Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Ashcraft v. First Citizens Bank, ARB Nos. 2026-0008, -00017, ALJ No. 2025-SOX-00035 (ARB Jan. 30, 2026) (Decision and Order Denying Interlocutory Appeals)

INTERLOCUTORY APPEAL; COLLATERAL ORDER EXCEPTION NOT SATISFIED

In Ashcraft v. First Citizens Bank, ARB Nos. 2026-0008, -00017, ALJ No. 2025-SOX-00035 (ARB Jan. 30, 2026), the ARB denied Complainant's interlocutory appeal because it did not satisfy the collateral order exception. In the proceedings below, Complainant filed numerous motions and notices with the ALJ, eventually prompting the ALJ to issue an order staying discovery and prohibiting Complainant from filing additional motions or notices until the ALJ resolved a potentially dispositive Motion to Dismiss. Complainant appealed the ALJ's order, arguing that it "locks him out of the OALJ forum, [and] prevents him from preserving issues" before the ALJ. He asked the Board to vacate the ALJ's order and instruct the ALJ to provide him with a copy of a transcript of a prehearing conference.

While the interlocutory appeal was pending with the ARB, the ALJ resolved the Motion to Dismiss in Complainant's favor, lifted the stay of discovery, and permitted Complainant to once again file with the ALJ. However, the ALJ imposed restrictions on Complainant's filing and conduct before the ALJ, including limiting Complainant's use of AI in drafting final submissions, refrain from filing "notice" filings that did not ask for relief from the ALJ, and refrain from recording proceedings before the ALJ. Complainant filed an addendum to his Petition for Review with the ARB, challenging this subsequent ALJ order, which the ARB treated as a second interlocutory appeal.

The ARB denied Complainant's appeals for multiple reasons. First, most of the issued raised by Complainant were moot. Specifically, the ALJ's initial order prohibiting Complainant from filing was no longer in effect, Complainant was once again permitted to file with the ALJ, and Complainant had received a copy of the requested transcript.

Second, the ARB denied Complainant's appeals because they did not satisfy the collateral order exception to the traditional finality rule. To meet the collateral order exception, the moving party must establish that the appealed order: (1) conclusively determines the disputed question; (2) resolves an important issue which is completely separate from the merits of the action; and, (3) would be effectively unreviewable on appeal from a final judgment.

The ARB determined that the orders being appealed were not "effectively unreviewable" on appeal from a final judgment. Complainant's appeals concerned procedural rulings and orders imposed to control the conduct of the proceedings below. The ARB has repeatedly declined to interfere with an ALJ's procedural orders in interlocutory appeals because they are readily subject to review on appeal from a final judgment. The ARB stated that Complainant may appeal the ALJ's decision, including her procedural orders and any restrictions she placed on Complainant's ability to file, at the conclusion of the ALJ proceedings. If the ARB agreed with Complainant at that time that the ALJ erred, and that the error was not harmless, the ARB could order necessary relief. This includes remanding the case to the ALJ with appropriate instructions for additional proceedings, including to remove filing prohibitions or restrictions and permit Complainant to file documents, if necessary and appropriate.

Administrator, Wage and Hour Div., USDOL v. Seven Hills, Inc., ARB No. 2024-0005, ALJ No. 2018-SCA-00002 (ARB Jan. 30, 2026) (Decision and Order)

DEBARMENT; SERVICE CONTRACT ACT; UNUSUAL CIRCUMSTANCES

In Administrator, Wage & Hour Division, USDOL v. Seven Hills, Inc., ARB No. 2024-0005, ALJ No. 2018-SCA-00002 (ARB Jan. 30, 2026), the ARB affirmed the ALJ's D. & O. concluding that Respondent failed to establish "unusual circumstances" sufficient to warrant relief from the three-year debarment required under the SCA.

SCA REQUIREMENTS; RELIEF FROM DEBARMENT UNDER UNUSUAL CIRCUMSTANCES TEST

Violations of the SCA requirements result in an automatic three-year debarment unless the contractor can demonstrate that "unusual circumstances" warrant relief from debarment. Under the SCA regulations, offending contractors must satisfy each stage of a three-step process to establish unusual circumstances. Step One prohibits relief when any of the following circumstances exist: (1) the conduct causing SCA violations was willful, deliberate, or of an aggravated nature; (2) the violations were the result of culpable conduct, including culpable neglect, culpable disregard, or culpable failure to comply with recordkeeping requirements; (3) the contractor has a history of similar violations or repeatedly violated the SCA; or (4) any previous violations were serious in nature.

Step Two requires a contractor to show "prerequisites to relief" from debarment, including: "[a] good compliance history, cooperation in the investigation, repayment of moneys due, and sufficient assurances of future compliance."

Under Step Three, "a variety of factors must still be considered," including: (1) "whether the contractor has previously been investigated for violations of the Act;" (2) "whether the contractor has committed recordkeeping violations which impeded the investigation;" (3) "whether liability was dependent upon resolution of a bona fide legal issue of doubtful certainty;" (4) "the contractor's efforts to ensure compliance;" and (5) "the nature, extent, and seriousness of any past or present violations, including the impact of violations on unpaid employees, and whether the sums due were promptly paid."

SCA VIOLATIONS

Respondent entered a Contract with NEXCOM to provide food services at the Pentagon from October 15, 2004, through September 24, 2019. The contract was subject to the SCA.

On November 21, 2014, NEXCOM issued contract modification, MOD-40, which incorporated an updated wage determination establishing new applicable prevailing wages and fringe benefits for contractor service employees working at Burger King and Starbucks concessions at the Pentagon. Respondent's President signed MOD-40.

In the summer of 2016, WHD investigated Respondent's performance of the Contract under the SCA. The investigation determined that Respondent failed to pay the proper prevailing wages and fringe benefits after the rates increased under MOD-40. After receiving the investigation findings, Respondent paid $193,181.45 in back wages and fringe benefits.

ALJ RULING

The ALJ held a hearing to determine whether Respondent could demonstrate "unusual circumstances" to establish debarment relief.

