According to OSHA, the employee made several complaints about recurring mechanical failures in trucks and refused to drive those trucks which had recurring mechanical failures.  Heartland responded to the complaints by removing the driver from its schedule and then terminating him when he met with Heartland management to discuss his schedule changes.

After his termination, the driver filed a whistleblower complaint with OSHA. In addition to reinstatement and economic damages, OSHA ordered Heartland to expunge any adverse references from the driver’s personnel records and to post notices and fact sheets for employees to inform them of their rights under the STAA.

Image via Wikipedia

U.S. Department of Labor Administrative Law Judge Joseph E. Kane ordered whistleblower Edward Schrieber reinstaed with his former employer Beacon Transport, Inc.  ALJ Kane also awarded Schrieber back pay and attorneys’ fees.

Beacon Transport had fired Schrieber after he had refused to haul cargo in his truck.  Truck drivers travelling on interstate highways are allowed to carry up to 80,000 lbs.  In addition to gross weight, there are also limitations for the amount of weight an individual axle may carry.  Every motor carrier shall issue a receipt or bill of lading for property tendered for transportation in interstate commerce indicating the freight’s weight.  On September 22, 2009, Schrieber was given a bill of lading for the cargo that did not include the freight’s weight.  Several days following Schrieber’s refusal to haul the cargo, Beacon Transport fired him.

The ALJ ruled that Schrieber’s apprehension that the cargo was unsafe to haul was objectively reasonable.  The ALJ further held that Shrieber’s refusal to haul the cargo was a contributing factor in the employer’s decision to fire him. Therefore, Schrieber’s termination was unlawful under the Surface Transportation Assistance Act (STAA).

The ALJ held that unless the employer provided evidence that Schrieber failed to mitigate his damages, Schrieber is entitled to full back pay up until the employer provides an offer of reinstatement.  Under STAA,  the burden is on the employer to establish any failure by a wrongfully discharged employee to properly mitigate damages through the pursuit of alternative employment.

The opinion is Schrieber v. Beacon Transport, Inc., Case No: 2010-STA-70.

Related articles

• Truck Driver Awarded $19,162.44 in Additional Damages under Whistleblower Statute (employmentlawgroupblog.com)
• DOL Orders Union Pacific Railroad to Pay Whistleblowers more than $615,000 (employmentlawgroupblog.com)
• U.S. DOL ALJ Reinstates Truck Driver who Refused to Violate DOT Regulations, Awards $46k in Damages(employmentlawgroupblog.com)
• OSHA Announces Measures to Improve Whistleblower Protection Program (employmentlawgroupblog.com)

Image via Wikipedia

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).

Related articles

• DOL ARB Clarifies Broad Scope of Protected Conduct for SOX Whistleblowers in Sylvester v. Parexel International LLC(employmentlawgroupblog.com)
• DOL Decision Expands SOX Whistleblower Protection(lawprofessors.typepad.com)
• U.S. DOL Affirms Undocumented Workers Are Entitled to Unpaid Minimum Wage and Overtime under FLSA (unpaidovertimeblog.com)

On October 26, 2007, Williams was involved in a minor accident.  He submitted an accident report and attempted to notify several Domino’s employees.  He could not find the phone number to the accident hotline.  Domino’s procedures require that drivers notify their team leader and contact the Domino’s accident hotline no later than two hours after an accident occurs.  On October 30, 2007, Williams called one of his supervisors to talk about the accident.  His supervisor commented that if Williams had been able to call the compliance hotline, he should have been able to contact the accident hotline.  His supervisor suspended him without pay pending an investigation, and later terminated him.

The ARB rejected Domino’s assertion that Williams was not protected under STAA because he refused to name the coworkers who unlawfully pressured him.  The ARB instead found that Williams’s complaint about being pressured was a contributing factor in his supervisor’s decision to fire him, and affirmed his reinstatement as a truck driver.  The ARB also affirmed the ALJ’s decision to admit into evidence the transcript of an unemployment hearing:

In this matter, the prior statements that Williams sought to introduce as evidence were statements by Domino’s’ agents concerning matters within the scope of the agency, made during the existence of the relationship and were therefore, admissions by a party-opponent and not hearsay.

