Truck Safety CoalitionMy friends at the Truck Safety Coalition are reporting a victory for truck safety advocates in yesterday’s deal between the House and Senate for transportation reauthorization.  The Senate bill, called MAP-21, included a number of truck safety initiatives, and those have survived in the final deal. A number of the new provisions will have implications for truck driver whistleblowers.  Most famously, the bill requires that commercial trucks start carrying Electronic On-board Recorders (EOBRs).  Employer and other economic pressures to cheat on the log books should become a thing of the past as each trucker’s actual hours of driving will be recorded automatically with GPS devices.  One can imagine ways in which cheating might still occur, but with the higher standards, safety whistleblowers should have more evidence on their side. Disputes over hours of operation have been a bane for truck drivers for too long.  Tired drivers have killed too many. Thankfully, today is a day on which safety has prevailed.

The bill also increases the standards for truck driver medical qualifications, training and drug and alcohol testing. I am pleased with the heightened standards for broker financial responsibility and insurance. Hopefully, we will not see so many shady operators who fold up shop at any sign of trouble and then reopen under a new name.  This should make it easier for whistleblowers to collect when they win their cases. Trucker drivers should know that the time limit to file a whistleblower retaliation complaint under the Surface Transportation Assistance Act (STAA) is 180 days from the date of each adverse action. The Truck Safety Coalition’s announcement is in the continuation of this blog post.Continue Reading Truck Safety Victory in Congress

Yesterday, the Occupational Safety and Health Administration (OSHA) office in Atlanta, Georgia, issued an order reinstating truck driver William Beecher.  As soon as he recovers from an unrelated temporary disability, he can return to work for United Auto Delivery and Recovery and the Memphis Auto Auction. OSHA found that the owners of these two companies operate them as one business, and that both businesses, and their managers, are liable for firing Beecher in 2009. Beecher had repeatedly complained that the “rollback” truck he drove was leaking coolant. He wrote up the truck when it had a blown head gasket, and continued to note the coolant leak when he did his pretrip inspections. He was carrying extra coolant with him to refill the coolant as needed. Finally, on February 5, 2009, he refused to drive the truck on grounds that it was not safe. The boss asked him to drive another truck, and Beecher refused because he did not have a commercial drivers license (CDL), which was required for that other truck. On February 6, 2009, the companies fired him for walking off the job.
Continue Reading OSHA orders reinstatement of Memphis truck driver

Barrett Riess worked for Nucor Corporation as Traffic Department Manager from August 4, 2002, until Nucor discharged him on January 15, 2007. He worked in Grapeland, Texas. He had no discipline until he was fired. James Landrum, Grapeland Division Vice President and General Manager, was Riess’s supervisor and made the decision to fire Riess. On January 9, 2007, Riess raised a concern with Landrum about one of the supervisors working under him, Joey Word. Specifically, he reported that Word allowed drivers to use two trucks that did not have annual safety inspection stickers. He reported that Word quit because Riess had been too pushy about following safety rules. Landrum testified that he never before thought of firing Riess, but on January 15, 2007, he decided to fire Riess because Riess had an abrasive management style and could not get along with others. Riess filed a complaint with OSHA under the Surface Transportation Assistance Act (STAA). An Administrative Law Judge (ALJ) found Landrum was credible and ruled against Riess.

On November 30, 2010, the Department of Labor’s Administrative Review Board (ARB) found that the ALJ had not made enough findings of fact about Riess’s claim of pretext. It remanded the case to the ALJ to reconsider the finding about whether Riess’s protected activity caused his discharge. In doing so, the ARB held that ALJ’s should apply the current version of the STAA, even to cases that arose before the August 2007 amendments. Those amendments made it easier to prove retaliation by requiring complainants to show that protected activity was a “contributing factor” in the adverse action. If the complainant succeeds, then the employer must show, by clear and convincing evidence, that it would have made the same decision even if there was no protected activity. “[W]e should apply the law in effect at the time of our decision,” the ARB says on page 4.Continue Reading Truck safety whistleblower wins ARB remand

Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.

I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits.  The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge’s decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review.  There is no reason to add that any issue omitted from the petition is waived — other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits.  That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised.  See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ’s factual findings whenever the ARB finds “substantial evidence” to support the ALJ’s position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL’s final decisions reflected the remedial purpose of protecting whistleblowers.  The only reason for the narrower standard of review is to make the ARB’s job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court.  That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case.  While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.

Continue Reading DOL issues new regulations for whistleblower cases

The Department of Labor’s Administrative Review Board (ARB) has released eleven (11) decisions issued in July, four (4) of which address substantive law.  That is down from seven (7) substantive decisions issued in July 2009. At this rate, it will be difficult for the ARB to bring its backlog down below two years anytime soon.

In Vinnett v. Mitsubishi Power Systems, ARB No. 08-104, ALJ No. 2006-ERA-29 (ARB July 27, 2010), the ARB made clear that employees are protected when they perform their safety responsibilities too well. The ARB cited long-standing DOL precedent in holding that protected activity is still protected, even if it is part of the employee’s normal job duties. William Vinnett began working for Mitsubishi Power Systems (MPS) in 2004 as a field project engineer. MPS assigned him to assess equipment vibrations at the Palisades Nuclear Power Plant in Michigan. Vinnett reported a variety of concerns about technical errors, procedural violations and damage to a pressurized vessel.  He had to pester his supervisor to discuss these concerns. When he finally got his meeting, he received a warning letter about his performance. When he asked for another meeting a month later, he was fired.“The [Secretary’s] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.”Continue Reading ARB protects duty speech, but not investigating duties

I am pleased to announce that today the Sixth Circuit U.S. Court of Appeals has reversed a decision of the U.S. Department of Labor’s Administrative Review Board (ARB) Michelle & Harry Smith, Scooter McNuttand reinstated the whistleblower claim that my client Harry Smith made against the trucking company CRST. In the photo, Harry Smith stands between his wife and fellow truck driver Scooter McNutt. Smith was fired right after he threatened to take the company’s defective trailer to the Department of Transportation for inspection. The Department of Labor had dismissed Smith’s complaint against CRST after the Occupational Safety and Health Administration (OSHA) sent him a dismissal notice, showing that a copy was sent to me, his lawyer.  However, OSHA did not actually send me the copy of the dismissal notice until after Smith’s time to appeal had expired. Smith does not recall receiving the dismissal notice at all. CRST and the Department of Labor (DOL) tried to blame Smith for failing to appeal on time.  The Sixth Circuit says today that, “it appears to us that it falls even more heavily at the feet of OSHA, in failing to send the notice to Renner for some two months after the fact, despite the indication to Smith to the contrary.”
Continue Reading Sixth Circuit sees “injustice that threatens the purposes” of the STAA and reinstates whistleblower case

Today the Eighth Circuit U.S. Court of Appeals held that 2007 amendments to the whistleblower protection for truck drivers is not retroactive.  In Elbert v. True Value Company, Case No. 08-1222 (8th Cir. 2008-12-19), the Court said that Timothy Elbert did not have a right in 2007 to file in federal district court a claim against his 2005 discharge.  The August 3, 2007, amendment to the Surface Transportation Assistance Act (STAA) is not retroactive.

Continue Reading Eighth Circuit says not so fast on STAA amendments