The ALJ examined the factors under Step One. First, the ALJ concluded that Respondent did not engage in a deliberate SCA violation. Second, the ALJ found that Respondent's violations were the result of culpable conduct, including both culpable neglect and culpable disregard. The ALJ found that Respondent engaged in "culpable disregard" by failing to properly pay prevailing wages and fringe benefits after reading and signing MOD-40 in November 2014. The ALJ also found "culpable neglect" because Respondent failed to take steps to ensure SCA compliance. Next, the ALJ found at Step One that there was a history of similar violations because the DBA violations from a previous investigation were "substantially similar to the [SCA] violations" in this case. Finally, the ALJ also found at Step One that the violations in the current case were "serious" because "Respondent owed a total of 178 employees an average of more than $1,000.00 each."

The ALJ also made findings related to Steps Two and Three of the "unusual circumstances" test, but the ARB affirmed the ALJ solely on the findings related to culpable conduct at Step One.

UNUSUAL CIRCUMSTANCES; NO RELIEF FROM DEBARMENT BECAUSE RESPONDENT FAILED STEP ONE OF UNUSUAL CIRCUMSTANCES TEST

The ARB found that the preponderance of the evidence supported the ALJ's findings regarding culpable conduct. The ARB therefore affirmed the ALJ that (1) Respondent engaged in culpable disregard when it failed to timely pay the prevailing wage and fringe benefits, despite plain obligations in the Contract to comply with SCA requirements; and (2) Respondent engaged in culpable neglect when it failed to take proper steps to ensure compliance with the SCA.

(1) Culpable Disregard of Whether They Were in Violation or Not 
The ALJ found that Respondent engaged in "culpable disregard" by failing to properly pay prevailing wages and fringe benefits after reading and signing MOD-40 in November 2014. On appeal, Respondent challenged this finding, arguing that it was "unfamiliar with SCA" and that this was its first SCA violation. The ARB rejected these arguments and affirmed the ALJ's conclusion.

First, as highlighted by the ALJ, the debarment regulation explicitly provides that when the contractor's "obligation to comply with the Act is plain from the contract," the contractor's "plea of ignorance of the Act's requirements" does not constitute "unusual circumstances." In this case, Respondent's President signed contract modification MOD-40, which referred to the SCA and the applicable wage determination for service workers at two of Respondent's restaurants. The ARB concluded that the plain terms of MOD-40 established a clear SCA obligation under the Contract, and Respondent therefore could not rely on a plea of ignorance.

Furthermore, the ARB determined that Respondent could not rely on a plea of ignorance because Respondent knew (or clearly should have known) about the SCA obligations under the Contract prior to MOD-40. The parties had stipulated that Respondent's President was aware that the Contract was governed by the SCA. Furthermore, Respondent had been on notice of its SCA's obligations since the start of the Contract in 2004, because the Contract contained SCA provisions.

Finally, the ARB rejected Respondent's reliance on A to Z Maintenance Corp. v. Dole. The ARB cited that A to Z Maintenance Corp. clearly notes that debarment is still permissible for a single violation.

(2) Culpable Neglect to Ascertain Whether the Practices Are in Violation 
Debarment relief is prohibited when a contractor's SCA violations result from "culpable neglect to ascertain whether practices are in violation." The ALJ found Respondent engaged in "culpable neglect" because Respondent failed to take steps to ensure SCA compliance. On appeal, Respondent claimed that it did not engage in culpable neglect, arguing that it sought guidance from NEXCOM regarding MOD 40 (or a later modification) and NEXCOM had informed Respondent that the wage rates only applied to federal government employees, not its own employees.

The ARB rejected this argument. The SCA regulations explain that: "A contractor has an affirmative obligation to ensure that its pay practices are in compliance with the Act, and cannot itself resolve questions which arise, but rather must seek advice from the Department of Labor." Thus, Respondent had an obligation to seek guidance from the Department of Labor, not NEXCOM.

Moreover, the record did not support Respondent's claim that it received guidance from NEXCOM. In the deposition of Respondent's President, he could not remember which contract modification he discussed, when the conversation occurred, or with whom he spoke.

The ARB also found it implausible that NEXCOM advised that the wage rates only applied to federal employees, especially because MOD-40 stated that the wage determination established the "minimum monetary wages and fringe benefits" for "service employees working at" Burger King and Starbucks.

HARMLESS ERROR; HISTORY OF SIMILAR VIOLATIONS

Although the ARB affirmed the ALJ's findings that Respondent engaged in "culpable conduct," the ARB concluded that the ALJ erred in counting DBA violations as part of a "history of similar violations" under the SCA. The error was harmless because the ARB affirmed the ALJ's culpable conduct findings, which barred debarment relief. However, to foreclose future efforts to argue that "history of similar violations" could involve violations of statutes beyond the SCA, the ARB clarified the proper interpretation of the regulation.

The relevant regulatory provision, 29 C.F.R. § 4.188 (b)(3)(i), states that relief from debarment is not appropriate where a "contractor has a history of similar violations, where a contractor has repeatedly violated the provisions of the Act [the SCA], or where previous violations were serious in nature." The Administrator argued that because the phrase "repeatedly violated the provisions of the Act" expressly references the SCA, but the "history of similar violations" does not, the latter phrase should be interpreted broadly to include violations of the SCA or another law.

The ARB noted that the ALJ had previously declined to adopt a similar expansive reading in a related FLSA ruling. The ALJ had explained in the FLSA ruling that the SCA "regulation could be read such that the relevant inquiry is whether a contractor had a history of similar violations of the SCA . . . ." The ARB emphasized that the Administrator's proposed interpretation lacked any limiting principle and could potentially encompass violations under a wide range of statutes.

The ARB further explained that each federal statute establishes its own substantive standards, enforcement mechanisms, and penalties. Some statutes provide for debarment; most do not. Others provide for back pay, punitive damages, or private causes of action. Given these differences, the ARB concluded that it was not appropriate to import violations from other statutory schemes into the SCA debarment analysis absent clear congressional authorization.

