Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc., ARB No. 2021-0047, ALJ No. 2018-TNE-00022 (Sec'y Aug. 9, 2023) (Final Agency Decision and Order)
Administrative Review Board Decisions
The following case summaries were created by the Administrative Review Board staff.
Farrar v. Straitline Well Services, LLC, ARB No. 2022-0051, ALJ No. 2022-CAA-00001 (ARB Aug. 25, 2023) (Decision and Order)
TIMELINESS OF OSHA COMPLAINT; HEARING REQUEST TO OALJ DISMISSED DUE TO UNTIMELY FILING; COMPLAINANT INELIGIBLE FOR EQUITABLE TOLLING
In Farrar v. Straitline Well Services, LLC, ARB No. 2022-0051, ALJ No. 2022-CAA-00001 (ARB Aug. 25, 2023), the ARB issued a decision and order affirming the ALJ's dismissal of a complaint where Complainant failed to meet the 30-day deadline for objecting to OSHA's findings and requesting a hearing with OALJ. Complainant argued that the deadline should be equitably tolled. The ARB determined that Complainant's circumstances did not meet any of the three situations where tolling is warranted: (1) complainant raised the precise statutory claim in issue but has done so in the wrong forum; (2) complainant has in some extraordinary way been prevented from filing; and (3) complainant was excusably ignorant of the respondent's discriminatory act. In this case, Complainant argued that he had been prevented from filing due to extraordinary circumstances. The ARB found that Complainant failed to provide evidence and explain both his circumstances and why they prevented him from filing. The ARB further found that Complainant failed to offer evidence that he was diligently pursuing his case.
Kossen v. Asia Pacific Airlines, ARB No. 2023-0041, ALJ No. 2023-AIR-00001 (ARB Aug. 22, 2023) (Order of Non-Acceptance of Untimely Interlocutory Appeal)
NON-ACCEPTANCE OF INTERLOCUTORY APPEAL; INTERLOCUTORY APPEAL NOT ACCEPTED BECAUSE IT WAS UNTIMELY
In Kossen v. Asia Pacific Airlines, ARB No. 2023-0041, ALJ No. 2023-AIR-00001 (ARB Aug. 22, 2023), the ARB declined to accept Complainant's interlocutory appeal because the appeal was untimely. AIR 21's implementing regulations provide that "a petition [for review] must be filed within ten business days of the date of the decision of the Administrative Law Judge." The ARB applies the ten business-day appeal deadline to interlocutory appeals and Complainant's appeal was filed outside of the deadline. The ARB further found that, even if Complainant's interlocutory appeal had been timely, Complainant's appeal would not have met the "collateral order" exception required for acceptance of an interlocutory appeal when the ALJ has not certified an issue for interlocutory appeal. The ARB accordingly did not accept the Complainant's interlocutory appeal.
Ass't Sec'y & Becker v. Smithstonian Materials, LLC, ARB No. 2021-0048, ALJ No. 2013-STA-00050 (ARB Aug. 10, 2023) (Decision and Order) (as modified by the October 18, 2023 ARB Decision and Order on Reconsideration related to interest only)
BACK PAY; MITIGATION OF DAMAGES; COMPLAINANT'S OBLIGATION TO SEEK AND MAINTAIN SUBSTANTIALLY EQUIVALENT EMPLOYMENT; BACKPAY CALCULATION REQUIRES SUBTRACTING ALLOWED OFFSETS FROM LOST WAGES
In Ass't Sec'y & Becker v. Smithstonian Materials, LLC, ARB No. 2021-0048, ALJ No. 2013-STA-00050 (ARB Aug. 10, 2023), Respondent discharged Complainant after Complainant refused to drive an unsafe vehicle. The ALJ concluded that Complainant's discharge violated the STAA. The ALJ awarded Complainant $95,687.70 in back pay plus $36,560.42 in interest for a total award of $132,248.12, in addition to punitive damages and injunctive relief. Respondent appealed the ALJ's decision to the ARB. The ARB vacated the ALJ's calculation and modified the award because the ALJ failed to properly offset for interim wages Complainant earned following Complainant's discharge at a subsequent employer for misconduct. The ARB instead awarded Complainant back pay in the principal amount of $45,245.94, plus interest in the amount of $19,549.28, for a total back pay award of $64,795.22.
MITIGATION OF DAMAGES; RESPONDENT FAILED TO PROVE THAT COMPLAINANT FAILED TO MITIGATE DAMAGES DURING PERIODS OF UNEMPLOYMENT
While an employee who proves employment discrimination in violation of the STAA is entitled to an award of various compensatory damages, including back pay, that employee is not entitled to merely sit back and do nothing after suffering discrimination, but is instead is required to mitigate damages through the exercise of reasonable diligence in both seeking and maintaining alternative employment. The respondent bears the burden of proving that the complainant failed to mitigate damages by submitting sufficient evidence to establish that substantially equivalent positions were available, and that the complainant failed to diligently attempt to secure such positions.
After his employment with Respondent ended, Complainant had a few periods of unemployment but also worked for several different employers. The ALJ found that Complainant reasonably mitigated his damages by seeking and maintaining interim employment after the termination of his employment with Respondent.
