Administrative Review Board Decisions

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

Gadbury v. Park Aerospace Corp., ARB No. 2026-0024, ALJ No. 2025-SOX-00022 (ARB Apr. 17, 2026) (Decision and Order Denying Interlocutory Appeal)

ORDER OF DISMISSAL; INTERLOCUTORY APPEAL

In Gadbury v. Park Aerospace Corp., ARB No. 2026-0024, ALJ No. 2025-SOX-00022 (ARB Apr. 17, 2026), Respondents Park Aerospace Corp. and Mark Esquivel filed a petition for interlocutory appeal with the ARB to review an ALJ Order Denying Respondents' Motion for Summary Decision (ALJ's Order).

Complainant filed a complaint with OSHA on October 24, 2024, alleging that Respondents violated the SOX. OSHA dismissed the complaint. On November 6, 2025, after the matter was assigned to an ALJ with the Department's Office of Administrative Law Judges, Respondents filed a Motion for Summary Decision. On February 20, 2026, the ALJ denied Respondents' Motion for Summary Decision.

On March 6, 2026, Respondents filed an Interlocutory Petition for Relief with the ARB seeking review of the ALJ's Order. On March 12, 2026, the ARB issued an Order to Show Cause, ordering Respondents to file a brief within ten calendar days explaining why the ARB should not dismiss the petition and demonstrate why this matter satisfied all three elements of the collateral order exception identified in the order. On March 24, 2026, Respondents filed a response.

Respondents contended that the ARB should review the ALJ's Order because the ALJ issued a notice of appeal rights, signaling that the legal issues were significant enough for immediate review. The ARB determined that the inclusion of appeal rights, in and of itself, did not justify immediate interlocutory review.

Respondents also contended that the Board should review the ALJ's Order because the ALJ committed legal error in denying summary decision on the issue of whether Complainant engaged in protected activity. Respondents further contended that it would avoid unnecessary litigation.

When a party seeks interlocutory review of an ALJ's non-final order, the ARB has elected to look to the interlocutory review procedures used by federal courts, including requesting the trial court certify issues involving a controlling question of law for immediate appeal in accordance with 28 U.S.C. § 1292(b). Complainant had not received ALJ certification.

If a party has failed to obtain ALJ certification, the ARB may still consider reviewing an interlocutory order that meets the "collateral order" exception. To fall within the "collateral order" exception, the order appealed must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment.

Setting aside the first prong, the ARB concluded that Respondents' appeal did not satisfy the second and third prongs. The ARB determined that the issue of whether Complainant engaged in protected activity was not separate from the merits of the action, but squarely on the merits. The ARB also determined that Respondents' rights could be adequately vindicated at the conclusion of the ALJ's proceedings. Even if there would be some efficiency to reviewing the issue, that did not render the issue "effectively unreviewable." The ARB has also repeatedly held that orders on summary decision are not "effectively unreviewable."

Thus, the ARB denied Respondents' petition for interlocutory review and remanded the case to OALJ to continue the agency proceedings.

Glean v. Fairfax County Government, ARB No. 2025-0087, ALJ No. 2025-TAX-00014 (ARB April 30, 2026) (Decision and Order)

ELEVENTH AMENDMENT IMMUNITY; SCOPE OF COVERAGE UNDER THE TAXPAYER FIRST ACT; OFFICIAL CAPACITY SUITS

In Glean v. Fairfax County Government, ARB No. 2025-0087, ALJ No. 2025-TAX-00014 (ARB April 30, 2026), the ARB affirmed the ALJ's Order Granting Respondent Fairfax County's Motion to Dismiss. The ARB held that although the Eleventh Amendment did not bar Complainant's suit because Eleventh Amendment immunity does not apply to counties or other political subdivisions of a State, dismissal was nonetheless required because Fairfax County fell outside the scope of the employee protection provisions of the Taxpayer First Act (TFA).

