Truckers Justice Project

Looking for Prime Drivers Pressured to Break DOT Regulations.

2011-09-02T13:47:00.000-05:00

Looking for Prime Drivers Pressure to Break DOT Regulations.

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

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

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

Quote:

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

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

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

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

OSHA orders reinstatement of Memphis truck driver

2011-02-24T14:58:00.000-06:00

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

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

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

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

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

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

2011-02-17T14:27:00.001-06:00

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

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

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

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

***

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

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

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

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

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

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

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

Weather is terrible, but dispatch tells you to drive.

2011-02-03T11:34:00.002-06:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

www.truckersjusticecenter.com

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

Do You Know Who Is Really Your Employer?

2010-12-27T11:30:00.001-06:00

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 workerfs 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

2010-12-21T11:22:00.004-06:00

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

2010-11-01T11:38:00.000-05:00

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

2010-05-13T10:48:00.003-05:00

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.

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

2010-03-17T11:23:00.002-05:00

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?

2010-03-05T15:35:00.002-06:00

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

2010-01-22T10:54:00.002-06:00

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

Driving in Winter Weather

2010-01-15T16:16:00.004-06:00

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.

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

Know How To Blow the Whistle

2009-12-28T10:03:00.000-06:00

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

Missouri Commission on Human Rights Issues Finding of Probable Cause that Prime, Inc. Discriminated Against Female Truck Driver Applicant

2009-11-23T12:03:00.000-06:00

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.

TRUCK DRIVERS…you have the right to refuse to drive in hazardous winter weather

2009-11-03T17:11:00.000-06:00

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.

Customer Relations Manager of Carrier Is Not Transportion Worker Under the Federal Arbitration Act

2009-07-01T16:50:00.000-05:00

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.

The Different Types of STAA Cases

2009-06-17T11:44:00.000-05:00

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 ).

What is Truckers Justice Project?

2009-04-29T15:27:00.000-05:00

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 -

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.