Your rights under OSHA 11(c)

As I am reading posts on TruckersReport, there is a common theme I am realizing. What many of these drivers describe, are illegal situations which violate OSHA 11(c) and the STAA, or Surface Transportation Assistance Act of 1982. I'll get more into this in paragraph #3.

As the driver, you are captain of your own ship. You are in complete control, and the company does not own your class A license. Rather, they are simply renting your time, and renting the use of your license. It is in your best interests, to guard your professional license at all costs. Sometimes, you have to walk away when a situation is illegal or unsafe. It is your own liability to refuse to violate the law, run over HOS, operate unsafe equipment.

There are posts I'm reading where a guy gets disciplined, demoted or fired shortly after engaging in what is called a protected activity. These protected activities are broad and open for interpretation, but let me be absolutely clear on this. You are captain of your own ship. Failure to act in the manner you feel is safest, almost amounts to professional malpractice.

A driver engages in a legally-protected activity under Surface Transportation Assistance Act , or STAA, under some of the following situations;

1) You call into work because you are sick. This is a safety issue, and is written in the text of the law.
2) You ask dispatch to take a load off because you are too tired to continue driving.
3) You refuse to continue driving when you know or feel conditions are unsafe.
4) You notify dispatch or your supervisor that a load is overweight, in spite of the fact that the company might lose profits. You subsequently refuse to pull that load.
5) You notify management, or complain of, unsafe equipment in the workplace.
6) You cooperate in an investigation or inspection at a DOT scale house,
7) You refuse to drive because you're taking medication that is producing side-effects, which you reasonably believe impair your driving.
OR
8) You file a whistleblower complaint with Federal OSHA when your employer messes with you for any of the above.

Naturally, you would want to have proof of having engaged in a protected activity. To do this in a way that covers you fully, you need to document it in writing with your supervisor. All members of management need to be notified, preferably in e-mail so it is timestamped. This generates a spontaneous and contemporary record of what happened, when it happened. Document it in a professional tone. This also saves you from retaliation, which is likely to happen.

If you make these complaints verbally, be sure to put them in writing in some form, to follow up and prove your complaint. Use key words like, "unsafe," "violates," or "possibly illegal." This communicates clearly, that you are making a protected complaint. It destroys the argument, that your complaint is vague and not legally-protected. Also, communicate that you are making the complaint in good faith, and as a matter of safety.

Why this is important:

I have been reading several posts on this forum, where it is clear that the poster did not understand their rights under the Federal law; namely, STAA and OSHA 11(c). STAA is the law that applies to all commercial trucking. OSHA 11(c) is the Federal statute, that covers the employee from retaliation when the employee engages in an activity covered under STAA.

For example, a guy got fired for refusing to alter a paper logbook. He posted on this website that he didn't know how to handle this. It was then suggested, that he sue the owner of the company in small claims court for back wages. What went completely under the radar, was a screaming violation of OSHA 11(c). The refusal to alter a paper logbook at the bequest of this ill-informed manager, was a protected activity under STAA. The subsequent termination of employment, was a direct violation of OSHA 11(c). In the legal world, one would state that this is a direct, and proximate result of the driver's protected activity.

You have more rights than you think:

The law generally presumes that an employer is violating your rights, based on four factors. They are as follows:

1) You engaged in a protected activity, as I described in the first section.

2) Your employer knew you engaged in this protected activity. You prove that they knew of your activity, by documenting it in e-mail, Qualcomm message, or via internal complaints. The more members of management who are put on notice, the more protected you are, because:

3) You can show the person who fires you, disciplines you, demotes you, or harasses you knew of your original, protected complaint. You create the nexus or "casual connection" between #2 and #3 by documenting everything in writing.

4) The timing of events is significant. The law presumes that, when an employer demotes, transfers you, reduces your pay, reduces your hours, changes your schedule in a way that is not just "business necessity," or if they fire you--The law presumes that the employer has illegally violated your rights under OSHA 11(c) if this "adverse employment action" occurs within six months of your protected activity.

Employer Pretext:

Most employers are not stupid enough to admit, that they fired you for refusing to pull the overweight load. They will not likely discipline you, and write in your disciplinary report, "Driver John Smith is being disciplined because he refused a load when he was tired." This is when the pretext comes into play.

How it will happen, is as follows. On April 1st, Driver John Smith will complain to the boss that the equipment he was issued, is unsafe in some way. The dispatcher or boss will say, Driver, that doesn't matter. Drive the truck anyways, because we're losing money. Driver John Smith is then labeled a "troublemaker" by his bosses in management, and is put on their secret little blacklist. As time goes on, Driver John Smith makes a number of similar complaints. As a "direct and proximate" result of Driver's complaints, he begins to be excluded from overtime work, his schedule is changed, his hours are reduced, or he is ultimately terminated.

