What is Whistleblowing?
Generally speaking whistleblowing includes the following:
A. Making good faith complaints to governmental officials about
violations of the law by your employer.
B. Testifying in a proceeding related to violations of the law by your employer.
C. Refusing to violate a law or regulation.
D. Opposing an illegal practice by your employer.
Paul O. Taylor
Attorney at Law
Blowing the whistle on illegal or unsafe corporate business practices is powerful, sometimes rewarding, but not always easy, and rarely without consequences. Preparation and knowledge are the key elements of a successful whistleblower claim. The purpose of this article is to provide you with practical and general guidelines for those who have decided to do what is right and risk possible retaliation.
Working Within The System
The first place for a whistleblower to start is within the system by making the employer aware of illegal and/or unsafe working conditions. This should be done in writing.
Rule Number 1 when blowing the whistle: Make sure your employer knows that you are the whistleblower. If the employer retaliates, it cannot claim that it did not know you were the whistleblower if you have let it be known from the beginning.
Rule Number 2 when blowing the whistle: Follow company policy first, if possible, safe and legal. While employers cannot legally discipline employees for protected whistleblowing, nothing prohibits employers from disciplining workers who fail to follow safe and legal work rules. Follow company policy for reporting these hazards, before taking more drastic actions by complaining to governmental authorities, to help avoid discipline.
Going Outside The Company
The boss may not listen to any suggestions or will not answer any questions because even he is not allowed to deviate from established corporate work methods. When making a complaint to the government, it is important to know which federal or state agency to which you should submit your complaint and the deadline by which you must file your complaint under applicable statutes of limitation. As we hear from the train car full of salesmen in The Music Man, “you gotta know the territory.”
There are more than 40 federal statutes that have employee whistleblower protections for complaints ranging from sexual harassment to environmental protection. More than 15 federal agencies handle different types of whistleblower cases. If your complaint involves whistleblowing concerning discrimination in the workplace on account of age, sex, race, religion or pregnancy, then your complaint should be made to the Federal Equal Employment Opportunity Commission. If your complaint involves discrimination for having made internal or governmental complaints concerning workplace safety, environmental damages or commercial vehicle safety, then you should file with Federal OSHA. If your complaint involves discrimination for whistleblowing over actions in violations of federal labor statutes, you should file with the National Labor Relations Board.
The time limits for filing complaints with the government concerning discrimination for having “blown the whistle” on your employer are relatively short. Some statutes of limitation provide a period of only 30 days for filing a whistleblower discrimination complaint with the appropriate agency. Once you become aware of the illegal discrimination against you, file with the appropriate agency immediately. If you have filed a grievance alleging you were discriminated against for whistleblowing, do not wait until the grievance process is completed before filing a complaint with the appropriate agency. If you wait, the statute of limitations may run out and your complaint may be barred.
As with internal whistleblowing it is important that the employer knows that you are the whistleblower when you go to the government. By making the employer aware of the complaint, you have eliminated a defense of ignorance should you be forced to bring a claim of retaliation. If you file a complaint with an agency alleging unsafe or illegal acts in the workplace, make the complaint in writing, entitle it “complaint” and send or fax a copy of the complaint to your boss. Send it certified mail so that you will have the proof that the employer has seen your complaint. If you fax it to the employer, make sure you obtain a copy of the fax confirmation report. Employers are notorious for having sudden cases of amnesia when you lack proof.
After you have blown the whistle on your employer’s unsafe or illegal practices, follow up with the agency with which you filed your complaint concerning the employer’s practices. The squeaky wheel gets the grease.
To Tape or Not to Tape
Rule Number 3 when blowing the whistle: A tape recorder is a whistleblower’s best friend. There are exceptions to this rule. Here is a link to a summary of laws listing those states permitting secret recording of conversations to which you are a part (one-party states) and also those states that require the consent of all parties to a conversation before you can record (two-party states): http://pimall.com/nais/n.tel.tape.law.html. The listing is deemed reliable but not guaranteed.
To some it may appear unseemly to advocate secret tape recordings. I can be kind and say that management officials sometimes have foggy recollection. A hidden tape recorder, used in those states where legally permitted, levels the playing field for the whistleblower. One warning on this point is in order. Even in states where surreptitious recording of conversations is lawful, an employer may have a policy of disciplining anyone found to have secretly recorded conversations in the workplace.
Avoiding Traps for the Unwary
There are several traps for the unwary that must be avoided at all costs. Rule Number 4 when blowing the whistle: Do not lie to your employer. He may be secretly recording you. Lies to an employer have destroyed cases brought by employees who have been discharged for whistleblowing.
This leads us to Rule Number 5: Do not give your employer a legitimate reason to fire you. Make sure you come to work on time, hold your tongue with the boss, and otherwise be a model employee (if it is safe to do so) once you have blown the whistle. When blowing the whistle or refusing an unsafe work assignment, state your case or the basis for your work refusal plainly to your employer, without passion or profanity.
Building A Case
The best whistleblower cases are those have been planned carefully. Sometimes the application of Rule Number 3 (a tape recorder is a whistleblower’s best friend) is impossible to follow due to legal constraints or corporate policy. As an alternative to tape recording, witnesses (other employees) are a good substitute. This leads to Rule Number 6 when blowing the whistle: Foster good relationships with co-workers because you may need them as witnesses. The best cases that I have handled for employees who have been disciplined for whistleblowing are those where other employees have testified in behalf of my clients. Other cases have been lost because my clients had no such witnesses.
It is also important to follow Rule Number 7: Keep your cool and do your job when it is safe and legal. Walking off the job can be construed as job abandonment. Losing your cool can be construed as insubordinate behavior. Whistleblowers need to be clear thinkers.
Documentation is of paramount importance when blowing the whistle on your employer. It is what you can prove, not what you believe, that wins cases. Rule Number 8: Keep evidence such as photographs, driver logs, calendars, notes, memos and newspaper articles concerning working conditions and discipline. If a tape recorder is a whistleblower’s best friend, then surely a camera is a whistleblower’s second-best friend. Photos can document unsafe working conditions, corporate notices on bulletin boards and employee records. Calendars and diaries can memorialize the dates when you complained about unsafe working conditions. Memos and notices issued by the employer can help you rebut corporate lies about your alleged failure to follow corporate policy or work methods. Whistleblowers should be packrats when it comes to work-related documents. You will never know when you might need an old logbook or calendar to prove a point or rebut an employer’s lie.
A Final Rule
Each whistleblower must find his or her own path through the mess that sometimes results from whistleblowing. The whistleblower has to balance loyalty to his employer (and sometimes to his co-workers) against the desire to “do what is right.” Some employees play it safe and will not rock the boat. Since this article was written for Convoy Dispatch, it is safe to assume that those who read this article will not bury their heads in the sand when there is an unsafe or illegal condition in the workplace, whether it is sexual harassment, an unsafe shop, or union corruption. However some work situations do not involve an immediate or clear violation of the law. In such cases, you should follow a final rule for whistleblowers: Use your knowledge, experience and instinct in choosing which work assignments you will refuse due to unsafe working conditions.
Paul O. Taylor is an attorney based in Burnsville, Minnesota. He can be reached at 952-224-9166 or through his website: www.truckersjusticecenter.com
Monday, December 28, 2009
Monday, November 23, 2009
Missouri Commission on Human Rights Issues Finding of Probable Cause that Prime, Inc. Discriminated Against Female Truck Driver Applicant
FOR IMMEDIATE RELEASE:
Contact:
Paul Taylor
Truckers Justice Center
Tel: (952) 224-9166
Fax: (952) 230-7875
Email: paul.taylor@truckersjusticecenter.com
Website: http://www.truckersjusticecenter.com
Missouri Commission on Human Rights Issues Finding of Probable Cause that New Prime, Inc. d/b/a Prime, Inc. Discriminated Against Female Truck Driver Applicant
Minneapolis, MN – On July 9, 2009, the Truckers Justice Center on behalf of it's client Deanna Roberts, filed a Charge of Discrimination with the Missouri Commission of Human Rights alleging that New Prime, Inc. d/b/a Prime Inc. engaged in unlawful employment practices contrary to Chapter 213, RSMO 2000. The specific allegation contained in the Complaint states that on January 12, 2009 Ms. Roberts telephoned Prime's recruitment office in Springfield, MO in order to ascertain the status of her employment application she submitted in late December, 2008. She was connected to and spoke to someone who informed her that her application was accepted however they would be unable to actually hire Complainant due to the fact that she is female. The reasoning provided to Ms. Roberts by Prime was that because she is female she cannot be trained by any available trainer but only by a female trainer and no trainers of this gender are available now or in the near future.
