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Fleetowner 39595 121119 Ups Truck On The Curb
Fleetowner 39595 121119 Ups Truck On The Curb
Fleetowner 39595 121119 Ups Truck On The Curb
Fleetowner 39595 121119 Ups Truck On The Curb
Fleetowner 39595 121119 Ups Truck On The Curb

Blowing the whistle on coercion

Dec. 11, 2019
An investigation involving UPS offers insight on the process.

In March, a driver at UPS' facility in Londonderry, N.H., refused to operate his truck, because it did not have an electronic logging device (ELD) or a mounting device to hold a portable unit.

The driver, whose name is not allowed to be published by law because he is a government whistleblower, was fired for "gross subordination." In addition, a government investigation showed UPS changed the driver's termination to a suspension and engaged in workplace harassment after he was reinstated.

Because of their actions, the Occupational Safety and Health Administration (OSHA) ordered UPS to pay the driver $15,273 in compensatory damages, $30,000 in punitive damages, and approximately $2,700 in back wages plus interest. The carrier was also ordered to clear the driver's personnel file of any reference to the issues involved in the investigation.

It has not been made public if the driver continues to work at UPS.

In a prepared statement, OSHA Regional Administrator Galen Blanton, in Boston, said, “Truck drivers are protected from retaliation when they refuse to violate laws put in place to protect their safety and health.”

Earlier this week, UPS said it is challenging the ruling, claiming it has paid a settlement to the Federal Motor Carrier Safety Administration (FMCSA). It also is working with the local union to resolve the situation.

Prior to announcing that challenge, a UPS spokesperson wrote in an e-mail message to Fleet Owner: "The safety of our employees and the general public is UPS’ highest priority. The company reported the concern to the FMCSA and reached a settlement with them. UPS also worked with the local union to reinstate our employee without loss of pay. UPS has contested the situation with OSHA because the situation has already been resolved."

Beyond this particular case, all employees of carriers, not just drivers, are protected in two ways.

First by FMCSA's coercion regulation, which prohibits companies from forcing a worker to violate DOT rules. The second is by statutes in the Surface Transportation Assistance Act, which prohibits similar illegal actions.  

The two avenues of complaint are not mutually exclusive, according to attorneys who represent drivers in whistleblower cases. They encourage drivers to seek relief from both organizations.

"There's nothing to prevent truck drivers from pursuing both and getting whatever they can from each agency," Richard Renner, partner at Washington, DC-based Kalijarvi, Chuzi, Newman & Fitch, PC, told Fleet Owner. Renner also has served as legal director of the National Whistleblowers Center.

He notes that while FMCSA can punish a carrier, it cannot offer punitive financial relief to the driver.

"FMCSA can, if they want to, say [to a carrier] 'unless you want to have your license revoked, we're going to require that you reinstate this driver, pay back pay,' whatever. It's up to their discretion. But if they don't take those actions, the driver does not have any recourse to appeal."

Paul Taylor an attorney with Taylor & Associates, Ltd. - Truckers Justice Center in Minnesota, agrees.

"FMCSA rules are enforced by FMCSA. If they choose not to enforce a rule there's nothing that the driver can do about it," he said. "If you're coerced and [financially] damaged, FMCSA can do nothing to put money in your pocket." He adds: "If OSHA rules in your favor, you can get money damages. You can get your job back. You can get your attorney's fees paid for."

He adds that if a driver does not like OSHA's ruling, they can appeal to an administrative law judge (ALJ). Taylor notes that drivers only win their cases about 3% of the time with OSHA but do much better with ALJs. How much better? "A thousand percent better," says Taylor.

Renner concurs: "Federal court litigation has a lot more requirements, and they're not as well-tuned to adjudicating whistleblower claims as the Department of Labor ALJ's would be."

What kind of whistleblower complaints is Taylor running across lately? "We're seeing a lot of cases where the driver is asked to drive on personal conveyance time when they should be on duty," he says. "I'm also seeing a lot of issues where people are being asked to record loading or unloading time as sleeper-berth or off-duty time. We're still seeing log falsification issues, but not as many as we used to; e-logs have reduced these kinds of cases. But we are seeing drivers being asked to drive without a working e-log device."

He concludes: "Drivers should be aware of their rights to refuse to break commercial vehicle safety regulations, no matter how minor they are."

About the Author

Larry Kahaner

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