWPCA, SDWA, SWDA, STAA and TSCA]. Absent any unusual circumstance, we will award compound interest on back pay in cases arising under all of these employee protection provisions." Id . @ 18 (footnote omitted). The ARB held that the compounding of interest should be quarterly. The ARB continued:

...As provided by the ALJ and the parties' stipulation, the interest rate is that charged on the underpayment of Federal income taxes, which consists of the Federal short-term rate determined under 26 U.S.C. §6621(b)(3) plus three percentage points. See 26 U.S.C. §6621(a)(2); FRD&O at 2; 1999 Stip. at ¶4.

The Federal short-term interest rate to be used is the so-called "applicable federal rate" (AFR) for a quarterly period of compounding. See, e.g. , Rev. Rul. 2000-23, Table 1.

The ARB also applied this ruling to prejudgment interest on a front pay award.

[For additional details on how the interest calculation is made, see the decision @ 18-19]

[STAA Digest IX B 2 b viii]
BACK PAY; INTEREST

Payment of interest on a back pay amount is mandatory in a discrimination case in order to make the complainant whole. In STAA cases, the rate used is the one used for computing interest for underpayment of Federal taxes, 26 U.S.C. § 6621(a)(2). Ass'y Sec'y & Cotes v. Double R Trucking, Inc. , ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999).

IX B 2 b viii Prejudgment interest

Prejudgment interest shall be calculated in accordance with 26 U.S.C. § 6621 (1988), which specifies the rate for use in computing interest charged on underpayment of Federal taxes. See Park v. McLean Transportation Services, Inc., 91-STA- 47 (Sec'y June 15, 1992), slip op. at 5 [and other cases, citations omitted].

Gagnier v. Steinmann Transportation, Inc., 91-STA- 46 (Sec'y July 29, 1992).

IX.B.2.b.viii. Inculsion of ancillary benefits

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ July 1, 1994), the ALJ concluded that it is now well-settled that the Complainant, in addition to his award of back pay and interest thereon, is also entitled to restoration of the pension contributions and the health and welfare benefits of which he has been deprived as a result of the discriminatory and illegal actions of the Respondent. In this regard, see Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y, Aug. 21, 1986) (dealing with the restoration and payment of all pension contributions and lost medical benefits).

In a motion for reconsideration, however, Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ Aug. 6, 1994), Respondent presented evidence that Complainant was not entitled to those benefits as he rejected the Employer's medical insurance plan and as his rights had not vested in the Employer's retirement and pension plan. The ALJ concluded that the Complainant was entitled only to be restored to the status quo ante he enjoyed on his last days of employment and on that day he did not participate in the medical insurance program offered by the Employer and his rights in the retirement and pension plan had not vested.

IX.B.2.b.viii. Prejudgment interest

In Clay v. Castle Coal & Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994), the Secrerary awarded prejudgment interest on the back pay amount to be determined under Section 6621 of the Internal Revenue Code at the rate used in computing interest charged on underpayment of Federal taxes. This was because Complainant was deprived of the use of wages for which he now should be compensated by means of an award of interest.

IX.B.2.b.viii. Health and welfare benefits

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994), the ALJ recommended that Complainant be found entitled to payment of the pension contributions and the health and welfare benefits of which he was deprived as a result of the discriminatory discharge.

The Secretary noted that in Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), slip op. at 48, rev'd on other grounds, Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987), the former Secretary had held that a successful complainant under the STAA "has no personal entitlement to the amount that would have been paid as health and welfare benefits" had he not been discharged.

The Secretary announced that where a complainant has not presented any evidence of claims of medical losses or the purchase of private insurance as a substitute for the benefits he or she would have received under the health and welfare fund, the Secretary will not order a respondent to pay directly to the complainant the amounts that the company would have spent for health and welfare benefits. A respondent must, however, restore past health and welfare benefits to the extent that they affect current or future entitlement to benefits. See Hufstetler, slip op. at 49.

The Secretary also ordered the Respondent to restore, rather than pay directly to the Complainant, any 401(k) plan contributions to which he would have been entitled had he not been discharged. See Hufstetler, slip op. at 59.

IX B 2 b viii Prejudgment interest on back pay award

Prejudgment interest on a back pay award under the STAA should be calculated in accordance with 26 U.S.C. § 6621. Park v. McLean Transportation Services, Inc., 91-STA-47 (Sec'y June 15, 1992).

IX B 2 b viii No relief of interest obligation based on length of adjudication

The employer is not to be relieved of interest on a back pay award because of the time elapsed during adjudication of the complaint. See Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y Jan. 26, 1990).

IX B 2 b viii Interest on back pay award

Secretarial decisions award interest on back pay under the STAA calculated in accordance with 26 U.S.C. § 6621 (1988), which specifies the rate for use in computing interest charged on underpayment of Federal taxes. Phillips v. MJB Contractors, 92-STA-22 (Sec'y Oct. 6, 1992).

Anderson v. Jonick & Co., Inc., 93-STA-6 (Sec'y Sept. 29, 1993).

IX B 2 b viii Calculation of interest

In STAA cases, interest on back pay is calculated in accordance with 26 U.S.C. § 6621, which specifies the rate for use in computing interest charged on underpayment of Federal taxes. Phillips v. MJB Contractors, 92-STA-22 (Sec'y Oct. 6, 1992).

IX B 2 b viii Prejudgment interest on back pay - STAA

Prejudgment interest is awarded on the back pay amount to be determined under Section 6621 of the Internal Revenue Code at the rate used in computing interest charged on underpayment of Federal taxes. See Johnson v. Old Dominion Security, 86- CAA-3, et. seq. (Sec'y May 29, 1991), slip op. at 24, 32; Wells v. Kansas Gas & Electric Co., 85-ERA-22 (Sec'y Mar. 21, 1990), slip op. at 17 and n.6, appeal dismissed, No. 91-9526 (10th Cir. Aug. 23, 1991).

Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992).

IX B 2 b viii Delays caused by Complainant

In Palmer v. Western Truck Manpower, Inc., 85-STA- 16 (Sec'y June 26, 1990), vacated on other grounds sub nom., Western Truck Manpower, Inc. v. United States Dep't. of Labor, 943 F.2d 56 (1991) (table case; unpublished decision available at 1991 U.S. App. LEXIS 21675), readopted, (Sec'y Mar. 13, 1992), Respondent contended that it should not be liable for prejudgment interest for periods of extensive delay caused by Complainant's requests for continuances. The Secretary noted additional reasons contributed to the length of the remand proceedings, and concluded that the delay was not so inordinate as to relieve Respondent of liability for interest during any part of the back pay period. The Secretary also noted that "[s]ince Respondent has had the use of these monies throughout this time, Respondent is not prejudiced unfairly by this ruling."

IX B 2 b viii Interest on back pay - STAA

Interest on a back pay award under STAA is calculated in accordance with 26 U.S.C. § 6621 (1988). Asst. Sec. and Park v. McLean Transportation Services, Inc., 91-STA-47 (Sec'y June 15, 1992), slip op. at 5.

Hamilton v. Sharp Air Freight Service, Inc., 91- STA-49 (Sec'y July 24, 1992).

IX B 2 b viii STAA; back pay with interest

Where a complainant is awarded back pay with interest, the Secretary has noted that although some prior decisions under STAA calculated prejudgment interest under 28 U.S.C. § 1961 (1988), more recent decisions have applied 26 U.S.C. § 6621 (1988). Smith v. Specialized Transp. Servs., 91- STA-22 (Sec'y Nov. 20, 1991), citing Moyer v. Yellow Freight Sys., Inc., 89-STA-7 (Sec'y Sept. 27, 1990).