Complainant is employed by Fairfax County and filed a complaint with OSHA alleging that Fairfax County did not select him for the position of Director of Wastewater Treatment in retaliation for his complaints to management about the alleged misuse of taxpayer funds. OSHA determined that Complainant and Respondent are not covered under the TFA, and Eleventh Amendment sovereign immunity barred the complaint. Accordingly, OSHA dismissed the complaint. Complainant objected to OSHA's determination and requested a hearing before an ALJ. Prior to a hearing, Respondent sought to have the complaint dismissed. Complainant objected to this and moved to amend the case caption to name two county employees, each in their official capacity, as respondents. The ALJ granted Respondent's motion and denied Complainant's motion.

In affirming the ALJ's conclusion that Fairfax County was not covered under the TFA, the ARB explained that although the TFA does not define "employee," the TFA's implementing regulations do provide a definition. Specifically, the TFA regulations state that "[e]mployee means an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by, another person." The TFA regulations further provide that "[p]erson means an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, or estate" and that "[r]espondent means the person named in the complaint who is alleged to have violated TFA." Based on this definition of "person," the ARB held that Fairfax County was not a person for purposes of TFA coverage and, accordingly, could not be a respondent.

In reaching this conclusion, the ARB emphasized that the definition contained in the TFA regulations states that "person means an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, or estate." The use of "means," rather than alternative phrasing such as "includes," "means and includes," or "includes but is not limited to" is strong evidence that the regulatory definition is not susceptible to expansion. Rather, the term and its definition are interchangeable equivalents.

The ARB also affirmed the ALJ's denial of Complainant's motion to amend the case caption to add two Fairfax County employees—each in their official capacity—as respondents. The ARB noted that official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. Complainant could not maintain an action against Fairfax County under the TFA and the ARB held that Complainant could not circumvent this fact by naming county officials in their official capacity as respondents.

Administrator, Wage and Hour Div., USDOL v. O'Bryan Composting, LLC, ARB No. 2025-0065, ALJ No. 2023-TAE-00005 (ARB Apr. 22, 2026) (Order Granting Joint Motion for Stipulated Dismissal and Consent Order Vacating March 31, 2025 Order, Reversing Administrator's Determinations, and Dismissing Appeal)

JOINT MOTION FOR STIPULATED DISMISSAL; VACATUR OF ALJ ORDER; REVERSAL OF ADMINISTRATOR'S DETERMINATIONS

In Administrator, Wage and Hour Div., USDOL v. O'Bryan Composting, LLC, ARB No. 2025-0065, ALJ No. 2023-TAE-00005 (ARB Apr. 22, 2026), the ALJ issued a default decision and order in favor of the Administrator and against Respondent for violations of 20 C.F.R. §§ 655.122(d)(1), (h)(4), and (j)(1). The ALJ found Respondent failed to comply with her discovery orders and imposed $8,541.00 in civil money penalties. Respondent appealed the ALJ's default decision and order to the ARB.

The parties filed a joint motion in which the Administrator informed the ARB it no longer sought to pursue claims against Respondent for violations of 20 C.F.R. §§ 655.122(d)(1), (h)(4), and (j)(1), any claim for violations giving rise to the ALJ's default decision and order, or the default decision and order. Citing Federal Rule of Appellate Procedure (FRAP) 42(b)(1) and (b)(3), the parties jointly requested that the ARB vacate the ALJ's default decision and order, dismiss the Administrator's claims which led to the default decision and order, and that the dismissal serve as a decision on the merits in favor of Respondent.

In the joint motion, Respondent sought to reserve all claims for attorney's fees and expenses, including under the Equal Access to Justice Act (5 U.S.C. § 504) and any other applicable authority, including bad-faith fees, while the Administrator reserved all defenses to any such claims. By the consent of the parties and pursuant to FRAP 42, the Board issued an order granting the parties' requests.

