August 1, 2007: Congress has passed new provisions strengthening “whistleblower” protections for truck drivers.
The new rules, part of the new anti-terrorism legislation, strengthen various whistleblower laws, including the employee protection provisions of the Surface Transportation Assistance Act ("STAA").
The STAA, originally enacted in 1982, protects employees who file complaints with the Department of Transportation or their employers about violations of commercial vehicle safety regulations. TDU was instrumental in the passage of the law.
The STAA also protects employees against discipline or discharge if they refuse to drive in violation of a commercial vehicle safety regulation. However, in the past the STAA has provided no right to jury trial and required complaining parties to litigate their claims within the United States Department of Labor, where cases can drag on for years.
Here are improvements in the new law:
- Punitive Damages. In the past, a truck driver or other complainant under the STAA was only able to recover compensatory damages such as back wages, along with reinstatement to his job, attorney fees and court costs. In very serious cases, the new legislation allows someone who successfully prevails in a wrongful discipline or discharge claim to seek and recover up to $250,000 in punitive damages. This may deter some carriers from retaliating against a driver who refuses to drive in violation of hours of service regulations or refuses to operate unsafe trucks and trailers.
- Burden of Proof. The new legislation lowers the burden of proof for truck drivers and other parties who file claims with the Department of Labor under the STAA. The law specifically applies the proof burden required for whistleblowers in the airline industry such as pilots and airplane mechanics. This law provides that a claimant may prevail if he shows that his legally-protected activities were a motivating factor in the employer's decision to retaliate.
- Protection from Retaliation for Logging Accurately. The new legislation amends the STAA to specifically prohibit retaliation by an employer against drivers because those drivers accurately record their on-duty time, which would also include driving time. The new law also protects individuals who are perceived as being persons who are about to blow the whistleblower on an employer about violations of commercial vehicle safety regulations.
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Jury Trials in Federal Court If DOL Fails to Act. Under the existing law, a truck driver or other complainant under the STAA must litigate his case solely within the structure of the Department of Labor. Complainants start with OSHA, which rules in favor of the truck drivers less than 10 percent of the time. A truck driver can then object and have a hearing before an administrative law judge of the Department of Labor. After the ALJ rules, the DOL's Administrative Review Board acts as an appeals court with the Department. The Board has sometimes taken 2 1/2 to 3 years to decide cases.
The new law allows complainants under the STAA to pull their case from the Department of Labor and litigate it in a United States District Court if the Department of Labor fails to rule on the claim within 210 days after filing. If the complainant chooses to proceed in Federal District Court, he is entitled to a jury trial. This may provide a useful approach in some cases where the DOL fails to act.
This legislation is a victory for whistleblowers within the trucking industry. Drivers and trucking safety advocates have been working for these changes for years. Special thanks go out to Adam Miles and Tom Devine of the Government Accountability Project and to my client and friend John Simon, who obviously touched a few hearts and motivated a few Congressional Representatives to take some action to address the concerns of truck drivers.
By Paul Taylor, attorney-at-law. Contact Paul at paul.taylor [at] truckersjusticecenter.com.
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