IX B 2 b viii Prejudgment interest

The Secretary held that prejudgment interest on back pay awards has customarily been assessed in cases arising under the STAA. The assessment of prejudgment interest is necessary to comport with the policy of making Complainant whole. Calculation of the dollar amount of prejudgment interest in STAA cases has been in accordance with 29 U.S.C. 1961. The use of section 1961 for the assessment of prejudgment interest is consistent with Federal court rulings to the effect that, although section 1961 is silent regarding prejudgment interest, it does not bar the awarding of interest prior to judgment in accordance with its provisions. [citations omitted].

[STAA Digest IX B 2 b ix]
BACK PAY LIABILITY ENDS WHEN A BONA FIDE OFFER TO REINSTATE IS MADE, RATHER THAN ON THE DATE OF THE ALJ'S DECISION

In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-021, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the ARB found that the ALJ erred when he awarded back pay for the period from the date of the Complainant's discharge until the date of the ALJ's decision. Rather, "[b]ack pay liability ends when the employer makes a bona fide, unconditional offer of reinstatement or, in very limited circumstances, when the employee rejects a bona fide offer, not when the ALJ decides the case." USDOL/OALJ Reporter at 12 (footnote omitted). Since the record did not evidence whether or when the Respondent made a bona fide offer to reinstate the Complainant, the ARB modified the ALJ's back pay award to require the Respondent to pay back pay until the date the Respondent made, or makes, a bona fide, unconditional offer of reinstatement to the Complainant to his former position with the same pay, terms, and privileges of employment that he had before he was discharged.

IX B 2 b ix Respondent's lack of authority to force reinstatement does not remove liability for back wages or other damages

In Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987), a trucking company (Respondent) contended that because it did not have the authority to force a leasor of Complainant's services to accept Complainant for reemployment, it could not be held liable for lost wages or other damages. In Palmer , Respondent and the leasor were found to be joint employer's, and Respondent's liability arose as a result of the leasor's discriminatory action in refusing to reemploy Complainant. The Secretary found that he was required by the STAA to order Respondent to reinstate Complainant, together with compensatory damages, and had no discretion not to do so. In addition, the Secretary took into consideration that Respondent had not sought to bring the leasor in as a party respondent and had not supported Complainant's motion to amend the hearing notice to include the leasor.

IX B 2 b ix Tolling of back pay liability based on unconditional offer of reinstatement

An unconditional offer of reinstatement ordinarily tolls an employer's back pay liability. Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S. Ct. 3057, 73 L.Ed.2d 721 (1983); Figgs v. Quick Fill Corp., 766 F.2d 901 (5th Cir. 1985) (Title VII cases). It also precludes a subsequent order of reinstatement. Giandonato v. Sybron Corp., 804 F.2d 120 (10th Cir. 1986). An employer's refusal to resolve the issue of entitlement to back pay and other damages as part of its offer of reinstatement does not render the offer conditional. Thus, where the Secretary found a violation of the STAA and ordered reinstatement of the complainant and back pay less interim earnings from the date of discharge to the date on which the company offered reinstatement with no loss of seniority and at his former pay and benefits level, the reinstatement portion of the order was in error. The record did not indicate, as the Secretary argued on appeal, that the reinstatement offer was conditioned on surrender of complainant's right to seek relief under the STAA. Lewis Grocer Co. v. Holloway, 874 F.2d 1008 (5th Cir. 1989).

[STAA Digest IX B 2 b 10]
BACK PAY; USE OF COMPLAINANT'S AVERAGE WEEKLY WAGE RATHER THAN EARNINGS OF REPLACEMENT drivers'TO CALCULATE BACK PAY AWARD

In Ass't Sec'y & Bailey v. Koch Foods, LLC , ARB No 10-001, ALJ No. 2008-STA-61 (ARB Sept. 30, 2011), the ARB affirmed the ALJ's use of the Complainant's average weekly wage to determine the amount of back pay, rather than the amount earned by similar employee's after he was discharged. The ARB found that the ALJ's calculation reflected the amount that the Complainant had been able to earn when the Respondent terminated his employment.

IX B 2 b 10 Salary of replacement driver not standard

In Gagnier v. Steinmann Transportation, Inc., 91- STA-46 (Sec'y July 29, 1992), the Secretary agreed with the ALJ's decision to calculate the Complainant's back pay based on his average weekly wage based on the salary the Complainant accepted when he was hired rather than the salary of his "replacement" driver.

IX B 2 b 11 Liability ends when employment would have ended without regard to discrimination

The purpose of a back pay award is to make "persons whole for injuries suffered for past discrimination." Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y Jan. 15, 1988), slip op. at 5, quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). In keeping with the objective, it must appear that the employer's misconduct caused the Complainant to lose the wages he claims as back pay. Gaddy v. Abex Corp., 884 F.2d 312, 320 (7th Cir. 1989); cf. Francis v. Bogan, Inc., 86-ERA-8 (Sec'y Apr. 1, 1988), slip op. at 6 (the period of an employer's liability ends when the employee's employment would have ended for reasons independent of the violation found).

Thus, where the record indicated that the Respondent had implemented a seniority system of dispatch that would have cut down the gross back pay claimed by the Complainant, the Secretary remanded the matter to the ALJ to take additional evidence on the matter, the ALJ having erred in not addressing the point in the recommended decision.

Hamilton v. Sharp Air Freight Service, Inc., 91- STA-49 (Sec'y July 24, 1992).

[STAA Digest IX B 2 b xi]
BACK PAY; END PERIOD UPON COMPLAINANT VOLUNTARILY BECOMING FULL-TIME STUDENT

A back pay award is terminated on the date that the complainant voluntarily becomes a full-time student, and thus no longer available for work. Ass'y Sec'y & Cotes v. Double R Trucking, Inc. , ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999).

IX B 2 b xi Periods of unavailability attributable to illegal acts of employer

Although an employer is generally not liable for back pay periods during which the wrongfully discharged employee was disabled, a wrongfully discharged employee will not be held accountable for periods of unavailability for work that are due to the illegal action of the employer. Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995) (Complainant's need for hidradenitis surgery and other disabling conditions were connected to his wrongful discharge; Respondent's liability, however, was tolled for a period during which the Complainant could not work because he had broken a finger).

IX B 2 b xi Complainant's failure to end or report SSA disability benefits; no tolling of Respondent's liability under circumstances

In Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995), the Complainant, after nearly ten years of absence, was reinstated to work for the Respondent. Upon reinstatement, he did not report to SSA, which had awarded him a disability benefit, that he had returned to work, and he did not notify the Respondent of his SSA disability benefit. Upon discovery of the SSA benefit, the Respondent placed the Complainant on "unpaid sick status", arguing that this was justified so that it could confirm whether the Complainant posed a safety risk under applicable safety regulations.

The Secretary noted that an employer may terminate the employment of a complainant following reinstatement on any legal basis, and that the Respondent's safety concerns may have merit. See 49 C.F.R. § 391.11 et seq. Nonetheless, under the particular circumstances of the case, the Secretary concluded that there would be no tolling of the Respondent's liability to pay the Complainant during his forced sick leave. The Secretary found that the Complainant's conduct regarding the SSA disability benefit were not extraordinary, unforeseeable, or independent of the Respondent's wrongful conduct. The Secretary accepted the Complainant's testimony about his state of mind and behavior at the time, and found that the Complainant's concerns were well- founded in view of the level of anxiety he was experiencing.

IX B 2 b xii Exclusion of layoff periods

In Phillips v. MJB Contractors, 92-STA-22 (Sec'y Oct. 6, 1992), the ALJ correctly excluded from a back pay award the period during a usual winter layoff because the Complainant would not have earned wages from the Respondent during that time. See Cram v. Pullman-Higgins Co., 84-ERA-17 (Sec'y Jan. 14, 1985).