The Missouri Commission on Human Rights subsequently investigated Ms. Roberts complaint and on November 17, 2009 issued a Finding of Probable Cause that states in part “Probable Cause exists to credit the following: “(a) Respondent hired complainant but she was not allowed to start work because a female training was not available and all females have to be trained by another female. Therefore the Executive Director shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion.”.
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. Please visit the Truckers Justice Center website (http://www.truckersjusticecenter.com) for more information about the firm.
Contact:
Paul Taylor
Truckers Justice Center
Tel: (952) 224-9166
Fax: (952) 230-7875
Email: paul.taylor@truckersjusticecenter.com
Website: http://www.truckersjusticecenter.com
Missouri Commission on Human Rights Issues Finding of Probable Cause that New Prime, Inc. d/b/a Prime, Inc. Discriminated Against Female Truck Driver Applicant
Minneapolis, MN – On July 9, 2009, the Truckers Justice Center on behalf of it's client Deanna Roberts, filed a Charge of Discrimination with the Missouri Commission of Human Rights alleging that New Prime, Inc. d/b/a Prime Inc. engaged in unlawful employment practices contrary to Chapter 213, RSMO 2000. The specific allegation contained in the Complaint states that on January 12, 2009 Ms. Roberts telephoned Prime's recruitment office in Springfield, MO in order to ascertain the status of her employment application she submitted in late December, 2008. She was connected to and spoke to someone who informed her that her application was accepted however they would be unable to actually hire Complainant due to the fact that she is female. The reasoning provided to Ms. Roberts by Prime was that because she is female she cannot be trained by any available trainer but only by a female trainer and no trainers of this gender are available now or in the near future.
The Missouri Commission on Human Rights subsequently investigated Ms. Roberts complaint and on November 17, 2009 issued a Finding of Probable Cause that states in part “Probable Cause exists to credit the following: “(a) Respondent hired complainant but she was not allowed to start work because a female training was not available and all females have to be trained by another female. Therefore the Executive Director shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion.”.
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. Please visit the Truckers Justice Center website (http://www.truckersjusticecenter.com) for more information about the firm.
Tuesday, November 3, 2009
TRUCK DRIVERS…you have the right to refuse to drive in hazardous winter weather
Your Rights Under the STAA: Refusing to Drive Under Bad Weather
by Paul Taylor - Truckers Justice Center
www.truckersjusticecenter.com
Winter is now in full swing and truck drivers will face snow-covered, icy roads throughout the Plains, the Northeast and the West. At times, they will face the decision of whether or not it is safe to drive. Of course, the driver’s decision may differ from his dispatcher’s decision. When this conflict arises it is generally the driver’s decision that will legally control who is right and who is wrong.
The United States Code of Federal Regulations [49 C.F.R. §392.14] provides in pertinent part as follows:
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.
This regulation does not provide a clear test for when a driver shall discontinue operations due to bad weather.
The Surface Transportation Assistance Act (known as the STAA) prohibits an employer from disciplining or firing a commercial driver because that driver refuses to drive a commercial motor vehicle on the highways in violation of Federal safety regulations. The STAA also prohibits an employer from disciplining or firing a commercial driver because that driver refuses to operate a commercial vehicle when he has a “reasonable apprehension” of serious injury to himself or the public because of the vehicle’s unsafe condition.
When a driver claims that he has been wrongfully disciplined or fired in violation of the STAA, his case may be heard by officials of the U.S. Department of Labor (DOL). The DOL has decided only a handful of cases where a driver has been fired for refusing to drive due to bad weather.
In Cleary v. Flint Ink, Corp. (1996), a driver refused a dispatch scheduled to depart at midnight. On the morning of his scheduled departure, the driver saw the beginnings of a major snowstorm. He watched a televised weather report predicting heavy snowfall for the area of his scheduled run. The driver telephoned his supervisor at 8:15 a.m. and asked to have his run postponed. Not surprisingly the supervisor told the driver he could not delay his run, but gave him the option to leave immediately. The driver refused and reiterated his refusal to leave at midnight. Ultimately the driver was fired for his refusal to drive.
The Secretary of Labor upheld the firing. While acknowledging that a driver is protected when he refuses to drive due to adverse weather conditions, the Secretary found that the driver’s refusal to drive in the Cleary case was not reasonable under the circumstances. In ruling for the employer the Secretary of Labor stated:
“Given the evidence presented and the changing nature of the weather it was not reasonable to assume that the roads would be unnavigable 16 hours after [the driver’s] decision not to drive. Cleary should have waited until later in the day to observe the progress of the storm and make his decision based upon the most recent information available.”
In the case of Robinson v. Duff Truck Line, Inc. (1993), a motor carrier fired a driver because the driver did not even attempt to drive in what he claimed was bad weather. The carrier argued that the language in the regulations that says “the operation of the commercial motor vehicle shall be discontinued” when weather is sufficiently hazardous meant that the driver must at least start a run before refusing to drive due to hazardous weather.
The driver, Robinson, testified that television stations issued weather warnings advising against driving on the highways which were on his route due to icy conditions. Based on this he refused to drive and the carrier fired him.
The Secretary of Labor rejected the carrier’s argument that a driver must at least begin his run before he can refuse to drive due to bad weather, stating that it would create an absurd situation of drivers being compelled to take their vehicles at least out of the terminal gate.
Sleet, Rain and Snow
Eash v. Roadway Express, Inc. (2001) was a case before the U. S. Department of Labor wherein the employee, Larry Eash, refused a dispatch based on inclement weather. Eash was assigned to a bid between Copley,Ohio and Pittsburgh. When Eash woke on Jan. 14, 1999, he saw sleet and rain mixed with snow outside his home. Weather reports on the local radio station indicated that freezing rain was moving east toward Wooster,Ohio. A television news report indicated that driving was dangerous in western Pennsylvania and eastern Ohio. Eash observed freezing rain outside his home. He continued to monitor television and radio weather reports which advised against travel due to snow and freezing rain.
Several times during the day that Eash was scheduled to work, he called the employer and attempted to be relieved of his work responsibilities due to bad weather. Eash advised the persons that he spoke with that he believed the weather conditions made driving dangerous. His employer ignored his requests to be relieved from work until the inclement weather conditions cleared.
Eash left his home in his personal vehicle and began the 20-plus mile drive to Roadway’s terminal at Copley,Ohio. As he attempted to drive to work, freezing rain accumulated on his windshield, window glass and outside mirrors; he could barely see the road ahead of him because of the accumulated ice on the windshield. He could not view the side mirrors on his car because of the accumulated ice, and lost control of his vehicle at one point after driving about six miles from home.
He then called Roadway and told the dispatcher on duty that he was not going to report to work because driving conditions were dangerous. Roadway issued a “Letter of Warning” to Eash for his “Failure to report to work after accepting a work call on 1/14/99 at 19:55.”
An Administrative Law Judge of the DOL found that Eash “failed to establish that the type of weather conditions existed that would have made it unsafe to operate a commercial motor vehicle on Jan. 14, 1999.” However, the Judge found that Roadway had illegally disciplined Eash because “a reasonable person in [Eash’s] situation could have determined that a bona fide danger of accident or injury to his person existed and complainant had a reasonable apprehension of serious injury to himself or to the public because of the vehicles’ unsafe condition.” The judge ordered Roadway to remove from its files the warning letter that it issued to Eash.
When You Can Refuse To Drive
From these cases we can discern several rules 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.
Remedies
If an employer illegally fires or disciplines a driver for refusing to drive a commercial vehicle in dangerous weather, the driver can seek relief under the STAA. A driver must file a complaint with the federal Occupational Safety and Health Administration within 180 days after he receives notice of the illegal discipline. OSHA will investigate a complaint filed under the STAA and thereafter issue a decision. If any party objects within 30 days to OSHA’s decision, the case will be assigned to an Administrative Law Judge for consideration. The STAA provides broad relief to an employee who is successful in proving that he was illegally disciplined or fired. A successful claimant is entitled to reinstatement, expungement of his work record, back pay, other damages, attorney fees and legal costs.
Ultimately, the professional truck driver is the best judge of whether road conditions are so hazardous that he should not drive. He must act reasonably under the circumstances. If he acts reasonably in refusing a to drive due to dangerous weather conditions, and clearly conveys his reasons for refusing to drive to his employer, then the employer may not legally fire or discipline him for refusing to drive because of hazardous road conditions.
