I found or know about violations of Federal safety and health regulations relating to commercial motor vehicle safety. May my company fire me, write me up, treat me differently, or favor others if I blew the whistle on my company?
No, a motor carrier employer may not discharge, discipline or discriminate against an employee regarding pay, terms, or privileges of employment because you did one of the following five actions:
- You filed a complaint related to a violation of a commercial motor vehicle safety regulation.
- You began a proceeding related to a violation of a commercial motor vehicle safety regulation.
- You have testified in a proceeding related to a violation of a commercial motor vehicle safety regulation.
- You will testify in a proceeding related to a violation of a commercial motor vehicle safety regulation.
- You refused to operate a commercial motor vehicle, because of one of the following two items.
- You would have violated a Federal safety or health regulation.
- You had a reasonable apprehension you, or someone else, would have been seriously injured or impaired had you operated the unsafe vehicle. You asked your employer to correct the unsafe vehicle’s condition, but your employer refused to correct the unsafe condition.
- 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.
Who is an employee?
You are an “employee” if you do any one of the following five types of jobs:
- Drive a commercial motor vehicle.
- Drive a commercial motor vehicle, as an independent contractor, when you personally operated the commercial motor vehicle.
- Repair and maintain vehicles as a mechanic.
- Handle freight.
- Any job for a motor carrier directly affecting commercial motor vehicle safety in the course of employment. The employee cannot be an employee of the United States government, a State, or a political subdivision of a State acting in the course of employment.
What may I do within 180 days of my discharge, discipline, or discrimination?
You or your legal representative may file a complaint with the Secretary of the United States Department of Labor.
What may I do if my discharge, discipline, or discrimination happened more than 180 days ago?
You may still file your complaint, or another person at your request may file your complaint, with the OSHA Area Director acting on behalf of the Secretary of Labor, but the OSHA Area Director has the discretion to decline your complaint as untimely.
What should I include in my complaint?
You should include the following five items in your complaint.
- Your name, address, and telephone number.
- The specific commercial motor vehicle safety regulation in question.
- The name of the person who discharged you, or disciplined or discriminated against you.
- One or more of the following alleged actions.
- I filed a complaint related to a violation of a commercial motor vehicle safety regulation.
- I began a proceeding related to a violation of a commercial motor vehicle safety regulation.
- I have testified in a proceeding related to a violation of a commercial motor vehicle safety regulation.
- I will testify in a proceeding related to a violation of a commercial motor vehicle safety regulation.
- I refused to operate a commercial motor vehicle because of one of the following two items.
- I would have violated a Federal safety or health regulation.
- I had a reasonable apprehension I, or someone else, would have been seriously injured or impaired had I operated the unsafe vehicle. I asked my employer to correct the unsafe vehicle’s condition, but my employer refused to correct the unsafe condition.
- Any other facts, data, and applicable circumstances.
What are examples of protected activities?
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. 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:
- 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.
How does the law protect me if I have reported a violation?
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 also 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 you reasonably believed you were complaining about a commercial vehicle safety hazard, even if other factors motivated the complaint.
How does the law protect me if I participate in proceedings?
Protection under the “participation” clause does not require an objective showing of a violation, a complainant’s reasonable apprehension of injury, or 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.
How does the law protect me if I refuse to drive for fear of injury?
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.
What is an adverse employment action?
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.
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. Other employer actions that have been held to be adverse and actionable include:
- reduction in work hours,
- denial of overtime,
- threats to discharge,
- close supervision,
- unpleasant assignments; and,
- a sudden drop in evaluation scores after the protected activity.
What happens after I file the complaint?
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.
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.
What are the remedies available to me?
If your claim is successful, you are entitled to remedies. These include:
- back pay,
- front pay,
- compensatory damages for such items as emotional distress and loss of reputation,
- interest on damages; and,
- attorney fees and costs.
- purging of adverse information from personnel records, and
- posting of information about the case at the employer’s work sites.
You have a duty to mitigate damages 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.