The ARB also observed that the regulatory history, preambles, and cited cases provided no support for such an expansive interpretation. The ARB found virtually no precedent supporting the Administrator's position. Accordingly, it held that "history of similar violations" under § 4.188(b)(3)(i) referred only to violations of the SCA itself and did not include violations of other statutes.

HARMLESS ERROR; SERIOUS VIOLATIONS

The ALJ erred by treating Respondent's current SCA violations as "previous" serious violations at Step One. Seriousness of present violations should be evaluated at Step Three. However, the error was harmless because culpable conduct independently barred relief, making further analysis under Step Three unnecessary.

OTHER ARGUMENTS; DELAY AND INELIGIBILITY LIST

Respondent argued that it was prejudiced by delay in the proceedings and by temporary placement on the ineligibility list. The ARB acknowledged the delay and temporary error but concluded that these considerations did not affect the "unusual circumstances" analysis under the SCA. Accordingly, the ARB affirmed the ALJ's order that Respondent is ineligible to receive federal contracts for three years.

DISSENT; UNUSUAL CIRCUMSTANCES

In a dissenting opinion, one ARB Member would have reversed the ALJ's Decision and Order or, alternatively, remanded the matter for further findings of fact and conclusions of law. The dissent concluded that the preponderance of the evidence did not support the ALJ's determination that Respondent engaged in culpable conduct and that, under a proper application of the SCA "unusual circumstances" test, debarment relief would have been appropriate.

UNUSUAL CIRCUMSTANCES TEST – STEP ONE

Under 29 C.F.R. § 4.188(b)(3)(i), relief is barred if certain factors exist, including willful conduct, culpable conduct, a history of similar violations, or serious prior violations.

(1) Culpable Conduct
The dissent agreed with the ALJ that there was no deliberate conduct, but disagreed with the ALJ's conclusion that Respondent's conduct amounted to culpable conduct.

The dissent explained that "culpable" conduct under the SCA requires more than negligence. Citing Dantran, Inc. v. U.S. Department of Labor, the dissent stated that there must be affirmative evidence of culpable conduct rising above a mere failure to ascertain whether one's practices comply with the law.

The dissent challenged the ALJ's conclusion that the obligation to comply with the SCA was plain from MOD-40 and that signing the modification while failing to implement the updated wage determination constituted culpable disregard.

The dissent noted that the "plain from the contract" language does not create automatic culpability unless the obligation is obvious on its face. According to the dissent, MOD-40 incorporated a wage determination but did not clearly highlight that Respondent's employees were subject to revised wage rates. The relevant language appeared among other provisions and did not clearly highlight the new requirement.

The dissent also argued that failure to contact DOL does not establish culpability. The dissent emphasized that Respondent's President testified that he regularly contacted NEXCOM when contract modifications were issued. The dissent viewed this conduct as evidence of efforts to comply, rather than reflective of culpable neglect to ascertain whether practices were in violation.

(2) History of Similar Violations and Previous Serious Violations
The dissent agreed with the majority that Respondent had no prior SCA violations and that the ALJ erred in considering violations under other statutes. The dissent also agreed with the majority that the ALJ improperly analyzed serious "present" violations at Step One, when they are considered at Step Three.

UNUSUAL CIRCUMSTANCES TEST – STEP TWO

The dissent would have affirmed the ALJ's finding that Respondent satisfied Step Two: good compliance history, cooperation, repayment of back wages, and assurances of future compliance.

UNUSUAL CIRCUMSTANCES TEST – STEP THREE

The dissent reviewed the Step Three factors and concluded they favored relief. The dissent would have found that there were no prior SCA violations; there were no recordkeeping violations; there was no bona fide legal dispute; and Respondent made efforts to comply with the SCA. Finally, regarding the seriousness of violations, the dissent would have found that the underpayments represented a small percentage of gross revenues over the relevant period.

Administrator, Wage & Hour Div., USDOL v. Paradigm Construction & Engineering, Inc., ARB No. 2023-0054, ALJ No. 2017-DBA-00010 (ARB Jan. 30, 2026) (Decision and Order)

RECORDS VIOLATION; JOB MISCLASSIFICATION; WEEKLY PAYMENTS; OVERTIME WAGES; DEBARMENT

In Administrator, Wage & Hour Div., USDOL v. Paradigm Construction & Engineering, Inc., ARB No. 2023-0054, ALJ No. 2017-DBA-00010 (ARB Jan. 30, 2026), the ARB affirmed the ALJ's Decision and Order.

Paradigm Construction & Engineering, Inc., owned by Kent and Christie Glesener, performed federally funded highway bridge work in Oklahoma and became the subject of Wage and Hour Division (WHD) investigations into compliance with the Davis-Bacon and Related Acts (DBRA). In 2013, WHD investigator Jacob Wiles reviewed two projects after the Federal Highway Administration's Oklahoma chief compliance officer, Darren Kaihlanen, expressed concerns following discussions with Christie Glesener about certified payrolls. Wiles found DBRA violations, including misclassifying skilled workers as laborers, improperly calculating fringe benefits, failing to pay workers weekly, and failing to submit weekly certified payrolls. WHD proposed a reduced back-wage settlement contingent on Paradigm's written acknowledgment of violations and commitment to future compliance; Paradigm declined, seeking more detailed explanations. Because the contracts were already paid and the back wages were small, WHD closed that matter but turned attention to Paradigm's ongoing projects based on Kaihlanen's belief that misclassification and underpayment continued.

In November 2014, WHD assigned Investigator Cheryl Masters to examine three Oklahoma Department of Transportation (ODOT) bridge contracts. Masters received records from Kaihlanen and requested additional documents from ODOT, then formally notified Paradigm of the investigation and sought records from it. Paradigm did not provide records or agree to meet, despite multiple follow-up letters. Masters conducted site visits in April and May 2015, interviewing some employees but never securing a meeting with the Gleseners. During the May visit, Christie Glesener threatened to call police if Masters did not leave, citing safety concerns.

