Whistleblower Law Blog

ARB: Whistleblower Can Get Back Pay Even for Time in College

The U.S. Department of Labor’s Administrative Review Board (ARB) ruled that a whistleblower who was illegally forced out of his truck-driving job could claim back pay even for time he spent as a full-time college student.

The ARB’s decision in Cole v. R. Construction Co. held that Jeffrey Cole merited the award because of two circumstances:

  • Mr. Cole enrolled in college only after a “diligent search” for comparable work; and
  • He requested the award.

In a similar case before the ARB in 1999, a whistleblower did not receive back pay after he became a full-time student — but the ARB said the cases weren’t comparable because the earlier plaintiff apparently never requested such an award.

Instead the ARB cited several cases where federal appeals courts had allowed back pay for plaintiffs who became full-time students, as long as they first performed a good-faith but fruitless search for work.

Both Mr. Cole and R. Construction had asked the ARB to review a decision by a lower-level administrative law judge (ALJ), who found R. Construction liable under the Surface Transportation Assistance Act for making Mr. Cole’s job unbearable after he refused to drive a truck full of hazardous waste — a task for which he wasn’t qualified. Besides awarding back pay, the ALJ had ordered R. Construction to rehire Mr. Cole.

R. Construction wanted that decision reversed, while Mr. Cole questioned the judge’s decision to end back pay on the date he entered college to retrain as a computer specialist.

The ARB sided with Mr. Cole, saying that he did his duty by seeking work — and noting that he enrolled in college only after R. Construction ignored the ALJ’s order to rehire him.

The company’s defiance of judicial procedure “further underscores the appropriateness of extending backpay,” said the ARB, which also affirmed the order to reinstate Mr. Cole.

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