IX B 2 b xii Retirement and health benefits

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Mar. 16, 1995), the Secretary declined to consider the ALJ's revised recommended decision concerning the amount of benefits due, based on the ALJ's lack of authority to issue such a revised order. Nonetheless, the Secretary remanded the matter to the ALJ to reopen the record on the damages issue because the record before the Secretary made it impossible to ascertain the exact measure of 401(k) plan contributions and health and welfare benefits owed pursuant to his Final Decision. The Secretary provided precise instructions, such as:

401(k) Plan Contributions

Because the Complainant did not seek reinstatement, the owed contributions to the 401 (k) plan are to be paid directly to the Complainant.
To establish the dollar amount of 401(k) contributions, the Complainant must present competent, sworn evidence of the amount Respondent would have contributed from the date of discharge to the date of tender of the correct amount of plan contributions.
The Complainant is entitled to such increase in vesting as would have occurred had he not been discharged.

Health and Welfare Benefits

Reimbursements for health care expenses should be made directly to the Complainant if he already paid the charge, or to the health care provider if not already paid. Distinguishing Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), in which there was no personal entitlement by the complainant, but a payment to the health and welfare fund was ordered to cover a hiatus in coverage).
The parties were ordered to provide competent, sworn evidence of whether the Complainant had taken the steps necessary to opt into plan coverage (noting that this usually involves paperwork), but the coverage did not go into effect because of his discharge. If so, the Respondent will be liable for health care expenses incurred.
If there should have been health care coverage, the ALJ must determine when coverage would have begun because the Respondent is liable only for expenses incurred after the date coverage would have taken effect. If the Complainant paid premiums for other health care coverage, the Respondent is only liable for those premiums paid between the date of discharge and the future date of compliance with the payment order. If the Complainant had no alternative health insurance and incurred health care expenses that would have been covered under the Respondent's plan, the Respondent must reimburse the Complainant directly.

[STAA Digest IX B 2 b xiii]
COMPENSATORY DAMAGES; COST OF BUS TICKET HOME

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the Complainant was entitled, as a compensatory damages award, to the cost of his bus ticket home after being terminated in violation of the whistleblower provision of the STAA.

9 b 2 b xiii Fringe benefits; use it or lose it

Fringe benefits such as vacation pay should be included in a back pay award. A complainant, however, is not entitled to receive both straight wages and vacation time for the same period. Where it is the practice of the employer to pay an employee for vacation time not taken, it is equitable that a complainant receive both straight wages and vacation pay for the same period. Where, however, an employee must take his vacation or lose it, the addition of vacation pay to a back pay award of straight salary for the same period would compensate the complainant for more than he lost as a result of the employer's illegal discrimination. Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y June 26, 1990), vacated on other grounds sub nom., Western Truck Manpower, Inc. v. United States Dep't. of Labor, 943 F.2d 56 (1991) (table case; unpublished decision available at 1991 U.S. App. LEXIS 21675), readopted, (Sec'y Mar. 13, 1992) (finding that the ALJ erred in recommending vacation pay where there was no evidence of complainant's entitlement thereto).

IX B 2 b xiii Benefits from other sources do not diminish back pay liability

Benefits received from other sources during the period following the complainant's wrongful discharge, as opposed to earnings from alternative interim employment, may not diminish an employer's liability for back pay. Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995) (benefits from a "welfare" program, a "soldiers and sailors" fund, unemployment compensation, pension fund, permanent workers' compensation disability, and Social Security disability benefits).

IX B 2 b xiii Back pay; operating expenses not actually incurred

In Ass't Sec'y & Lansdale and Lee v. Intermodal Cartage Co., Ltd., 94-STA-22 (ALJ Mar. 27, 1995), the ALJ found in her Recommended Decision and Order that an owner-operator, whose compensation includes both salary and operating expenses, is not entitled to recover operating expenses as part of a back pay award. Citing by analogy Bing v. Roadway Express, 485 F.2d 441, 453 (5th Cir. 1973) (Title VII claim involving a truck driver).

IX B 2 b xiii Inclusion in back pay of ancillary benefits

In Anderson v. Jonick & Co., Inc., 93-STA-6 (Sec'y Sept. 29, 1993), the Secretary's award of back pay included back wages plus "full benefits normally paid by Respondent including, but not limited to, contributions to Complainant's 401(k) retirement plan . . . ."

[STAA Whistleblower Digest IX B 2 b xiii]
COMPENSATION FOR GRATUITIES IS AN AVAILABLE REMEDY

IX B 2 b xiii Lost tips may be included in back pay award

In Polger v. Florida Stage Lines, 94-STA-46 (Sec'y Apr. 18, 1995), the Secretary adopted the ALJ's finding, based on a credibility assessment of Complainant's testimony, that the Complainant (a bus driver) made an estimated $50 per week in tips. The lost tips was added to the back pay award.

[STAA Digest IX B 2 b xv]
FRONT PAY; ALJ CORRECTLY DENIED REINSTATEMENT AND FRONT PAY WHERE THE RESPONDENT HAD GONE OUT OF BUSINESS

In Smith v. Lake City Enterprises, Inc. , ARB No. 11-087, ALJ No. 2006-STA-32 (ARB Nov. 20, 2012), the ARB affirmed the ALJ's denial of reinstatement and a front pay award to the Complainant where the Respondent's dissolution was a "superseding intervening event that has foreclosed any possibility of [the Respondent] reinstating [the Complainant] and blocked any enforcement of a front-pay award." USDOL/OALJ Reporter at 5 (footnoted omitted). The ARB observed that once the Respondent went out of business, the Complainant would not have been employed beyond that date.

IX B 2 b 14 "Moonlighting" earnings not deducted from back pay

In Nelson v. Walker Freight Lines, Inc. , 87-STA-24 (Sec'y Jan. 15 1988) the Secretary remanded the case for recomputation of back pay owed to the Complainant. The ALJ originally deducted from the Complainant's award of back pay, all wages earned by Complainant in a part time job during the time he was discharged from work with Respondent.

The Secretary determined that under both the NLRA and Title VII of the Civil Rights Act, it has been held that part-time or "moonlighting" earnings of the discharged employee's are not offset from the amount the employee would have earned had he not been discharged, where the employee held or could have held the second job while working for the employer. On the other hand, where the employee would not have been able to work at the same time at both the second job and the job he lost because of discrimination, the earnings from the second job are offset.

[STAA Digest IX B 2 b xv]
BACK PAY; WHERE RESPONDENT IS OUT OF BUSINESS, AWARD RUNS TO DATE OF DISSOLUTION, AND A FRONT PAY AWARD MUST BE CONSIDERED

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), the ALJ erred in calculating back pay to the date of the hearing. The ARB stated: "Ordinarily, back pay runs from the date of the discriminatory discharge until the date the employer reinstates the complainant or the date on which the complainant receives an unconditional, bona fide offer of reinstatement." USDOL/OALJ Reporter at 10 (citation omitted). In the instant case, reinstatement was impossible because the Respondent was out of business. The ALJ had been unaware that the week before he issued his decision the Respondent had been dissolved. The ARB thus remanded for the ALJ to recalculate back pay to the date of the dissolution and to consider an award of front pay.

IX B 2 b xv
Impact of bankruptcy order

In Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y July 26, 1988), it was found on January 15,1988 that Respondent had violated Section 2305(b) of the STA. Accordingly, the Respondent was ordered to pay Complainant back wages. On April 21, 1988, the United States Bankruptcy Court in San Bernadino, California discharged Braxton Bragg Walker from all dischargeable debts and declared null and void any judgment thereafter obtained against Mr. Walker.

The Secretary held that the Bankruptcy Court order applies only to the personal liabilities of Mr. Walker, an individual and also noted that the order neither mentioned Walker Freight Company or Package Express and contained nothing to suggest that a judgment against either of those entities was null and void.

