Cargo Express ordered to pay over $90K to driver under the Surface Transportation Assistance Act.

Full article here: http://www.examiner.com/article/dol-judge-orders-cargo-express-to-reinstate-driver-and-pay-damages

Looking for Prime Drivers Pressured to Break DOT Regulations.

Looking for Prime Drivers Pressure to Break DOT Regulations.

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I am looking for past and present drivers for Prime who have been pressured by Prime to violate a commercial vehicle safety regulation.

On August 31, 2011, the Department of Labor's Administrative Review Board issued a decision upholding, in part, an administrative law judge's decision finding that New Prime Inc. (Prime) violated the Surface Transportation Assistance Act ("STAA") by firing Cynthia Ferguson because she would not drive a commercial vehicle in violation of the FMCSA's hazardous weather rule (49 C.F.R., Sec. 392.14). The STAA prohibits a carrier from retaliating against a driver because that drive has refused to drive in violation of a commercial vehicle safety regulation, or because the driver has complained to the carrier or the government about violations of commercial vehicle safety regulations.

While the Board found affirmed the ALJ's finding that the discharge was retaliatory and awarded $50,000 in compensatory damages, the Board set aside the ALJ's award of punitive damage and sent the case back to the administrative law judge for reconsideration of the punitive damages award. In so doing, the Board stated as follows:

Quote:

The ALJ found that [Jeremy] Thomas, the fleet manager violated a federal safety statute when he pressured Ferguson to drive through the Donner Pass in hazardous conditions. He found that Thomas demonstrated a total disregard not only for Ferguson and her co-driver's safety but for the safety of others on the road. Thus he concluded that this behavior was both reprehensible and inimical to the purpose of the Act. However, the ALJ did not consider whether Thomas's behavior reflected a corporate policy of STAA violations or whether punitive damages are necessary in this case to deter future violations. *** Thus, we vacate the ALJ's award of punitive damages and remand the case for further findings on the necessity and amount of such damages under the facts of this case. In his analysis, the ALJ should include consideration of the size of the award that would adequately deter New Prime from future violations and the punitive impact of the damages on the company.

Any testimony or other evidence that you could provide showing that you have been pressured by Prime to drive in violation of a commercial vehicle safety regulation may assist my client, Ms. Ferguson, and me in proving that an award of substantial punitive damages may deter future violations by Prime. If you are one of those who have been pressured to break the law, please contact me. My contact information is below.

Paul O. Taylor
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
Tel. No. 651-454-5800
email: paul.taylor@truckersjusticecenter.com

NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP.

OSHA orders reinstatement of Memphis truck driver

In a decision issued on February 23, 2011, the United States Department of Labor's Occupational Safety and Health Administration (OSHA), ordered a Memphis-based towing company to reinstate a commercial driver, William Beecher. OSHA found that the employer unlawfully fired Beecher because he refused to drive a transport recovery vehicle that did not comply with DOT regulations. In Beecher v. United Auto Recovery and Memphis Auto Auction, OSHA also ordered Beecher's former employer to pay him back pay in excess of $38,000, emotional distress damages of $20,000, punitive damages of $40,000 and more than $10,000 in attorney fees.

On February 5, 2009, Beecher refused to drive a tow truck because the vehicle had a severe coolant leak which he had previously noted on numerous daily vehicle inspection reports submitted to the employer. An outside vendor for the employer had noted on a work order that the vehicle was "not driveable." It appeared to Beecher that the truck also had a blown head gasket. OSHA found that if Beecher had driven the truck, he would have violated 49 C.F.R. § 396.7(a). Although the employer claimed it offered Beecher an alternative vehicle to drive, a 4900 four-car hauler, Beecher did not have a license allow him to drive that larger vehicle. OSHA found that Beecher's refusal to drive the larger vehicle was legally protected because he would have otherwise violated 49 C.F.R. § 383.23(a).

