Eric J. Emerson, Donald E. Elder, and Abraham Sandoval published an excellent article on Surface Trasportation Act — Whistleblower claims. The full article can be found on their web site Surface Trasportation Assistance Act — Whistleblower claims. They report that these types of claims have risen 30% since 2006. These matters are governed by OSHA and have provisions allowing for $250,000 in punitive damages. The most common protected employee activity is a refusal to drive. It is interesting that third-party logsitics firms, leasing agent and brokers also face potential exposure to STAA claims based on perceived control over employees.
A driver’s refusal to drive is protected under two different provisions. First, 49 U.S.C. sec. 31105(a)(1)(B)(i) provides protection to the driver when they refuse to operate the vehicle because it would violate a regulation, standard or order of the US related to commercial safety. Second, 49 U.S.C. 31105(a)(1)(B)(ii) the driver may refuse to drive if they have a reasonable apprehension of serious injury “to the employee or the public because of the vehicle’s hazardous safety or security condition.”
The elements of the employee claim are:
- The employee engaged in activity or conduct the statute protects;
- The employer took unfavorabel action against the employee;
- The employee’s protected activity was a contributing factor in the adverse action.
Adverse action inludes: termination; blacklisting; demotion; overtime denial; promotion denial; benefit denial; not rehired; threats; reassignment to low promotion prospect positions; reduction in pay or hours.
Super short statute of limitations of only 180 days from the adverse action.
The employer defense to the adverse action is very high. The employer must show by clear and convincing evidence they would have taken the adverse action despite the protected activity.
It’s a great article and they discuss a lot more cases.