Furthermore, the Secretary determined that even if the order did apply to Respondent, the automatic stay provision of the Bankruptcy code, 11 U.S.C. Section 362(a) only provides that the filing of the petition for bankruptcy operates to stay the commencement or continuation of any administrative proceeding against the debtor that was or could have commenced prior to the bankruptcy case. This does not operate to stay the resolution of Complainant's 2305 claim since Subsection (b)(4) of Section 362 specifically exempts from this automatic stay provision "the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power."

The Secretary noted that the courts have refused to stay proceedings by administrative agencies under the Fair Labor Standards Act, National Labor Relations Act, The Migrant and Seasonal Agricultural Worker Protection Act or under Title VII of Civil Rights Act of 1964. "In exempting such governmental Actions, these courts have relied on the statement in the legislative history of the Bankruptcy Act of 1978 to the effect that:

Paragraph (4) exempts commencement or continuation of actions and proceedings by governmental units to enforce police or regulatory powers. Thus, where a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action is not stayed under the automatic stay.

H.R. Rep. No. 95-595, 95th Cong., 2d Sess. 343, reprinted in 1978 U.S. Code Cong. & Admin. News, 5787, 6299." This has been held to encompass governmental actio enforcing employment discrimination provisions of the NLRA, NLRA v. Evans Plumbing Co., 639 F.2d at 292, and of Title VII, EEOC v. Rath Packing Co., 787 F.2d at 323-325, and to permit the entry of judgments for injunctive relief and for backpay. NLRB v. Evans , 639 F.2d at 293; EEOC v. Rath Packing Co., 787 F.2d at 326.

Accordingly, since the STAA is safety law, actions taken to enforce the STAA are exempted form the bankruptcy automatic stay provision.

IX B 2 b xv Impact of bankruptcy order

In Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y July 26, 1988), it was found on January 15,1988 that Respondent had violated Section 2305(b) of the STA. Accordingly, the Respondent was ordered to pay Complainant back wages. On April 21, 1988, the United States Bankruptcy Court in San Bernadino, California discharged Braxton Bragg Walker from all dischargeable debts and declared null and void any judgment thereafter obtained against Mr. Walker.

The Secretary held that although Section 2305 actions do not require the filing of a complaint by a Federal administrative unit, they nevertheless can be proceedings by a governmental unit within the meaning of the automatic stay exemption of the Bankruptcy code since the regulations implementing Section 2305 specifically provide that the prosecuting party shall be the Assistant Secretary for OSHA in any case in which either the employer alone or both the employer and the Complainant object to the Secretary's preliminary finding.

IX B 2 b xvi After acquired evidence; respondent must prove when it first realized the invalidity of employment; consideration of respondent's culpability ("clean hands" doctrine)

In Ass't Sec'y & Mulanax & Andersen v. Red Label Express, 95-STA-14 and 15 (ALJ July 7, 1995), the Respondent contended that the back pay award should be reduced because one Complainant was under 21 years of age and therefore barred from driving for any commercial motor carrier by 49 C.F.R. § 391.11(b). The ALJ rejected this contention, however, because

(1) The Respondent failed to offer into evidence any information indicating when it first realized its employment of the underage Complainant as a drivers'was unlawful.

(2) Even if the Respondent established this date, the equitable doctrine of unclean hands would still prevent it from relying on its own illegal conduct in hiring an underage drivers'as a justification for reducing damages.

See McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995).

[STAA Digest IX B 2 b xvi]
DISCOVERY SANCTION; AFTER-ACQUIRED EVIDENCE; REFUSAL OF RESPONDENT TO DISCLOSE INFORMANT MAY SUBJECT RESPONDENT TO EVIDENTIARY SANCTION ON MERITS BUT NOT ON THE QUESTION OF THE REMEDY

In Cefalu v. Roadway Express, Inc. , ARB No. 08-001, ALJ No. 2003-STA-55 (ARB Jan. 30, 2008), the ARB remanded the matter to the presiding ALJ for consideration of whether reinstatement was an appropriate remedy in light of the 7th Circuit's decision in Roadway Express, Inc. v. United States Dep't of Labor , 495 F.3d 477 (7th Cir. 2007). In Roadway , the court had held that the ALJ properly imposed a discovery sanction for the Respondent's refusal to disclose who reported that the Complainant had lied on his employment application about his record of accidents; but that the sanction went to evidentiary matters, and should not have been applied the question of remedy.

BACK PAY; WORK AVAILABILITY
[STAA Digest IX B 2 b xvi]

In Ass t Sec'y & Mulanax & Andersen v. Red Label Express , 95-STA-14 and 15 (Sec'y Nov. 1, 1995), the ALJ rejected the Respondent's argument that it was not liable for back pay during the period in which one of the Complainant's had been under the age of 21, which is the minimum age required for drivers'under D.O.T. regulation 49 C.F.R. § 391.11(b), citing and distinguishing McKennon v. Nashville Banner Publishing Co. , 115 S.Ct. 879 (1995). The Secretary, however, agreed with the Assistant Secretary's appellate brief in which it was contended that the Complainant, although not old enough to drive a commercial motor vehicle, was eligible to drive other vehicles operated by the Respondent, as he in fact had been doing prior to being terminated from employment. The Secretary thus found that the Respondent had failed to establish that the Complainant was either unwilling or unable to perform his customary work with the Respondent.

The Secretary, in a footnote, observed without comment the Assistant Secretary's alternative argument that in situations where the employee's work would subject him or her to the DOT age requirement, the decision of the Supreme Court in Sure-Tan, Inc. v. National Labor Relations Board , 467 U.S. 883 (1984) (illegal alien case), rather than McKennon , provides guidance.

[STAA Digest IX B 2 b xvii]
DEDUCTIONS FROM BACK PAY; LOTTERY WINNINGS

Lottery winnings are not deductible from a back pay award. Cook v. Guardian Lubricants, Inc. , 95-STA-43, slip op. at 12 n.13 (ARB May 30, 1997).

[STAA Digest IX B 2 b xvii]
BACK PAY AWARD; METHOD FOR CALCUATION; NO ADJUSTMENT FOR OWNER-OPERATOR STATUS

In Ass't Sec'y & Bryant v Mendenhall Acquistion Corp. , ARB No. 04-014, ALJ No. 2003-STA-36 (ARB June 30, 2005), the ARB found that the ALJ erred in calculating back pay for a drivers'who had worked for the Respondent as an owner-operator, but whose subsequent employment was as an employee driver. The ALJ had attempted to make adjustments for the different ways that contract drivers'and employee drivers'are paid. The ARB, however, found that this was error, holding that the Complainant's "earnings before mandatory payroll deductions, whether as an independent contractor or an employee, are the basis for the back pay (and front pay) award."

The ARB calculated the back pay award by determining the average weekly amount that the Respondent paid to the Complainant (using calendar weeks, rounded to the closest full week). It then calculated the length of the back pay liability from the date the Complainant was terminated until the date that the Complainant's truck had been repossessed (and he therefore could not have worked as an owner-operator) rather than the actual date that the Employer offered reinstatement. The Board then multiplied the number of weeks of the back pay liability by the average weekly income from the Respondent. Finally, the Board deducted the Complainant's interim earnings with his subsequent employer.

[STAA Digest IX B 3 a]
BACK WAGES; FAILURE TO MITIGATE IS NOT ESTABLISHED MERELY BY SHOWING THAT A COMPLAINANT EARNED SUBSTANTIALLY LESS MONEY WITH A SUBSEQUENT EMPLOYER DURING A DISCRETE PERIOD OF TIME

In Abdur-Rahman v. DeKalb County , ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3 (ARB Oct. 9, 2014), the Respondent argued that the ALJ erred in awarding back pay for a year in which one of the Complainant's earned substantially less money with a subsequent employer than in other years, on the theory that this decrease was the result of this Complainant's condue or absence from work. The ARB rejected this contention, finding that it was mere supposition, insufficient to meet the Respondent's burden to show failure to mitigate damages.