OSHA found that an award of damages for emotional distress was appropriate because Beecher's discharge caused him to fall into "a deep depression" and that he and his family "have suffered mental anguish due to this financial stress." OSHA also held that punitive damages were warranted because of United Auto Delivery and Recovery and Memphis Auto Auctions' "reckless disregard for the law and complete indifference to [Beecher's] rights."

Beecher brought his claim under the employee protection provisions of the Surface Transportation Assistance Act, 49 U.S.C. § 31105, which prohibits retaliation against commercial drivers because they have filed safety-related complaints or because they have refused to drive in violation of a commercial vehicle safety regulations.

Beecher was represented by Paul O. Taylor of Truckers Justice Center, a law firm handling employment-related claims for commercial drivers based in Burnsville, MN. Mr. Taylor may be reached at 651-454-5800, or visit: www.truckersjusticecenter.com

JUDGE RULES DRIVER WAS ILLEGALLY FIRED FOR REFUSING TO HAUL OVERWEIGHT LOAD

In a decision issued on February 11, 2011, a Department of Labor Administrative Law Judge Patrick Rosenow has found that H. H. Williams Trucking, Inc. of Greeley, CO unlawfully retaliated against trucker J. R. Hildebrand because he refused to transport a shipment of meat in excess of the 80,000 pound legal limitation provided for under federal and Wyoming law.

In Hildebrand v. H. H. Williams Trucking, Inc., Case No. 2010-STA-56, Judge Rosenow held that Mr. Hildebrand's refusal to drive with his loaded tractor-trailer set at 80,360 was protected under the employee protection provisions of the Surface Transportation Assistant Act ("STAA").

The Judge noted that it was undisputed that, even though Hildebrand would drive on State Highway until he reached I-80, he would have still exceeded 80,000 pounds once he entered I-80 in Wyoming. Judge Rosenow stated as follows:

The record is clear that when Complainant took the rig to the scales for the first time, the reported weight was 80,360 pounds. There was testimony that the scale may have been within calibrated tolerances and still report a weight that was slightly more or less than the actual weight. Nevertheless, the preponderance of the evidence is that the rig weighed 80,360 pounds. Similarly, there was some conflict as to the correct weight limitations on non- interstate highways and the routing Complainant was supposed to take to I-80. Nonetheless, given a starting overage of 360 pounds, the burn rate of the truck, and the mileage to Cheyenne, the preponderance of the evidence in the record establishes that had Complainant continued with the initial load, he would have more likely than not been operating on I-80 in excess of 80,000, in violation of the regulation. In fact, Howard Williams conceded in his candid and credible testimony that Complainant would not have been under 80,000 by the time he reached I-80. However, Mr. Williams added that he did not see that as a violation, because the truck scale manned by Commercial Vehicle Enforcement will give some leeway, even though the weight is slightly over.

***

While Mr. Williams testimony may have stated a rational position and accurate assessment of industry practice, it does not reflect applicable law.

Although Williams Trucking claimed it fired Mr. Hildebrand for failing to communicate, Judge Rosenow found that Hildebrand was fired in retaliation for his legally-protected refusal to drive. The Judge found support for this in Williams Trucking's position statement to OSHA in which it stated that drivers should take loads as long as they do not exceed 800 pounds overweight. It also stated to OSHA that if Hildebrand called dispatch, he would have been told to go with the 390 pounds of excess weight and that the employer would pay any fines.

Judge Rosenow ordered Williams Trucking to reinstate Mr. Hildebrand, pay him back pay, additional compensatory damages of $6,000 and punitive damages of $10,000.

Hildebrand's claim was brought under the STAA provision prohibiting retaliation against drivers because they have filed safety-related complaints with the employer or government, or because they have refused to drive in violation of a commercial vehicle safety regulation.

Paul O. Taylor
Attorney
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
Tel. No. 651-454-5800
www.truckersjusticecenter.com

*** NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP ***

The Truckers Justice Center at the Law Office of Taylor & Associates and whistleblower attorney Paul Taylor has been helping truck drivers with their employment-related problems for more than 20 years. Mr. Taylor aggressively seeks justice for workers who have suffered at the hands of unethical companies. He has brought successful claims against some of the largest trucking companies in the United States. To learn more about your rights as a commercial truck driver visit the Truckers Justice Center website www.truckersjusticecenter.com

Weather is terrible, but dispatch tells you to drive.

