By: Allen Smith
According to Federal Law, employers are prohibited from firing, demoting, or in any other way discriminating against an employee. Supposedly, this law applies to trucking companies as well.
Truck drivers who refuse to violate HOS rules or to operate the CMV in a way that would violate a Federal Commercial Motor Vehicle Regulation are protected from any kind of retaliation by the trucking company, under the STAA, 49 U.S.C. Section 31105, and are encouraged to report any such retaliation to the FMCSA or to OSHA.
The Surface Transportation Assistance Act (STAA) provided a simplified and effective remedy for truck drivers who are fired for insisting on following Federal Motor Carrier safety regulations as set forth by the FMCSA.
If a trucking company takes action against a driver for any complaint where the driver is protected from retaliation, then he or she may file a complaint with the Occupational Safety and Health Administration (OSHA) that could result in reinstatement, back pay and benefits, attorney fees and costs, and other remedies.
Truck drivers and their OSHA rights
The OSH Act protects workers who report to their employer, OSHA or other government agencies about unsafe or unhealthful working conditions in the workplace or environmental problems. The STAA prevents trucking companies from invoking retaliatory measures against a driver who invokes his or her rights under OSHA. The FMCSA also encourages truck drivers to report safety violations by motor carriers.
Some examples of activities protected under the Surface Transportation Assistance Act are:
- Making a complaint to the U. S. DOT about violations, or possible violations, of commercial vehicle safety regulations.
- Making a complaint to your employer about violations, or possible violations, of commercial vehicle safety regulations.
- Refusing to drive a commercial vehicle when impaired due to illness or fatigue.
- Refusing to drive a vehicle that exceeds highway weight restrictions.
- Refusing to violate hours-of-service regulations.
- Refusing to drive a vehicle with defective lamps, leaky exhaust systems, inadequate brake pressure or adjustment.
- Refusing to violate speed limits.
- Refusing to drive in hazardous weather.
- Refusing to falsify a log book.
Trucking companies are prohibited from retaliation or discrimination measures toward truck drivers who exercise their OSHA rights. Discrimination can include the following actions:
- Firing or laying off
- Assigning to undesirable shifts
- Denying overtime or promotion
- Denial of benefits
- Failure to hire or rehire
- Reassigning work
- Reducing pay or hours
Most STAA cases involve drivers refusing to drive when fatigued or the load is considered unsafe. Trucking companies who retaliate by reducing the miles the driver receives, is thus reducing the pay for the trucker, thus violating the STAA.
Is OSHA working for truck drivers?
One study found that OSHA ruled in favor of the truck driver only 31% of the time. In most of these cases, however, the employee chose to act without an attorney experienced in employment law. The study also noted that many of the cases that OSHA dismissed were successful when appealed. The Workplace Fairness Organization provides a source to locate an attorney who specializes in employment law.
But are OSHA, the STAA and the FMCSA working for truck drivers? Many truckers report that when contacting OSHA or the FMCSA on such matters, their complaints went unnoticed. Furthermore, drivers state that they might as well had been “talking to a fence post” due to no action taken by OSHA or the Federal Motor Carrier Safety Administration.
The Act also is supposed to provide compensation for the truck driver when his or her claim is successful in various forms as:
- back pay
- front pay
- compensatory damages for such items as emotional distress and loss of reputation,
- interest on damages
- attorney fees and costs
Other remedies, known as “equitable remedies” include:
- purging of adverse information from personnel records, and
- posting of information about the case at the employer’s work sites.
Trucking companies beat OSHA and FMCSA at their own game
When it comes to enforcing the STAA and FMCSA protection in place for truck drivers and their employee rights, trucking companies have found ways around these employee rights. By creating the “Starving Out” process of truck drivers and placing the blame on economic issues and the lack of freight, it can often lead to the trucker unable to prove that they were actually retaliated against.
Even though both OSHA and FMCSA have acknowledged that this process of starving out drivers is in place within the trucking industry, there have been no parts created in the FMCSA regulations to hold motor carriers responsible.
Will CSA 2010 prevent truck driver retaliation?
Although CSA 2010 is expected to hold motor carriers more responsible for safety issues, the standard mileage for professional truck drivers have been set at 2500 miles per week. If a driver uses his or her right under OSHA and the FMCSA, trucking companies will still be able to retaliate against the driver by utilizing the starving out process.
Federal regulations should include a sub-part stating that a motor carrier must supply the truck driver with the weekly miles that were promised at the time of hire.
A Federal Law should be enacted to hold the company accountable for the 2500 mile guarantee claim. This could play an effective part in stopping the”starving out” process which is most often used as a retaliation tool against truck drivers.
If OSHA and the FMCSA is truly for the employee rights of the trucker, a regulation such as this should be in place.
© 2010 – 2012, Allen Smith. All rights reserved.