Dropping the dime

By Clarissa Hawes, staff writer

When a driver for Arizona-based M3 Transport LLC/SLT Expressway was dispatched with a load of explosives to Canada, he was far from happy with the new co-driver assigned to the truck. According to a release from the Occupational Safety and Health Administration, “Upon finding an ashtray overflowing with cigarette butts in the new co-driver’s truck, the employee notified supervisors that driving with this individual would be unacceptable because smoking while hauling explosives violates federal regulations.”

The driver was told to go home and wait to be assigned a new co-driver, but instead was fired two days later.

In this case, OSHA found that the company violated the whistleblower provisions of the Surface Transportation Assistance Act after the driver was allegedly fired for reporting safety concerns to company officials. OSHA is part of the Department of Labor.

Federal regulations specifically state that drivers are not allowed to “smoke or carry a lighted cigarette, cigar or pipe on or within 25 feet of a motor vehicle which contains explosives, oxidizing materials or flammable materials.”

In 2012, OSHA ordered M3 Transport, now operating as Roadmaster Group of Glendale, Ariz., to immediately reinstate that driver and pay more than $315,000 in back pay and damages.

There are many state and federal laws in place that protect workers like this driver. For truckers, the bulk of worker protections are set forth in the Surface Transportation Assistance Act, and OSHA is the main federal agency charged with enforcement.

Over the years, Land Line has investigated cases called in to OOIDA where truck drivers have filed retaliation claims with OSHA over refusing to drive a commercial vehicle while impaired because of illness or fatigue; refusing to drive a vehicle that exceeds highway weight restrictions; refusing to drive unsafe equipment; or refusing to violate hours-of-service regulations, among others.

In many of these cases, the drivers were fired or retaliated against for reporting these types of violations. According to OSHA, employers are prohibited from “retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government.” The STAA defines you as an employee if you drive a commercial vehicle (hired driver, leased, independent); repair or maintain trucks, handle freight or hold any job directly affecting commercial motor vehicle safety.

If you’re considering blowing the whistle

While the tipping point varies for each whistleblower, Florida labor attorney Dustin Watkins says it’s important to weigh the risks, both professionally and personally, before making the decision to blow the whistle.

He says the best advice for truck drivers who are on the fence about blowing the whistle is to do your own research, get advice from trusted sources and “think before you leap.”

Watkins said it is important to document and, if possible, research whistleblower protections in a driver’s home state first, as well as study up on federal whistleblower protections, before taking that first step.

“Many don’t contact an attorney about their situation before they blow the whistle or they don’t really research what they have to do or how to do it properly,” he said. “Even before you think about blowing the whistle, you have to be prepared to document, report internally, the violations you are complaining of. If you miss that step, you won’t be able to recover; you won’t be able to protect yourself under state law.”

Watkins also advises – if you believe you are being retaliated against for engaging in protected activity, there are stringent deadlines that must be followed. You must file a complaint within 30 days. A day late and OSHA may not investigate your case.

In testimony submitted to the U.S. Senate in the past year regarding stringent OSHA whistleblower deadlines, OSHA Assistant Secretary David Michaels claims the agency receives more than 200 complaints each year that are rejected “because more than 30 days had passed since the date of the alleged retaliatory act.”

Watkins warns that fighting the good fight and blowing the whistle is a noble, but lengthy, cause. While a driver may be reinstated and awarded back pay, it may take years for a whistleblower to emotionally and financially recover.

“If you don’t have your ducks in a row, if you haven’t done your disclosures properly, if you haven’t reported internally, you could be in trouble,” he said.

Retaliation protection?

Spilling the beans on the boss or someone you do business with is risky, no doubt. There’s no guarantee that the system in place will effectively stop the reported violations and there’s always that fear of blowing your trucking career in the process.

Retaliation has been all too common, but it’s getting better. In July 2014, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration and the U.S. Department of Labor’s Occupational Safety and Health Administration entered into a Memorandum of Understanding (MOU) to strengthen cooperation between the agencies regarding the anti-retaliation provision of the STAA.

Prior to the MOU being signed between the agencies, a report released by the U.S. Government Accountability Office stated there was no way to assess whether the referral process between the DOT and OSHA for transportation-related whistleblowers was working. The GAO report stated that MOUs must be developed that clearly define agency roles and responsibilities, including developing training on whistleblower issues and regional coordination.

OSHA is also in the process of establishing whistleblower protections for auto industry employees as required under the current highway law, Moving Ahead for Progress in the 21st Century Act, or MAP-21.

The agency has also developed a whistleblower website for employees who feel they have been retaliated against by their employer while engaged in what they call “protected activities.” It can be found on whistleblowers.gov. LL