I have written about the subject of your legal protection when you refuse to drive in bad weather several times in the past. However, I need to write about this subject again because winter 2010-2011 has been one of those seasons where one winter storm is followed by another.

The employee protection provisions of the Surface Transportation Assistance Act ("STAA") protect commercial drivers from retaliation because they have refused to drive in violation of a commercial vehicle safety regulation. The STAA also protects drivers from retaliation because they have refused to drive based upon an objectively reasonable apprehension (concern) of serious injury. In order to be protected a driver must be able to prove either (a) a violation of a commercial vehicle safety regulation would have occurred but for the refusal; or (b) that a reasonable driver with similar experience and under similar circumstances would have believed that driving was dangerous.

The Federal Motor Carrier Safety Regulations state as follows at 49 C.F.R. § 392.14:

Hazardous conditions; extreme caution.
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. . . .

49 C.F.R. § 396.7(a) states as follows:

Sec. 396.7 Unsafe operations forbidden.
(a) General. A motor vehicle shall not be operated in such a condition as to likely cause an accident or a breakdown of the vehicle.

In several cases the Department of Labor (DOT does not have jurisdiction over these claims), has found a refusal to drive in hazardous weather conditions to be protected under the STAA. See, [u]Robinson v. Duff Truck Line, Inc.[/quote], 1986-STA-3 (Sec’y Mar. 6, 1987), and Eash v. Roadway Express, Inc., 2000-STA-47 (ARB June 27, 2003).

In Duff Truck Line, Inc., Robinson was scheduled to drive on his regular bid from Louisville, KY to Lima, OH. It rained throughout the afternoon that day and began to snow about 3:00 or 4:00 p.m. Television stations warned against driving on highways north of Louisville. The employer argued that other drivers had successfully completed their dispatches through bad weather without incident. The Secretary of Labor found that hazardous weather conditions existed and that Robinson had engaged in a protected activity by refusing to drive in violation of 49 C.F.R. § 392.14.

In finding that Robinson’s apprehension of serious injury was reasonable, the Secretary of Labor relied on the following factors:

1. Robinson observed weather and road conditions around his house;
2. Robinson heard weather warnings advising against driving on the highways he would have had to take;
3. Robinson was familiar with the roads, having driven his run five days a week, including in ice and snow;
4. Robinson knew the driving problems presented by driving a commercial vehicle on icy and snow roads.

In order to be protected under the STAA, A driver must be acting reasonably in determining weather and road conditions before refusing to drive due to bad weather. Here are some tips to follow:

A. Monitor Weather Reports on Radio and Television;
B. Use various Internet sites to assess conditions (download the reports for use as evidence);
C. Contact other drivers who may have driven through the poor weather conditions, or who may also be assessing conditions. The truck stop lounge may be a good place to start.
D. Contact government officials such as State Patrol or State DOT to obtain their advice.
E. Contact your employer to determine whether other drivers have reported concerning driving conditions.

Remember - Just because other drivers successfully reach their destinations does not mean the driving was safe. Moreover, the Federal Department of Transportation has issued an advisory indicating that it is your call to make as to whether or not driving is safe. The advisory states as follows:

392.14 Hazardous Conditions; Extreme Caution.
Question 1: Who makes the determination, the driver or carrier, that conditions are sufficiently dangerous to warrant discontinuing operation of a CMV [commercial motor vehicle]?

Guidance: Under this section, the driver is clearly responsible for the safe operation of the vehicle and the decision to cease operation because of hazardous conditions.

Once you have made the determination not to drive, you need to clearly communicate to the employer the basis for your work refusal. Use of the Qual-Comm or PeopleNet system followed by a telephone call usually is best. Use a camera to photograph the message that you send.

