9/11 Legislation Results in Increased Whistleblower Protection in Transportation Industry
 
May 14, 2008
 
Mark G. Alexander- Jacksonville

On August 3, 2007, President Bush signed into law the Implementing Recommendations of the 9/11 Commission Act of 2007. The legislation is a further response by the federal government to the attacks of September 11, 2001. The Implementing Recommendations provide increased protection to Americans who report activities that could lead to acts of terrorism.

In particular, the Implementing Recommendations include increased protection for so-called “whistleblowers” among employees and independent contractors in the transportation industry. For example, the Implementing Recommendations amend the Surface Transportation Assistance Act of 1982 (STAA) to grant heightened protection for private sector drivers and other employees relating to the safety and security of commercial motor vehicles.

Under these amendments, employers in transportation industries, including commercial motor carriers, are prohibited from discharging or retaliating against an employee because he or she provided information to a federal regulatory or law enforcement agency or member of Congress about an alleged violation of law related to safety or security. Employers also are prohibited from discharging or retaliating against an employee who files a lawsuit or participates in a legal proceeding involving safety or security in the transportation industry.

Notably, the amendments expansively define the class of “employees” subject to its whistleblower protection provisions applicable to motor carriers to include all drivers of commercial motor vehicles, including independent contractors. The definition of “employee” also includes mechanics, freight handlers and any other individual who directly affects commercial motor vehicle safety or security in the course of employment by a commercial motor carrier. Clearly, Congress intended to expansively define “employee” to include anyone working for a motor carrier who has impact on safety or security, including the drivers and employees of independent owner-operators.

The new protections also include the right of the employee to refuse to operate a vehicle based on any one of the following reasons:

• the operation violates a regulation, standard or order
• the employee has a reasonable apprehension of serious injury because of the vehicle’s hazardous safety or security condition
• the employee accurately reports hours on duty
• the employee cooperates with federal government investigators
• the employee furnishes factual information to federal investigators relating to an accident or incident resulting in injury or death in connection with commercial motor vehicle transportation

OSHA Conducts the Investigations

An employee of a private sector motor carrier who claims discharge or retaliation as a result of blowing the whistle on a matter of safety or security may file a complaint with the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor (DOL). Complaints by employees alleging safety or security violations by motor carriers are investigated by an OSHA field office. Complaints by commercial motor carrier employees must be filed with OSHA within 180 days after the alleged violation occurred and the OSHA investigator has 60 days from the date of the complaint to conduct an investigation and report his or her findings in the form of a preliminary order.

The OSHA investigator’s preliminary order becomes final unless one of the parties files an objection within 30 days after the date of the preliminary order and requests a hearing before a DOL administrative law judge (ALJ). After a timely objection, an administrative law judge must conduct a hearing and render a final order expeditiously. The ALJ’s determination becomes the DOL’s final agency action unless one of the parties appeals to the Administrative Review Board of the DOL. The decision of the Administrative Review Board is the final agency action and any further appeal must be taken to the U.S. Circuit Court of Appeals.

DOL Is Empowered to Take Action

The DOL is authorized to order the transportation company to take affirmative action to abate any safety or security violation. The agency also can reinstate the complaining employee to his or her former position with the same pay and privileges of employment. It can also award significant compensatory damages to the complaining employee, including back pay and other compensation, punitive damages not to exceed $250,000, and other costs and attorneys’ fees.

If the DOL fails to render its final order within 210 days after the initial complaint is filed, the aggrieved employee can file a lawsuit in the U.S. District Court as long as the delay is not due to the bad faith of the employee. In such a lawsuit, the complaining employee has the right to a jury trial. Thus, a transportation employer defending a claim should carefully evaluate any delays in the DOL’s administrative process and how those delays might impact the case.

The process and procedure followed in investigating and deciding whistleblower claims against transportation companies is similar to the process and procedure used to investigate and decide whistleblower claims against publicly-traded companies under the employee protection provisions of Sarbanes-Oxley. In each situation in the transportation industry, the DOL’s OSHA field office conducts the initial investigation, and in each situation it is critical for the company to promptly and effectively respond to the OSHA investigation at the beginning of the process. It is conceivable that a publicly-traded transportation company could find itself simultaneously defending an OSHA investigation of a whistleblower complaint under both the new legislation and Sarbanes-Oxley.

Employees Are Protected From Retaliation

The remedies available to an employee who prevails in a whistleblower claim against a private sector motor carrier are cumulative to remedies that might be available under state law or other federal statutes. The statute expressly states that Congress does not intend the legislation to preempt safeguards provided under other laws, including state law remedies.

The Implementing Recommendations also amended the Federal Rail Safety Act by transferring the authority for rail carrier employee whistleblower protections to OSHA and including new rights and remedies. The practical effect of these changes is to move the investigation of both rail and truck whistleblower claims to OSHA so that the same process and procedure is followed for both cases.

The new employee protection provisions of the STAA should be considered in any situation involving termination, discipline or reduction in force of drivers or other employees who impact safety or security in transportation. Furthermore, these whistleblower provisions should be considered in any situation involving an adverse action against an independent owner-operator or driver employed by an independent owner-operator, including workers who might not be employees under other statutory frameworks.

For more information, email Mark G. Alexander at mark.alexander@hklaw.com or call toll free, 1.888.688.8500.