Trucking Whistleblowers — Surface Transportation Assistance Act
The trucking industry today is highly regulated, and for drivers and companies, safety must be a top concern. The Surface Transportation Assistance Act (STAA) protects you as a whistleblower from retaliation for reporting safety violations committed by your employer. The STAA also protects drivers who refuse to drive in objectively unsafe conditions. If, for example, you refuse to drive because you are ill, because you would be violating hours-of-service regulations, or because you believe your load is unsafe, the STAA protects you from retaliation by your employer. Read below for more information about what activities are protected and what may constitute retaliation.
1. I am a truck driver who is aware that my employer is violating federal law regarding some of its safety practices. Is there a law that protects me if I blow the whistle?
Yes. The Surface Transportation Assistance Act (STAA or STA) is a federal law which protects those who face discrimination or retaliation for trying to obtain compliance with commercial vehicle safety laws. Too many Americans are killed in accidents caused by sleepy drivers, shoddy maintenance, and failure to secure loads. The STAA empowers truck drivers when they to refuse to drive in violation of a commercial vehicle safety regulation or otherwise refuse unsafe dispatches. It also protects truck drivers and commercial transportation employees who make complaints to the employer or the government about violations of commercial vehicle safety regulations.
The STAA was passed because random inspection by Federal and State law enforcement officials in various parts of the country [had] uniformly found widespread violation of safety regulations, and 49 U.S.C. §31105 was designed to assist in combating the “increasing number of deaths, injuries, and property damage due to commercial motor vehicle accidents .
The employee protection provision of STAA was specifically enacted to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles. Congress recognized that employees in the transportation industry are often best able to detect safety violations and yet, because they may be threatened with discharge for cooperating with enforcement agencies, they need express protection against retaliation for reporting these violations
The STAA provides a simplified and effective remedy for truck drivers who are fired for insisting on following safety regulations. If an employer takes action against you for these “protected activities,” then you may file a charge with the Occupational Safety and Health Administration (OSHA) that could result in reinstatement, back pay and benefits, attorney fees and costs, and other remedies.
The STAA defines you an “employee” if you do any of the following:
Drive a commercial motor vehicleDrive a commercial motor vehicle, as an independent contractor, when you personally operated the commercial motor vehicleRepair and maintain vehicles as a mechanicHandle freightHold any job for a motor carrier directly affecting commercial motor vehicle safety in the course of employment
The law does not protect you if you are an employee of the United States government, a State, or a political subdivision of a State acting in the course of employment.
A “commercial motor vehicle” means a truck, van or bus that has a gross vehicle weight (GVW) of at least 10,001 pounds, or is designed to transport more than 10 passengers including the driver; or is used in transporting hazardous material. (Whistleblowers who dealt with hazardous materials may also have claims under the Toxic Substances Control Act or the Solid Waste Disposal Act, which each have a 30-day time limit to file complaints. See our site’s environmental whistleblowers page.)
Before an employee can win an STAA case, that employee must be able to convince the judge that there was:
The Department of Labor and the courts interpret “protected activity” broadly. “Protected activity” describes the actions an employee can take, and be protected by the law from retaliation. For example, if you call the Department of Transportation (USDOT) about a safety violation, that is protected activity, even if your complaint was later found to be in error.
Most STAA cases involve refusals to drive when the driver is tired or the load is unsafe. Here are some examples of activities protected under the STAA, although it is not a complete list of all of the possible types of activities protected under the STAA:
Making a complaint to the USDOT about violations, or possible violations, of commercial vehicle safety regulations.Making a complaint to your employer about violations, or possible violations, of commercial vehicle safety regulations.Testifying at a union grievance hearing or arbitration hearing where the subject of the hearing involves violations, or possible violations, of commercial vehicle safety regulations.Refusing to drive a commercial vehicle when impaired due to illness or fatigue.Refusing to drive a vehicle that exceeds highway weight restrictions.Refusing to violate hours-of-service regulations.Refusing to drive a vehicle with defective lamps, leaky exhaust systems, inadequate brake pressure or adjustment.Refusing to violate speed limits.Refusing to drive in hazardous weather.Insisting on thoroughly inspecting equipment to make sure it is safe to operate.Refusing to falsify a log book.