[STAA Digest IX B 3 a]
MITIGATION OF DAMAGES; COMPLAINANT'S FAILURE TO PRESENT EVIDENCE THAT HE APPLIED FOR OTHER JOBS DOES NOT NEGATE RESPONDENT'S BURDEN OF PROOF ON MITIGATION

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the Respondent challenged the ALJ's back wages award on the ground that the Complainant failed to mitigate his damages during his period of unemployment, citing the fact that the Complainant had not produced a single application showing that he sought other work. The ARB affirmed the ALJ's award, stating that it is the Respondent's burden to establish that substantially equivalent positions were available to complainant and that complainant failed to use reasonable diligence in attempting to secure such positions, and that the Respondent had failed to present such evidence.

[STAA Whistleblower Digest IX B 3 a]
BACK PAY; MITIGATION OF DAMAGES; RESPONDENT'S BURDEN

In Roberts v. Marshall Durbin Co. , ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the Respondent was relieved of its burden of showing the availability of substantially equivalent work to support its claim that the Complainant failed to mitigate damages where the Complainant admitted that he had not looked for work for about 8 months after his discharge because he was busy working on his OSHA complaint. Once the Complainant began his job search, however, the Respondent was obliged to present evidence of the availability of substantially equivalent work. It was not enough in this regard to merely ask the ALJ to take judicial notice that properly licensed truck drivers'have no trouble finding jobs.

[STAA Digest IX B 3 a]
MITIGATION OF DAMAGES; BURDEN OF PROOF IS ON THE RESPONDENT; ALJ HAS A DUTY TO INFORM A PRO SE LITIGANT OF THAT BURDEN

In Dale v. Step 1 Stairworks, Inc. , ARB No. 04-003, 2002-STA-30 (ARB Mar. 31, 2005), the ARB found that the ALJ erred in limiting a back pay award based on a finding that the Complainant had failed demonstrate an effort to mitigate losses. A complainant has a duty to exercise reasonable diligence to mitigate damages, but it is the employer's burden to prove failure to mitigate.

In Dale , the Respondent was appearing pro se. Consequently, the Board found that the ALJ had a duty to inform the Respondent that it had the burden of proof to show that the Complainant had breached his duty to mitigate damages.

IX B 3 a Mitigation of damages; burden of proof

Where an employer is found to have violated STAA, 49 U.S.C. app. § 2305, and the complainant is found to be entitled to an offer of reinstatement to his or her former position and to back pay, the burden of showing that complainant failed to make reasonable efforts to mitigate damages is on the employer. Polwesky v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991), citing Carrero v. N.Y. Hous. Auth., 890 F.2d 569 (2d Cir. 1989) and Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614 (6th Cir. 1983).

[STAA Digest IX B 3 a]
MITIGATION OF DAMAGES

In Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), the ARB held that Respondent's have the burden of proving by a preponderance of the evidence that the employee did not exercise reasonable diligence in finding other suitable employment. A respondent may prove that the complainant did not mitigate damages by establishing that comparable jobs were available, and that the complainant failed to make reasonable efforts to find substantially equivalent and otherwise suitable employment. The ARB also held that "an employer must meet both prongs of [this] test before the burden of going forward with evidence that he or she exercised due diligence shifts back to the employee." Slip op. at 16 n.14.

The ARB found that Respondent failed to prove that other comparable jobs were available. Although Respondent argued that there was a "well-documented shortage of drivers," the ARB found this to be a bald assertion, and not the sort of specific proof needed to establish that substantially equivalent positions were available. The ARB stated that it could find that Respondent failed to carry its burden on this ground alone, but went on to find that Respondent also did not prove that Complainant failed to exercise due diligence in mitigating his damages when he declined a position with another truck line.

The ALJ had found that Complainant's turning down of a job offer with another truck line was a failure to mitigate. The ARB, however, found that the ALJ's conclusion that these were substantially equivalent positions was not supported by substantial evidence on the record as a whole. The ARB noted that Respondent is a unionized carrier which paid fringe benefits. Respondent's position was for less-than-trailer load freight, and for a district bid run which involved driving from the home terminal to another terminal and back several times a day. In contrast, Complainant testified that the other truck line was not unionized, and Respondent presented no evidence or argument on this point. Respondent also failed to establish that the new position would have paid the same. The ARB noted that "[a] lower-paying, non-union position would not constitute substantially equivalent employment." Slip op. at 16 (citation omitted). Finally, the new position would have involved driving throughout the United States.

[STAA Digest IX B 3 a]
MITIGATION OF DAMAGES; COMPLAINANT'S BURDEN

In Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), the ARB held that Respondent's have the burden of proving by a preponderance of the evidence that the employee did not exercise reasonable diligence in finding other suitable employment. If, however, a respondent presents evidence that the complainant did not mitigate damages by establishing that comparable jobs were available, and that the complainant failed to make reasonable efforts to find substantially equivalent and otherwise suitable employment, Complainant has the burden of going forward with evidence that he or she exercised due diligence.

"A complainant is only required to make reasonable efforts to mitigate damages, and is not held to the highest standards of diligence. ... Such efforts include checking want ads, registering with employment agencies, discussing employment opportunities with friends and acquaintances." Slip op. at 16 n.14 (citations omitted).

[STAA Digest IX B 3 a]
DUTY TO MITIGATE; AFFIRMATIVE DEFENSE

The Sixth Circuit affirmed DOL's decision on back pay in Intermodal Cartage Co., Ltd. v. Reich , No. 96-3131 (6th Cir. Apr. 24, 1997)(unpublished decision available at 1997 U.S. App. LEXIS 9044)(case below 94-STA-22). The central issue in the appeal was the Complainant's' duty to mitigate. The court wrote:

An employee discharged in violation of the Act has a duty to mitigate damages by seeking other substantially equivalent employment. The employer can assert the employee's failure to do so as a defense against liability for back pay. However, the failure-to-mitigate or "willful loss of earnings" defense will be difficult to sustain if the facts are at all favorable to the employee. The Sixth Circuit has discussed the defense as follows:

It is beyond peradventure that the defense of willful loss of earnings is an affirmative defense, with the burden of proof resting upon the employer. . . . Further, a wrongfully-discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the plaintiff be successful in mitigating the damage. . . . The reasonableness of the effort to find substantially equivalent employment should be evaluated in light of the individual's background and experience and the relevant job market. . . . Finally, it must be remembered that the Board's conclusion as to whether an employer's asserted defenses against liability have been successfully established [*7] will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board's findings. . . . The general rule in labor cases is that "an employee must at least make reasonable efforts to find new employment which is substantially equivalent to the position [lost] . . . and is suitable to a person of his background and experience" . . . .

NLRB v. Seligman & Assoc. , 808 F.2d 1155, 1164-65 (6th Cir. 1986), quoting (with citations omitted) NLRB v. Westin Hotel , 758 F.2d 1126, 1129-30 (6th Cir. 1985). The efforts to mitigate damages must be analyzed with these principles in mind.

IX B 3 a Back pay; mitigation of damages; reasonable diligence standard

In determining the amount of back pay, the burden is on the employer to prove that the complainant failed to mitigate damages by the exercise of reasonable diligence in seeking other suitable alternative employment. To carry that burden, an employer must show both that there were substantially equivalent positions available and that the employee did not use reasonable care and diligence in seeking such positions.