On May 9, 2016, WHD issued a charging letter finding that Respondents misclassified and underpaid workers, failed to pay weekly, did not post required jobsite notices, and violated recordkeeping rules. WHD ordered Respondents to pay $24,058.73 in back wages and recommended debarment.

Respondents contested the findings and requested a hearing before an ALJ, at which point Respondents produced the records Masters had sought. After hearings in March and June 2021, the ALJ issued a D. & O. on August 28, 2023, concluding that Paradigm falsified certified payrolls, failed to pay workers weekly, misclassified employees, omitted Ronald Barnes from certified payrolls, and failed to cooperate with WHD. The ALJ ordered payment of $14,058.08 to eighteen employees and imposed a three-year debarment. Respondents petitioned the ARB to review the ALJ's decision.

The DBA requires the payment of locally prevailing wage rates and fringe benefits to laborers and mechanics working on Federal contracts in excess of $2,000 for the construction, alteration, or repair of public buildings and public works. As the Supreme Court has recognized, the DBA is a minimum wage law designed for the benefit of construction workers. The purpose of the DBA is to protect local wage standards by preventing contractors from basing their bids on wages lower than those prevailing in the area. In addition, the DBA requires employees to be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to the level of skill required. For workers performing work in more than one classification, employers may compensate the worker at the rate specified for each classification for the time actually worked in that classification, provided the payroll records accurately set forth the time spent in each classification in which work is performed.

RECORDS VIOLATION

The DBA and DBRA require a contractor or subcontractor to maintain records for a period of three years and submit weekly payrolls that provide a worker's name, the correct classification(s) of work actually performed, hourly rates of wages paid, the daily and weekly number of hours actually worked in total and on each contract, deductions made, actual wages paid, and other personal information. Weekly submissions must include a statement of compliance that the above information is provided, the appropriate information and records are being maintained, each laborer has been paid the full weekly wages earned, and each laborer has been paid for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

The ARB affirmed the ALJ's finding that Respondents failed to maintain accurate records. Nothing in the record demonstrated that Respondents indicated the precise amount of work each worker performed in each classification.

JOB MISCLASSIFICATION

When an employer is alleged to have not paid employees for the hours worked, the ARB applies a burden-shifting framework. WHD bears the initial burden of proving that employees performed work on the DBA project for which they were improperly compensated. To satisfy its burden, WHD must: (1) show that employees performed work for which they were improperly compensated, and (2) produce sufficient evidence to show that the amount and extent of that work as a matter of just and reasonable inference. Once WHD has satisfied its burden, the burden shifts to the employer to demonstrate either the precise number of hours worked or to present sufficient evidence to negate the reasonableness of the inference to be drawn from WHD's evidence. To satisfy its burden, the employer must submit evidence that (1) is based on individualized records, and (2) fully accounts for the work hours in question, consistent with the project as a whole. If the employer fails to carry this burden, employees may be awarded damages, even if the amount of such damages is approximate.

The ARB affirmed the ALJ's finding that the WHD satisfied its burden that employees performed work for which they were improperly compensated. Prior to April 2015, Respondents paid one lead worker at the skilled rate while paying all others as laborers, even though laborers performed skilled tasks such as operating machinery, forklifts, cranes, and tying rebar. Testimony from engineers Estes and Arnold, and Philip Wilson, a construction company owner, indicated that a small bridge project requires more skilled workers than Respondents' records showed. In addition, Masters observed all workers tying rebar, a skilled craft. The ALJ found Respondents' pay records to be the most probative circumstantial evidence of misclassification, showing that classifications were adjusted based on perceived skill and that many workers were reclassified from laborer to skilled after Masters's April 2015 worksite visit. The ALJ concluded the crew worked as a unit, with laborers and skilled workers generally performing the same task at the same time depending on construction stage, making it more likely than not that workers were paid by skill level rather than work performed.

Respondents argued that the evidence did not support misclassification, that the "working-as-a-unit" characterization was novel and contradicted by witness testimony, that classifications must follow area practices in Oklahoma, and that Masters should have conducted an area practice survey. The ARB rejected these arguments, determining that the working-as-a-unit characterization was a reasonable inference given Respondents' failure to maintain accurate, segregated records; that testimony and records supported the need for more skilled workers and showed laborers operating power equipment; and that an area practice survey was unnecessary under these circumstances. The record also supported the ALJ crediting Masters's observations, which were limited in part due to Respondents' lack of cooperation. The ARB affirmed the ALJ's finding that concluded Respondents improperly compensated workers by basing pay on perceived skill rather than the tasks performed.

The ARB also affirmed the ALJ's finding that WHD provided sufficient evidence to show the amount and extent of work performed that was not properly compensated. The ALJ found that seventeen workers were owed $11,115.68 in back wages. The ALJ accounted for when workers were paid more than the prevailing wage determination and when fringe benefits credits should be applied to determine which weeks resulted in an underpayment. The ARB determined that the ALJ's findings were reasonable and supported by the record.

After WHD met their burden, the burden shifted to Respondents to either prove the precise number of hours worked or present evidence undermining the reasonableness of WHD's inferences. The ALJ found that Respondents did neither because Respondents failed to maintain accurate records of hours worked by classification and offered no evidence to negate WHD's reconstruction. The ALJ determined that seventeen workers were owed $11,115.68 in back wages, having accounted for weeks in which workers were paid above the applicable prevailing wage rates and for fringe benefit credits that eliminated underpayments, to ensure only actual shortfalls were remedied. Respondents argued WHD improperly used the "carpenter" classification instead of "form setter," attributing the discrepancy to a software clerical error, but the ARB rejected this as unpersuasive because certified payrolls reflected use of both classifications at different times on the same projects, Respondents changed default classifications from laborer to higher-rate classifications after WHD's visit, and Respondents' own documents showed weekly work consistent with WHD's reconstructions. The ARB affirmed the ALJ's calculations because they were reasonable and equitable based on the record and given Respondents' recordkeeping failures. Thus, seventeen workers were owed $11,115.68 in back wages.