Tell the dispatcher that you believe that it is unsafe to drive at the present time. Tell him what you have done to assess driving conditions. Tell him you have spoken with other drivers, watched weather reports on television and monitored weather reports on the Internet in the direction of your travel. Be as specific as possible. For example, if the Ohio DOT has issued an advisory against all travel in Ohio, and you are scheduled to drive through Ohio, tell dispatch "I was monitoring the Internet and saw where Ohio DOT is advising against all travel tonight in Ohio." You could also add (if true), "I was in the lounge at the TA here in Cleveland and watching The Weather Channel. The announcer said that roads were icy on I-80, and I the news showed photos of tractor-trailers in the ditches."

It is also important that you give the carrier options. Tell your dispatcher that you will drive when conditions improve enough to make driving safe. Be respectful at all times, even if the dispatcher is not respectful toward you.

Finally, it is important that you keep good documentation. Retain copies of weather reports, if possible. Photograph your Qual-Comm communications with dispatch. You may even want to consider keeping a diary to note the times you made telephone calls to your employer and to summarize what you told the employer. This will help you prove your case in the event you are fired in retaliation for a protected work refusal.

Paul O. Taylor
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
(651) 454-5800

www.truckersjusticecenter.com

NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY CLIENT RELATIONSHIP.

Do You Know Who Is Really Your Employer?

Over the many years that I have represented truck drivers in cases brought against trucking companies, I have often been told by the drivers that they worked for one company, only to discover, sometimes much later, that the driver was actually an employee of another entity from whom he or she actually received a paycheck. It is important then to know who might be liable under an employment law. It may be that, in the case of a driver driving for an owner-operator, that the driver is actually a joint employee of the carrier and the owner-operator. Cases involving employee leasing or staffing companies are a little more tricky because the employee leasing company may be functioning as little more than a payroll service.

In Forrest v. Dallas & Mavis Specialized Carrier Co., 2003-STA-53, ARB Case No. 04-052 (ARB July 29, 2005) the Department of Labor's Administrative Review Board found that the ability to control an employee is the essential element of establish employer liability under the STAA [a trucking whistleblower law].” In Forrest, Ricky Forrest brought a claim against Dallas and Mavis Specialized Carrier Company, and against Robertson Brothers Trucking, an independent contractor that provide services to Dallas and Mavis. Id. at 4. Dallas and Mavis did not pay the drivers. Instead, Dallas and Mavis paid Robertson Brothers, a subcontractor which then paid its drivers. Robertson was responsible for withholding state and federal taxes and providing workers compensation and unemployment insurance for its own employees.

The Department of Labor found that Dallas & Mavis was not an employer of the owner-operator's drivers for purposes of determining liability in that case.

In cases under other statutes, the Department of Labor has noted that control over the employee’s employment “includes the ability to hire, transfer, promote reprimand, or discharge the complainant, or to influence another employer to take actions against a complainant….” Culligan v. American Heavy Lifting Shipping Company, ARB Case No. 03-046, slip op at 13-14 (ARB June 30, 2004)[emphasis supplied]; See also, Lewis v. Synagro Technologies, Inc., ARB Case No. 02-072, slip op at 4 (ARB Feb. 24, 2004) holding that “control over employment is essential to being an ‘employer.’”

Under the Fair Labor Standards Act, the Courts utilize a multi-factor "economic realities test" in determining whether a party is an employer for purposes of liability under the STAA. In litigation of whistleblower cases, the Department of Labor focuses on control. See, Lewis v. Synagro Techs, Inc., ARB No. 02-072 (ARB Feb. 27, 2004) (environmental whistleblower acts) and cases cited therein. Such control, which includes the ability to hire, transfer, promote, reprimand, or discharge the complainant, or to influence another employer to take such actions against an employee is essential for a whistleblower respondent to be considered an employer under the whistleblower statutes.

