Your rights under OSHA 11(c)

That's a little different. If you exceed the allowed FMLA by law, you're not entitled to keep your job indefinitely. The employer doesn't have to keep someone on the payroll indefinitely if you're not qualified for FMLA.

 

There is an issue with this. The employer would think they're smarter than the rest by using this tactic. But, if it's a "reasonable suspicion" test as opposed to a genuine random drug test, and that employee has no history of ever having been subjected to "reasonable suspicion" drug testing at that carrier--the law would infer, that this is a pretext to retaliate or discriminate against somebody with a disability. Most employers will not openly say, "we are firing you for the disability request."

On that note, calling in sick to work and notifying your employer of the codeine in your system is the right and responsible thing to do. The employer has no recourse to terminate someone if they are upfront and honest, about a prescription medication that is legally prescribed. You just can't drive with it in your system. It is illegal to fire somebody for having a legal prescription. Furthermore, the codeine will cause a positive result for opiates--but then the M.R.O. will call the employee and, if a valid Rx is indeed on file, they cannot report this as a positive result to the employer. The request for time off work for having to use this medication, is covered under Americans with Disabilities Act, and that is legally protected. You see what I mean? The carrier cannot fire somebody for using this medication, while off-duty, under the care of a doctor, and making no effort to conceal their use of the prescription medication while off duty. They just can't drive behind the wheel with it in their system.

Of course it is difficult to prove intent. But this is proven by circumstantial evidence. If you read the original article, I talk about the nexus. A nexus is a casual connection between the protected activity, and the adverse employment action. This is usually proven by the timing of events, and the law allows for a generous six-month window to infer illegal discrimination or retaliation.

So let's say, a driver has no history of reasonable suspicion drug testing at work because he is clean as a whistle. He puts in a disability accommodation request and tells his employer, he's having back issues. He needs 2 weeks off to recover and is using pain medication. If the employer turns around and immediately issues a "reasonable suspicion" drug testing, the law will infer that the employer was using the drug test as a pretext (or excuse) to search for a "legitimate" reason to terminate the employee. A drug test is actually considered an adverse employment action. Drug testing an employee as a direct result of requesting a disability accommodation, is most likely considered an "adverse employment action in violation of public policy." Because while drug testing in itself is legitimate and a company's right--in the proper context, it can be illegal to request such a request.

It starts to get more complicated at that juncture. It starts to become "mixed motive" type of scenario, using a "but-for" argument. And on that note, the law is clear that, if an illegal or discriminatory reason for terminating an employee is even a small percentage of their overall decision to terminate an employee--it is still a wrongful termination under the law. Now if the employer discovers a legitimate reason to terminate the employee after the employee is terminated--let's say, the Driver was committing timecard fraud--it is still a wrongful termination under the circumstances I have described. It just means the employer can use the after-acquired evidence doctrine, which basically states the employer is only required to pay damages up to the point where they would have discovered a legitimate violation of company policy.

Back Pay Only
You also mentioned back pay as the only recourse. That's actually not accurate. The plaintiff can go after front pay as well, as long as they make an attempt to mitigate their damages--that is to say, seek employment elsewhere. If the employee lost medical coverage, they are entitled to cash compensation for those medical premiums. If the employee had to relocate to a more expensive part of the country to find a comparable job with a similar salary, they are entitled to their relocation costs. They are entitled to the increase in rent they have to pay. They are entitled to attorney's fees, and punitive damages. Most importantly, the law also offers damages outside of punitive damages for each violation. For every provable violation, and for each separate incident the case is broken down into, the employer is potentially facing tens of thousands of dollars in fines PER INCIDENT. These fines are not paid to the government, they're paid directly to the employee. This is why these civil lawsuit cases generate hundreds of thousands of dollars in damages, outside of "back pay." See what I'm saying?

Contingency Law;
It takes many, many phone calls to different employment lawyers to get someone to take it on a contingency. Chances are, a lawyer will take a case if they can place liability on the employer, regardless of the "value" of the case. The reason is, the lawyer doesn't even know what the case is worth until they start talking to the opposing counsel. They usually start with a settlement demand figure of 2X the amount they hope to recover. Then, if the settlement negotiations proceed, there is a back and forth dialogue between the Employer's lawyer, and the Employee's lawyer. If they reach the point of impasse, where they cannot come to an agreement, the employee's lawyer then drafts a formal lawsuit and sends it to the Employer's lawyer. It outlines all the causes of action and damages they are requesting. Then a deadline is imposed where, if a settlement cannot be reached, that draft lawsuit will be filed directly in court.