A determination regarding the issue of reasonable diligence requires consideration of the particular characteristics of the complaint at the pertinent time. A complainant "is only required to make reasonable efforts to mitigate damages and is not held to the highest standards of diligence." Slip op. at 13, quoting Rasimas , 714 F.2d at 624. The complainant must be given the benefit of every doubt in evaluation of his or her efforts to obtain alternative employment. Moyer v. Yellow Freight System, Inc., 89-STA-7 slip op. at 9, 12- (Sec'y Aug. 21, 1995).

In Moyer , the Secretary found, inter alia, that

the Complainant was hampered in finding a job by the uncertainty and instability related to financial instability caused by his wrongful termination and attendant aggravation of a chronic physical problem.
the Complainant did not unjustifiably leave jobs held during the interim from discharge to reinstatement because the evidence that the Complainant's chronic physical condition progressed after the discharge to the point of disability, and because the working conditions of the alternative jobs were more difficult than the Complainant's work for the Respondent.
the Complainant was reasonably concerned that prospective employer's would be wary of employing him based on the circumstances of his discharge by the Respondent, his legal challenge to that discharge, and the possibility of reinstatement by the Respondent.
the Complainant's preparations for and attendance at depositions and hearings in this case played a significant role in his interim employment history (bolstered by SSA findings of disability based in part on anxiety related disorders, as well as several physician's reports). The Secretary noted that a statement by the Complainant that he was concerned that his marginal wages would be attached by creditors did not that he simply did not want to pay these bills, but was rather simply a reflection of his anxiety.

IX B 3 a Mitigation of damages; intentionally or heedlessly failed standard; efforts outside trucking industry

The standard for determining whether the Respondent met its burden of establishing Complainant's failure to mitigate damages is whether the complainant "intentionally or heedlessly" failed to protect his or her own interests. Ass't Sec'y & Lansdale v. Intermodal Cartage Co., Ltd., 94-STA-22 (Sec'y July 26, 1995), citing Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), aff'd sub nom. Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987).

In addition, Complainant's cannot be blamed for seeking opportunities outside the trucking industry which they sought only after making reasonable efforts to find substantially similar employment in the trucking industry.

IX B 3 a Mitigation of damages; burden of proof

In Polwesky v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991), the Secretary apparently takes the position that an employer must show that jobs for a complainant were available during the back pay period to carry its burden of showing that the complainant failed to make reasonable efforts to mitigate damages resulting from his or her discharge in violation of STAA, 49 U.S.C. app. § 2305.

IX B 3 a Mitigation of damages; burden of proof

The ALJ held that the Complainant's extensive efforts to get reinstated constituted a sufficient effort to fulfill his duty to mitigate damages. The ALJ found that his role in attempting to obtain reinstatement was not a passive one of just filing the complaint and grievance, but rather, he very actively pursued his remedies by retaining an attorney, by conferring with that attorney and his local union and Department of Labor officials, and by participating in union and Department of Labor proceedings. The ALJ held that not only are such activities difficult to combine with an active job search, but also with any job that might result from such a job search. Stone v. Nu-Car Carriers, Inc. , 86-STA-16 (ALJ Dec. 28, 1988).

IX.B.3.a. Burden of proof on employer to show failure to mitigate

In Clarin v. Keller Specialized Transport, Inc., 92-STA-38 (Sec'y Oct. 24, 1994), the Secretary adopted the ALJ's Recommended Decision & Order. The only issue in the case was calculation of back pay. The ALJ awarded back pay for the entire period in which the Complainant remained unemployed. The Employer failed to carry its burden of showing that the Complainant was not looking for work during that period.

IX B 3 a Burden on employer to show wilful loss of earnings

In Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1987), Respondent argued that back pay of wages should be reduced not only by any actual earnings during the period of the unlawful discharge, but also by amounts Complainant could have earned.

The Secretary reasoned that because the STAA (and the ERA) provide for compensatory damages in addition to back pay, any damages resulting from the discriminatory action of an employer are compensable. He also determined that the burden is on the respondent to affirmatively show that a back pay award should be reduced by a willful loss of earnings. Compare Marine Welding & Repair Works v. NLRB, 494 F.2d 526 (5th Cir. 1974) (NLRA case). The Secretary noted that unlike NLRA and Title VII, which have discretionary back pay remedies and specifically mandate the mitigation of damages, the STAA mandates back pay and compensatory damages. At common law, an STAA whistleblower wrong would be classified as a willful tort. In such cases the rule of mitigation is that the injured person ". . . is not prevented from recovering damages for a particular harm . . . unless the injured person . . . intentionally or heedlessly failed to protect his own interests." Restatement (Second) of Torts § 918(2) (1977). Thus, the Secretary concluded that a STAA whistleblower respondent bears the burden of establishing that the complainant's actions were of such a nature that he "intentionally or heedlessly" increased his damages.

In the instant case, Respondent contended that Complainant voluntarily left two subsequent jobs, thereby violating his obligation to mitigate damages. The Secretary found, however, that Complainant left one subsequent employer because he was asked to drive in excess of the number of hours permitted by DOT regulations, which was a valid reason for leaving such employment. See Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269 (4th Cir. 1985) (a voluntary quit does not toll a back pay period when "it is prompted by unreasonable working conditions"). There was a factual dispute over whether Complainant unreasonably quit his second job, but the Secretary looked to the number of miles Complainant had driven the previous two weeks, credited his testimony that he needed time to go home and get fresh clothes and told that to his supervisors, and found that Complainant's refusal to take another assignment was not a willful breach of the obligation to mitigate damages. The Secretary also took into consideration that part of the reason Complainant left the second employer was that he had to attend to selling off farm equipment and livestock, which was necessary because of his wrongful discharge, and which was therefore also part of his duty to mitigate by protecting his financial interests.

IX B 3 a Mitigation of damages, burden on respondent

Evidence that the complainant failed to mitigate his or her damages reduces the amount of back pay owed. The Respondent has the burden of establishing that the back pay award should be reduced if the complainant did not exercise diligence in seeking and obtaining other employment. Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994).

IX.B.3.b. Mitigation of damages, equivalent employment

In Clay v. Castle Coal & Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994), Respondent argued that an offset was appropriate because Complainant quit a job to begin work at a higher rate with another company, all the while knowing it to be a seasonal employer which likely would, and in fact did, lay him off. The Secretary reviewed the record, and concluded that it could not be said that in choosing jobs Complainant incurred a willful loss of earnings or that he otherwise failed to mitigate his damages.

[STAA Digest IX B 3 b]
ADVERSE ACTION; DUTY TO MITIGATE; ONCE RESPONDENT DISCHARGED THE COMPLAINANT, PURPORTED OBLIGATION OF COMPLAINANT TO PRESENT HIMSELF FOR WORK FOR THE UNION TO FILE A GRIEVANCE WAS IRRELEVANT TO STAA DUTY TO MITIGATE; UNDER STAA, ONCE TERMINATED THE ONLY OBLIGATION OF THE COMPLAINANT IS TO ATTEMPT TO FIND COMPARABLE EMPLOYMENT

In Klosterman v. E.J. Davies, Inc. , ARB No. 12-035, ALJ No. 2007-STA-19 (ARB Dec. 18, 2012) (reissued with corrected caption Jan. 9, 2013), the ARB had found in an earlier decision that, as a matter of law, the Respondent's owner had terminated the Complainant's employment when he told the Complainant to drive or go home, and then immediately considered that the Complainant had voluntarily quit. On remand, the ALJ found that the termination had only lasted one day. After being instructed to "drive or go home," the Complainant had contacted his union representative regarding his possible remedies, and the union representative told the Complainant that the Respondent's owner had told him that the Complainant had quit. The Complainant told the union representative that he had not quit, but had simply refused to drive an unsafe vehicle. The union representative told the Complainant he would look into it, and later told the Complainant that he was required to present himself at the worksite for work every morning to have the union file a grievance on his behalf. The ARB held that the Complainant's actions following the termination may be relevant to his rights and remedies under the collective bargaining agreement, but that under STAA precedent, the Respondent's owner's behavior the day of the refusal to drive constituted termination, and therefore regardless of whether the Complainant presented himself for work thereafter, the Respondent no longer employed him. Because the Complainant was no longer employed by the company, he could not have had a duty to present himself for work. The ARB stated that following termination of employment, STAA precedent required only that the Complainant mitigate damages by attempting to find comparable employment. Thus, the ARB reversed the ALJ's finding that the discharge was limited to a single day.