In Palmer v. Western Truck Manpower, the DOL found that Western was a joint employer under the STAA. Western was a leasing agent for truck drivers that leased driver services to client companies. Western prepared payroll, issued paychecks, withheld state and Federal taxes, made social security payments, maintained workerfs compensation coverage, kept current medical records, and conducted all labor relations with the drivers, including negotiations of labor agreements and participation in grievance proceedings. The Secretary of Labor found that these actions were sufficient to hold Western liable under the STAA on a joint employer theory for the termination of an employee of the company that leased driver services from Western.

The bottom line is that an entity or person may be found liable for the discriminatory acts of other employers if it controls employment, or has the right to control employment, with respect to hiring, firing, and work assignment decisions.

Here are some tips to follow in order to fully understand who is your employer, or who may be a joint employer:

1. Retain copies of your paystubs. Many drivers are surprised to see that the entity paying them is not the same as the entity whose name is on the side of the truck.

2. Retain policy handbooks and manuals. Often times these manuals may indicate that one entity is your legal employer for tax purposes while another is your employer for other purposes.

3. Know thy carrier. It has a fully legal name which is probably placarded on the side of the truck. If you think you work for "John Doe" you may really be working for John Doe Trucking, LLC.

4. Get the full names of your supervisors. Sometimes the owner of a trucking company owns or controls other trucking companies, warehousing companies and brokers. If the trucking company folds, you may have a claim against the other entities under a theory that they are part of a common business enterprise.

Paul O. Taylor
Truckers Justice Center
http://www.truckersjusticecenter.com

NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP.

PROTECTION FROM RETALIATION FOR REFUSING TO DRIVE IN BAD WEATHER

We have already had some major snow storms in much of the country and many drivers are already asking the question "Am I on thin ice by refusing to drive in dangerous conditions?". I don’t need to tell you that sometimes your boss’s definition of safe driving conditions may be different than yours. We all know that the driver is the best judge of how safe the roads are.

Luckily, there’s a law that protects drivers in unsafe weather: the Surface Transportation Assistance Act (STAA). The STAA makes it illegal for your boss to discipline or fire you for refusing to drive a commercial vehicle in dangerous weather—including snow, sleet, and freezing rain. It provides for reinstatement with back pay and legal fees for a driver who is wrongly suspended or fired.

However, this law—like most laws—has limitations, and is subject to interpretations and legal precedents.

From these precedent cases, here are some guidelines about when a driver can refuse to drive due to adverse weather conditions:

* A driver may refuse to start work if the weather is sufficiently hazardous at or near the time he is scheduled to begin as to make it unsafe to operate a commercial vehicle on the highways.

* A driver cannot speculate unreasonably into the future regarding what the road conditions will be beyond a few hours.

* A refusal to drive due to adverse road conditions must be reasonable. The refusal should be based on the driver’s personal observations, weather reports from the radio and television, calls to the Department of Transportation or Highway Patrol, if possible, and information received from other drivers if such information is available.

* Additionally, the driver should be able to articulate for a court the precise facts that led him to believe that it would have been unsafe for him to operate a commercial vehicle on the highways. In other words, courts do not like arbitrary speculation.

Paul O. Taylor
Attorney at Law
www.truckersjusticecenter.com

- NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP -

JUDGE FINDS MAVERICK TRANSPORTATION BLACKLISTED DRIVER, AWARDS DAMAGES AND ORDERS CORRECTION OF DAC REPORT

In a decision issued on October 28, 2010, Judge Russell Pulver of the United States Department of Labor held that Maverick Transportation, LLC, a carrier based in North Little Rock, AR improperly blacklisted one of its former truck drivers, Albert Canter, by showing on his "DAC Report" that he had abandoned a truck. Canter had refused to drive the truck because it had been cited by a commercial vehicle enforcement officer for having a power steering fluid leak and an air hose not protected against chaffing in violation of several commercial vehicle safety regulations. Judge Pulver found that Maverick violated the Surface Transportation Assistance Act ("STAA") which prohibits discrimination against drivers because they have filed complaints related to violations of commercial vehicle safety regulations or because they have refused to drive in violation of a commercial vehicle safety regulation.