WEEKLY PAYMENTS

The DBRA requires that a contractor or subcontractor pay all laborers employed directly on the site of the work, unconditionally and at least once a week for the full amounts accrued at the time of payment.

The ARB affirmed the ALJ's finding that Respondents failed to pay workers weekly and manipulated certified payroll records to conceal this practice. Jeannie Kirk, one of Respondents' former workers, testified that Christie directed her to white-out certain information on the payroll records submitted to ODOT, and that Christie told her that Respondents could run their business how they wanted to and that biweekly payments were easier for Respondents. The ARB was not persuaded by Respondents' argument that they whited-out information that ODOT did not need because the record showed that they did not white-out other personal information or information that was not required. Rather, Respondents whited-out check dates and payment periods, which concealed that workers were not being paid weekly as required. The ARB was also not persuaded by Respondents' argument that Wiles informed them that biweekly payments were not an issue because Respondents had not offered any evidence other than Kent and Christie's testimony, and because the regulations state that employers must pay workers at least once a week for the full amounts accrued at the time of payment.

OVERTIME WAGES

The DBRA requires payment of prevailing wages to laborers and mechanics, not employees, and thus the lack of a traditional employee/employer relationship is not a defense to a contractor's liability to pay prevailing wages and overtime. In addition, contracts must include the name of every laborer and mechanic on the certified payrolls.

The ARB affirmed the ALJ's finding that Ronald Barnes, an independent contractor, was owed a total of $2,942.20 in overtime wages. Barnes operated equipment on all Respondents' construction projects for a flat daily rate of $250 regardless of hours worked. Respondents lacked a DBRA-compliant subcontract with him and omitted him from certified payrolls. Because Respondents failed to keep accurate records, the ALJ evaluated whether WHD's reconstruction was reasonable and equitable, and rejected investigator Masters's overtime calculation based on a 50-hour week and a $25 hourly rate as unsupported given Barnes's flat-rate pay. Although Barnes's statements varied, the ALJ reasonably concluded he consistently reported working 40–45 hours per week and adopted an average of 42.5 hours, finding 2.5 hours of weekly overtime uncompensated. Respondents argued Barnes's testimony showed he did not work more than 40 hours and relied on billing sheets and a "Barnes Contract Day History" spreadsheet, but the ALJ gave these documents limited weight because they did not show hours, lacked provenance, and Barnes himself could not confirm their accuracy. The ARB agreed with the ALJ. WHD met its burden and Respondents neither proved precise hours nor negated the reasonableness of the inference drawn from WHD's evidence. Thus, the ARB affirmed the ALJ's determination that Barnes was owed $2,942.40 in overtime back wages.

DEBARMENT

Under the DBRA, whenever a contractor or subcontractor is found to be in aggravated or willful violation of the labor standards provisions of any of the applicable statutes listed in Section 5.1, such contractor shall be ineligible to receive any contracts or subcontracts subject to the DBA or DBRA for a period not to exceed three years. The Board has found that the word 'willful' is synonymous with such words as 'voluntary,' 'deliberate,' and 'intentional' and is generally understood to refer to conduct that is not merely negligent. A willful violation also encompasses intentional disregard, or plain indifference to the statutory requirements.

The ARB affirmed the ALJ's order that Respondents be debarred for three years. The ALJ cited the Gleseners' failure to learn proper classification methods, Christie's threat to call the police under a pretext of safety during a WHD site visit, and improper attempts to coach or intimidate witnesses. The ALJ found that Respondents switching to weekly payments in December 2014 and revising classifications in April 2015 did not offset multiple, serious violations. Despite Respondents' familiarity with DBRA requirements, Respondents chose to switch from weekly to biweekly pay because it was "easier," failed to maintain required records, altered certified payrolls by whiting out paycheck and pay-period dates to conceal noncompliance, refused to cooperate with the investigation, and displayed hostility toward WHD investigators.

Respondents argued there was insufficient evidence for debarment, that biweekly pay should not count against them, that they did not falsify payrolls, and that WHD's targeted investigation and poor communication created extraordinary circumstances that warranted leniency. The ARB rejected Respondents' arguments because Respondents' pay and recordkeeping practices were voluntary, deliberate departures from regulatory requirements, the payroll alterations concealed weekly-pay violations, and WHD's actions reflected enforcement rather than improper motive. Respondents ignoring Masters's requests and the worksite confrontation also underscored Respondents' noncooperation. Finally, the ARB explained that debarment does not require an intent to harm workers. "Willful" means voluntary, deliberate, intentional conduct and intentional disregard or plain indifference to statutory requirements. Concluding Respondents' failures were willful and not merely negligent, the ARB affirmed the ALJ's three-year debarment order.

Harmer v. Gar-MRO Services, Inc., ARB No. 2025-0088, ALJ No. 2023-AIR-00002 (ARB Jan. 30, 2026) (Decision and Order Approving Settlement and Dismissing Case)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In Harmer v. Gar-MRO Services, Inc., ARB No. 2025-0088, ALJ No. 2023-AIR-00002 (ARB Jan. 30, 2026), the ARB approved the parties' Settlement Agreement. On January 8, 2026, Respondent filed a Motion to Approve Settlement and Grant Dismissal of Appeal, which included an executed Settlement Agreement and Release.

The ARB approved the parties' Settlement Agreement as fair, adequate, and reasonable, and not in contravention of the public interest. The ARB noted that this determination was restricted only to the AIR21 case over which it had jurisdiction. The ARB also noted that it construed the language of the agreement's confidentiality clause as allowing Complainant to communicate with or provide information to state and federal authorities about suspected violations of law. Further, the Settlement Agreement provided it would be governed by the laws of the state of Iowa, but the ARB noted the Settlement Agreement did not limit the authority of the Secretary of Labor, the ARB, and any federal court regarding any issue arising under AIR21.