Note: Paul O. Taylor is an attorney with the Truckers Justice Center in St. Paul, Minnesota. He can be reached at 952-224-9166.
by Paul Taylor - Truckers Justice Center
www.truckersjusticecenter.com
Winter is now in full swing and truck drivers will face snow-covered, icy roads throughout the Plains, the Northeast and the West. At times, they will face the decision of whether or not it is safe to drive. Of course, the driver’s decision may differ from his dispatcher’s decision. When this conflict arises it is generally the driver’s decision that will legally control who is right and who is wrong.
The United States Code of Federal Regulations [49 C.F.R. §392.14] provides in pertinent part as follows:
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.
This regulation does not provide a clear test for when a driver shall discontinue operations due to bad weather.
The Surface Transportation Assistance Act (known as the STAA) prohibits an employer from disciplining or firing a commercial driver because that driver refuses to drive a commercial motor vehicle on the highways in violation of Federal safety regulations. The STAA also prohibits an employer from disciplining or firing a commercial driver because that driver refuses to operate a commercial vehicle when he has a “reasonable apprehension” of serious injury to himself or the public because of the vehicle’s unsafe condition.
When a driver claims that he has been wrongfully disciplined or fired in violation of the STAA, his case may be heard by officials of the U.S. Department of Labor (DOL). The DOL has decided only a handful of cases where a driver has been fired for refusing to drive due to bad weather.
In Cleary v. Flint Ink, Corp. (1996), a driver refused a dispatch scheduled to depart at midnight. On the morning of his scheduled departure, the driver saw the beginnings of a major snowstorm. He watched a televised weather report predicting heavy snowfall for the area of his scheduled run. The driver telephoned his supervisor at 8:15 a.m. and asked to have his run postponed. Not surprisingly the supervisor told the driver he could not delay his run, but gave him the option to leave immediately. The driver refused and reiterated his refusal to leave at midnight. Ultimately the driver was fired for his refusal to drive.
The Secretary of Labor upheld the firing. While acknowledging that a driver is protected when he refuses to drive due to adverse weather conditions, the Secretary found that the driver’s refusal to drive in the Cleary case was not reasonable under the circumstances. In ruling for the employer the Secretary of Labor stated:
“Given the evidence presented and the changing nature of the weather it was not reasonable to assume that the roads would be unnavigable 16 hours after [the driver’s] decision not to drive. Cleary should have waited until later in the day to observe the progress of the storm and make his decision based upon the most recent information available.”
In the case of Robinson v. Duff Truck Line, Inc. (1993), a motor carrier fired a driver because the driver did not even attempt to drive in what he claimed was bad weather. The carrier argued that the language in the regulations that says “the operation of the commercial motor vehicle shall be discontinued” when weather is sufficiently hazardous meant that the driver must at least start a run before refusing to drive due to hazardous weather.
The driver, Robinson, testified that television stations issued weather warnings advising against driving on the highways which were on his route due to icy conditions. Based on this he refused to drive and the carrier fired him.
The Secretary of Labor rejected the carrier’s argument that a driver must at least begin his run before he can refuse to drive due to bad weather, stating that it would create an absurd situation of drivers being compelled to take their vehicles at least out of the terminal gate.
Sleet, Rain and Snow
Eash v. Roadway Express, Inc. (2001) was a case before the U. S. Department of Labor wherein the employee, Larry Eash, refused a dispatch based on inclement weather. Eash was assigned to a bid between Copley,Ohio and Pittsburgh. When Eash woke on Jan. 14, 1999, he saw sleet and rain mixed with snow outside his home. Weather reports on the local radio station indicated that freezing rain was moving east toward Wooster,Ohio. A television news report indicated that driving was dangerous in western Pennsylvania and eastern Ohio. Eash observed freezing rain outside his home. He continued to monitor television and radio weather reports which advised against travel due to snow and freezing rain.
Several times during the day that Eash was scheduled to work, he called the employer and attempted to be relieved of his work responsibilities due to bad weather. Eash advised the persons that he spoke with that he believed the weather conditions made driving dangerous. His employer ignored his requests to be relieved from work until the inclement weather conditions cleared.
Eash left his home in his personal vehicle and began the 20-plus mile drive to Roadway’s terminal at Copley,Ohio. As he attempted to drive to work, freezing rain accumulated on his windshield, window glass and outside mirrors; he could barely see the road ahead of him because of the accumulated ice on the windshield. He could not view the side mirrors on his car because of the accumulated ice, and lost control of his vehicle at one point after driving about six miles from home.
He then called Roadway and told the dispatcher on duty that he was not going to report to work because driving conditions were dangerous. Roadway issued a “Letter of Warning” to Eash for his “Failure to report to work after accepting a work call on 1/14/99 at 19:55.”
An Administrative Law Judge of the DOL found that Eash “failed to establish that the type of weather conditions existed that would have made it unsafe to operate a commercial motor vehicle on Jan. 14, 1999.” However, the Judge found that Roadway had illegally disciplined Eash because “a reasonable person in [Eash’s] situation could have determined that a bona fide danger of accident or injury to his person existed and complainant had a reasonable apprehension of serious injury to himself or to the public because of the vehicles’ unsafe condition.” The judge ordered Roadway to remove from its files the warning letter that it issued to Eash.
When You Can Refuse To Drive
From these cases we can discern several rules 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.
Remedies
If an employer illegally fires or disciplines a driver for refusing to drive a commercial vehicle in dangerous weather, the driver can seek relief under the STAA. A driver must file a complaint with the federal Occupational Safety and Health Administration within 180 days after he receives notice of the illegal discipline. OSHA will investigate a complaint filed under the STAA and thereafter issue a decision. If any party objects within 30 days to OSHA’s decision, the case will be assigned to an Administrative Law Judge for consideration. The STAA provides broad relief to an employee who is successful in proving that he was illegally disciplined or fired. A successful claimant is entitled to reinstatement, expungement of his work record, back pay, other damages, attorney fees and legal costs.
Ultimately, the professional truck driver is the best judge of whether road conditions are so hazardous that he should not drive. He must act reasonably under the circumstances. If he acts reasonably in refusing a to drive due to dangerous weather conditions, and clearly conveys his reasons for refusing to drive to his employer, then the employer may not legally fire or discipline him for refusing to drive because of hazardous road conditions.
Note: Paul O. Taylor is an attorney with the Truckers Justice Center in St. Paul, Minnesota. He can be reached at 952-224-9166.
Wednesday, July 1, 2009
Customer Relations Manager of Carrier Is Not Transportion Worker Under the Federal Arbitration Act
In a decision issued today (July 1, 2009), the United States Court of Appeals for the Eighth Circuit held that a In a decision issued today (July 1, 2009), the United States Court of Appeals for the Eighth Circuit held that a customer service worker employed by a motor carrier was not a transportation worker exempted from the Federal Arbitration Act. In McNamara v. Yellow Transportation, Ronald McNamara brought suit against Yellow for retaliation, sex discrimination and violation of the Family Medical Leave Act. McNamara had signed an arbitration agreement with Yellow more than 8 years after it hired him, According to McNamara, a Customer Relations Manager, complained to Yellow that his manager harassed people in the office and showed favoritism to women. McNamara claimed he was fired for these complaints. Yellow claimed it fired him for disregarding Yellow's work rules.
McNamara brought his claim with the EEOC, but Yellow did not seek arbitration during the proceedings before EEOC. After McNamara brought suit Yellow moved for summary judgment or , in the alternative, for an order directing arbitration.
The Court of Appeals addressed whether McNamara could be compelled to arbitrate by virtue of his execution of the arbitration agreement. McNamara claimed he was an exempt employee because the Federal Arbitration Act does not apply to "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."
In deciding that McNamara was not a transportation worker (and consequently not exempt from the FAA), the Court found that it was bound by its previous decision in Lenz v. Yellow Transportation, 431 F.3d 348 (8th Cir. 2005) wherein it had held that a customer service worker who worked at a call center was not a transportation worker within the meaning of the FAA. The
Court noted that the Supreme Court has interpreted the FAA exemption for transportation workers very narrowly and limited to "those workers actually engaged in the movement of goods in interstate commerce."
The Court also held that Yellow did not waive its right to arbitrate by failing to move for arbitration during the EEOC proceedings prior to McNamara's commencement of suit.
Here is a link to the Court's decision:
http://caselaw.lp.findlaw.com/data2/circs/8th/082654p.pdf.
McNamara brought his claim with the EEOC, but Yellow did not seek arbitration during the proceedings before EEOC. After McNamara brought suit Yellow moved for summary judgment or , in the alternative, for an order directing arbitration.
The Court of Appeals addressed whether McNamara could be compelled to arbitrate by virtue of his execution of the arbitration agreement. McNamara claimed he was an exempt employee because the Federal Arbitration Act does not apply to "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."