The ARB affirmed the ALJ's finding that Respondent failed to establish the availability of substantially equivalent jobs to Complainant during his periods of unemployment in 2014 and 2015. Respondent relied solely on the testimony of its expert witness and offered no specific evidence regarding the availability of supervisory groundskeepers positions. Complainant performed between four and six job searches per week online, sent out resumes, visited job sites, and made inquiries with former co-workers. Complainant also demonstrated a continuing commitment to be a member of the workforce by obtaining jobs during the two-year back pay period after his discharge from one interim employer. The ARB therefore affirmed the ALJ's conclusion that Respondent failed to establish that Complainant acted unreasonably in failing to mitigate damages.
OFFSETS; BACK PAY AWARD CONSISTS OF LOST WAGES MINUS OFFSETS
An employee who proves employment discrimination in violation of the STAA is entitled to an award of various compensatory damages, including back pay. In analyzing the back pay to be awarded to Complainant in this case, the ARB recognized that the ARB and other courts have confusingly used the term "back pay" to mean both a component of the calculation and the result of the calculation, and have sometimes used the terms "back pay" and "lost wages" interchangeably. The ARB clarified that the term "back pay" identifies the type of statutory award available to an employee who has suffered employment discrimination under the STAA. The ARB explained there are two components of a back pay calculation: "lost wages" and "offsets." Lost wages refers to the amount of earnings that an employee would have earned had there been no discrimination by the discriminating-employer. Offsets are any reduction, in the form of a credit, sometimes but not always related to a termination or suspension of the lost wages calculation. Therefore, an award of back pay refers to the calculation of a gross amount of lost wages minus any allowed offsets.
Having clarified the nomenclature, the ARB proceeded to explain the discrete steps in accurately calculating an award of back pay. The ARB stated that the first step in the back pay analysis requires the calculation of the gross amount of lost wages the employee would have earned from the discriminating employer if they had not suffered unlawful discrimination. Lost wages are measured by using the wage rate the employee was earning on the date the discrimination occurred to extrapolate the gross amount of wages the employee would have earned from the discriminating-employer from the date of the discrimination to the claim termination date.
The second step in the calculation involves the computation of one or more offsets, which function as credits against the extrapolated amount of gross lost wages. This second step exists in recognition of the employee's duty to reasonably mitigate damages. The burden to establish a right to and the amount of any allowed offset is on the discriminating-employer, which must show that the employee failed to mitigate and therefore the back pay award should be less than the employee's gross lost wages.
The ARB recognizes various types of potential offsets which may or may not be applicable in appropriate circumstances, including (1) "interim earnings," defined as wages earned by the employee from a subsequent employer; (2) "deemed wages," a term that refers to wages not earned but that would have been earned from an employee's subsequent interim employer if the employee had not unreasonably failed to maintain the employment; and (3) "tolling" of lost wages, meaning a time-limited cessation of the extrapolation of gross lost wages due from the discriminating-employer. These offset principles operate differently depending on the facts of each case, as each set of facts reflects differently upon the STAA's goal of making the employee whole.
In this case, Complainant obtained interim employment with Rodriguez Landscape following his discharge by Respondent, and he maintained that employment from at least April 2011 until November 29, 2012, when his employment was terminated for gross or egregious misconduct. The ARB affirmed the ALJ's conclusion that, by failing to maintain his employment with Rodriguez Landscape, Complainant failed to reasonably mitigate his damages as the law requires. Complainant's right to collect lost wages from Respondent was therefore tolled from the date his employment was terminated from Rodriguez Landscape until the date he secured his next interim employment.
The ARB held that, once new employment was commenced, Respondent was entitled to an offset measured as a reduction of the gross lost wages, thus a reduction in back pay liability, measured as the greater of (1) the deemed wages Complainant would have earned had he remained at Rodriguez Landscape, or (2) the wages he earned in subsequent interim employment.
The ARB established Complainant's back pay award by extrapolating a total of $105,520 in gross lost wages at the wage rate of $1,010 per week (the rate Complainant last earned from Respondent) from the date of Complainant's unlawful firing by Respondent until the date of his employment termination from Rodriguez Landscape. Because of Complainant's discharge for misconduct, the ARB tolled—and thereby reduce to zero—the calculation of additional gross lost wages from the date of Complainant's discharge from Rodriguez Landscape until he began his next job. The extrapolation of gross lost wages then recommenced and continued until the claim period end date. During that period, Complainant's deemed wages, measured at his Rodriguez Landscape wage rate of $880 per week, was greater than the rate of Complainant's actual interim earnings for the vast majority, but not all, of the remaining period. For the weeks when Complainant's deemed wages exceeded his actual interim wages, Respondent was entitled to a deemed wages offset. For the weeks when Complainant's actual interim wages exceeded his deemed wages, Respondent was entitled to an interim earnings offset.
The Board subsequently issued a Decision and Order on Reconsideration on October 18, 2023, restating the Decision and Order in full and making changes related only to its order regarding interest. The ARB ordered pre-judgment and post-judgment interest to accrue on the principal amount owed until the date the award was paid.