STAA Protected Activity - Refusing to Drive Due to Hazardous Weather

Discussion in 'Trucker Legal Advice' started by truckersjustice, May 30, 2018.

  1. truckersjustice

    truckersjustice Light Load Member

    215
    216
    Sep 1, 2011
    Burnsville, MN
    0
    The STAA prohibits retaliation (including firing) by an employer against an employee because “the employee refuses to operate a vehicle because- (i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health;" 49 U.S.C.§ 31105(a)(1)(B)(i). A refusal drive due to bad weather can constitute a protected activity under the STAA’s “actual violation” clause or under the "reasonable apprehension" clause. Ferguson v. New Prime, Inc., ARB No. ARB Case No. 10-75, ALJ No. 2009-STA-47(ARB Nov. 30, 2012); Eash v. Roadway Express, Inc., 2000-STA-47 (ARB June 27, 2003). A driver must prove that an actual violation of 49 C.F.R. § 392.14 would have occurred but for his refusal to drive in order to be protected under the “actual violation” clause. Even if a driver does not prove that an actual violation of 49 C.F.R. § 392.14 would have occurred but for her refusal to drive, he may still be protected if his refusal was based upon a an objectively reasonable apprehension of serious injury.

    In order to prove that he engaged activities protected under the actual violation clause of the STAA, a driver must prove that actual violations of 49 C.F.R. § 392.14 would have occurred but for his work refusal. In other words, he must show that weather was so bad that driving would have been unsafe. Such proof may be testimony and documentary evidence showing such conditions as icy roads, heavy snow, vehicles in the ditch, and diminished visibility. Reasonableness of an apprehension of serious injury (required for protection under the “reasonable apprehension clause” of the STAA) can be proven in the same manner.

    Here are some tips of protecting yourself from retaliation for refusing to drive due to bad weather:
    1. Tell the carrier clearly on the Qualcomm or other communication device that you are refusing to drive due to hazardous weather and provide details on your observations and other information such as weather reports.
    2. Do not tell the carrier you will drive when roads are clear. Instead tell the carrier that you will drive when it is safe to do so;
    3. Download data on weather and road conditions and save that information;
    4. Take photos of road conditions (while you are sitting), as well as photos of all Qualcomm communications relating to your refusal to drive;
    5. Obtain statements from other drivers stating their opinions of driving, and obtain the driver contacting information just in case you are fired.
     
  2. moloko

    moloko Road Train Member

    1,569
    1,362
    Oct 26, 2012
    seattle, wa
    0
    Loving this post driver. Also wanted to reiterate, the best way to establish you engaged in a protected activity is to send an email. Even if they don't respond, in court one can trace the IP headers to see if delivery was successful. It's spontaneous, contemporaneous, and places a time stamp on everything !

    Any complaint you make in good faith, of safety--regardless of if you are wrong or not -- this is the essence of protected activity.
     
  3. snowwy

    snowwy Road Train Member

    16,561
    8,232
    Jul 6, 2009
    0
    I thought STAA dealt with national infrastructure. Not labor issues.
     
  4. truckersjustice

    truckersjustice Light Load Member

    215
    216
    Sep 1, 2011
    Burnsville, MN
    0
    I am not a driver but thanks for the compliment.
     
    joshuapowell61 and moloko Thank this.
  5. truckersjustice

    truckersjustice Light Load Member

    215
    216
    Sep 1, 2011
    Burnsville, MN
    0
    That is part of it. STAA, signed by President Reagan in 1982, gave us 80,000 pounds on National Network and 48 foot trailers. The provision referred to in my post is the employee protection provision, 49 U.S.C. Sec. 31105.
     
    joshuapowell61, x1Heavy and Dave_in_AZ Thank this.
  6. moloko

    moloko Road Train Member

    1,569
    1,362
    Oct 26, 2012
    seattle, wa
    0
    STAA outlines the rules for the infrastructure. It also details anti retaliation provisions, stating that any individual who raises a good-faith complaint of safety relevant to highway transportation (surface transportation) is protected from retaliation. This is covered under the Surface Transportation Assistance Act. They're never going to write a bill and not include language which includes anti retaliation provisions. Many government agencies operate like this. STAA retaliation cases are prosecuted under OSHA 11(c) at the Federal level. Similarly, if you raise a good-faith complaint of financial fraud, this would fall under SOX. Similar statute , different agency. SOX details all sorts of rules for financial transactions, and there are anti retaliation provisions included in that as well.
     
  7. truckersjustice

    truckersjustice Light Load Member

    215
    216
    Sep 1, 2011
    Burnsville, MN
    0
    No. STAA is not prosecuted by OSHA, normally. Only if the driver wins at OSHA (which is rare), the Solicitor of Labor will prosecute it before the Office of Administrative Law Judges (if it wants to). If the motor carrier wins at OSHA , the driver can appeal (30 days) to the Office of Administrative Law Judges and have a hearing is de novo (what OSHA did does not count). 11(c) has no right to a hearing. The DOL can only prosecute an 11c case in United States District Court, and rarely will.
     
