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EMPLOYERS CANNOT RETALIATE AGAINST TRUCK DRIVERS WHO REFUSE TO DRIVE UNSAFE TRUCKS

The Surface Transportation Assistance Act, (STAA), 49 U.S.C. 31105(a)(1)(B)(i) and (ii), may prevent employers from retaliating against truck drivers who refuse to drive a truck because of the following reasons:

1.   Operation would violate a regulation, standard, or order of the United States related to     commercial motor vehicle safety, health, or security; or

2.  The truck driver has a reasonable apprehension of serious injury to himself/herself or the public because of the vehicle’s hazardous safety or security conditions and the truck driver has sought and has been unable to obtain correction of the hazardous safety or security condition from the employer. This provision a truck driver’s apprehension of serious injury is “reasonable” only if a reasonable individual in the circumstances then confronting the employee would conclude that the hazardous safety or security condition establishes a real danger of accident, injury, or serious impairment to health.

Under the STAA, 49 U.S.C. 31105(a)(1)(B)(i), a truck driver may have engaged in protected activity by refusing to drive a truck that is in violation of Federal Motor Carrier Safety Regulations. In Maverick Transp., LLC v. U.S. DOL, 739 F.3d 1149, 1156 (8th Cir. 2014) the court held that the DOL properly concluded a truck driver’s refusal to drive a truck that violated several federal safety regulations because of a fluid leak in the power steering box, a violation of 49 C.F.R. 393.209(e), and chaffing of brake hose, a violation of 49 C.F.R. 393.1(c), was protected activity under 49 U.S.C. 31105(a)(1)(B)(i).

Under the STAA, 49 U.S.C. 31105(a)(1)(B)(ii), a truck driver engages in protected activity if he/she has a reasonable apprehension of serious injury to himself/herself or the public because of the truck’s hazardous safety or security conditions. Whether the truck driver’s apprehension is indeed reasonable is analyzed from the view point of a reasonable individual. Gaines v. K-Five Construction Corp., 742 F.3d 256, 264 (7th Cir. 2014). The STAA, 49 U.S.C. 31105(a)(2), states that a truck driver’s apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the safety or security condition establishes a real danger of accident, injury, or serious impairment to health. If the truck driver’s “reasonable apprehension” of serious injury to himself/herself or the public because of the truck’s hazardous safety or security condition is reasonable the truck driver is required under the STAA, 49 U.S.C. 31105(a)(2) to ask his/her employer to correct the hazardous  before refusing to drive the unsafe truck. In Gaines v. K-Five Construction Corp., 742 F.3d at 264 the court held the STAA, 49 U.S.C. 31105(a)(2) indicates an employee is only protected under 49 U.S.C. 31105(a)(1)(B)(ii) for refusing to drive a vehicle if he/she first asked his/her employer to correct the hazardous condition, but the safety hazard remained uncured. In asking the employer to correct the hazardous condition, truck driver must be civil and respectful. See Formella v. U.S. DOL, 628 F.3d 381, 393 (7th Cir. 2010) (holding the Board could reasonably conclude that in shouting so loudly that other employees ran toward the office to see what was the matter, the driver exceeded any leeway to which he was entitled in pursuing his statutory rights).

If you believe that your employer retaliated against you for exercising your statutory rights under the STAA, 49 U.S.C. 31105(a)(1)(B)(i) or (ii) to refuse to drive unsafe trucks, the law limits the time you have to file your claims. Under 49 U.S.C. 31105(b)(2), you must file a complaint with the Secretary of Labor/OSHA not later than 180 days after the alleged violations occurred.  If you believe that you were retaliated against for exercising your rights to refuse to drive an unsafe truck, you should contact a competent attorney as soon as possible to evaluate your claim.

If you would like to learn more about a truck driver’s statutory rights to refuse to operate unsafe trucks under the STAA, 49 U.S.C. 31105(a)(1)(B)(i) or (ii), contact Brian J. Graber, Ltd., at (312) 291-4648 for a free confidential consultation.