[STAA Whistleblower Digest IX B 3 b]
MITIGATION OF DAMAGES; JOB THAT WOULD REQUIRE LOSS OF SENIORITY

Although not reaching the issue, the ARB in Johnson v. Roadway Express, Inc. , ARB No. 01 013, ALJ No. 1999 STA 5 (ARB Dec. 30, 2002), cast doubt on the ALJ's ruling that union jobs that would have required Complainant to start at the bottom of the seniority list with lower pay than his position with Respondent (where Complainant had over 15 years of seniority) were not substantially equivalent employment. The ARB wrote: "In a significantly unionized industry such as the trucking industry, a complainant would always be required to begin his interim employment with a new company at the bottom of the seniority list, with all that entails. We think it unlikely that those facts in and of themselves, could, particularly after the passage of a reasonable amount of time without employment, protect a complainant from charges that he failed to mitigate his damages." (citations omitted).

[STAA Digest IX B 3 b]
MITIGATION; ACCEPTANCE OF WORK AT LOWER RATE OF PAY

An employee who has taken reasonable, but unsuccessful, steps to obtain substantially equivalent employment may, after a reasonable period of time, consider other available, suitable employment at a somewhat lower rate of pay. Cook v. Guardian Lubricants, Inc. , 95-STA-43 (ARB May 30, 1997).

[STAA Digest IX B 3 b]
BACK PAY; DUTY TO MITIGATE; JOB NOT SUBSTANTIALLY EQUIVALENT TO FORMER POSITION

"Where an employer is found to have violated the STAA and the claimant is found to be entitled to an offer of reinstatement to his former position with back pay, the claimant does not breach the obligation to mitigate damages by declining a job that is not substantially equivalent to his or her former position." Clifton v. United Parcel Service , 94-STA-16, slip op. at 3-4 (ARB May 14, 1997) (citation omitted).

IX b 3 b Mitigation of damages; substantially equivalent job

Where an employer is found to have violated STAA, 49 U.S.C. app. § 2305, and the complainant is found to be entitled to an offer of reinstatement to his or her former position and to back pay, a complainant does not breach the obligation to mitigate damages by declining to accept a job that is not substantially equivalent to his or her former position with the employer. Polwesky v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991), citing Carrero v. N.Y. Hous. Auth., 890 F.2d 569 (2d Cir. 1989) and Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614 (6th Cir. 1983).

IX B 3 c Mitigation of damages; delay in seeking employment outside field

In regard to mitigation of damages resulting from discharge in violation of STAA, 49 U.S.C. app. § 2305, the complainant was found not to have unreasonably delayed in pursuing employment outside his field or experience in Polwesky v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991), citing Ford Motor Co. v. EEOC, 458 U.S. 219, 231-22 (1982).

IX B 3 c Mitigation of damages; delay in seeking employment

In Stone v. Nu-Car Carriers, Inc. , 86-STA-16 (ALJ Dec. 28, 1988), the Respondent argued that a more diligent job search by the Complainant would have returned him to gainful employment much sooner. The ALJ held that the Complainant is only under obligation to refrain from "intentionally and heedlessly" increasing his damages. See Hufstetler v. Roadway Express, Inc. , 85-STA-8. He added that while the Complainant's job hunt might have been somewhat more efficacious if undertaken along the lines suggested by the Respondent, it certainly cannot be described as heedless and intended not to produce results.

Moreover, the ALJ noted that even if a more stringent "reasonable diligence" test were to be applied, see Hufstetler , the Complainant's job search efforts would have met that test. The diligence required is reasonable, not utmost or great. The Complainant used a method of job hunting that he had found successful in the past, and, was successful within five months after he started using it, a reasonable amount of time.

IX B 3 d Respondent's refusal to offer complainant temporary reinstatement limits complainant's duty to mitigate damages

A respondent's noncompliance with a temporary reinstatement order does not suspend the complainant's duty to mitigate damages; however, once reinstatement is ordered, a complainant reasonably can expect that the employer will obey the law and thus, for some period of time, may "mitigate" his damages by maintaining his readiness to return to work for respondent immediately upon notification of his reinstatement. Taking alternative employment when subject to reinstatement could have required complainant to given the substitute employer several weeks notice before he would be available to return to the respondent's employ. In the face of a respondent's recalcitrance in refusing to reinstate, a complainant may mitigate by applying for other truck driving positions.

Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6, 1992).

IX B 3 e Pain and suffering; comparative award

[STAA Digest IX B 3 e]
COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS BASED SOLELY ON Complainant's TESTIMONY; $75,000 AWARD AFFIRMED

In Maverick Transportation, LLC v. U.S. Dep't. of Labor, Admin. Review Bd. , No. 12-3004 (8th Cir. Jan. 16, 2014, corrected Jan. 17, 2014) (2014 WL 148713), Maverick argued that the ALJ's award of $75,000 in compensatory damages for emotional distress was contrary to law because it was excessive given that the only evidence offered on the Complainant's depression was his own testimony. The court found no abuse of discretion in setting the emotion distress award at $75,000. The court noted that it intervenes in such awards only where there was plain injustice or a monstrous or shocking result, that a plaintiff's own testimony can be sufficient for a finding of emotional distress, and that although $75,000 was on the high end of damages awards approved by the ARB in other cases, the ARB had made similar awards.

[STAA Whistleblower Digest IX B 3 e]
COMPENSATION PAIN AND SUFFERING IS AN AVAILABLE REMEDY, BUT MUST BE SUPPORTED BY EVIDENCE

[STAA Digest IX B 3 e]
COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS MAY BE BASED ON UNREFUTED, CREDIBLE TESTIMONY

In Ferguson v. New Prime, Inc. , ARB No. 10-075, ALJ No. 2009-STA-47 (ARB Aug. 31, 2011), the ARB affirmed as supported by substantial evidence the ALJ's award of $50,000 in compensatory damages for emotional distress based on the Complainant's unrefuted and credible testimony, even though the testimony was not supported by any medical evidence.

COMPENSATORY DAMAGES; COMPARATIVE AWARD
[STAA Digest IX B 4]

In Ass't Sec'y & Bigham v. Guaranteed Overnight Delivery , 95-STA-37 (ARB Sept. 5, 1996), the Board stated that the ALJ concluded that although Complainant experienced emotional distress and mental anguish as a result of his termination, his request for $48,000 in compensatory damages was "ludicrous" The Board stated that the ALJ had observed that Complainant had only cited one whistleblower decision to support this request.

The Board noted that courts have awarded compensatory damages for emotional distress caused by wrongful discharge in amounts greater than the amount requested by the prosecuting party, and held that it is "appropriate to review other types of wrongful termination cases to assist in the analysis of the appropriate measure of compensatory damages in whistleblower cases." The Board cited three Court of Appeals decisions in which the amount of $50,000 was discussed. It then stated that it had reviewed the relevant evidence and considered the facts in light of awards in the appellate court decisions as well as other whistleblower decisions involving emotional distress, and concluded that Complainant should be awarded $20,000 in compensatory damages.

