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.
Monday, November 23, 2009
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.
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