If he is terminated, it is not likely because "John Smith was insubordinate when he refused to run 18 hours across State lines." Because while John Smith might have actually refused to run 18 hours illegally, the employer will probably use a pretext--an excuse. So let's say on April 1st, 2017, Driver Smith refuses to operate an overweight load. He then has a period of six months, from April 1st, 2017. If the employer terminates him for no reason under the "at-will" employment doctrine before October 1st, 2017, the law will "infer" that he has been illegally terminated, provided that the following criteria are met:

"Nexus" between the Protected Activity, The Manager Who Retaliates, and the Illegal Adverse Employment Action

Let's say On April 1st, 2017, Driver Smith refuses to operate unsafe equipment. He complains in e-mail to his top safety manager. Over the course of the next 3 months, Driver Smith is scrutinized more closer than other drivers. He finds himself being written up for petty infractions, whereas other drivers are not disciplined for the same, or similar, conduct. 4 months after his original complaint, Driver Smith is terminated because of "company downsizing." Or perhaps Driver Smith is terminated because management suddenly decided to audit his logbooks, and noticed he came to work late by 15 minutes, 6 separate times, over the past 24 months of service.

If Driver Smith can show 1) He engaged in the original complaint to management, 2) the particular manager who disciplined him knew of the original complaint, 3) the particular management team who knew of his complaint, also fired him, and 4) the timing of events is within a six month window between #1 and #3,

If all of those elements are established, we have a clear violation of OSHA 11(C) under STAA. This is called a "Prima Facie" case of retaliation, and is the basis for any solid claim.

 

Why are you telling us this?

I've read so many stories on this website, of how an employee got fired or disciplined immediately after engaging in one of those protected complaints. It was so outrageous, because the employee didn't even know what they had done, was not in fact "troublemaking" or "making waves," but exercising a protected right under the law.

Know your rights. Do your Due Diligence. Somebody's life depends on you;

It is absolutely imperative that all of you know your responsibility as a driver. Because if you don't speak up when you're too tired, impaired due to medical conditions, or you knowingly pull a load that is overweight--the liability is on you. What will you do, when you're in the middle of a wrongful death lawsuit and the decedent's family's lawyers are picking you apart and asking the real difficult questions. "Why didn't you say something? Aren't you a professional," they will ask you. And I assure you, telling them, "Dispatch would have been mad at me if I didn't do it," will not get you off the hook. Saying, "I'd lose my job if I didn't do what they told me," will not get you off the hook. You'll go down, and you'll go down hard. Because you were complicit in the violation , if you do not speak up.

What to do when you are retaliated against;

If you find yourself being terminated, disciplined, demoted or otherwise retaliated against after engaging in a protected activity, file a complaint with OSHA. Call an employment lawyer if you've actually lost your job and lost money. Document it as much as you can. If you sent Qualcomm messages, take pictures. Just don't record conversations with dispatch unless they know you're recording--or else it's a felony.

What recourse do I have when I am retaliated against?

If your employer has retaliated against you, they've done it over, and over, to your coworkers, former coworkers, and anyone else who raises questions. If you actually lost your job or had your hours reduced, you have a claim for damages. They owe you the money they illegally took from you and your family, as a result of your protected complaint. In that situation, you need to immediately file a complaint with OSHA or call an employment attorney if it gets that bad. Just remember, if they're expecting you to endanger yourself, they're doing this to the entire workforce.


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Thanks for reading this little lesson in employment law. Let's keep this discussion constructive and focused on empowering your individual rights as a professional driver. Remember, this is your professional licensure. This, is your livelihood. The company didn't give you a CDL or a clean driving record. If you screw up, they'll fire you as fast as they can.

You have powerful rights as an employee in a safety-sensitive role. Somebody's life depends on you. Remember, it only takes one second of complacency or negligence to ruin a life, end a life, or end a career. Something to think about.

 

First, I'm not claiming to offer legal advice. It was suggested that someone should have the "right" people investigate. But the fact is, any safety-related complaint made in good faith, is legally-protected. Crisp and clear!

Also, an investigation is an objective look at the facts. If there is enough facts to warrant an investigation, then a prima facie claim has been established, where the employer's conduct is presumed retaliatory and illegal. The burden shifts to them to disprove that assertion, and it goes back and forth until one side is checkmated, so to speak.

My most important point, is that I am indeed the author of that entire post. The original author. Come on now, give me some credit