[STAA Whistleblower Digest IX B 3 e]
EMOTIONAL DAMAGES; MODEST AWARD WHERE RESPONDENT'S CONDUCT WAS NOT AS EGREGIOUS AS IN OTHER CASES AND THE EVIDENCE OF EMOTIONAL DAMAGE WAS NOT EXTENSIVE

In Calhoun v. United Parcel Service , 2002-STA-31 (ALJ June 2, 2004), the ALJ found that the Respondent violated the STAA when it disciplined the Complainant for making pre-trip inspections that were more extensive than the Respondent's standard procedure (but which the ALJ found were reasonable). The ALJ found, based on his observations of the Complainant at two hearings, that the Complainant had suffered emotional distress as a result of the Respondent's retaliatory actions The Complainant had sought treatment with a psychologist, and the Respondent had not challenged whether Complainant suffered such distress. Reviewing other emotional damages awards to make a comparative award, the ALJ concluded that a modest award of $2,000 for emotional damages was appropriate under the facts of the case. The ALJ found that the Respondent's retaliation was not as egregious as taken by some employer's in other cases and the evidence of emotional damage was not as extensive as in other cases.

[STAA Digest IX B 3 e]
COMPENSATORY DAMAGES; EMOTIONAL PAIN AND SUFFERING

In Murray v. Air Ride, Inc. , ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000), Complainant requested $500,000 for emotional pain and suffering and mental anguish. While finding it credible that Complainant suffered such pain and stress as the result of his wrongful termination, the ALJ found that the requested amount was "ridiculously high." He also observed that Complainant had failed to put forth a reasonable monetary estimate of such damages, but based on the totality of the record and a comparison with similar cases, found that an award of $20,000 was appropriate. Respondent challenged the award as arbitrary and capricious.

The ARB characterized the award as modest and reasonable under the circumstances, pointing to evidence of record that Complainant had to file for bankruptcy and divest belonging, that he had been unable to seek treatment for a hernia, and that Complainant had gained weight from depression and stress. Complainant also testified that he had trouble sleeping and that his self-esteem had been damaged. On this basis, the ARB found that the award was supported by substantial evidence.

[STAA Digest IX B 3 f]
BACK PAY; NO TOLLING OF AWARD WHERE COMPLAINANT LEFT SUBSEQUENT EMPLOYMENT BECAUSE OF UNREASONABLE WORKING CONDITIONS

In Maverick Transportation, LLC v. U.S. Dep't. of Labor, Admin. Review Bd. , No. 12-3004 (8th Cir. Jan. 16, 2014, corrected Jan. 17, 2014) (2014 WL 148713), Maverick argued that the back pay award should be reduced or eliminated because the Complainant failed to mitigate damages by voluntarily leaving his position with a subsequent employer. The court noted that typically such a voluntary decision tolls the back pay period, but stated that when the decision is motivated by unreasonable working conditions there is no tolling. In the instant case, the Complainant left the subsequent employer because it wanted him to violate hours-of-service regulations, which is an unreasonable working condition.

[STAA Whistleblower Digest IX B 3 f]
BACK PAY; MITIGATION OF DAMAGES; TOLLING BASED ON COMPLAINANT'S TERMINATION FROM SUBSEQUENT EMPLOYMENT

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ARB affirmed the ALJ's finding that the Complainant's back pay award would not be tolled based on the Complainant's admission that he had been discharged for cause from employment subsequent to his termination by the Respondent, where the Complainant's testimony did not establish that the discharge had been for "gross" or "egregious" conduct. The ARB stated that, as the burden was on the Respondent to establish that the Complainant failed to mitigate damages due to his termination by the subsequent employer, it should have called the Complainant at the hearing to more fully explain that the reasons for his termination constituted a willful violation of the subsequent employer's rules.

[STAA Whistleblower Digest IX B 3 f]
BACK PAY; LOSS OF SUBSEQUENT JOB AS THE RESULT OF A DISPUTE; NO REDUCTION UNLESS RESPONDENT PROVES THAT THE COMPLAINANT DID NOT EXERCISE REASONABLE DILIGENCE IN RETAINING THE SUBSEQUENT JOB

In Jackson v. Butler & Co. , ARB Nos. 03-116 and 03-144, ALJ No. 2003-STA-26 (ARB Aug. 31, 2004), the ALJ had reduced the back pay award base on his finding that the Complainant lost his job at a subsequent employer as a result of a dispute, and that the Respondent was not an insurer of the Complainant's future employment. The ARB disagreed with the result, finding that the record did not clearly indicate that the Complainant had failed to exercise reasonable diligence to retain his position at the subsequent employer. The ARB observed that uncertainties in determining what the employee would have earned but for the discrimination are resolved against the discriminating employer.

[STAA Whistleblower Digest IX B 3 f]
MITIGATION OF DAMAGES; REQUIREMENT TO ACT REASONABLY TO MAINTAIN INTERIM EMPLOYMENT

In Johnson v. Roadway Express, Inc. , ARB No. 01 013, ALJ No. 1999 STA 5 (ARB Dec. 30, 2002), Complainant was employed with several employer's following his unlawful discharge by Respondent. Complainant was discharged from one of those employer's because of an incident in which he permitted a cousin to drive the employer's truck in violation of policy. The ARB affirmed the ALJ's finding that the infraction was sufficiently egregious to toll Respondent's back pay liability during the period when Complainant was without employment following this discharge. The opinion contains a discussion of the standards for determining whether a complainant's conduct in losing a job is a failure to mitigate.

Complainant had also argued on appeal that the termination from the subsequent employer should not toll Respondent's back pay liability but merely result in a deduction in the amount he would have earned had he stayed with the subsequent employer. The ARB disagreed, applying Brady v. Thurston Motor Lines, Inc. , 753 F.2d 1269, 1277 79 (4th Cir. 1985), to hold that a break in employment based on unreasonable conduct by a complainant results in reduction of a backpay award to zero until new interim employment is secured.

[STAA Digest IX B 3 f]
MITIGATION; REQUIREMENT THAT EMPLOYEE ACT REASONABLY TO MAINTAIN SUBSEQUENT EMPLOYMENT

Excerpts from Cook v. Guardian Lubricants, Inc. , 95-STA-43 (ARB May 30, 1997):

The mitigation of damages doctrine requires that a wrongfully discharged employee not only diligently seek substantially equivalent employment during the interim period but also that the employee act reasonably to maintain such employment.... A failure to mitigate damages through the retention of employment will reduce the employer's back pay liability in that the back pay award will be reduced by no less an amount than that which the complainant would have made had he remained in the interim employment throughout the remainder of the back pay period....

* * *

[O]nly if the employee's misconduct is gross or egregious, or if it constitutes a wilful violation of the company rules, will termination resulting from such conduct serve to toll the discriminating party's back pay liability."

Slip op. at 6 (citations and footnote omitted).

The burden to establish that [a complainant] failed to exercise proper care and diligence in the retention of alternative employment is on [the respondent]; any failure of proof on this issue thus operates to [the respondent's] detriment.

Slip op. at 7 (citations omitted).

In Cook , the Board found that Respondent's liability for back pay was not extinguished by Complainant's termination from one employer where the evidence was inconclusive regarding the precise circumstances under which Complainant departed that employment. In regard to another employer that discharged Complainant, the Board found that Complainant had not taken reasonable steps to retain his employment because he had not identified and discussed with that employer his concerns about accepting overweight shipments. There was no evidence that Complainant was asked to violate applicable regulations or that Complainant provided the basis for refusal of assignments. Complainant's failure to even mention the overweight issue with the employer meant that the purposes of the employee protection provision of the STAA were not being served. Compare Hufstetler. v. Roadway Express, Inc. , 85-STA-8 (Sec'y Aug. 21, 1986). In regard to two other employer's from whom Complainant had expressed legitimate concerns prior to termination of employment, the Board found no failure to properly mitigate damages.