Hickory, N.C.-based Gaines Motor Lines has been ordered to pay $1.07 million in back pay wages, interest, compensatory and punitive damages for allegedly firing four truck drivers who provided information to the Federal Motor Carrier Safety Administration during a safety audit, the Occupational Safety and Health Administration announced Nov. 13. Gaines Motor executives Tim Gaines and Rick Tompkins also are named in the OSHA order.
The order, which is based on alleged violations of the whistleblower protection provision of the Surface Transportation Assistance Act, requires a preliminary reinstatement of three of the drivers. The fourth driver died earlier this year. Of the total fine, $675,000 represents punitive damages. The order can be appealed to the U.S. Dept. of Labor’s Office of Administrative Law Judges, but an appeal would not suspend the preliminary reinstatement order.
“Workers in this industry must be able to raise safety concerns with federal officials without fear of retaliation,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health. “Participating in an on-site inspection helps to ensure safer conditions for truck drivers and vehicles on the road. Employers undermining these protections through intimidation and adverse conduct will not be tolerated.”
According to OSHA, FMCSA interviewed the four drivers from Feb. 28 through March 1, 2012, during an onsite compliance review. On March 8, following the audit and subsequent citations against Gaines Motor Lines, the drivers were terminated, OSHA says.
Legislation enacted in 2007 related to the recommendations of the 9/11 Commission gave employees of motor carrier employees additional whistleblower rights and established new OSHA remedies and procedures for handling complaints. For an OSHA fact sheet on the program, click here.
Since OSHA adopted regulations several years ago to implement that law the agency has fined numerous motor carriers for violating whistleblower productions. Last month, OSHA ordered North Branford, CT-based Palumbo Trucking Inc. to withdraw an allegedly retaliatory lawsuit against a driver and mechanic who had reported a truck defect to state and local authorities.
In July,OSHA ordered Brillo Motor Transportation Inc. to pay a $131,533 fine for allegedly firing a driver who refused to drive in excess to the time allowed by hours-of-service regulations.
OSHA investigations of whistleblower complaints can be very disruptive, says attorney Rob Moseley, who heads the transportation industry group at Smith Moore Leatherwood in Greenville, S.C. Moseley included OSHA whistleblower cases in a discussion of top legal issues in trucking at last month’s American Trucking Assns. convention in Orlando, Fla.
“My experience has been that OSHA people investigating these complaints are the same who are investigating work place injuries,” Moseley told Fleet Owner. Because OSHA investigators don’t understand the trucking industry, they aren’t attuned to the dynamics of how drivers and other employees typically interact with dispatchers and managers
For example, Moseley represented a carrier that faced an OSHA investigation in a situation where a driver insisted that the carrier retaliated against him for insisting that he obtain his blood pressure medication at his home pharmacy. According to Moseley, a prescription for the medication could easily have been called into any pharmacy by his doctor. “I argued that the guy just wanted to come home and used that as a pretext.”
“These cases are very expensive,” Moseley says. “When the whistleblower calls, if they give it any credence at all they start an investigation, call in employees, talk to other drivers, etc. And they are essentially giving the whistleblower a free lawyer.” And on top of that, one of the routine remedies is that you have to reinstate the employee. “You have to walk on eggshells around this guy.”
Moseley advises carriers to take the potential for whistleblower complaints very seriously. “You can’t fire somebody on a pretext. If you say that you are firing somebody because of low miles, you had better not be keeping other people with low miles.” Sometimes carriers err when they believe they are being smart, he says. For example, if a driver is abusive to dispatchers or clerical people, management might decide it’s better to use a different reason for termination. “So they make up some other reason rather than using the real reason. Often the reason they make up is a pretext, and that’s dangerous.”