These protections are sometimes classified into three types of cases: (1) whistleblowers who have reported violations or participated in proceedings, (2) refusals to drive to avoid a violation, and (3) refusals to drive for fear of injury.
For the “complaint” or “participation” clause of STAA , protected activity includes any complaint “related to” a violation of a federal motor carrier safety regulation. This category protects internal complaints, that is, complaints to your boss, as long as they are “related to” a violation of a commercial motor vehicle safety regulation .
The statute protects complaints related to violations of state commercial vehicle regulations, because those regulations are incorporated into the Federal motor carrier safety regulations . Protected activity includes communications to any supervisory personnel of a possible violation of a commercial motor vehicle regulation, standard or order .
The activity is protected if the complainant reasonably believed he or she was complaining about a commercial vehicle safety hazard, even if other factors motivated the complaint . Likewise, a complaint which implicates a safety standard is protected even if the complainant is primarily motivated by other concerns . Even if an employee made a complaint to protect his job, the complaint itself must be judged on whether it was made in good faith . However, in some jurisdictions, protection is given only if a whistleblower reports actual violations, as opposed to what the whistleblower reasonably believes to be violations.
Protection under the “participation” clause does not require an objective showing of a violation, nor on a complainant’s reasonable apprehension of injury, nor that the complaint has merit . If you are fired for actually filing a safety complaint, or being a witness, it does not matter whether the complaint had merit.
Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. Similarly, filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law are all protected. Even complaints that are indirect or misdirected may result in protection if they reveal to management the intention to enforce the law. For employees assigned to safety, quality control or enforcement work, doing that work too well is also protected.
In this category of protection, the STAA contains this limit:
an employee’s apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition . This means that you must try to have your employer correct the unsafe condition before refusing to drive.
Yes. If you get into an argument with a supervisor about what is or is not legal on the job, and you punch the supervisor, you are not protected from being fired for punching the supervisor.
The Secretary of Labor has recognized that protected activity may be associated with some “impulsive behavior.” Employees cannot be disciplined for protected activity so long as it “is lawful and the character of the conduct is not indefensible in its context.” A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and shop discipline. If the employee’s behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. One employee lost after swearing at a supervisor, refusing to change their conduct, and daring the employer to fire the employee.
9. What if the employer makes a mistake and retaliates against someone who did not engage in protected activity?
The victim of mistaken identification as a whistleblower has just as much right to a remedy as the real whistleblower. Otherwise, an employer can chill employee reporting by firing every tenth employee whenever a thought of whistleblowing appears. A complainant only needs to show that the employer thought the employee engaged in protected activity when respondent decided on the retaliation.
Any action that materially affects the value of your job is an adverse employment action. A discharge is clearly adverse. A demotion, cut in pay, denial of promotion (if someone else gets that promotion), denial of benefits or a refusal to hire would also be actionable when the employer’s motivation is based on the employee’s protected activity. Where a verbal or written warning is part of a progressive discipline system, then the warning constitutes adverse action. Even if there is merely a notation made in an employee file, it may qualify as retaliation. Maverick Transp., LLC v United States DOL, 739 F.3d 1149 (8th Cir. 2014).
The employee protection provisions of the STAA also protect employees from retaliation by former employers. Thus, a bad job reference, or blacklisting, may be actionable if it was motivated by the employee’s protected activity. The Department of Labor will also recognize a claim against a “hostile work environment” although courts still disagree about what employer actions would make the workplace sufficiently “hostile.”
