On May 24, 2010, Mr. Joe Oglesby, a former United States Marine, filed a complaint with the U.S. Department of Labor (DOL), alleging that his former employer, Foresight Transportation Group (Foresight), pressured truck drivers to work more hours than safely allowed and then to falsify their log books to avoid suspicion. Overturning the findings of a U.S. DOL investigation, Administrative Law Judge (ALJ) Richard Morgan held that Oglesby’s refusal to work more hours than permitted or to falsify records was a “protected activity” under the whistleblower provisions of the Surface Transportation Assistance Act of 1982 (STAA) and Oglesby’s protected activity was the reason Foresight fired him. The ALJ ordered Oglesby to be immediately reinstated and awarded him $26k in damages, including another $20k in punitive damages.
Joe Oglesby communicated to the U.S. Department of Labor that Foresight fired him for pointing out violations and subsequently refusing to drive his truck in violation of the U.S. Department of Transportation (DOT) hours-of-service rules. Hours-of-service rules regulate how many hours a truck driver is permitted to drive each day or each week. For example, a truck driver transporting property may drive a maximum of 11 hours after 10 consecutive hours off duty and must keep a record of his or her hours. The U.S. DOL investigated Oglesby’s claims; however, DOL determined that Foresight had not violated the whistleblower protections under STAA and dismissed Oglesby’s complaint. Oglesby appealed the DOL’s findings, and a hearing before an ALJ commenced on March 29, 2011.
At the hearing, Oglesby accused company President Mr. Oleksadr “Alex” Sardak of telling him that his mileage was inadequate and of instructing him on how to falsify his log books so that it would appear he was not violating the hours-of-service regulations. The disagreement over hours came to a head on March 15, 2010 when Oglesby radioed Sardak to decline a new assignment that would cause him to exceed the maximum hours-of-service. He had already driven three days with “little to no rest” according to his testimony. Upon returning to base, he informed the dispatcher, Jerry Rack, that he would not falsify his logs. He was subsequently summoned to a meeting with Rack and Sardak. It is Jerry Rack’s statements during that meeting that most clearly illustrate the kind of pressure some companies place on their truck drivers to violate the law:
In this business, I don’t care where you go, what you gonna do. It’s all… one big lie. Everybody knows it. Do you think those guys go straight with those log books? I’ve been doing this for twenty years. Nobody, not one person ever, did their log books right, nobody. If I gotta run this truck, and have it straight with the log books, then we’re all out of a job, every single one of us. Then this business will go down. You think the customer gives a **** about log books? Not a tiny bit. They want their **** picked up in New Jersey in the afternoon and delivered in Chicago the following day.
Oglesby was subsequently fired. He was also refused his final paycheck.
Protected Whistleblower Activity
Oral complaints to a supervisor, such as the ones made by Oglesby, are protected disclosures under the whistleblower protections of STAA. Accordingly, the ALJ held:
I find Oglesby’s testimony credible considering his demeanor and consistency, particularly in light of the fact that he admitted, under oath, that he had in fact falsely recorded his times and the fact, recognizing the potential consequences, he challenged a job which would have continued to either require or, at least encourage, him to violate the law.
Furthermore, Oglesby’s refusal to drive a truck in violation of DOT regulations is also protected under STAA. The ALJ held:
I find, given that Mr. Rack was Mr. Sardak’s “right-hand man”, that the latter knew or reasonably should have known that Mr. Rack was coercing drivers to falsify log books and disregard DOT hours-of-service regulations, which he admittedly did not know. Given that Mr. Rack also acted as a dispatcher, it was imperative he understand hours-of-service rules. Mr. Rack was not completely ignorant about the general limitations of hours of service rules and explained that Foresight could not operate in compliance with the rules and make money. He admitted his comments were inappropriate.…Thus, I find Mr. Oglesby established protected activity under the refusal to drive provision.
Adverse Action, Termination, or Discharge
Since Oglesby was fired, it is clear that he received “an adverse employment action.” However, whistleblowers do not have to show that they were fired in every case – they only have to show that their employer took an “adverse employment action” against them. ALJs apply the whistleblower-friendly “materially adverse” test from the case Burlington Northern & Sante Fe Ry. Co. v. White. The materially adverse test merely requires that the employer’s action “could well dissuade a reasonable worker from” reporting violations. In addition, whistleblowers do not have to show that the employer intended to force a resignation. They only have to show that the employer intended the employee to work under intolerable conditions.
Remedies and Damages
Having found that Oglesby is a whistleblower under STAA, the ALJ reinstated him to his former position. Additionally, back pay is mandated. The ALJ awarded Oglesby roughly $26k in back pay including interest. The ALJ further punished Foresight for its blatant efforts to pressure truck drivers to violate the law by awarding Oglesby an additional $20k in punitive damages. Lastly, Foresight is required to post a copy of the ALJ’s decision in a prominent location at the facility where Oglesby worked for a period of 180 days.
This case serves as one of many examples of how the United States Department of Labor Occupational Safety and Health Administration (OSHA) has doubled its efforts to combat unsafe working conditions and to reward those whistleblowers who speak out against abuses of authority.
This case was reported as Oglesby v. Foresight Transp. Grp., 2011-STA-16 (June 22, 2011).
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