We waited a year for the Obama Administration's new Secretary of Labor, Hilda Solis, to appoint new members to the Administrative Review Board (ARB), but now we finally get to see what a difference these appointments can make. Today the ARB released its decisions from March, and one decision shows what a difference the new appointments make. In Hyman v. KD Resources, ARB No. 09-076, ALJ No. 2009-SOX-20 (ARB Mar. 31, 2010), the new Board members made it easier for whistleblowers to assert the doctrine of "equitable estoppel" to excuse late filing. The official DOL digest of this decision follows in the continuation of this blog entry. The key concept is that the ARB would accept as grounds for equitable estoppel an employer's indication, even in settlement negotiations, that the termination decision is not final and will be reconsidered. Indeed, "other situations might also give rise to equitable estoppel." The ARB explains a distinction between "equitable tolling," which is based on the circumstances or state of mind of the complainant, and "equitable estoppel," which is based on the conduct of the respondent. This decision marks an expansion of circumstances in which equitable estoppel might apply. Also, the ARB held that once a complainant makes a showing of grounds for equitable estoppel, a complaint should not be dismissed without a hearing on that issue. ARB Chair Paul Igasaki and Vice-Chair E. Cooper Brown joined in the decision. These are Secretary Solis' new appointments. The holdover member from the Bush Administration, Wayne Beyer, dissented. What a difference an election can make.
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On Workers Memorial Day and the 40th anniversary of the creation of the Occupational Safety and Health Administration, the Workforce Protections Subcommittee of the House Committee on Education and Labor held a hearing on pending legislation, the Protecting America’s Workers Act (PAWA), H.R. 2067.
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