Congress Strengthens Whistleblower Protections for Truck Drivers.

[Opie]

I am pleased to report that Congress has passed, as part of new anti-terrorism legislation, provisions strengthening whistleblower protections for truck drivers. The legislation strengthens various whistleblower laws including the employee protection provisions of the Surface Transportation Assistance Act ("STAA").

The STAA, originally enacted in 1982, protects employees who file complaints with the Department of Transportation or their employers about violations of commercial vehicle safety regulations. The STAA also protects employees against discipline or discharge if they refuse to drive in violation of a commercial vehicle safety regulation. However, in the past the STAA has provided no right to jury trial and required complaining parties to litigate their claims within the United States Department of Labor where cases often drag on for many years.

1. Punitive Damages. In the past, a truck driver or other complainant under the STAA was only able to recover compensatory damages such as back wage, along with reinstatement to his job, attorney fees and court costs. The new legislation allows party who successfully prevails in a wrongful discipline or discharge claim to seek and recover up to $250,000 in appropriate cases. This may deter some carriers from retaliating against a driver who refuse to drive in violation of hours of service regulations or refuse to operate unsafe trucks and trailers.

2. Burdens of Proof. The new legislation lowers the burden of proof for truck drivers and other parties who file claims with the Department of Labor under the STAA. The law specifically applies the proof burden required for whistleblowers in the airline industry such as pilots and airplane mechanics. This law provides that a claimant may prevail if he shows that his legally-protected activities were a motivating factor in the employer's decision to retaliate.

3. Protection Against Retaliation for Logging Accurately. The new legislation amends the STAA to specifically prohibited retaliation by an employer against drivers because those drivers accurately record their on-duty time, which would also include driving time. The new also protects individuals who are perceived as being persons who are about to blow the whistleblower on an employer about violations of commercial vehicle safety regulations.

4. Jury Trials in Federal Court If DOL Fails to Act. Under the existing law, a truck driver or other complainant under the STAA must litigate his case solely within the structure of the Department of Labor. Complainants start with OSHA which rules in favor of the truck drivers less than 10 percent of the time. A truck driver or other complainant can then object and have a hearing before an administrative law judge of the Department of Labor. After the ALJ rules, the DOL's Administrative Review Board acts as an appeals court with the Department. The Board has been taken 2 1/2 to 3 years to decide cases. Sometimes cases are remanded for new hearings. It is not unusual, under the existing law for cases to take 5 or more years from start to finish.

The new law contains a provisions similar to the financial whistleblower provisions of the Sarbanes-Oxley Act, that allows complainant under the STAA to pull his case from the Department of Labor and litigate it in an appropriate United States District Court if the Department of Labor fails to rule on the claim within 210 days after filing, provided the complainant has not unreasonably delayed the proceedings. If the complainant chooses to proceed in Federal District Court, he is entitled to a jury trial.

This legislation is a great victory for whistleblowers within the trucking industry as it strengthens whistleblower protections, imposes greater liability on motor carriers who illegally fire drivers, and allows complainants to proceed in Federal Court with the right to a jury trial if proceedings are delayed within the Department of Labor. If President Bush signs the legislation, as expected, truck drivers who bring claims under the STAA no longer need fear that their cases will linger for years at the Department of Labor.

Paul Taylor
Attorney-At-Law
Employment Lawyer Burnsville Minnesota Wrongful Termination Whistleblower Attorney

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