Yesterday, the Seventh Circuit U.S. Court of Appeals affirmed a reinstatement order from the Department of Labor’s Administrative Review Board (ARB). The decision keeps truck driver Peter Cefalu on the job driving for Roadway Express. The Seventh Circuit considered a previous appeal by Roadway Express and decided that the company deserved a chance to prove that it would be unsafe for the public to reinstate Cefalu. In that case, called Roadway Exp., Inc. v. United States Dep’t of Labor, 495 F.3d 477 (7th Cir. 2007), or Roadway I, the Seventh Circuit held that the ARB properly barred Roadway from using information about Cefalu’s driving record with previous employers.  Since Roadway refused to disclose the source of the information, after a judge ordered it to make this disclosure, the Court held that the limit on its ability to use the information was reasonable. However, the Court also held that an employer should not be compelled to reinstate a driver if the employer would have fired the driver anyway for being a safety risk even if that driver had engaged in no protected activity. On remand, the Department of Labor found that Roadway could not prove that it would have fired Cefalu in the absence of his protected activity.  Roadway fired Cefalu in 2002 after he submitted an affidavit to support another driver in a grievance hearing.  Cefalu’s affidavit explained how management had instructed him to falsify his logbook of the hours he drove. Now, the Seventh Circuit makes clear that it wants to respect the automatic reinstatement provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105(b)(3)(A). It will recognize an exception only when reinstatement would compel a company to employ an “incompetent or unqualified employee.” It also made clear that the employer has the burden of proving this exception to reinstatement. I note that STAA requires the employer to prove its same-decision defense by “clear and convincing evidence.”  Congratulations to my friend Paul Taylor on prevailing in this case after eight (8) years of vigorous opposition.