I Feel My Employer Has Retaliated Against Me - What Should I Do?

The Surface Transportation Assistance Act of 1982 (“STAA”) contains protections for employees in the transportation industry who file complaints about safety-related issues, hours-of-service violations, and other federal commercial motor vehicle violations. More specifically, STAA gives employees a private right of action when their employer retaliates to such whistleblowing with an adverse action.

There are many forms that an employer’s retaliatory adverse action could take. For example, a driver might refuse to operate a vehicle because the driver became ill, and the employer might subsequently assess the driver a demerit point under the company’s progressive discipline policy. Or a driver might refuse to operate a vehicle that the driver reasonably apprehends to be defective after conducting a pre-trip inspection, the employer might become upset because placing the truck out of service would lead to lost revenue, and the driver might subsequently no longer be assigned any routes.

If you do pursue litigation against your employer under STAA, consider some broad contours of how your employer will respond: if you are bringing a claim that your employer engaged in retaliatory action, your employer’s response in litigation will almost surely be that the employer did not engage in retaliation. Toward this end, your employer might (1) argue there was no adverse action (therefore no retaliation), (2) admit there was an adverse action but deny it was retaliatory, by denying there was protected activity, (3) admit there was protected activity and a subsequent adverse action but deny this action was retaliatory, by pointing to an alternative explanation for it. In essence, therefore, remember that your feeling that you’ve been retaliated against won’t be enough to win a lawsuit; it will also be necessary to have a solid case that persuasively responds to your employer’s expected response that they did nothing wrong.

Given this reality, there are some steps you can take if you feel that you’ve been the subject of retaliation protected by STAA. First, make sure to keep documentation as much as possible. This includes documentation of the complaints you’re making (remember that your employer might deny that you engaged in protected activity). If possible, try to make these complaints in some format that you can save—whether via text message, Qualcomm, or some other form that you can photograph or document. The importance of documentation of course also extends to documenting any specific defects/problems you’re complaining about. If you’re asserting that your assigned truck has exhaust fumes blowing into the cabin, then take a picture of the hazy cabin conditions. If there is warning light on, or if you notice a specific defect, photograph it.

Second, make sure to keep track of dates/locations for any and all of these complaints filed and issues detected. In many cases—as with text communications on most smartphones—there will be a timestamp attached to your communication, so there may be nothing else necessary to do on your part other than to take a screenshot of the communication. Such timestamps also often accompany photographs taken with a smartphone. If the location in which the defect arose is relevant to your complaint, it may also be in your interests to document the location as well—again, such geographical information often is automatically stored along with the photograph for many smartphones. Determine whether your smartphone, camera, or other device has such functionalities, and if they do not, consider other methods of documenting the time and, if applicable, the location where you made your complaints or where the defective mechanical issue arose. This specific information can be important for your claim against your employer—for example, it can be important in establishing that you made a complaint and were subject to an adverse action after this complaint was made, which is necessary to establish if you are claiming the adverse action was made in retaliation for the complaint.

Third, do your best to document the names of the company personnel you file complaints with. This might be automatic if done over a messaging platform, or it might require you to make a specific request, if you are talking over the phone to a dispatcher. For more information on which personnel you should report issues to for them to be considered “complaints” protected by STAA, see this blog post.

Fourth, document the impact that you’ve experienced because of the adverse action. Even though “feeling” that you’ve been retaliated isn’t enough to win a lawsuit, that doesn’t mean your feelings are irrelevant to your claim against your employer. Having documentation that you suffered emotional distress, for instance, after being wrongfully fired can have an impact on the compensatory damages you are able to recover. Toward this end, it can be helpful to verbalize this impact to your family and friends. If you pursue litigation, these people could testify as witnesses to attest to the emotional or other damages you suffered. In addition to having a contemporary record of your emotional response to being the victim of retaliation, make sure to keep record of any other significant adjustments or life changes you’ve had to make because of the adverse action (e.g., having to cash out your 401k, not being able to buy Christmas presents, or going on public assistance after being terminated).

Fifth, avoid confrontations with your employer, such as heated arguments. Remember that one litigation strategy your employer might use in defense is to argue that there is an alternative explanation for the adverse activity they took against you. The employer might use this strategy even while admitting you engaged in protected activity and admitting that a subsequent adverse action took place. Choosing to do something like yelling at one of your managers or dispatchers, or even a fellow coworker, can therefore make it difficult for you to be successful in a lawsuit against your employer even if you have engaged in activity that was otherwise protected under STAA. Of course, this may not always be easy to do—indeed, you might be inclined to raise your voice in a meeting with your manager specifically because your manager seems to be coercing you into driving a defective truck or into violating hours-of-service regulations. However, it is in your interests to make every effort to avoid such an inclination. You can politely make clear that you are refusing to do anything illegal, and in doing so, you thereby make it more difficult for your employer to argue the defense that they fired you (or took another adverse action) for non-retaliatory reasons—for example, because of belligerence, insubordination, or because of creating a hostile work environment for others. Your employer might even raise such issues if they happened before you engaged in protected activity. You want to do what you can to make it difficult for your employer to raise the defense that there was an alternative explanation for the adverse action taken against you.

In conclusion, there are several things that you can do if you are concerned that you may be the victim of retaliation for engaging in whistleblowing. Of central importance is the value of keeping good documentation—of complaints filed, the time they were filed, of defects noticed and when/where they were noticed. Keeping good documentation of these things helps strengthen your initial argument that you engaged in protected activity. It also can help in establishing timing for the purposes of showing that an adverse action came shortly after you made a complaint, in other words, for the purpose of establishing that retaliation followed after you engaged in protected activity under STAA. In addition to documentation, avoid engaging in activity that could be construed as insubordination, belligerence, or otherwise could be grounds for your employer taking action against you.

If you believe you’ve been a victim of retaliation under STAA and are considering pursuing legal action against your employer give us a call ((952) 657-5780) for a free consultation to discuss your situation!

Electronic Logging Devices: The New Rule

In December of 2015, the Federal Motor Carrier Safety Administration published its final rule regarding electronic logging devices (ELDs). This policy change replaces the paper logbook system that many trucking companies previously used, with the goals of this policy change including greater accuracy and compliance with hours-of-service regulations. In December of 2017, the FMCSA’s rule on ELDs went into effect, requiring most commercial motor vehicle carriers to comply beginning December 18, 2017.

There are some exceptions to this requirement of ELD compliance:

  • Some companies have been using automatic on-board recording devices (AORBDs). Company fleets that were already equipped with AORBDs prior to December 2017 can continue to use them. They will have until December 2019 to comply with the new ELD rules.
  • The Commercial Vehicle Safety Alliance issued a statement that it would implement a “soft launch” of the new ELD rule. Under this soft launch, roadside enforcement personnel would begin documenting violations of the rule on December 18, 2017, and would additionally issue citations at the discretion of each jurisdiction. Until April 1, 2018, however, the Commercial Vehicle Safety Alliance stated drivers would not be placed out of service for non-compliance. From April 1, 2018 onwards, drivers who are not in compliance with the new ELD rule are subject to being placed out of service by roadside enforcement personnel.

Finally, it is possible for an employer to meet the requirements of the new ELD rule by requiring drivers to use smartphones, tablets, or other wireless devices. The FMCSA has made clear that this is acceptable so long as the smartphone, tablet, or other wireless device still meets the technical specifications laid out in the ELD rule.

Is your employer’s fleet of trucks non-compliant with the new ELD rule? Is your employer still requiring drivers to use only paper logs? Give us a call ((952) 657-5780) if you’d like a free consultation to discuss your situation!