Accordingly, the ARB approved the settlement agreement and dismissed the complaint.

Gregory v. Nations Cabinetry, LLC, ARB No. 2023-0049, ALJ No. 2021-CAA-00001 (ARB Jan. 29, 2026) (Decision and Order Reversing and Remanding)

INTERNAL COMPLAINTS; SUBSTANTIAL EVIDENCE STANDARD OF REVIEW; SAME ACTION AFFIRMATIVE DEFENSE

In Gregory v. Nations Cabinetry, LLC, ARB No. 2023-0049, ALJ No. 2021-CAA-00001 (ARB Jan. 29, 2026), the ARB reversed the ALJ's D. & O. finding that Respondent had engaged in unlawful retaliation against Complainant in violation of the Clean Air Act (CAA) but established an affirmative defense that it would have taken the same adverse action against Complainant even in the absence of Complainant's protected activity.

Complainant was hired as Respondent's COO and during his tenure he repeatedly raised environmental compliance issues with Respondent's CEO as well as senior officials at Miami Nations Enterprises (MNE), the corporate parent that owned Respondent. Specifically, Complainant voiced concerns relating to the operation of a paint sprayer system that did not have an environmental permit required by the Texas Commission on Environmental Quality (TCEQ), as well as the company's allegedly inaccurate calculation of the emissions produced by their equipment. Complainant frequently butted heads with Respondent's CEO over these environmental issues, as well as unrelated issues regarding product lines, staffing decisions, and purchasing decisions. Complainant's employment was terminated shortly after his wife travelled to MNE's headquarters and spoke with HR to complain about the mismanagement that was occurring under the CEO's leadership. Respondent's reasons for terminating Complainant's employment included his sharing of confidential information with his wife, his failure to support the CEO, and two workplace incidents in which he kicked or tapped a coworker and used the word "crap" in an email exchange.

The ALJ concluded that Complainant engaged in protected activity and the protected activity was a motivating factor to his termination. The ALJ further concluded that Respondent demonstrated that it would have terminated complainant even in the absence of his protected activity. In reviewing Respondent's alleged reasons for terminating Complainant, the ALJ found that three of the four—the breach of confidentiality, the kicking incident, and the use of a swear word—were pretextual but the reason relating to Complainant's lack of support for the CEO was sincere and would have resulted in his termination even if he had not engaged in protected activity. The ARB reversed, finding that substantial evidence did not support the ALJ's finding as to Respondent's affirmative defense. One Member dissented and stated that he would have found that substantial evidence supported the ALJ's findings.

INTERNAL COMPLAINTS

The ARB rejected Respondent's argument that Complainant's protected activity, which included raising environmental compliance complaints with Respondent's CEO and the MNE leadership, amounted to "internal complaints" that were not protected under the CAA. The ARB noted that the Secretary of Labor and the ARB have consistently interpreted the terms "proceeding" and "any other action to carry out the purposes of this chapter" (as those terms are used in the CAA's employee protection provisions) to cover intracorporate and other "internal" complaints relating to public health or the environment. The ARB held that "proceeding" includes the initial statement of the employee that points out a violation, whether or not it generates a formal or informal proceeding. The ARB noted that federal courts have generally taken the same view and the sole exception was the Fifth Circuit, which held in a 1999 decision that comparable language in the Energy Reorganization Act (ERA) did not protect purely internal reports. However, this decision did not apply to the CAA and the Fifth Circuit has since recognized that Congress amended the ERA to cover internal complaints. Importantly, the Fifth Circuit noted that "Congress intended the amendments [to the ERA] to codify what it thought the law to be already."

SUBSTANTIAL EVIDENCE STANDARD OF REVIEW

The ARB reiterated its prior holding, drawn from Supreme Court precedent, that substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The ARB, sticking to well-established precedent, stated that this threshold for evidentiary sufficiency is not high. Still, even under this standard, the ARB need not have a definite and firm conviction that an error has been committed in order to reverse an ALJ's decision. The ARB also noted that when reviewing an ALJ's decision under the substantial evidence standard, the ARB is not required to put on blinders and look only at the evidence that supports the ALJ's decision. Rather, it will take into account whatever in the record fairly detracts from the ALJ's decision. Additionally, the ARB reiterated that evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion. Evaluating the ALJ's decision under this standard, the ARB concluded that the ALJ's determination with regard to whether Respondent established an affirmative defense was not supported by substantial evidence.

SAME ACTION AFFIRMATIVE DEFENSE

The ARB found that the ALJ's finding that Respondent satisfied its burden of showing that it would have taken the same adverse action even in the absence of Complainant's protected activity was not supported by substantial evidence. First, the ARB noted that the ALJ failed to consider Respondent's shifting explanations for Complainant's termination. When Complainant was first suspended, Respondent told him that it was due to his failure to protect and support privileged and confidential information. No other reason was given during his suspension call. The termination letter Respondent provided to Complainant two weeks after his suspension stated that Complainant was terminated due to his unauthorized disclosure of confidential information as well as his ongoing lack of support for the company's management and the direction of its business operations. Later, in a letter to the Texas Workforce Commission, Respondent mentioned the kicking incident and the cursing incident and concluded that Complainant was terminated due to "negligent disclosure and release of confidential business information, mismanagement of his position, false allegations of fraud, and past misconduct and transgressions." The letter did not mention Complainant's failure to support management. In its post-hearing brief, Respondent cited all of the foregoing reasons as justifications for why it terminated Complainant. The ARB pointed out that shifting explanations for an employer's adverse action often indicate that its asserted legitimate reasons are pretext and noted that the same logic applies when it comes to an employer's same action defense. Accordingly, it was a glaring omission that the ALJ made no mention of how Respondent's justifications changed over time, not even to say that he found Respondent's shifting explanations to be justified by something other than Respondent listing pretextual reasons in the hopes that one would be accepted as bona fide. The ARB noted that this omission was particularly egregious because the sole reason the ALJ found to be credible, that Complainant failed to support senior leadership, was missing from some of the earliest documentation related to Complainant's termination, namely the suspension phone call and Respondent's letter to the Texas Workforce Commission.