Canter found out that he had been blacklisted on his DAC Report nearly 5 years after Maverick placed the note that he had abandonment of the truck on his DAC Report. The STAA provides that a claim of discrimination must be brought within 180 days of the discriminatory act. Judge Pulver's decision for Canter is significant because it held that the 180-day period to bring a claim under the STAA begins to run from the time the driver discovers that he has been blacklisted.

In November 2003, Canter was in Ohio en route to Virginia transporting a load for Maverick when he was involved in a crash resulting in the death of a motorcyclist who had been knocked off his bike by a deer ahead of Canter on a highway. Canter was not found to be at fault in the crash. A Pennsylvania State Trooper inspected Canter's assigned truck and found that two brakes were out of adjustment, the power steering box had a fluid leak, a brake hose was chaffing on a wire tie causing visible wear and dunnage under the trailer was secured only by a rubber strap. Canter was allowed by law enforcement to drive the truck home after the brakes were adjusted.

Maverick allowed Canter to drive approximately 70 miles to his home from the crash scene in order to deal with the stress of having just been involved in a fatal crash. Canter remained at his home for about one month, after which he informed Maverick that he was quitting. Canter refused Maverick's instruction to drive the truck more than 200 miles to an Ohio terminal citing the "deadline problems" found by Pennsylvania Law Enforcement.

As a result of Canter's refusal to drive the truck with the power steering fluid leak and improperly secured air hose, Maverick noted on Canter's DAC Report that he had abandoned the truck and that he was not eligible for re-hire by Maverick. Canter did not discover that this information was on his DAC Report until nearly 5 years later when he suddenly found it difficult to find work as a driver. Canter disputed this information with USIS, which asked Maverick to respond to the dispute. Maverick's "Re-Hire Committee" decided that the notations of truck abandonment and Canter's ineligibility for rehire should remain on his DAC report.

Canter then brought a claim for blacklisting against Maverick under the STAA by filing a complaint with OSHA. OSHA denied Canter's claim finding that it was untimely. Canter objected to OSHA's decision and Judge Pulver was assigned from the Department of Labor to conduct a formal hearing. In finding that Canter's claim was timely, Judge Pulver stated that "[Canter] presents the more compelling argument that the 180-day statutory period began running upon receipt of his DAC report. Although the report was prepared in early 2004, [Canter] could not have been aware of the contents in the report given that he had already voluntarily terminated his employment with Respondent."

Judge Pulver also found that the posting of the adverse information on Canter's DAC Report was done in retaliation for Canter's legally-protected work refusal finding that "there is compelling testimony in the record that driving the truck would have resulted in violation of DOT regulations." Judge Pulver also found that Canter's refusal to drive was protected because "[Canter] had a reasonable apprehension that driving 200-250 miles to the Middletown, Ohio terminal could result in serious injury to himself and others."

Judge Pulver awarded Canter more than $55,000 in wage loss damages and $75,000 in emotional distress damages resulting from Maverick's retaliatory blacklisting. He also awarded Canter his attorney fees and costs. Judge Pulver ordered Maverick to post a copy of his decision at all of its terminals. Finally, Judge Pulver ordered Maverick to remove abandonment from Canter's DAC Report and to pay him $ 585.70 weekly until it does so.

Paul O. Taylor is an attorney with Truckers Justice Center in Burnsville, MN. www.truckersjusticecenter.com

Driver Beats UPS on Safety

John Youngermann, a UPS feeder driver out of the Earth City, Missouri, hub won an important OSHA ruling that supported a driver’s right to refuse to drive unsafe equipment.  (Mr. Youngermann was represented by attorney Paul Taylor of the Truckers Justice Center.)

On April 22, 2010, OSHA awarded Youngermann compensatory and punitive damages as well as back pay with overtime and interest. Another important part of this ruling is that UPS must display a drivers’ rights poster in every UPS facility and in its monthly magazine.