In deciding that McNamara was not a transportation worker (and consequently not exempt from the FAA), the Court found that it was bound by its previous decision in Lenz v. Yellow Transportation, 431 F.3d 348 (8th Cir. 2005) wherein it had held that a customer service worker who worked at a call center was not a transportation worker within the meaning of the FAA. The
Court noted that the Supreme Court has interpreted the FAA exemption for transportation workers very narrowly and limited to "those workers actually engaged in the movement of goods in interstate commerce."
The Court also held that Yellow did not waive its right to arbitrate by failing to move for arbitration during the EEOC proceedings prior to McNamara's commencement of suit.
Here is a link to the Court's decision:
http://caselaw.lp.findlaw.com/data2/circs/8th/082654p.pdf.
Wednesday, June 17, 2009
The Different Types of STAA Cases
The Different Types of STAA Cases
Retaliation is the common element in all STAA cases. In order to seek relief under the Act, you must be able to show that the employer has taken some action against you, disciplinary or otherwise, in response to your motor carrier safety activity.
That said, there are a number of different types of STAA cases. This article will look at each of the most common types and examine how best to approach each one when documenting and filing an STAA complaint.
Types of STAA Cases
The most common cases are:
1. Discipline for refusing to drive due to fatigue or illness.
2. Discipline for refusing to drive, or causing delays, due to weather.
3. Discipline for refusing to drive a mechanically unsafe vehicle, or equipment in
violation of the federal motor carrier safety regulations.
4. Retaliation for raising safety concerns, pointing out unsafe equipment, etc.
5. Discipline or retaliation over running times.
All five types may involve drivers. The fourth type, raising safety or health concerns, may involve mechanics, clerical workers, yard switchers (if about trailers or road tractors) and possibly dock employees (poorly maintained or improperly loaded trailers).
Refusal to Drive Due to Fatigue or Illness
Drivers fired or otherwise disciplined for refusal to drive while fatigued can receive protection
under the STAA. Protection however is contingent on a number of factors.
Case Study: Smith v. Yellow Freight
Columbus, Ohio, Yellow Freight driver Willie Smith had waited nearly 20 hours for a work call. When it finally came, he told management that he was too fatigued to drive safely and therefore could not accept the work assignment.
Management responded that “everyone is tired." Two days later they terminated Smith.
Smith's story will be familiar to many road drivers. Not being properly rested due to having to wait for a work call is a major cause of driver fatigue.
Smith's STAA case - which he won to the tune of some $400,000 in damages – is an excellent case study.
Yellow Freight management tried to argue that it was Smith's total work record, not just the one incident, that led to the discharge.
Smith had grappled with Yellow over the fatigue issue for some time. When too fatigued to continue driving safely, he would take a break and log it, on the bottom line, as a
"safety break for a nap." Yellow wrote him up for delay of freight.
Smith also counseled other drivers to log off the board due to fatigue (when they were too tired to drive safely) instead of saying, as demanded by Yellow, that it was for illness.
Smith won his job back, plus back pay, benefits and legal fees. Yellow's costs ran to nearly a half million dollars.
Rights Under the Federal Motor Carrier Safety Regulations
Driver rights around refusal to drive while fatigued or ill are found in section 392.3 of the Federal Motor Carrier Regulations. this is the bible:
No driver shall operate a motor vehicle, and a motor carrier shall not require or permit
a driver to operate a motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the motor vehicle. ( 1)
Rooted in this wording, and reinforced by case law over the years, is the idea that the driver has the responsibility - and the leeway - to decide when he or she is too fatigued to drive safely. And this is where conflict arises. Management refuses to accept the driver's judgment, orders the driver to work or else, and then discharges the driver if he or she continues to refuse,
So being able to back up your judgment is critical to success in many fatigue-related refusal cases.
Additionally, the Department of Labor and the courts have not interpreted the right to refuse to drive in as driver-friendly a way as they have the right to file complaints and testify about motor carrier safety or health.
Note that section 392.3 does not prohibit all driving while fatigued but only refusals where the fatigue adversely affects the safe operation of a commercial motor vehicle.
Rights Under the STAA
The STAA expands and reinforces rights spelled out in motor carrier regulations. Section 3 1105 states that a driver cannot be fired, disciplined or discriminated against if the employee refuses to operate a vehicle because:
(i) the operation violates a regulation, standard or order of the United States related to commercial motor vehicle safety or health or;
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
So retaliation over refusal to drive because of fatigue violates two provisions of the STAA. Driving while fatigued would be a violation of federal motor carrier regulations. It could also put the employee or the public in danger of serious injury.
How to Invoke Your Right to Refuse
1. Explain why you are fatigued. According to the Department of Labor, merely saying you are tired is not enough. You must tell the employer why you are too fatigued to drive safely.
So keep notes in your notebook about the times of the day you have been sleeping (or not sleeping). An example would be if you are too tired to take a work call because you have been sleeping days until recently and are now driving days. Or that you could not sleep because of illness or due to some disruption in your house or neighborhood.
Give specific objective reasons, not just your personal opinions.
2. Don't speculate about the future. Although you may know that you will be too fatigued to drive in eight hours, or whatever amount of time, it is best to wait until a work call comes to tell the employer you are too fatigued to drive safely,
Courts look askance at someone who has anticipated fatigue or illness. While you may want to do what appears to be the right thing - giving your employer advance warning - this could actually come back to hurt you in the end.
3. Make it clear that you are willing to accept work when properly rested. Underscore the idea that you are not refusing work in general, but are willing to work when fatigue will not hamper your ability to drive safely
4. Keep a record of what was said, by whom and when, in a notebook, log, or diary.
Refusal Based on Illness
In a recent case (2) the ALJ held, based on prior decisions of the Secretary of Labor, that a refusal to drive because of illness is a protected activity under the STAA provided the illness is such that it impairs the driver's ability to drive safely.
Thus, when refusing to drive due to illness, you must be able to state that your ability to drive safely is impaired. It is not enough to say that you are not feeling well.
Give specific evidence. Tell management why you cannot drive safely. For example:
"I have a fever and can't concentrate, so it would be dangerous for me to drive a commercial vehicle."
If possible, see your doctor and have him/her put you off work. Another strategy is to report for work. Have someone drive you over. Let management see what kind of condition you are in (if you are in visibly bad shape). Take your temperature and show it to management. Show them the sling on your arm.
The STAA does not prohibit an employer from establishing reasonable methods for assuring that a claimed illness is legitimate and serious enough to warrant a protected refusal to drive.(3) Nor does it prevent an employer from taking action against employees who feign illness.
Be familiar with your employer's policies around this issue. If they are unreasonable, challenge them through the grievance procedure or through collective action.
Finally, remember that you may have rights under the Family Medical Leave Act (FMLA), depending on the nature of your illness.
Refusal to Drive Due to Hazardous Weather Conditions
Documentation is the key to these cases. If you refuse to drive and are disciplined, make sure to get supporting information on the weather as soon as possible. This evidence can be invaluable later on.
You can go to the library and copy articles on the weather, on a storm or on accidents or traffic tie-ups caused by storms. you can also go to the NOAA (National
Oceanic and Atmospheric Administration) web site and download weather statistics for the airport nearest your home or terminal or whatever location is applicable. Their web site is www.noaa.gov Another method is to videotape weather channel reports.
If on the road and forced to stop driving, call the state police and get a verbal report from them on the weather and on traffic conditions. Jot down in your notebook who told you what, and when you placed the call.
See Long v. Roadway Express, at the end of this page, for a case study on refusal over bad weather.
Refusing Before Taking a Work Call
It is important to refuse as close as possible to the time of your trip. Don't refuse
twelve hours ahead. wait for the work call. Better yet, go to the terminal, if you can, and try to start the trip. Then say it is unsafe. You can still be protected under STAA without going to the terminal, but will have a stronger case if you go.
Refusal to Drive Due to Bad Maintenance or Equipment
There are numerous ways that STAA cases arise out of equipment and maintenance issues. Here are several examples:
- Employer retaliation for red-tagging equipment or complaining about poor
maintenance or bad equipment.
- Employer retaliation for refusing to drive unsafe equipment.
- Employer retaliation over driver insistence on performing careful pre-trip inspections.
Refusal to Drive Unsafe Equipment
Many cases have upheld drivers' right to refuse to drive unsafe equipment. However, very important conditions must be met:
1. The refusal has to be based on a reasonable fear 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 fear," as interpreted by the DOL and the courts, means that a reasonable person in the same situation as you were in would have reached the same conclusion as you - that the unsafe condition establishes a real danger of accident, injury or serious impairment to health.(4)
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. Have witnesses for backup.
