In August 2007, President Bush signed The Implementing Recommendations of the 9/11 Commission Act of 2007 (“9/11 Act”). The 9/11 Act included amendments to the Surface Transportation Assistance Act of 1982 (“STAA”), 49 U.S.C. § 31105, which was designed to encourage employees of commercial motor vehicles to report noncompliance with safety regulations. The amendments sought to expand whistleblower protections and remedies available to these employees who speak out about commercial vehicle safety and security concerns.
A. Who Is Covered?
The STAA provides protections for employees of commercial motor vehicles, which are defined as “any self-propelled or towed vehicle used on the highway in commerce principally to transport cargo or passengers.” A covered vehicle must: (a) have a gross vehicle weight of at least 10,001 pounds (b) be designed to transport more than 10 passengers, including the driver, or (c) be a placarded hazardous material vehicle. This may include providers of school buses, charters, and sightseeing transportation.
A covered employee must be a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who is involved in activities directly affecting commercial motor vehicle safety or security. Employees of public transportation agencies or general railroads are not covered by the STAA; however, they may be able to seek whistleblower protection under The National Transit Systems Security Act of 2007 or the Federal Rail Safety Act, respectively.
B. What Activity Is Protected Against Retaliation?
Your employer may not retaliate against you for filing a complaint, or providing information to or assisting in an investigation by a federal, state or local regulatory or law enforcement agency related to the violation of a commercial motor vehicle safety or security rule. This includes furnishing information regarding an accident or incident related to commercial motor vehicle transportation resulting in injury or death or property damage. Your employer also may not retaliate against you for reporting accurate hours of service.
Additionally, your employer may not retaliate against you for refusing to operate a vehicle because the operation would violate a federal commercial motor vehicle rule related to safety, health, or security, or because you have a reasonable apprehension of serious injury to yourself or to the public because of the vehicle’s hazardous safety or security condition. Refusals are protected, provided that:
- A reasonable individual in the same circumstances would also conclude that the hazardous safety or security condition establishes a real danger of accident, injury, or serious impairment to health; and
- The employee sought from the employer, and was unable to obtain, correction of the hazardous safety or security condition.
Note that under the STAA you must file a complaint of retaliation with any Occupational Safety & Health Administration (OSHA) office within 180 days of retaliatory actions by your employer.
C. What Retaliation Is Prohibited?
Under the STAA, a covered employer may not discharge, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment for engaging in the protected activity listed above. These unfavorable personnel actions taken in retaliation for protected activity can include, but are not limited to:
- Termination of employment;
- Denial of promotion;
- Failure to pay overtime;
- Failure to hire/rehire;
- Intimidation or other physically or verbally threatening behavior;
- Unwarranted discipline;
- Unwarranted negative performance review;
- Suspension or other forced leave;
- Reduction in pay or hours;
- Denial of benefits;
- Reassignment that negatively impacts promotion prospects, seniority, or other benefits;
- Blacklisting; or
- Alteration of job duties (removal or excessive addition).
D. How Does A Potential Whistleblower Prove Retaliation?
To prevail in an STAA case, an employee must establish that s/he engaged in a protected activity and that the protected activity was a contributing factor in the unfavorable personnel action.
E. What Is The Employer’s Burden Of Proof?
If a plaintiff successfully establishes that his/her protected activity was a contributing factor to the unfavorable personnel action, an employer may avoid liability by demonstrating by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the employee’s protected activity.
F. What Remedies Are Available To A Successful Claimant?
If the evidence supports your whistleblower claim under the STAA, you may be entitled to remedies that include:
- Reinstatement with previous seniority and benefits
- Back pay with interest
- Compensatory damages, including compensation for special damages, expert witness fees, and reasonable attorney’s fees
- Punitive damages in certain cases, not to exceed $250,000.
G. How Do I Decide Whether And How To Report Unlawful Conduct?
Whether to commercial motor safety and security concerns — and, if so, when, how and to whom — can be a very difficult decision for an employee, as blowing the whistle on an employer’s unlawful practices can be a career-ending move. However, the STAA provides strong legal protections, and employees who raise these concerns can look to a number of resources for assistance. If you are thinking about reporting such concerns, or if you already have and are facing retaliation, contact the experienced whistleblower lawyers at Katz Banks Kumin for an evaluation of your whistleblower case with no further obligation.