Conclusion;
I'm just trying to keep you guys informed of your rights. I'm trying to publish some useful information here. So I hope you guys can appreciate it

 

Well, it would seem naive, except I'm telling this situation like it is from personal experience. So far, I've been successful in proving my points, but that's neither here nor there. Not going into detail on that aspect. It is indeed a horrible situation and an uphill battle. I'm just hoping to publish some useful information. I would provide sources but this website prohibits linking to outside websites. Nothing you can't find on Google.

The real intention is to put something out there online, to point people in the right direction. Maybe this information will help somebody someday.

The legal system sucks. It's flawed just like the people who implemented it. I just wanted to make people aware of this particular aspect. Employers get caught up with these types of violations because they themselves are naive and do not know the full extent of the law. I've had 4 years of thinking about this long and hard, unfortunately. Just consider this thread a vomiting of all of the information I've learned from direct experience. One day, somebody might search this topic online, and hopefully they will stumble across TruckersReport and find some useful information in my writing.

Chances are, if something feels wrong or not quite right regarding the circumstances of your employment, you are usually coming close to a legal violation.

 

Yes, but that is at the Federal level. I believe most states offer a labor code statute, which gives additional protections. So in California, you can file under OSHA 11(c). If you miss the 30 day window for the Federal OSHA, the State of California has a statute which mirrors the OSHA statute, I think it's Labor Code 1102.5. It offers the same exact protections as OSHA 11(c), and then some more. I think 1102.5 makes it even more difficult for the employer to prove their motives for adverse employment actions are not a pretext for retaliation, and are due to legitimate business reasons..

In addition to that, how do we define the 30 day window? When did it start? I think case law shows that, the 30 day window starts when the employee first became aware of the illegal retaliation--not when the adverse employment action actually occurred. So for example, you can be demoted as a result of making a safety complaint 4 weeks earlier. That's going to be a red flag because of the timing of events; remember, that six-month window which infers illegal retaliation is quite generous as it is... but then, let's say the employee wasn't quite aware that he was demoted. Because let's say, the employer was smart enough to disguise the demotion as a "promotion." So now Driver John Smith gets "promoted" to "terminal manager," and his pay is increased by $0.50 an hour. However, instead of having a 20 minute commute, he must now commute 2 hours each way. In addition to that, he now has almost no job responsibilities. His overall hours are reduced as a "terminal manager," and he is now making less money than he did as a driver. He now works a different schedule overnight instead of day shift, with a small l"shift differential" to disguise the illegality of the situation. But this schedule change interferes with his ability to take custodial visitation with his children, whereas before it was never an issue.

Then it hits Driver John Smith, that this promotion was just a pretext for illegal retaliation. He's been working the "terminal manager" position for 5 months now and his life is falling apart. Is it too late to file an 11(c) complaint? Not necessarily, because that clock starts when the employee first became aware of the illegal retaliation, not necessarily when the initial act of retaliation took place.

It's kind of like how the state investigates Welfare Fraud. There is a statute of limitations, but it doesn't commence from the date the deadbeat welfare recipient defrauded the food stamp program. Rather, the statute of limitations begins when the State actually recognizes the discrepancy from an audit. In this manner, the fraud can be prosecuted from long, long ago, even though the usual statute of limitations would have ran out ... but that's not even relevant to this discussion, I'm throwing that in there for the sake of example.

Let's get back on track. Let's say you miss the window to file the original OSHA 11(c) charge, and the State you live in does not have a labor code statute, which reciprocates the Federal OSHA statute. One way to get around this, is to engage in another protected activity. Make another complaint in writing, to the same people. If they strike back in any way, the clock resets. You now have an actionable timeline spanning the entire length of time from the original date of retaliation, to the present moment. Then, you could file with OSHA and be within the 30 day window. I think it even shows a preponderance of evidence, to show retaliation, if you complain in an e-mail , and the company just ignores it. Ignoring an internal complaint, has been determined to be a form of illegal retaliation, because it discourages the employee from speaking up about conditions in the workplace, a "chilling effect," and it also serves to drive out an unwanted whistleblower from the workplace...

of course, somebody should fact check this for the sake of objectivity. This isn't legal advice, but it is consistent with what I've been told by people who know what they're talking about.