Other employer actions that have been held to be adverse and actionable include:
reduction in work hours,denial of overtime,reprimands,threats to discharge,close supervision,unpleasant assignments; and,a sudden drop in evaluation scores after the protected activity.
Causation can be proved either by direct evidence or by an inference. Direct evidence is evidence that the employer was mad at the protected activity. If you or another witness saw a supervisor spout off about someone reporting a violation, that is direct evidence of the employer’s “animus” against protected activity. Similarly, if the employer announces that whoever calls the USDOT will be fired, or warns employees against reporting violations, that is direct evidence of retaliation.
However, the Department of Labor recognizes that employers are often smart enough to suppress direct admissions of their motives. So, the Department can find causation based on inferences. For example, if the worker calls the USDOT, and you can prove that the employer had an idea about who called, and that worker is fired shortly thereafter, the timing can support an inference that the protected activity caused the discharge. The timing can support an inference of retaliation when it is as long as six months or a year from the employer’s discovery of the protected activity.
An inference of causation can also be drawn from an employer’s failure to follow normal procedures, use of false evidence, changing explanations, or a pattern of adverse actions after employees engage in protected activity. Additionally, some courts have ruled that where an employee suffered unusually harsh punishments for an otherwise actionable offense (e.g. employees utterance of racial slurs) can be evidence of retaliation under STAA. Calmat Co. v. United States DOL, 364 F.3d 1117 (2004 9th Cir.).
The complaint may be filed with OSHA and may be in writing or verbal. The Department of Labor’s regulations state that, “No particular form of complaint is required.” We recommend that complaints be submitted in writing and sent by certified mail so that there is no question concerning the filing date. Complaints may also be filed online with OSHA.
In drafting your complaint, you should be careful to identify the responsible employer or employers, and the names of individuals who have participated in the retaliation. The individuals who discriminated against you are personally responsible for their actions. They cannot hide behind the corporation or a corporate bankruptcy.
An attorney or other representative may file the complaint on your behalf, so long as it is with your permission .
The complaint may be filed with any office of the Occupational Safety and Health Administration of the U.S. Department of Labor. OSHA prefers to receive complaints at the local office. You can find the address and fax number for the local OSHA office at http://www.osha.gov/html/RAmap.html.
The Administrator’s office is at:
Occupational Safety & Health Administration
200 Constitution Ave NW, Rm N3647
Washington, DC 20210
Compliance Programs Fax: 202-219-9187
The time limit to get your STAA complaint to OSHA is one hundred eighty (180) calendar days from the date you first learned about management’s final decision to impose the adverse action. If a disciplinary letter is issued and the employee files a grievance over the letter, the 180-day time limit runs from the date the employee receives the letter, not from the day an arbitrator or union grievance panel issues its decision on the grievance.
For example, if your employer gives you a letter saying that you will be laid-off for economic reasons seven months in the future. You believe the real reason is retaliation for reporting violations. Your complaint must be filed within 180 days of the notice, while you are still employed.
If the employee waits until the discharge is completed, the employer can move to dismiss on grounds of untimeliness . If the employer’s notice is equivocal, the employee may wait for a final decision from the employer . However, pursuing internal or union grievance proceedings does not make the decision equivocal.
The 180-day time limit may be met by the postmark of the complaint, or by fax transmission. In counting the 180-day limit, if the 180th day falls on a Sunday, the complaint must be postmarked or filed by that Sunday. A complaint filed on Monday will be dismissed as untimely.
The legal doctrine of “equitable tolling” may also apply to extend the deadline. For example, if you were planning to file the complaint, but you were in the hospital on the 180th day, OSHA can accept your complaint if you file it promptly after getting out of the hospital. Also, if you made a good faith attempt to file on time, but you filed in the wrong place, you may be able to file in the right place if you do so with reasonable diligence. Tolling may also apply if the employer concealed its true motive for the adverse action . Equitable tolling does not benefit the worker who simply did not know what the law provided or required until after the time limit was passed.