Second, the ARB noted that Complainant's alleged failure to support the CEO was part and parcel of his protected activity. This was because the primary source of friction between Complainant and the CEO was the company's environmental compliance issues, particularly Complainant's unease over Respondent's decision to continue running equipment without the legally required permits. As evidence of this, the ARB pointed to Complainant's performance review which noted that the first part of the review period had been marked by dissension and a very disappointing performance by Complainant. By contrast, the second part of the review part was a marked improvement during which Complainant demonstrated a strong self-recalibration. The ARB noted that the dramatic change in the CEO's view of Complainant's performance lined up with when Complainant ceased bringing up the permitting issues, i.e., when he ceased engaging in protected activity. Importantly, Complainant and the CEO continued to butt heads over other issues even during the part of the review period that was described as a strong self-recalibration and a period where Complainant made "good progress." The ARB took this as evidence that, although Complainant and the CEO disagreed on a range of issues, it was Complainant repeatedly bringing up his concerns about environmental compliance issues that was seen by Respondent as the most serious instance of failing to support the CEO. The ARB held that "when an employer gives a reason for termination that is reducible in essence to the problem of inconvenience caused by a complainant's protected activity, it does not meet its burden of showing that it would have taken the same adverse action in the absence of the complainant's protected activity."

Third, the ARB concluded that the ALJ's finding that complainant's lack of support for management was a result of his desire to be CEO was conclusory. The ARB noted that this conclusion—which buttressed the ALJ's findings as to Respondent's affirmative defense—was based almost entirely on two brief exchanges that occurred during the hearing.

Lastly, the ARB listed some of the countervailing evidence that it did not believe the ALJ considered. This included: (i) the Complainant's job description, which included communicating with the parent company to keep them accurately informed of the status of all operations; (ii) Complainant's regular practice of speaking to the MNE's COO; (iii) the timing of Complainant's disagreements with the CEO over furniture lines and other issues, and how that timing fits with Complainant's "strong self recalibration;" (iv) the reason provided by Complainant's wife as to why she travelled to headquarters and spoke with HR at the time she did; (v) the reasons for terminating Complainant that Respondent included in its communications with the Texas Workforce Commission; and (vi) how Respondent's explanation for why it terminated Complainant shifted over time.

One Member dissented from this portion of the opinion. The dissenting member viewed the ALJ's factual finding on this point as supported by substantial evidence. The dissenting Member found that support for the ALJ's conclusion was found in: (i) the tone of Complainant's communications to the CEO and the MNE COO; (ii) the testimony of Complainant, the CEO, and Respondent's HR director showing the conflicts between Complainant and Respondent on topics unrelated to the environmental permits; (iii) Respondent's prior warning to Complainant about supporting management and Complainant's poor performance review for lack of support; (iv) the incident with Complainant's wife reflecting Complainant's acidic views toward senior leadership and Respondent's immediate reaction thereafter; (v) the suspension record; and (vi) the termination letter showing that after an investigation, Respondent decided to fire Complainant for, among other reasons, "ongoing lack of support" for management. The dissenting Member disagreed with the majority's analysis as it related to Respondent's shifting reasons, arguing that when it comes to finding pretext, courts are on better footing when an employer's subsequent reasons plainly contradict prior reasons. Here, it was a mistake for the ARB to treat expanding or cumulative reasons as "shifting reasons" for purposes of circumstantial evidence supporting a finding that the employer's reasons were pretextual.

McCurry Contractors, Inc., ARB No. 2026-0014, ALJ No. 2025-TLN-00196 (ARB Jan. 26, 2026) (Order of Dismissal)

JURISDICTION; ARB LACKS JURISDICTION OVER BALCA APPEALS

In McCurry Contractors, Inc., ARB No. 2026-0014, ALJ No. 2025-TLN-00196 (ARB Jan. 26, 2026), Petitioner filed a Petition for Review with the ARB of a D. & O. by the Department's Board of Alien Labor Certification Appeals (BALCA). The ARB dismissed the case because it does not have jurisdiction to hear and decide appeals of BALCA decisions.

Petitioner applied to the Department's Office of Foreign Labor Certification (OFLC) to hire foreign temporary workers under the H-2B program. OFLC denied Petitioner's application, and Petitioner appealed to BALCA. BALCA affirmed the denial of Petitioner's application. Petitioner then filed an appeal of the BALCA decision with the ARB.

The ARB's jurisdiction is limited to the statutes explicitly delegated to it by the Secretary of Labor. The Secretary has delegated the authority to review a denial of an H-2B application only to BALCA; the Secretary has not delegated any power or authority to the ARB to have any role in that process or to review BALCA decisions.

In briefing, Petition apparently conceded that the ARB did not have jurisdiction over its appeal. Instead, Petitioner requested the ARB refer the matter to the Secretary of Labor, who Petitioner believed had the discretion to review the underlying BALCA decision. Petitioner cited Secretary's Order 01-2020, and stated that the discretionary review "mechanism was extended to H-2B BALCA cases through subsequent rulemaking."

Secretary's Order 01-2020 does not refer to BALCA or provide for discretionary review of BALCA decisions. The ARB also stated that it appeared that Petitioner was incorrect that rulemaking provided the Secretary with discretionary review over these types of cases. Although the Department proposed rules in 2021 that would have extended discretionary review to BALCA decisions in the H-2B context, the Department withdrew the proposed rules without implanting them. And, even if there was discretionary review, the ARB had no role in that review or any power to refer the matter to the Secretary.