You also must give the employer 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."
Refusal to Drive Because of Lack of Equipment
Protection for refusing to drive because of lack of equipment is not based on a "reasonable
belief” of what is needed. STAA protection is triggered by pointing out the specific violation of motor carrier regulations.
Of course many common safety problems, like bad brakes, are violations of the regulations. In this case you are on solid ground. But if the problem is more unusual you should check the regulations, if possible, before refusing to drive due to missing equipment.
Suggestions: It is not a bad idea to have a single-use camera or other easy to use camera,
especially if you are dealing with a rash of equipment or maintenance problems. Some things, like broken springs or cracked windshields, will show up in a photo. "A picture
is worth a thousand words."
Get witnesses. Another way to back up your claim is to call some drivers, or whoever is handy, over to look at a problem. Point out to them what is wrong. Or get a steward or a mechanic. Note the time and date and their names in your log. Many cases are won or lost because of proof problems. If you are trying to recover your job, the burden of proof will be on you.
Master Freight Contract Protection
Article 16 of the National Master Freight Agreement contains language giving drivers important safety and health protection. Keeping in mind that enforcement through the grievance procedure can be problematic, drivers should be aware of how to and make use of the protection in the contract.
Article 16, Section l states (in part):
The employer shall not require employees to take out on the streets or highways any vehicle that is not in a safe operating condition, including, but not limited to, equipment which is acknowledged as over-weight or not equipped with the safety appliances prescribed by law. It shall not be a violation of this Agreement or a basis for discipline where employees refuse to operate such equipment unless such refusal is unjustified.
This language basically reiterates the law. Unfortunately, many grievance panels have failed to enforce this language. So don't hesitate to file an STAA complaint in addition to your grievance.
(Safety provisions in the National Master Automobile Transporters Agreement appear under Article 30 and in the National Master United Parcel Service Agreement under Article 18.)
Retaliation for Raising Safety Concerns
As explained earlier, the STAA provides protection for a broad range of activity related to reporting unsafe conditions.
Thus, the law's statement regarding "filing a complaint', can apply to anything from a verbal report to management, to a grievance, a report to the highway patrol or even counseling coworkers about motor carrier safety issues.
For example, if you file a truck safety grievance or red-tag equipment and then are disciplined by management. it could be the basis for an STAA complaint.
You are more likely to get protection under the STAA if you are clear, specific and up front about the nature of your truck safety concern. Vague grumbling about a problem
may not bring you within protection of the law.
You do not have to be overly technical to get protection. Stating your case in layman's terms is fine. And you may even be protected if your claim is found to be erroneous. A "reasonable”
belief of a truck safety hazard can be enough to trigger protection.
Mechanics, yard-shifters, dockworkers and clerical workers all may be able to file STAA complaints of this nature provided the safety issue concerns a commercial vehicle of a gross weight of 10,000 lbs, or more.
Pre-Trip Inspection Disputes
Pre-trip inspections are a primary way for drivers to monitor truck safety. Some employers actively interfere with drivers' right to conduct pre-trip inspections. UPS, for example, currently insists that pre-trip inspections of doubles take no longer than thirty two minutes. And employers may use any number of tactics to get drivers to avoid or cut short inspections.
Federal Motor Carrier Regulations are clear on the driver's right to conduct pre-trip inspections:
392.7. Equipment, inspection and use. No motor vehicle shalt be driven unless the driver thereof shall have satisfied himself that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:
- Brakes (and trailer brake connections).
- Parking (hand) brake.
- Steering mechanism.
- Lighting devices and reflectors.
- Tires.
- Horn.
- Windshield wiper or wipers.
- Rear vision mirror or mirrors.
- Coupling devices.
The regulations state clearly that the driver "shall have satisfied himself”. While not a license to spend unlimited time on pre-trip inspections, this provides drivers with the leeway needed to determine for themselves how much time is needed to conduct an adequate inspection.
Employer harassment or discipline over pre-trip inspections could be the basis for an STAA complaint. As with any other STAA case, documentation is important. Keep a record of what happened, when and who was involved.
Several STAA cases are now being litigated over employer retaliation related to pre-trip
inspection rights. Contact The Truckers Justice Project for an update.
Running Time Disputes
Employer harassment or retaliation over driver failure to meet company specified running times may be an STAA violation.
As with other STAA cases, good notes are critical. If you pull over and take a snooze because of fatigue, note the time and place and why you stopped. If there is bad traffic, note that, including how long you were held up. Likewise for bad weather, traffic accidents or other incidents.
Failing to challenge warning letters over running time can be a problem later on. Don't let them build a case against you, protest or grieve all warning letters. Keep records about what happened. In the event you ever face discharge you will have the ammunition needed to defend yourself.
Part 2 - Questions and Answers
Refusal and No Actual Violation
Q: What if I refuse to drive but find out later that my driving would not have violated federal motor carrier standards. Do I still get protection under STAA?
A: No. If your refusal is based upon a technical violation of a federal regulation (such as lights) you had better be right. So when citing technical violations of federal regulations as a reason for refusal to drive, be certain that driving would actually be in violation of federal standards. A good faith but mistaken belief does not win you protection from employer retaliation.
Remember, this is different from the standard used when you make truck safety complaints or testify about truck safety. In those cases you are protected even if it turns out later that there was no violation.
Also different is refusal to drive based on a reasonable fear of serious injury to yourself
or the public because of a vehicle's unsafe condition. In this case you can receive protection under the STAA as long as your belief is found to have been a reasonable one (even if the vehicle is later found to have been safe).
Anticipated Fatigue
Q: Can I refuse to drive If I believe that before my assigned run is over I will be too fatigued to drive safely?
A: No. To rely on the federal fatigue rule as a basis for refusing to drive your fatigue must be actual and not merely anticipated. As the Secretary of Labor concluded in one case,
"It would be impossible for [the driver] to prove that the decision he made on Saturday night, not to drive on Sunday night because of expected fatigue, was based on an actual violation of the motor carrier safety regulation."
Missing Work for a Safety Proceeding
Q: Am I protected if I have to miss work to testify in a proceeding related to truck safety?
A: Yes. STAA protection from retaliation for testifying about alleged violations extends to your right to miss work if necessary to testify. (5)
Bring Hazards to Employer's Attention
Q: What should I do before refusing to drive an unsafe vehicle?
A: You must try to bring the problem to the attention of your employer and ask them to correct or repair the unsafe condition. Only if those efforts are unsuccessful will you be protected if you then refuse to drive the truck. (6)
Part 3 - STAA Case File:
Refusal to Drive
The following selection of cases will shed some light on how to use the STAA_
Some losing cases are included because they are instructive on what can trip up
an STAA claim.
Refusal to Drive Because of Fatigue
In various cases, including Price v. E&M Express Company, Inc., 87-STA-4 (Nov.23, 1987), the Secretary has stated that refusal to drive based on fatigue is protected. See Smith v. Yellow Freight Inc., 91-STA-45 (1993), at the beginning this article.
Refusal to Drive Because of Illness
In the case of Danny Johnson v. Roadway Express, Inc., 99-STA-5 (July 21, 1999) the ALJ held, based upon prior decisions of the Secretary of Labor, that a refusal to drive because of illness is a protected activity under the STAA provided the illness is such that it impairs the driver's ability to drive safely.
Johnson got pneumonia and was too ill to drive. He gave management a medical slip from a doctor, stating that he should be off work for a number of days. He had his girlfriend drive him to work to hand deliver the slip.
Roadway fired him and then claimed that he did not have enough documentation of illness, even though they had no policy on how much was required.
The judge, however, found Johnson's evidence and the testimony of his girlfriend credible. And he pointed out that the STAA is designed to prevent exactly this kind of catch-22 where a driver has to choose between losing his job or driving while impaired.
Johnson was reinstated and received more than $300,000 in damages, lost wages and attorney fees.
Refusal to Drive When in Pain or on Medication
In Palazzolo v.PST Vans, Inc., 92-STA-23 (Mar. 10. 1993) the Secretary found that a refusal to drive 2,000 miles to Oregon because the driver was in pain or was drowsy due to medication was protected activity. However the driver lost this case on the violation because he did not provide adequate notice to the employer of his condition.
Refusal to Drive Based on Hours of Service Violations
Refusing to drive when the contemplated run would cause the driver to violate the federal hours of service regulation is protected activity under the STM under STAA Section 405(b). Ass't Secy & Brown,,& v. Besco Steel Supply, 93-STA-30 (Jan.24, 1995). The ALJ stated that he found that Brown's remark to Besco's owners that he no longer would run Walker County (additional stops over hours) after a regular work day was sufficient to establish a prima facie case that he engaged in a protected refusal to drive under section (a)(l)(B)(i).