Sharpe v. Geiger Excavating, Inc., ARB No. 2024-0038, ALJ No. 2023-STA-00027 (ARB Apr. 29, 2026) (Decision and Order)

SUMMARY DECISION; NO GENUINE ISSUE OF MATERIAL FACT; PROTECTED ACTIVITY; CONTRIBUTING FACTOR 

In Sharpe v. Geiger Excavating, Inc., ARB No. 2024-0038, ALJ No. 2023-STA-00027 (ARB Apr. 29, 2026), the ARB summarily affirmed the ALJ's Order Granting Summary Decision. Complainant worked for Geiger Excavating, Inc. as a driver transporting heavy construction equipment and performing snow removal. After taking a part-time overnight job with Tri County Ambulance, he told his dispatcher that he would not be available to work weekends.

In early February 2022, after being assigned to snow removal, Complainant texted his supervisor that the current snowfall would be the last one he would work. On February 4, his dispatcher asked Complainant to make a weekend delivery run to Terre Haute, Indiana. Complainant declined by text message, stating that he was unavailable, without explaining that his refusal was based on hours-of-service concerns or any other safety issue. Later that same day, Complainant's dispatcher and supervisor decided to terminate his employment based on his refusal to perform future snow removal and work weekends. Complainant was informed of the termination on February 7, at which point he stated that he had refused the assignment because he believed he lacked sufficient available hours to complete the Terre Haute trip.

Complainant filed a complaint with OSHA, alleging that Respondents retaliated against him in violation of the STAA. OSHA issued Secretary's Findings concluding that there was no reasonable cause to believe a violation occurred and dismissed the complaint. Complainant filed objections to Secretary's Findings and requested a hearing before the OALJ. The ALJ granted summary decision for Respondents, concluding that Complainant had not established a genuine issue of material fact as to protected activity. The ALJ reasoned that Complainant's February 4 text message—simply saying he was not available—did not communicate that he was refusing the trip because of an actual or perceived safety violation or because of a reasonable apprehension of serious injury. The ALJ treated the unexplained refusal as insufficient to place the employer on notice of protected conduct. In the alternative, the ALJ found that even if Complainant had engaged in protected activity, he failed to show that it was a contributing factor in his discharge because the decisionmakers had already decided to terminate him on February 4 for non-retaliatory reasons before he later explained his hours-of-service concern.

On appeal, Complainant argued that the ALJ erred in his alleged protected activity analysis by failing to consider the timing and context of Complainant's conduct, including Complainant's work schedule and other circumstances. Complainant also contended that the ALJ erred in his contributing factor analysis by improperly assessing Respondents' knowledge and failing to account for relevant evidence of causation. The ARB rejected those arguments and summarily affirmed the Order Granting Summary Decision.

PROTECTED ACTIVITY; A REFUSAL MUST CONVEY ENOUGH CONTEXT TO PUT RESPONDENT ON NOTICE; THE ARB DOES NOT GENERALLY CONSIDER ARGUMENTS RAISED FOR THE FIRST TIME ON APPEAL

First, the ARB agreed that Complainant's refusal of the Terre Haute trip did not qualify as protected activity because, at the time of the refusal, he gave no explanation indicating that the assignment would violate safety regulations or that he was refusing for safety-related reasons. The ARB emphasized that the surrounding circumstances likewise did not put Respondents on notice that the refusal implicated protected rights under the STAA. The ARB also declined to consider Complainant's argument that his refusal to perform future snow removal constituted protected activity because that argument appeared to be raised for the first time on appeal.

CONTRIBUTING FACTOR; LEGITIMATE NON-DISCRIMINATORY REASONS FOR ADVERSE ACTION; DECISION TO TERMINATE EMPLOYMENT BEFORE ALLEGED PROTECTED ACTIVITY

Second, the ARB further agreed that, even assuming Complainant had engaged in protected activity, the record showed no genuine dispute that Respondents decided to terminate Complainant's employment on February 4, before the February 7 conversation in which Complainant first stated that his refusal was based on insufficient driving hours. Because the alleged protected explanation came after the termination decision had already been made, it could not have contributed to that decision. The ARB therefore concluded that Complainant had not established a genuine issue of material fact and affirmed the dismissal of his complaint.

