Understanding Whistleblower Protection

Uncle Sam

Whistleblower Protection is right of an employee to question the safety practices of an employer without the employee’s risk of losing a job or being subject to reprisals simply for stating a safety concern (29 CFR Part 1978). The the Employee Protection Provision of the Surface Transportation Assistance Act (STAA) of 1982 was codified in 49 U.S.C. §31105.

As of October 20, 2004, every CDL driver in interstate commerce (and a number of states) must receive Whistleblower training as one of four required training areas for Entry-level Driver training.

Unlike most transportation rules, whistleblower protection regulations for drivers are not enforced by the DOT but are are administered and enforced by the Occupational Safety and Health Administration (OSHA).

An organization or firm found in violation of whistleblower rules may have to pay fines, back wages, litigation costs, expert witness fees, and reasonable attorney fees, and have to rehire and reinstate the driver, as well as, since 2007, pay punitive damages in an amount not to exceed $250,000. Claims for several drivers filing together for protection have approached $1 Million at one company. OSHA says STAA claim filings are up almost 10% from 2011 and over 30% since 2006.

Employer Responsibilities

Earlier we noted that the Employee Protection Provision of STAA established a “right.” With every right comes a responsibility.

An employer who doesn’t like something an employee is doing at work can put them “on notice.” For example, the employee is late for work. The employer has the right to alert the employee to that fact and give them some kind of warning or ultimatum. Perhaps in that particular situation the employee was delayed by factors beyond their control. The employer should take that additional fact under consideration.

If a driver-employee (and the definition of employee here is broad including an independent contractor when personally operating a commercial motor vehicle, a mechanic, a freight handler, or an individual not an employer, who directly affects commercial motor vehicle safety or security) has a safety concern (hazardous safety or security condition), they can put the employer on notice to their safety concerns in the following two circumstances (Both circumstances are considered distinct.):

  1. An employee may refuse to operate a vehicle when such operation is in violation of any regulation, standard or order of the United States related to commercial motor vehicle safety or health.
  2. An employee may refuse to operate a vehicle when they have a reasonable apprehension of serious injury to the employee or the public. In this second instance, the employee must also have sought from the employer and been unable to obtain correction of the unsafe condition hazardous safety or security
    condition.

The activities protected under STAA include complaints to the FMCSA or other agency responsible for commercial motor carrier safety (e.g. highway patrol) or testifying in any proceeding related to a violation of commercial motor carrier safety.

In addition to being fired or laid off, an employee may suffer “adverse action” in the form of being: blacklisted; demoted; denied overtime or promotion; disciplined; denied benefits; not being hired or rehired; intimidated; a recipient of threats; reassigned affecting promotion prospects; and a recipient of reduced pay or hours.

Cases brought under the whistleblower provisions of STAA are referred to as actions alleging “retaliation” rather than “discrimination,” because focus on actions taken by the employer as a result of an employee’s protected activity rather than as a result of an employee’s characteristics (e.g., race, gender, or religion).

This doesn’t mean an employer cannot fire or demote an employee if the employer has cause. Under the Clean Harbors ruling (146 F.3d at 21-22), the employer bears “the burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of the employee’s protected activity.”

How to Avoid an STAA Claim

Have crystal clear safety policies and procedures. Written policies are better than oral.

Have clear job and work expectations. Have a process in place to report and correct any unsafe conditions or hazards.

Take seriously any report concerning safety, hazards or compliance. Make sure supervisors are attune to all safety and hazard concerns. Investigate and document.

Thank you for reading this.

J Taratuta

John Taratuta is an independent Risk Engineer. (989) 474-9599