Brown lost, however, due in part to a finding that his firing could be interpreted as a voluntary quit.
Refusal to Drive Defective Vehicles
Thom v. Yellow Freight System, Inc., 93-STA-2 (Nov. 19, 1gg3). Driver John Thom was given a tractor that could not maintain a speed of 55-65 miles per hour. On slight inclines the tractor dropped to 35 mites per hour. Due to ruts on the interstate highway he had difficulty controlling fish-tailing at lower speeds and reasonably anticipated serious injury due to the unsafe condition.
Thom stopped and asked Yellow to send out a vendor to repair the truck. They refused and ordered him to continue to Rochester. When he asked that the truck be inspected first, he was relieved of duty and then fired subsequently.
Thom was reinstated and awarded $75,000. The ALJ gave credit to Thom's witnesses, including a mechanic.
Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th Cir.1991). The Court of Appeals upheld the Secretary's finding of protected activity where equipment was rendered unsafe due to a hazardous ice storm.
Palmer v. western Truck Manpower, 85-STA-6 (Jan. t6, tggT), aff d, No. 92-70231 (8th Cir. Sept.27 1993). The Court of Appeals upheld as protected activity a refusal to operate an improperly loaded but otherwise sound tractor trailer. The driver was awarded over
$88,000, plus benefits, interest and legal fees.
Refusal to Speed
In McGavock v. Elbar, 86-5TA-30 (July 9, 1986) the Secretary of Labor held an employee's stated refusal to drive over the speed limit in the future, in a situation where the carrier's policies required drivers to violate DOT speeding regulations, is protected activity. The ruling cited the STAA provision which prohibits an employer from discharging an employee for refusing to operate a motor vehicle "when such operation constitutes a violation of any federal rules, regulations' standards or orders applicable to commercial motor vehicle safety."
See, 49 C.F.R. 392.6.
McGavock was reinstated to his job and awarded back pay and benefits.
Refusal to Drive After an Altercation
In Logan v. United Parcel Service, 96-5TA-2 (Dec. 19, 1996) the Board held that a refusal to drive was protected because the complainant asked to be relieved from driving because he was clearly too distressed to drive and the employer was aware of it. Unfortunately, the ALJ ruled that UPS had other reasons for firing Logan and therefore did not order his reinstatement.
Refusal to Drive, and Right to Delay-Pay, Due to Hazardous Weather Conditions
In Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Mar.9, 1990), Roadway was ordered to pay delay time to drivers who stopped driving during a storm wlth freezing rain. So this case is an example of how the definition of "retaliation" can be broader than discharge or suspension.
This case is also of interest because it involved a common problem faced by safety-conscious
drivers. While seven drivers, including Archie Long and Gail Clark, decided it was too dangerous to continue driving, other Roadway drivers continued on their trips. Management of course pointed this out, arguing that if some drivers completed their trips safely then Long, Clark and the others could have done so as well.
It also shows that it is possible to prevail even when union officials work against your case. IBT Vice President Tyson Johnson, then a business agent, stated that the drivers would not have to be paid delay time because the employer had established that other drivers and other carriers had continued operating.
Footnotes:
1: 49 C. F. R. Sec. 392.3.
2: Danny Johnson v. Roadway Express, Inc., 99-STA-5 {July 21, 1999).
3: See Ciotto v. Sysco Focds co. of Philadelphia, 97-STA-30 (July 8, 1998).
4 : 4 9 U.S.C. Sec. 31105(a ) (2 ).
5: Nolan v. AC Express and Moyer v. Yellow Freiqht, 93-STA-38.
6 : 4 9 U.S.C. Sec. 31105(a ) (2 ).
Retaliation is the common element in all STAA cases. In order to seek relief under the Act, you must be able to show that the employer has taken some action against you, disciplinary or otherwise, in response to your motor carrier safety activity.
That said, there are a number of different types of STAA cases. This article will look at each of the most common types and examine how best to approach each one when documenting and filing an STAA complaint.
Types of STAA Cases
The most common cases are:
1. Discipline for refusing to drive due to fatigue or illness.
2. Discipline for refusing to drive, or causing delays, due to weather.
3. Discipline for refusing to drive a mechanically unsafe vehicle, or equipment in
violation of the federal motor carrier safety regulations.
4. Retaliation for raising safety concerns, pointing out unsafe equipment, etc.
5. Discipline or retaliation over running times.
All five types may involve drivers. The fourth type, raising safety or health concerns, may involve mechanics, clerical workers, yard switchers (if about trailers or road tractors) and possibly dock employees (poorly maintained or improperly loaded trailers).
Refusal to Drive Due to Fatigue or Illness
Drivers fired or otherwise disciplined for refusal to drive while fatigued can receive protection
under the STAA. Protection however is contingent on a number of factors.
Case Study: Smith v. Yellow Freight
Columbus, Ohio, Yellow Freight driver Willie Smith had waited nearly 20 hours for a work call. When it finally came, he told management that he was too fatigued to drive safely and therefore could not accept the work assignment.
Management responded that “everyone is tired." Two days later they terminated Smith.
Smith's story will be familiar to many road drivers. Not being properly rested due to having to wait for a work call is a major cause of driver fatigue.
Smith's STAA case - which he won to the tune of some $400,000 in damages – is an excellent case study.
Yellow Freight management tried to argue that it was Smith's total work record, not just the one incident, that led to the discharge.
Smith had grappled with Yellow over the fatigue issue for some time. When too fatigued to continue driving safely, he would take a break and log it, on the bottom line, as a
"safety break for a nap." Yellow wrote him up for delay of freight.
Smith also counseled other drivers to log off the board due to fatigue (when they were too tired to drive safely) instead of saying, as demanded by Yellow, that it was for illness.
Smith won his job back, plus back pay, benefits and legal fees. Yellow's costs ran to nearly a half million dollars.
Rights Under the Federal Motor Carrier Safety Regulations
Driver rights around refusal to drive while fatigued or ill are found in section 392.3 of the Federal Motor Carrier Regulations. this is the bible:
No driver shall operate a motor vehicle, and a motor carrier shall not require or permit
a driver to operate a motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the motor vehicle. ( 1)
Rooted in this wording, and reinforced by case law over the years, is the idea that the driver has the responsibility - and the leeway - to decide when he or she is too fatigued to drive safely. And this is where conflict arises. Management refuses to accept the driver's judgment, orders the driver to work or else, and then discharges the driver if he or she continues to refuse,
So being able to back up your judgment is critical to success in many fatigue-related refusal cases.
Additionally, the Department of Labor and the courts have not interpreted the right to refuse to drive in as driver-friendly a way as they have the right to file complaints and testify about motor carrier safety or health.
Note that section 392.3 does not prohibit all driving while fatigued but only refusals where the fatigue adversely affects the safe operation of a commercial motor vehicle.
Rights Under the STAA
The STAA expands and reinforces rights spelled out in motor carrier regulations. Section 3 1105 states that a driver cannot be fired, disciplined or discriminated against if the employee refuses to operate a vehicle because:
(i) the operation violates a regulation, standard or order of the United States related to commercial motor vehicle safety or health or;
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
So retaliation over refusal to drive because of fatigue violates two provisions of the STAA. Driving while fatigued would be a violation of federal motor carrier regulations. It could also put the employee or the public in danger of serious injury.
How to Invoke Your Right to Refuse
1. Explain why you are fatigued. According to the Department of Labor, merely saying you are tired is not enough. You must tell the employer why you are too fatigued to drive safely.
So keep notes in your notebook about the times of the day you have been sleeping (or not sleeping). An example would be if you are too tired to take a work call because you have been sleeping days until recently and are now driving days. Or that you could not sleep because of illness or due to some disruption in your house or neighborhood.
Give specific objective reasons, not just your personal opinions.
2. Don't speculate about the future. Although you may know that you will be too fatigued to drive in eight hours, or whatever amount of time, it is best to wait until a work call comes to tell the employer you are too fatigued to drive safely,
Courts look askance at someone who has anticipated fatigue or illness. While you may want to do what appears to be the right thing - giving your employer advance warning - this could actually come back to hurt you in the end.
3. Make it clear that you are willing to accept work when properly rested. Underscore the idea that you are not refusing work in general, but are willing to work when fatigue will not hamper your ability to drive safely
4. Keep a record of what was said, by whom and when, in a notebook, log, or diary.
Refusal Based on Illness
In a recent case (2) the ALJ held, based on prior decisions of the Secretary of Labor, that a refusal to drive because of illness is a protected activity under the STAA provided the illness is such that it impairs the driver's ability to drive safely.
