Do You Know Who Is Really Your Employer?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PROTECTION FROM RETALIATION FOR REFUSING TO DRIVE IN BAD WEATHER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Driver Beats UPS on Safety

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- Refusing to Drive Unsafe Equipment -

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

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

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

- Violations of Federal Motor Carrier Regulations -

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

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

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

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

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

 - Things to Do -

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

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

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

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

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

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

Driving in Winter Weather

Q. Dispatch has the idea that there is no such thing as road conditions too bad to drive. Am I on thin ice if I refuse to drive in dangerous conditions?

A. We’ve already had some major snow in much of the country and many drivers are already asking that question. I don’t need to tell you that sometimes your boss’s definition of safe driving conditions may be different than yours. We all know that the driver is the best judge of how safe the roads are.

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

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

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

• A driver may refuse to start work if the weather is sufficiently hazardous at or near the time he is scheduled to begin as to make it unsafe to operate a commercial vehicle on the highways.
• A driver cannot speculate unreasonably into the future regarding what the road conditions will be beyond a few hours.
• A refusal to drive due to adverse road conditions must be reasonable. The refusal should be based on the driver’s personal observations, weather reports from the radio and television, calls to the Department of Transportation or Highway Patrol, if possible, and information received from other drivers if such information is available.
• Additionally, the driver should be able to articulate for a court the precise facts that led him to believe that it would have been unsafe for him to operate a commercial vehicle on the highways.

Keep in mind this is a complicated subject. To learn more visit the Truckers Justice Center website www.truckersjusticecenter.com

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