  8. moloko

    moloko Road Train Member

    1,569
    1,362
    Oct 26, 2012
    seattle, wa
    0
    I have prosecuted a case under OSHA 11(c) with my lawyer a few years back, and we resolved it pre litigation. Not necessarily a trucking job, but no further comments at all. While the DOL might rarely prosecute because they're a government agency, there is nothing that stops one from retaining an employment lawyer and filing suit in violation of OSHA 11(c). That would be Federal court. In my jurisdiction, we have FEHA which offers additional protections. Cal. Lab. Code § 1102.5 reciprocates OSHA 11(c) at the State level and offers additional protections. The cause of action we were going after fell under 1102.5 because we were not filing in Federal court; the State code offers better protections and the venue is more employee-friendly than Federal court, where judges are used to multimillion dollar cases involving separate entities located in different states.

    I see what you mean about the DOL rarely prosecuting individual cases. They are way too overloaded to do this. But I encourage you to look up a jury verdict from California, Webb V Ramos Oil Company. They got their ##### handed to them to the tune of a $7 million verdict for wrongful termination in violation of public policy. In this case, Webb refused to drive in a fierce electrical storm and his dispatcher forced him to keep driving. It got bad enough that they sent him home, and he started drinking at a local bar. Dispatch called him again and told him, come back to work we need you. Webb said, I'm wasted off alcohol and can't come in due to safety. They pressured him to come to work, and when he refused, they fired him for "job abandonment." His protected whistleblowing activity was refusing to drive in dangerous conditions. The statute which offered the protections which lead to a $7 million verdict, was not the Federal OSHA 11(c) statute, but Labor Code 1102.5. The reason they went after it under 1102.5, naturally, is because they filed in State court and not Federal court. This was filed in State court because both the Plaintiff and Defendant were located in the same state. When the two are located in different states, the case can end up in Federal court and that is much more difficult. Federal judges are used to multimillion dollar IP violation cases between huge corporate entities, like if Sprint sues Verizon for copyright infringement. So naturally, a simple employment case is usually not appropriate for the Federal venue. There is a misconception that Federal court is more powerful than State court, but it is quite the opposite. Federal court is a last resort, and cases get transferred to Federal court sometimes if they get thrown out of State court, when the parties are residents of different states. For example, if you are in California and you need to sue a company in Maryland, this case can very well end up in Federal court. And a Federal judge is not nearly as friendly as a California State judge. The Federal law was written from the perspective that most states will have a reciprocal law which trumps the Federal law; IE offers additional protections, offers additional time to file the complaint without the Statute of limitations expiring...and often these complaints will be "cross filed " with the two government agencies: FEHA, the State of California's prosecuting authority, and the OSHA 11(c) statute , which covers the case in case it goes to Federal court.

    Therefore, I totally agree with your assertion that the DOL would rarely prosecute these matters. They only do so in the most egregious situations, and perhaps after the legal remedies Re; the state law have been exhausted. these employment cases are way too small for a Federal judge who is used to multi-million dollar cases involving Fraud, copyright infringement, etc.

    I'm going to get the legal pleadings from Webb V Ramos and I'l fact check myself , i'll get back to you all
     
    Last edited: Jun 2, 2018
  9. moloko

    moloko Road Train Member

    1,569
    1,362
    Oct 26, 2012
    seattle, wa
    0
    Webb V Ramos Oil Company: Whistleblower case: code 1102.5 prosecutes all whistleblower actions under California. If this case went to Federal court, this would have been prosecuted under OSHA 11(c)

    The Result

    • Gross Verdict or Award: $6,241,655 (Plus §998 Interest 10% per annum beginning June 16, 2010: $532,770; Plus Attorney Fees ‐ TBD; Plus Litigation Costs – TBD)
    • Economic Damages:
      $163,852 (Past Wages: $58,012; Future Lost Wages: $105,840)

    • Non-Economic Damages:
      $2,500,000 (Past Mental Suffering: $1,000,000; Future Mental Suffering: $1,500,000)

    • Punitive Damages:
      $3,577,803

    • Jury Deliberation Time: 2 hours on July 12, 2012 for economic/non-economic damages. 1 hour on July 13, 2012 for punitive damages phase.
    • Jury Polls: Unanimous as to all liability findings for (1) wrongful termination in violation of public policy, (2) violation of labor code sections 6310 and 6311, and (3) violation of labor code section 1102.5(c).
     
  10. skellr

    skellr Road Train Member

    7,555
    8,907
    Jul 17, 2011
    The Village, Portmeirion
    0
    I think the problem with "Mega Carriers" pushing people to drive comes from middle management that receive some sort of "incentive" pay. That might not be the right terminology, but they will push a driver because it would cost them money.

    Upper Management seems to know better, i'm sure there are exceptions. If someone is pushing you to drive then you are talking to the wrong person. Try going "up the ladder".
     
    moloko Thanks this.
  • Draft saved Draft deleted