James F. Mahoney, Attorney
Commentaries
 
     

October 2014

Driver Coercion and STAA Whistleblower Complaints

If you’re reading this and engaged in interstate transportation of goods by motor carrier – or if your insured client does this — there is exposure to STAA whistleblower claims.

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The Federal Motor Carrier Safety Administration (FMCSA) proposes to adopt regulations that prohibit motor carriers, shippers, receivers or transportation intermediaries from coercing drivers from operating commercial motor vehicles in violation of the Federal Motor Carrier Safety Regulations (FMCSRs) — including drivers' HOS limits, CDL regulations, ill and fatigued driving, inclement weather, drug and alcohol testing and Haz-Mat regulations (HMRs).[1]

But what we are already seeing — and which has vastly increased the liability exposure of motor carriers and other entities in interstate commerce — is the sudden increase in driver (and “employee”) claims of retaliation under the Surface Transportation Assistance Act of 1982. Claim filings are up about 30% in the last few years.

Transportation intermediaries and motor carriers — the entire spectrum of entities involved in interstate cargo movement, such as third-party logistics firms, leasing agents, forwarders and freight brokers - are exposed to liability under the STAA — the “anti-retaliatory” provisions of the Surface Transportation Assistance Act of 1982, based on perceived or actual “control” over “employees.”

Under the STAA, the definition of employee is broadly interpreted to include a driver of a commercial motor vehicle, including an independent contractor, or a mechanic, a freight handler, or an individual who is not an employer who directly affects commercial motor vehicle safety or security in the course of employment by a commercial motor carrier.  The term includes any individual formerly performing the work or an applicant for such work.

Any such entity can be an employer because of the apparent degree of control the company has over the “employee.” Even the appearance that you can influence the disciplining of another company’s employee has become sufficient evidence of the requisite degree of control – think of a freight broker pushing a motor carrier’s driver to meet an appointment - and that’s enough for this type of claim for the broker to be considered a “joint employer.”

Your revenue is at risk.

The stakes are high – awards aren’t covered by insurance and can include reinstatement, back pay plus interest, medical expenses - loss of medical coverage at termination can be significant - compensatory damages and punitive damages. Also, the entity may have to take affirmative action to abate the violation, including a variety of measures such as posting notices about STAA orders and rights, as well as expungement of adverse comments in a personnel record. Where the employer is shown to have used a reckless or callous disregard for the complainant’s rights as well as intentional violations of federal law, the STAA allows for an award of up to $250,000 in punitive damages.

Claims are not difficult to make.

After the employee makes a prima facie case – which can be done relatively easily by using circumstantial evidence that the retaliation / discipline occurred contemporaneous to the alleged complaint - the respondent company may only avoid liability if it demonstrates by clear and convincing evidence that it would have taken the same adverse action in any event. “Clear and convincing” evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain — a difficult burden.

Complaints can be filed and awards made for any adverse personal action.  Of course, termination is the main reason, but complaints can also be made on being blacklisted, demoted, denied overtime or promotion, disciplined, denied benefits, not being hired or rehired, intimidated, being the recipient of threats, reassignment affecting promotions, or receiving reduced pay, fewer hours or crummy loads.

The STAA regulations prohibit discriminatory action by an employer because an employee has engaged in activities falling into two categories: complaints, which can be as simple as reporting a violation of the regulations to a supervisor and the driver’s refusal to operate a vehicle because of the regulation — a “refusal to drive” is protected under the STAA.

  • 49 U.S.C. § 31105(a)(1)(B)(i) requires an employee show that he refused to operate a vehicle because the operation violated a regulation, standard, or order related to commercial motor vehicle safety, health, or security. Think of claims of “fatigue” or “illness” or HOS limitations, or hazardous weather, or the absence of a medical card — there are many regulations to choose from.

  • 49 U.S.C. § 31105(a)(1)(B)(ii) looks at whether a person in the same situation would conclude that there was a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s or driver’s dangerous safety or security condition.

If you’re reading this and engaged in interstate transportation of goods by motor carrier – or if your insured client does this — there is exposure to STAA whistleblower claims.

Take preventive action now.

You need to vigorously and strategically (uh, immediately) respond to such allegations by hiring a transportation attorney to represent you. Knowledge of operations and the FMCSR’s is paramount. You need to preserve attorney-client privileges and respond to the DOL’s lawyers / investigators. Training of dispatchers, freight brokers, driver managers – anyone who can be viewed as supervisory - should be on your short list; and also review your handbooks to encourage workers to report incidents of perceived non-compliance or unsafe conditions internally.

[1] In considering my own personal work life, I now realize that I’ve been coerced to perform certain objectionable, unsafe work practices since I started work at age 14. At that time I was forced by my employer to pick up trash thrown to the ground by sun-dried mahjong players (leathered, older women in unbecoming “bathing suits”) at a “beach club” along the East River in NYC (there was no beach to swim from, the River having been declared polluted about 100 years before).

Not only were the visages of these ladies offensive to the eyes of a 14 year boy (which still causes me emotional distress), but the trash was either half-crushed cigarette butts or dirty diapers literally thrown at my feet. “How’s business? Picking up?” they would call out to me, laughing… Talk about stressful coercion.