Administrator, Wage and Hour Div., USDOL v. Zoom Flume Water Park, LLC, ARB No. 2024-0025, ALJ No. 2023-CLA-00007 (ARB Apr. 30, 2026) (Decision and Order)

CHILD LABOR VIOLATIONS; CIVIL MONEY PENALTIES

In Administrator, Wage and Hour Div., USDOL v. Zoom Flume Water Park, LLC, ARB No. 2024-0025, ALJ No. 2023-CLA-00007 (ARB Apr. 30, 2026), Respondent, a seasonal water park, employed 35 15-year-olds to serve as dispatchers at the top of elevated, power-driven water slides. The ARB affirmed the ALJ's conclusions that the assignment of the minors to work as dispatchers violated the child labor provisions of the Fair Labor Standards Act (FLSA) and affirmed the award of civil money penalties (CMPs). 

CHILD LABOR VIOLATIONS; WORKING AS A DISPATCHER AT THE TOP OF ELEVATED, POWER-DRIVEN WATERS SLIDES VIOLATES THE CHILD LABOR LAWS

The FLSA generally and broadly prohibits the employment of any person under the age of 16 from working "in any occupation." The FLSA's implementing regulations elaborate on and provide examples of the myriad occupations that fall within this blanket prohibition, including "operating, tending, setting up, adjusting, cleaning, oiling, or repairing any power-driven machinery . . . ." However, the statute also allows the Secretary of Labor to issue regulations or orders that permit 14- and 15-year-olds to work in certain occupations if the Secretary determines they are "confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being." Importantly, though, "[e]mployment that is not specifically permitted is prohibited." Thus, the ARB summarized that there is generally a blanket prohibitionon employing minors under the age of 16 in any job, unless the Secretary issues a regulation or order explicitly permittinga specific job.

By regulation, the Secretary permits 15-year-olds to perform "permitted lifeguard duties at traditional swimming pools and water amusement parks." However, the regulations expressly exclude and prohibit 15-year-olds from working on "the elevated areas of power-driven water slides," including as "dispatchers or attendants."

The ARB concluded that this regulatory language was determinative in this case. It was undisputed that Respondent employed 15-year-olds to work as dispatchers at the top of elevated, power-driven water slides. Thus, the ARB determined that Respondent violated the law.

In reaching its conclusion, the ARB rejected Respondent's focus on the portions the regulations that generally prohibit minors under the age of 16 from "operating" or "tending" "power-driven machinery." Respondent argued that there was no "power-driven machinery" or equipment at the top of the slides with its 15-year-old dispatchers, and thus there could be no violation.

The ARB stated that Respondent ignored the regulatory language that determined the outcome of this case. While it is true that the regulations broadly prohibit minors under the age of 16 from "operating" or "tending" power-driven equipment, including power-driven, elevated water slides, the regulations also make clear that the occupations specifically prohibited by that regulation are not "exhaustive," and that "[e]mployment that is not specifically permitted is prohibited." The regulations also expressly and specifically prohibit persons under the age of 16 from serving as "dispatchers or attendants" at the top of elevated water slides, performing precisely the duties the minors performed in this case. The regulation on its face is not limited to situations where the minors are near or using the mechanisms that power or control the slides, and rulemaking associated with the regulations confirmed that such work was not allowed, whether the minors were handling the slides' controls or not.

CIVIL MONEY PENALTIES; ARB AFFIRMS ASSESSMENT OF PENALTIES

The ARB affirmed the Administrator's and the ALJ's CMP assessment of $1,086 per minor, for a total of $38,010, for the child labor violations. First, the ARB considered the two mandatory regulatory factors: the size of Respondent's business, and the gravity of the violation.