Youngermann phoned the company to try to get the equipment repaired without success, and finally refused to pull a trailer with inoperable tail lights and side marker lights. He was terminated for his refusal and later was returned to work under the grievance procedure, but without back pay.

UPS may appeal to delay justice, but we believe justice will prevail in the end. The OSHA decision is available here.

The Truckers Justice Center at the Law Office of Taylor & Associates and whistleblower attorney Paul Taylor has been helping truck drivers with their employment-related problems for more than 20 years. Mr. Taylor aggressively seeks justice for workers who have suffered at the hands of unethical companies. He has brought successful claims against some of the largest trucking companies in the United States.

Judge Orders Prime to Reinstate Driver and Pay Her More Than $150,000 For Illegal Firing.

In a decision issued on March 15, 2010, Department of Labor Judge Daniel Leland ruled that New Prime, Inc. (also known as "Prime") illegally fired Cynthia Ferguson because she refused to continue operating a commercial vehicle in hazardous weather. In Ferguson v. New Prime, Inc., Ferguson, a leased driver for Prime, was fired shortly after she refused to driver through Donner Pass in the Sierra Nevada Mountains with a loaded tractor-trailer set during hazardous weather. Paul Taylor of the Truckers Justice Center filed a claim on behalf of Ferguson with the Department of Labor alleging that Prime illegally fired her. Prime alleged that it fired Ferguson because she operated the truck at a deficit.

Near Reno, NV, on December 25, 2008, Ms. Ferguson observed hazardous driving conditions as she drove. After consulting other drivers, listening to radio weather reports and receiving reports from the State authorities advising against travel, Ferguson advised Prime via Qualcomm that she was not going to drive through Donner Pass until weather and driving conditions improved. When her dispatcher, Jeremy Thomas, read the message he told her "why didn't you cross it [Donner Pass] yesterday? you should have been across the country twice by now." A few days later Thomas recommended that Prime fire Ferguson. Prime then dispatched Ferguson to Springfield, MO where a Prime management official, Jack Ewing, fired her.

Judge Leland found that Prime violated the Surface Transportation Assistance Act which prohibits trucking companies from firing drivers for refusing to drive in violation of commercial vehicle safety regulations. Judge Leland held that Ferguson's refusal to drive was legally protected because violations of DOT regulations would have occurred but for Ferguson's refusal to drive in the hazardous weather. Judge Leland credited Ferguson's testimony noting that she properly relied upon reliable reports of bad weather and unsafe driving conditions through Donner Pass. In finding that Prime fired Ferguson because of her refusal to drive in hazardous weather, Judge Leland relied on an "incident report" prepared by Thomas noting complaining that Ferguson refused to drive through Donner Pass and
recommending that she be fired.

Judge Leland ordered Prime to reinstate Ms. Ferguson as a driver, pay back wages of more than $ 26,600, pay $ 50,000 as compensation for Ferguson's emotional distress, and pay $ 75,000 in punitive damages. Judge Leland also ordered Prime to pay Ms. Ferguson's attorney fees, and remove unfavorable information from her DAC Report.

A copy of the decision in Cynthia Ferguson v. New Prime, Inc. can be found by clicking this link.

Paul O. Taylor
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
Tel. No. 651-454-5800

Truckers Justice Center at the Law Office of Taylor & Associates and whistleblower attorney Paul Taylor has been helping truck drivers with their employment-related problems for more than 20 years. Mr. Taylor aggressively seeks justice for workers who have suffered at the hands of unethical companies. He has brought successful claims against some of the largest trucking companies in the United States. Please visit the Truckers Justice Center website: www.truckersjusticecenter.com

Question - What protection is afforded a driver for refusing to violate the FMCSRs?

Guidance: Section 405 of the STAA—Surface Transportation Assistance Act of 1982 (49 U.S.C. 31105) states, in part, that no person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rule, regulation, standard, or order applicable to CMV safety. In such a case, a driver may file a complaint with the Occupational Safety and Health Administration.