Thus, when refusing to drive due to illness, you must be able to state that your ability to drive safely is impaired. It is not enough to say that you are not feeling well.
Give specific evidence. Tell management why you cannot drive safely. For example:
"I have a fever and can't concentrate, so it would be dangerous for me to drive a commercial vehicle."
If possible, see your doctor and have him/her put you off work. Another strategy is to report for work. Have someone drive you over. Let management see what kind of condition you are in (if you are in visibly bad shape). Take your temperature and show it to management. Show them the sling on your arm.
The STAA does not prohibit an employer from establishing reasonable methods for assuring that a claimed illness is legitimate and serious enough to warrant a protected refusal to drive.(3) Nor does it prevent an employer from taking action against employees who feign illness.
Be familiar with your employer's policies around this issue. If they are unreasonable, challenge them through the grievance procedure or through collective action.
Finally, remember that you may have rights under the Family Medical Leave Act (FMLA), depending on the nature of your illness.
Refusal to Drive Due to Hazardous Weather Conditions
Documentation is the key to these cases. If you refuse to drive and are disciplined, make sure to get supporting information on the weather as soon as possible. This evidence can be invaluable later on.
You can go to the library and copy articles on the weather, on a storm or on accidents or traffic tie-ups caused by storms. you can also go to the NOAA (National
Oceanic and Atmospheric Administration) web site and download weather statistics for the airport nearest your home or terminal or whatever location is applicable. Their web site is www.noaa.gov Another method is to videotape weather channel reports.
If on the road and forced to stop driving, call the state police and get a verbal report from them on the weather and on traffic conditions. Jot down in your notebook who told you what, and when you placed the call.
See Long v. Roadway Express, at the end of this page, for a case study on refusal over bad weather.
Refusing Before Taking a Work Call
It is important to refuse as close as possible to the time of your trip. Don't refuse
twelve hours ahead. wait for the work call. Better yet, go to the terminal, if you can, and try to start the trip. Then say it is unsafe. You can still be protected under STAA without going to the terminal, but will have a stronger case if you go.
Refusal to Drive Due to Bad Maintenance or Equipment
There are numerous ways that STAA cases arise out of equipment and maintenance issues. Here are several examples:
- Employer retaliation for red-tagging equipment or complaining about poor
maintenance or bad equipment.
- Employer retaliation for refusing to drive unsafe equipment.
- Employer retaliation over driver insistence on performing careful pre-trip inspections.
Refusal to Drive Unsafe Equipment
Many cases have upheld drivers' right to refuse to drive unsafe equipment. However, very important conditions must be met:
1. The refusal has to be based on a reasonable fear 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 fear," as interpreted by the DOL and the courts, means that a reasonable person in the same situation as you were in would have reached the same conclusion as you - that the unsafe condition establishes a real danger of accident, injury or serious impairment to health.(4)
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. Have witnesses for backup.
You also must give the employer 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."
Refusal to Drive Because of Lack of Equipment
Protection for refusing to drive because of lack of equipment is not based on a "reasonable
belief” of what is needed. STAA protection is triggered by pointing out the specific violation of motor carrier regulations.
Of course many common safety problems, like bad brakes, are violations of the regulations. In this case you are on solid ground. But if the problem is more unusual you should check the regulations, if possible, before refusing to drive due to missing equipment.
Suggestions: It is not a bad idea to have a single-use camera or other easy to use camera,
especially if you are dealing with a rash of equipment or maintenance problems. Some things, like broken springs or cracked windshields, will show up in a photo. "A picture
is worth a thousand words."
Get witnesses. Another way to back up your claim is to call some drivers, or whoever is handy, over to look at a problem. Point out to them what is wrong. Or get a steward or a mechanic. Note the time and date and their names in your log. Many cases are won or lost because of proof problems. If you are trying to recover your job, the burden of proof will be on you.
Master Freight Contract Protection
Article 16 of the National Master Freight Agreement contains language giving drivers important safety and health protection. Keeping in mind that enforcement through the grievance procedure can be problematic, drivers should be aware of how to and make use of the protection in the contract.
Article 16, Section l states (in part):
The employer shall not require employees to take out on the streets or highways any vehicle that is not in a safe operating condition, including, but not limited to, equipment which is acknowledged as over-weight or not equipped with the safety appliances prescribed by law. It shall not be a violation of this Agreement or a basis for discipline where employees refuse to operate such equipment unless such refusal is unjustified.
This language basically reiterates the law. Unfortunately, many grievance panels have failed to enforce this language. So don't hesitate to file an STAA complaint in addition to your grievance.
(Safety provisions in the National Master Automobile Transporters Agreement appear under Article 30 and in the National Master United Parcel Service Agreement under Article 18.)
Retaliation for Raising Safety Concerns
As explained earlier, the STAA provides protection for a broad range of activity related to reporting unsafe conditions.
Thus, the law's statement regarding "filing a complaint', can apply to anything from a verbal report to management, to a grievance, a report to the highway patrol or even counseling coworkers about motor carrier safety issues.
For example, if you file a truck safety grievance or red-tag equipment and then are disciplined by management. it could be the basis for an STAA complaint.
You are more likely to get protection under the STAA if you are clear, specific and up front about the nature of your truck safety concern. Vague grumbling about a problem
may not bring you within protection of the law.
You do not have to be overly technical to get protection. Stating your case in layman's terms is fine. And you may even be protected if your claim is found to be erroneous. A "reasonable”
belief of a truck safety hazard can be enough to trigger protection.
Mechanics, yard-shifters, dockworkers and clerical workers all may be able to file STAA complaints of this nature provided the safety issue concerns a commercial vehicle of a gross weight of 10,000 lbs, or more.
Pre-Trip Inspection Disputes
Pre-trip inspections are a primary way for drivers to monitor truck safety. Some employers actively interfere with drivers' right to conduct pre-trip inspections. UPS, for example, currently insists that pre-trip inspections of doubles take no longer than thirty two minutes. And employers may use any number of tactics to get drivers to avoid or cut short inspections.
Federal Motor Carrier Regulations are clear on the driver's right to conduct pre-trip inspections:
392.7. Equipment, inspection and use. No motor vehicle shalt be driven unless the driver thereof shall have satisfied himself that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:
- Brakes (and trailer brake connections).
- Parking (hand) brake.
- Steering mechanism.
- Lighting devices and reflectors.
- Tires.
- Horn.
- Windshield wiper or wipers.
- Rear vision mirror or mirrors.
- Coupling devices.
The regulations state clearly that the driver "shall have satisfied himself”. While not a license to spend unlimited time on pre-trip inspections, this provides drivers with the leeway needed to determine for themselves how much time is needed to conduct an adequate inspection.
Employer harassment or discipline over pre-trip inspections could be the basis for an STAA complaint. As with any other STAA case, documentation is important. Keep a record of what happened, when and who was involved.
Several STAA cases are now being litigated over employer retaliation related to pre-trip
inspection rights. Contact The Truckers Justice Project for an update.
Running Time Disputes
Employer harassment or retaliation over driver failure to meet company specified running times may be an STAA violation.
As with other STAA cases, good notes are critical. If you pull over and take a snooze because of fatigue, note the time and place and why you stopped. If there is bad traffic, note that, including how long you were held up. Likewise for bad weather, traffic accidents or other incidents.
Failing to challenge warning letters over running time can be a problem later on. Don't let them build a case against you, protest or grieve all warning letters. Keep records about what happened. In the event you ever face discharge you will have the ammunition needed to defend yourself.
Part 2 - Questions and Answers
Refusal and No Actual Violation
Q: What if I refuse to drive but find out later that my driving would not have violated federal motor carrier standards. Do I still get protection under STAA?
A: No. If your refusal is based upon a technical violation of a federal regulation (such as lights) you had better be right. So when citing technical violations of federal regulations as a reason for refusal to drive, be certain that driving would actually be in violation of federal standards. A good faith but mistaken belief does not win you protection from employer retaliation.
Remember, this is different from the standard used when you make truck safety complaints or testify about truck safety. In those cases you are protected even if it turns out later that there was no violation.
Also different is refusal to drive based on a reasonable fear of serious injury to yourself
or the public because of a vehicle's unsafe condition. In this case you can receive protection under the STAA as long as your belief is found to have been a reasonable one (even if the vehicle is later found to have been safe).
Anticipated Fatigue
Q: Can I refuse to drive If I believe that before my assigned run is over I will be too fatigued to drive safely?