Regarding the size of the business, the regulations instruct the ARB to consider: (1) the number of employees; (2) the dollar volume of sales or business done; (3) the amount of capital investment and financial resources; and (4) "such other information as may be available relative to the size of the business of such person." Based on these factors, the ARB determined that Respondent was not a small business. It employed 150 employees and had over $1 million per year in annual dollar volume. Respondent also did not present any evidence of financial hardship or argue that its size merited a reduction in the penalty. Comparing Respondent to the sizes of business in other child labor cases, the ARB found that a reduction in the CMP based on Respondent's size was not warranted.

The ARB next considered the gravity of the violation. The regulations direct the ARB to consider: (1) any history of prior violations; (2) any evidence of willfulness or failure to take reasonable precautions to avoid violations; (3) the number of minors illegally employed; (4) the age of the minors and records of the required proof of age; (5) the occupations in which the minors were employed; (6) whether the minors were exposed to hazards and any resultant injuries to the minors; (7) the duration of the illegal employment; and (8) as appropriate, the hours of the day in which the violations occurred and whether such employment was during or outside school hours.

The ARB began by recognizing that some of these factors reflect favorably on Respondent. It was undisputed that WHD did not find that Respondent acted willfully in violating the child labor laws and that Respondent had no prior child labor violations. Additionally, no minors were injured while working as dispatchers. It also appeared that Respondent did not employ minors in such a way as to interfere with school hours. Respondent also immediately revised its practices and agreed to comply with the law. The ARB stated that Respondent's "response to WHD's notice of its violations was commendable and must be taken into consideration when assessing a penalty in this case."

On the other hand, other factors weighed against Respondent, including the number of minors illegally employed as dispatchers and the duration of such illegal employment. The investigation revealed that Respondent employed 35 minors in violation of the FLSA—nearly a quarter of its entire staff. Respondent regularly rotated the 15-year-olds to serve as dispatchers on the slides as part of their daily rotations around the park, with assignments as dispatchers lasting an hour at a time. Respondent does not dispute that this practice was extensive, lasted for at least the two-year investigatory period, and apparently dated back much longer.

The minors were also exposed to hazards. Respondent assigned the 15-year-olds to work at the top of six elevated water slides—one stood 44 feet in the air, three others stood 30 or more feet in the air, and a fifth stood 20 feet in the air. "At those heights, under those conditions, and with the distractions that can easily be foreseen from dealing with and managing riders, one slip and fall could obviously be catastrophic." However, the ARB agreed that this was not the most dangerous work to which 15-year-olds could be exposed and for which a penalty at or approaching the statutory maximum should be assessed.

Considering all these factors, the ARB determined that the CMP assessed by WHD and affirmed by the ALJ of $1,086 per minor, which was just approximately 8% of the penalty that could be assessed in this case, was appropriate.

The ARB next considered potential mitigating factors identified by the regulations. First, the ARB could consider reducing or eliminating the CMP if: (1) the violation was "de minimis," (2) the violator has given credible assurance of future compliance; and (3) a penalty in the circumstance is not necessary to achieve the objectives of the FLSA. The ARB determined that the violations were no "de minimis." The ARB stated that the ARB and the Secretary have repeatedly and consistently declined to find violations de minimis where the violations were frequent or pervasive or where the violations involve hazardous work. Here, the violations involved 35 minors, occurred regularly, and continued over a period of years. The violations also exposed the minors to hazards.

The ARB could also consider reducing or eliminating the CMP if: (1) the violator has no previous history of child labor violations; (2) the violations involved no intentional or heedless exposure of any minor to any obvious hazard or detriment to health or well-being and were inadvertent; (3) the violator has given credible assurance of future compliance; and (4) a penalty in the circumstance is not necessary to achieve the objectives of the FLSA. The ARB determined that the minors were exposed to obvious hazards or conditions detrimental to their health and well-being. The minors worked at the top of elevated, power-driven water slides, two-thirds of which were 30 or more feet in the air. Respondent knowingly assigned the 15-year-olds to this work repeatedly as part of their regular daily rotations for years. "[A]t those heights and with the conditions under which they worked, Zoom Flume exposed the minors to obvious hazards that could have been catastrophic." Thus, mitigation was not appropriate.