To learn more about your rights as a commercial truck driver visit the Truckers Justice Center website www.truckersjusticecenter.com

The Truckers Justice Center at the Law Office of Taylor & Associates and whistleblower attorney Paul Taylor has been helping truck drivers with their employment-related problems for more than 20 years. Mr. Taylor aggressively seeks justice for workers who have suffered at the hands of unethical companies. He has brought successful claims against some of the largest trucking companies in the United States.

Refusing to Operate Unsafe Equipment - Your Legal Rights and How to Use Them

Refusing to Operate Unsafe Equipment: Your Legal Rights and How to Use Them

The Surface Transportation Assistance Act (”STAA”) protects drivers’ rights to enforce truck safety by making it illegal for a company to discipline, discharge or discriminate against an employee for making a vehicle safety complaint or refusing to operate an unsafe vehicle.

With any law, we need to know the extents and limits of our rights and the Do’s and Don’ts of enforcement and this article will focus on the issue of refusing to operate unsafe equipment. Many activities can trigger protection under the STAA, including, complaining to management about truck safety, filing a grievance about vehicle safety, advising other drivers about DOT regulations, discipline or retaliation over running times, refusing to drive or delays because of bad weather, or refusing to drive in violation of posted speed limits.

- Refusing to Drive Unsafe Equipment -

Many cases have upheld drivers’ right to refuse to drive unsafe equipment. However, two very important conditions must be met: (1) The refusal has to be based on a “reasonable apprehension” that operation of the vehicle would present a genuine safety hazard to the driver and/or members of the public. (2) The driver has to have asked the employer to correct the problem.

“Reasonable apprehension,” as interpreted by the DOL and the courts, means that a reasonable person in the same situation would reach the same conclusion-namely, that the unsafe condition establishes a real danger of accident, injury or serious impairment to health. If it later turns out that the vehicle was not actually unsafe, you are still protected if your belief is deemed to have been reasonable based on the objective facts and evidence available to you at the time you formed your belief.

You must also give the company a chance to correct the problem. For example, if there is a bad tire say, “I will drive that truck when you replace the tire.”

- Violations of Federal Motor Carrier Regulations -

STAA protection is triggered if operating the vehicle would violate DOT regulations (a cracked brake pad, for example). Again, you must make the company aware of the hazard and give them a chance to fix the problem before refusing to drive.

This is an important protection but it should not be used lightly. If you refuse to drive based only on a technical violation of a federal regulation (such as a faulty marker light) you are only protected if operating the truck would violate federal motor carrier standards.

A good faith mistake about federal regulations does not win you protection from discipline unless you also had a “reasonable fear” of a genuine hazard. That may or may not apply to technical violations.

You can and should report violations for repairs-and insist that repairs be made. But refusing to drive is a serious matter and should not be taken lightly.

If you have doubts about the severity of a safety problem, you may want to take the truck out for a short drive to gather more evidence and demonstrate a good faith effort to operate the vehicle.

 - Things to Do -

Report the safety problem. You must bring up the problem and ask the company to fix it. Be specific: You are more likely to get protection under the STAA if you are clear, specific and up front about the nature of the truck safety concern. State that the problem is a violation of DOT regulations (if relevant) and why you feel it represents a genuine safety hazard.

Have a witness. Have a witness present when you tell the company that the problem is a genuine safety hazard and that you will operate the truck when it is corrected.

Document the problem. Take a picture of the problem with a camera or cell phone if you can. Show the problem to a witness.

Keep a paper trail. Write notes on exactly what happened while the incident is fresh in your memory.

To learn more about your rights as a commercial truck driver visit the Truckers Justice Center website www.truckersjusticecenter.com  

The Truckers Justice Center at the Law Office of Taylor & Associates and whistleblower attorney Paul Taylor has been helping truck drivers with their employment-related problems for more than 20 years. Mr. Taylor aggressively seeks justice for workers who have suffered at the hands of unethical companies. He has brought successful claims against some of the largest trucking companies in the United States.