Only on rare occasions does the Department of Labor allow “equitable tolling” of the 180-day time limit to file a complaint so it is important to act quickly.
OSHA makes the initial investigation and decision. They interview witnesses on both sides and may prompt the parties to discuss settlement. This procedure makes it difficult to prevail in cases involving credibility disputes. The initial decision is usually made in a few months, but can stretch to the better part of a year or more.
A regulation requires a decision in 60 days . However, decisions are rarely issued that quickly.
One study found that OSHA ruled in favor of the truck driver only 31% of the time. However, in most of these cases the employee chose to proceed without an attorney experienced in employment law. The study also noted that many of the cases that OSHA dismissed were successful when they appealed.
Once OSHA issues a decision, either or both sides may file a request for a hearing within thirty (30) days of receiving the decision . Copies must be mailed, telegrammed or faxed to the Chief Administrative Law Judge and the Administrator, and to the opposing party. Upon filing the request for a hearing, discovery (the process of sharing relevant information in the hands of each party) commences and the OSHA decision carries no weight. If the employee prevailed with OSHA and the employer appeals, then OSHA will also appear as a prosecuting party, along with the employee. Whenever the employee prevails at any stage of the proceedings, an order for reinstatement is immediately effective even while any appeals are pending.
Complainants have a right to a speedy hearing, meaning thirty (30) days from filing the complaint . They can waive this right, for example to complete discovery. After the hearing, the ALJ sends the decision to the Administrative Review Board (ARB), a three member panel appointed by the Secretary of Labor (SOL). Either party may appeal to the U.S. Court of Appeals from the final ARB decision.
If your claim is successful, you are entitled to “make whole” remedies. These include:
reinstatement,back pay,front pay,compensatory damages for such items as emotional distress and loss of reputation,interest on damages; and,attorney fees and costs.
Other remedies, known as “equitable remedies,” include:
purging of adverse information from personnel records, andposting of information about the case at the employer’s work sites.
The laws provide remedies enforceable in trial courts, with juries, compensation for emotional distress, anxiety, upset and loss of reputation up to $250,000.
You have a duty to mitigate damages, for example, by looking for substitute employment. The employee has no obligation to accept substitute employment that is not substantially equivalent in terms of pay, benefits and working conditions to the former job. For more information, see our site’s mitigation page.
It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a retaliation case. Some lawyers with experience in whistleblower cases will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will trust the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer’s first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement to the OSHA investigator.
When you shop around for an attorney, look for attorneys who have experience in employment matters. For more information, see our site’s attorney resources page.
The National Whistleblowers Center maintains a lawyer referral service, which may be contacted as follows:
The Government Accountability Project (GAP) is a national, public-interest organization that provides advocacy and legal support to whistleblowers, and may be contacted as follows:
Government Accountability Project
West Coast Office – Intake Coordinator
1511 3rd Avenue, Suite 321
Seattle, WA 98101
Phone: (206) 292-2850
Fax: (206) 292-0610
Email: [email protected]
Still, having a lawyer is not required. You can be represented by a union official, a paralegal, or anyone else of your choosing. Some whistleblowers have won cases representing themselves. Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.
The STAA law is available at: http://www.osha.gov/dep/oia/whistleblower/acts/staa.html
The STAA regulations are at: http://www.fmcsa.dot.gov/rules- regulations/administration/rulemakings/29cfr1978.txt
A comprehensive source of information is:
The STAA Handbook
By Paul Taylor, Arthur Fox, David Pratt, Joanne Shallcross, and Michael Goldberg
Published by The Teamsters Rank & File Education and Legal Defense Foundation
Another helpful source on OSHA, ALJ and DOL proceedings is:
Researchers can access OALJ decisions in an excellent database at http://188.8.131.52/library.htm.
The content on this page was provided by Paul O. Taylor and Richard R. Renner.
© 2017 Workplace Fairness