Williams v. MTA Bus New York City Transit, ARB No. 2025-0093, ALJ No. 2025-NTS-00004 (ARB Jan. 20, 2026) (Decision and Order Dismissing Appeal)

DISMISSAL; COMPLAINANT FAILED TO FILE AN OPENING BRIEF

In Williams v. MTA Bus New York City Transit, ARB No. 2025-0093, ALJ No. 2025-NTS-00004 (ARB Jan. 20, 2026), the ARB dismissed the Complainant's appeal for failure to file an Opening Brief as ordered by the ARB. On September 16, 2025, Complainant filed a Petition for Review with the ARB of an ALJ's D. & O. The ARB issued a briefing order directing Complainant to file an Opening Brief on or before October 28, 2025. On October 1, 2025, during the government shutdown, Complainant called the ARB and left a voicemail stating that she received the Board's Briefing Order, that she tried to access the Board's electronic filing system but could not do so, and that she was requesting instructions for mailing a response.

However, the Board's Briefing Order contained detailed instructions on precisely what Complainant was to file and how she was to file it. Upon resuming operations after the shutdown, the ARB returned Complainant's call and left her a voicemail providing the Board's mailing address and directing Complainant to page three of the Briefing Order which provided details for mailing the Board. Nevertheless, Complainant still did not file an Opening Brief and the Board received no further communications from Complainant.

On December 9, 2025, the Board issued an Order to Show Cause directing Complainant to file her Opening Brief along with a written brief explaining why the Board should not dismiss the appeal for failing to file an Opening Brief as ordered. The Board warned Complainant that if it did not receive Complainant's response to the Order to Show Cause and Complainant's Opening Brief by the deadline, it could dismiss the appeal without further notice.

On December 29, 2025, the ARB received a mailed package from Complainant. In the package, Complainant included an email directed to the Board's General Counsel and the Acting Clerk of the Appellate Boards stating "here is the information you have requested to properly have my case (complaint) heard by the Appellate Board."

The ARB determined that the December 29 submission did not comply with the Order to Show Cause. The December 29 submission does not address or attempt to justify Complainant's failure to file a timely Opening Brief. The December 29 submission was also late. The ARB instructed Complainant to submit her response to the Order to Show Cause within 14 calendar days of the date of the Order, i.e., by December 23, 2025.

The ARB also stated that even if it accepted Complainant's October 29 submission as an Opening Brief, it would still dismiss the appeal. The ALJ dismissed Complainant's complaint for abandonment after Complainant disregarded the ALJ's orders to submit a pleading complaint and participate in discovery. Complainant's December 29 did not address the ALJ's decision and reasons for dismissing her complaint. Instead, Complainant's December 29 submission only addressed the merits of her underlying NTSSA complaint, which was irrelevant in the appeal.

Barnes v. Rhode Island Public Transit Authority, ARB No. 2025-0086, ALJ No. 2024-NTS-00004 (ARB Jan. 12, 2026) (Order Denying Request for Extension of Time and of Administrative Closure)

TIMELINESS; REASONABLE ACCOMODATION; EQUITABLE TOLLING

In Barnes v. Rhode Island Public Transit Authority, ARB No. 2025-0086, ALJ No. 2024-NTS-00004 (ARB Jan. 12, 2026), the ARB denied Complainant's request for an extension of time to file a petition for review with the ARB. Prior to Complainant's request, the ALJ had issued a Decision and Order Granting Respondent's Motion for Summary Decision and Denying Complaint. The ALJ's decision was issued on April 1, 2025. About three and a half months after the ALJ issued the decision, Complainant left a voicemail with the ALJ's chambers requesting an update on the case's status. The ALJ's staff emailed Complainant notifying her that the decision was issued on April 1 and provided her with a courtesy copy. Complainant then alleged that she had not previously received a copy of the decision. The ALJ treated Complainant's communications as a request to reissue the decision, which he denied. Fifteen days after the ALJ issued an order denying Complainant's request for reissuance, Complaint filed a request for an extension of time to file a petition for review. The ARB issued a Briefing Order asking Complainant to explain why it should grant the extension request, especially in light of its untimeliness.

After briefing, the ARB denied the request. The Board first noted that the 14-day deadline for parties to seek review of an ALJ's decision began to run on April 1, 2025, and neither Complainant's request for reissuance nor the ALJ's order denying that request "reset" the clock or otherwise altered the time in which Complainant could seek review. The ARB then turned to Complainant's argument that her disabilities impeded her ability to timely file a petition for review and that she should be granted an extension of time as an accommodation. The ARB noted that it is bound by 29 C.F.R. Part 33, authorized, in part, by section 504 of the Rehabilitation Act, which may require certain accommodations for a covered individual to utilize the ARB's services. Additionally, the ARB noted that other courts have found that requests for accommodation can be granted as a matter of judiciary policy. Despite this, the ARB determined that it was not necessary to decide whether 29 C.F.R. Part 33 required it to grant Complainant's request for an extension of time. Since Complainant alleged that she did not receive a copy of the decision until the ALJ's staff provided her with a courtesy copy on July 16 after she called the ALJ's chambers, the bulk of Complainant's delay in seeking review, specifically the period from April 1, 2025, to July 16, 2025, was not attributable even in part to Complainant's disabilities. The ARB noted that it would have looked at Complainant's request differently had she been able to attribute the entirety of her delay in seeking review to her disabilities.

The ARB also held that equitable tolling was not warranted. Although the ARB has recognized that a party's assertion that it did not see a decision served on him or her via email can, in some circumstances, justify equitable tolling of a filing deadline, that was not the case here. Here, the Complainant did not put forth any evidence to buttress her claim that she did not receive the decision when it was served on her via email on April 1, 2025. Additionally, the ALJ's Case Tracking System showed that a copy of the decision was served on Complainant at her email address of record on April 1, 2025, and the record confirmed that the email address in the Case Tracking System is the address Complainant regularly uses and the one she consented to receive service at. The ARB distinguished this case from two other recent decisions in which it found that a pro se complainant's assertion that it did not receive an order issued by the Board was grounds for modification of briefing schedules previously established by the Board. The ARB noted that both of those cases dealt with compliance with the Board's briefing orders and the complainants' claims that they did not receive certain emails were made in response to orders to show cause. The standard of good cause shown is less than the standard that must be met to warrant the application of equitable tolling principles.