It is unsafe and illegal for companies to pressure truck drivers into working during their rest periods.  To learn more about reporting illegal employer practices, click here.

…under [ARB] precedent, “an employer who decides to interpret an employee’s actions as a quit or resignation has in fact decided to discharge that employee.”  Minne, ARB No. 05-005, slip op. at 14.  See also Ass’t Sec’y & Vilanj v. Lee & Eastes Tank Lines, Inc., 1995-STA-036, slip op. at 4-6 (Sec’y Apr. 11, 1996) (employer violated the STAA when it reacted to complainant’s refusal to drive by “consider[ing] [complainant] to have voluntarily quit” rather than by addressing condition complainant had raised, thus by implication employer engaged in adverse action by deciding that complainant had “quit”); Ass’t Sec’y & Lajoie v. Envtl. Mgmt. Sys., Inc., 1990-STA-031, slip op. at 5-6 (Sec’y Oct. 27, 1992) (overturning ALJ’s determination that employee had “voluntarily quit,” the Secretary held that employer had “engaged in adverse action” by “[discharging]” employee when employer “was not willing to address [employee’s] complaint and considered [complainant] discharged if he failed to capitulate” by driving even though employer had not addressed complainant’s concern); Fronczak v. N.Y. State Dep’t of Corr. Servs., 2 Fed. Appx. 213, 215-17 (2d Cir. 2001) (unpublished).

The ARB applied this standard to the facts in Klosterman, finding that it was the employer’s behavior rather than the employee’s which led to the end of the employment relationship.  The employer told the employee to drive the truck or go home.  The employee chose to go home.  Since the employer did not address the employee’s complaints regarding safety, the employer effectively discharged the employee and incorrectly considered the employee’s refusal to drive the unsafe truck as the employee having quit. 

The ARB further held that a phone conversation with an OSHA representative is sufficient to meet the 180 day statute of limitation for filing a complaint.  STAA does not require the complaint to be in writing.  For more information about The Employment Law Group® and its Whistleblower Law Practice, click here.

The Surface Transportation Assistance Act (STAA) protects bus drivers, truckers, and other employees who blow the whistle about the unsafe operation of commercial motor vehicles.  To learn more about The Employment Law Group® law firm’s Commercial Motor Carrier Whistleblower Practice, click here.

The STAA protects bus drivers, truckers, other employees who blow the whistle about the unsafe operation of commercial motor vehicles.  To learn more about The Employment Law Group® law firm’s Commercial Motor Carrier Whistleblower Practice, click here.

Judge Rae agreed that the FLSA and STAA are sufficiently similar to exempt an employer from liability on the sole basis of statutorily mandated contact provisions.  However, the respondent still failed to demonstrate that it did not have the ability to control the complainants since the joint employers’ contract provided the respondent with the discretion to cancel the assignment of certain employees. 

For more information about The Employment Law Group® law firm’s Commercial Motor Carrier Whistleblower Practice, click here.

Judge Leland held that a reasonable person in Ferguson’s position would have concluded that the weather conditions presented a serious danger and if Ferguson had not stopped, she would have violated federal regulations prohibiting the operation of commercial motor vehicles in conditions that are likely to cause an accident or breakdown.  The employer argued that it fired Ferguson for carrying a negative balance with the company. 

Judge Leland acknowledged that the negative balance could be a legitimate reason to terminate Ferguson but found that comments made by Ferguson’s supervisor and the temporal proximity between Ferguson’s protected activity and termination established a mixed motive.  As a result of her employer’s “total disregard not only for her and her co-driver’s safety but for the safety of other drivers on the road,” Judge Leland awarded Ferguson $75,000 in punitive damages, $50,000 for emotional distress, back pay, reinstatement, costs, and attorney’s fees.  The case is Ferguson v. New Prime, Inc. and a copy of the order is available here.

For information about The Employment Law Group® law firm’s Commercial Motor Carrier Whistleblower Practice, click here.