A: No. To rely on the federal fatigue rule as a basis for refusing to drive your fatigue must be actual and not merely anticipated. As the Secretary of Labor concluded in one case,
"It would be impossible for [the driver] to prove that the decision he made on Saturday night, not to drive on Sunday night because of expected fatigue, was based on an actual violation of the motor carrier safety regulation."
Missing Work for a Safety Proceeding
Q: Am I protected if I have to miss work to testify in a proceeding related to truck safety?
A: Yes. STAA protection from retaliation for testifying about alleged violations extends to your right to miss work if necessary to testify. (5)
Bring Hazards to Employer's Attention
Q: What should I do before refusing to drive an unsafe vehicle?
A: You must try to bring the problem to the attention of your employer and ask them to correct or repair the unsafe condition. Only if those efforts are unsuccessful will you be protected if you then refuse to drive the truck. (6)
Part 3 - STAA Case File:
Refusal to Drive
The following selection of cases will shed some light on how to use the STAA_
Some losing cases are included because they are instructive on what can trip up
an STAA claim.
Refusal to Drive Because of Fatigue
In various cases, including Price v. E&M Express Company, Inc., 87-STA-4 (Nov.23, 1987), the Secretary has stated that refusal to drive based on fatigue is protected. See Smith v. Yellow Freight Inc., 91-STA-45 (1993), at the beginning this article.
Refusal to Drive Because of Illness
In the case of Danny Johnson v. Roadway Express, Inc., 99-STA-5 (July 21, 1999) the ALJ held, based upon prior decisions of the Secretary of Labor, that a refusal to drive because of illness is a protected activity under the STAA provided the illness is such that it impairs the driver's ability to drive safely.
Johnson got pneumonia and was too ill to drive. He gave management a medical slip from a doctor, stating that he should be off work for a number of days. He had his girlfriend drive him to work to hand deliver the slip.
Roadway fired him and then claimed that he did not have enough documentation of illness, even though they had no policy on how much was required.
The judge, however, found Johnson's evidence and the testimony of his girlfriend credible. And he pointed out that the STAA is designed to prevent exactly this kind of catch-22 where a driver has to choose between losing his job or driving while impaired.
Johnson was reinstated and received more than $300,000 in damages, lost wages and attorney fees.
Refusal to Drive When in Pain or on Medication
In Palazzolo v.PST Vans, Inc., 92-STA-23 (Mar. 10. 1993) the Secretary found that a refusal to drive 2,000 miles to Oregon because the driver was in pain or was drowsy due to medication was protected activity. However the driver lost this case on the violation because he did not provide adequate notice to the employer of his condition.
Refusal to Drive Based on Hours of Service Violations
Refusing to drive when the contemplated run would cause the driver to violate the federal hours of service regulation is protected activity under the STM under STAA Section 405(b). Ass't Secy & Brown,,& v. Besco Steel Supply, 93-STA-30 (Jan.24, 1995). The ALJ stated that he found that Brown's remark to Besco's owners that he no longer would run Walker County (additional stops over hours) after a regular work day was sufficient to establish a prima facie case that he engaged in a protected refusal to drive under section (a)(l)(B)(i).
Brown lost, however, due in part to a finding that his firing could be interpreted as a voluntary quit.
Refusal to Drive Defective Vehicles
Thom v. Yellow Freight System, Inc., 93-STA-2 (Nov. 19, 1gg3). Driver John Thom was given a tractor that could not maintain a speed of 55-65 miles per hour. On slight inclines the tractor dropped to 35 mites per hour. Due to ruts on the interstate highway he had difficulty controlling fish-tailing at lower speeds and reasonably anticipated serious injury due to the unsafe condition.
Thom stopped and asked Yellow to send out a vendor to repair the truck. They refused and ordered him to continue to Rochester. When he asked that the truck be inspected first, he was relieved of duty and then fired subsequently.
Thom was reinstated and awarded $75,000. The ALJ gave credit to Thom's witnesses, including a mechanic.
Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th Cir.1991). The Court of Appeals upheld the Secretary's finding of protected activity where equipment was rendered unsafe due to a hazardous ice storm.
Palmer v. western Truck Manpower, 85-STA-6 (Jan. t6, tggT), aff d, No. 92-70231 (8th Cir. Sept.27 1993). The Court of Appeals upheld as protected activity a refusal to operate an improperly loaded but otherwise sound tractor trailer. The driver was awarded over
$88,000, plus benefits, interest and legal fees.
Refusal to Speed
In McGavock v. Elbar, 86-5TA-30 (July 9, 1986) the Secretary of Labor held an employee's stated refusal to drive over the speed limit in the future, in a situation where the carrier's policies required drivers to violate DOT speeding regulations, is protected activity. The ruling cited the STAA provision which prohibits an employer from discharging an employee for refusing to operate a motor vehicle "when such operation constitutes a violation of any federal rules, regulations' standards or orders applicable to commercial motor vehicle safety."
See, 49 C.F.R. 392.6.
McGavock was reinstated to his job and awarded back pay and benefits.
Refusal to Drive After an Altercation
In Logan v. United Parcel Service, 96-5TA-2 (Dec. 19, 1996) the Board held that a refusal to drive was protected because the complainant asked to be relieved from driving because he was clearly too distressed to drive and the employer was aware of it. Unfortunately, the ALJ ruled that UPS had other reasons for firing Logan and therefore did not order his reinstatement.
Refusal to Drive, and Right to Delay-Pay, Due to Hazardous Weather Conditions
In Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Mar.9, 1990), Roadway was ordered to pay delay time to drivers who stopped driving during a storm wlth freezing rain. So this case is an example of how the definition of "retaliation" can be broader than discharge or suspension.
This case is also of interest because it involved a common problem faced by safety-conscious
drivers. While seven drivers, including Archie Long and Gail Clark, decided it was too dangerous to continue driving, other Roadway drivers continued on their trips. Management of course pointed this out, arguing that if some drivers completed their trips safely then Long, Clark and the others could have done so as well.
It also shows that it is possible to prevail even when union officials work against your case. IBT Vice President Tyson Johnson, then a business agent, stated that the drivers would not have to be paid delay time because the employer had established that other drivers and other carriers had continued operating.
Footnotes:
1: 49 C. F. R. Sec. 392.3.
2: Danny Johnson v. Roadway Express, Inc., 99-STA-5 {July 21, 1999).
3: See Ciotto v. Sysco Focds co. of Philadelphia, 97-STA-30 (July 8, 1998).
4 : 4 9 U.S.C. Sec. 31105(a ) (2 ).
5: Nolan v. AC Express and Moyer v. Yellow Freiqht, 93-STA-38.
6 : 4 9 U.S.C. Sec. 31105(a ) (2 ).
Wednesday, April 29, 2009
What is Truckers Justice Project?
Truckers Justice Project
900 West 128th Street - Suite 106
Burnsville, MN 55337
Tel: 952-583-5940
Email: help@truckersjusticeproject.org
Mission Statement:
“To educate the public about the commercial vehicle safety laws and regulations, duties andrights of commercial truck drivers with respect to those safety laws and regulations, the employee protection provisions of the Surface Transportation Assistance Act, federal truth-in-leasing regulations, the Fair Credit Reporting Act and Department of Transportation Regulations relating to alcohol and controlled substance testing.”
– We help educate and provide resources to truckers across the nation -
Contact us if you have had problems with any of the following :
Refusal to Drive
The STAA (Surface Transportation Assistance Act) (which also covers whistleblower cases), gives truck drivers the right to refuse to drive a commercial vehicle when it would violate the law to do so (for example, driver fatigue or illness, unwillingness to participate in an illegal activity, or a reasonable belief that a vehicle is unsafe because of worn tires, missing headlights, or low air pressure in brake system). STAA is supposed to protect drivers by preventing firing or other retaliatory action from truck companies.
DAC Reports
USIS (United States Investigative Services) maintains employment files (called DAC reports) on all commercial drivers that include accident records, drug testing reports and eligibility for rehire information from all previous employers. There are MANY incorrect reports in DAC files. Companies will put outright lies into DAC reports as retaliation against drivers. USIS is a consumer reporting agency, which means you have a right to see the information kept in these reports and you have the right to correct the information under the Fair Credit Reporting Act. correct your DAC reports.
Commercial Truck Leases
Owner-operators can be cheated out of their hard-earned income by illegal charge-back schemes or “skimming”; they can lose equity from lease purchase agreements that aren’t fair.
Drug and Alcohol Testing
Your test may have been done illegally, performed incorrectly or by a non-certified medical review officer (MRO), or reported inaccurately. Your employer can only test you for reasonable suspicion of drug and alcohol use if you are about to perform or have just completed a safety-sensitive function.
Subscribe to:
Posts (Atom)
Posts
