FMCSA Complaints Versus STAA Complaints

The Federal Motor Carrier Safety Administration (FMCSA) is a federal entity located within the Department of Transportation. The Occupational Safety and Health Administration (OSHA) is another organ of the federal government, operating out of the Department of Labor. Both the FMCSA and OSHA have responsibilities and authority for ensuring the safety of commercial motor vehicles driven in interstate commerce.

While there can be overlap in the issues that the FMCSA and OSHA pursues towards this end, it is important to emphasize a key difference. Namely, complaints filed with the FMCSA do not involve a lawsuit by you against the company. Choosing to file a complaint with FMCSA may still be the appropriate action for you to take, as it can lead to a federal investigation if your employer is engaged in questionable business practices.

In contrast, the Surface Transportation Assistance Act (STAA) does provide for an individual right of action. Complaints brought under STAA are filed with OSHA. What this means is that STAA permits you to pursue litigation to seek compensation for your own actual harms. This compensation could come in the form of special damages seeking recovery for backpay and lost wages, compensatory damages for pain and suffering, or punitive damages to punish malicious behavior by the wrongdoing employer.

For example, you might have overwhelming evidence that your employer is running other drivers thin, is requiring them to violate hours-of-service regulations, or is regularly operating commercial motor vehicles that have serious, unfixed defects that endanger public safety. In this scenario, suppose that your employer does not require you to violate any regulations, or at least accepts your refusal to do so. In such a factual scenario, there presumably would not be anything creating the possibility of you pursuing a STAA-based lawsuit against the company. At the same time, even if you can’t bring a claim under STAA, that doesn’t mean you should do nothing. Filing a complaint with FMCSA can be an effective way of reporting systemic practices by employers that put the public in danger but would otherwise go unnoticed if left unreported.

For another example, suppose you have been given a dedicated route by your employer, one that you have routinely been performing. Suppose that it was initially possible to perform this route legally, but your employer then started to push up the expected delivery time in such a way that the route would be impossible to perform on time unless you skipped your required 30 minute breaks. After you tell your employer that you refuse to perform the route in violation of hours-of-service regulations, suppose your employer takes you off the dedicated route and only assigns you non-lucrative, local deliveries from that point onwards. In this scenario, you can argue that an adverse action was taken against you (because you are making less money), you engaged in protected activity (complaining that you refused to violate hours-of-service regulations), and a lawsuit can help make you whole (by compensating you for the money you lost, for emotional distress you experienced because of the lost wages, and so on). It is this type of situation that employees can look to STAA for in seeking to have their issues addressed.

Finally, it is important to note that even though a grievance filed with FMCSA will not result in an individual lawsuit on its own, filing such a grievance can constitute a “complaint” protected under STAA (see this blog post on the meaning of a complaint under STAA). This might be because you specifically verbalize to your company’s management that you have submitted such a grievance to FMCSA; if they subject you to an adverse action after being notified, then you might have a claim of retaliation under STAA. Even if you do not directly inform management, it might somehow become apparent during an FMCSA investigation that you were the employee who ordered the investigation—in which case the possibility of a retaliatory adverse action again could arise.

In sum, an FMCSA grievance and a STAA complaint are both mechanisms you can use to promote the public safety and seek remedial actions for employers violating federal safety regulations. Questions about which of those routes is best for you (or perhaps both or neither are) is something that will depend on the specific facts of your situation, and will also depend on what result you are hoping to achieve with your complaint (for more on remedies, check out our next post!).

If you believe you are entitled to relief under STAA, or if you’re simply uncertain whether your issue is a FMCSA grievance, STAA complaint, or something else, contact us ((952) 657-5780) for a free consultation!

How Long Do I Have to File a Lawsuit under STAA?

If you are considering filing a lawsuit against your employer under the Surface Transportation Assistance Act (STAA), timing can be of the essence.

The statute of limitations under STAA is 180 days. A “statute of limitations” is a specified amount of time in which it is permissible to file a claim under a given statute. Different statutes have their own guidelines as to when their own statute of limitations begins to “run,” that is, when the clock starts ticking for any rights of action provided for under that statute.

STAA provides a private right of action for employees whose employers retaliated against them after they made safety-related complaints. The timing for when statute of limitations under STAA starts to toll is determined by the timing of the adverse action, rather than the timing of your initial complaint. More specifically, the clock for STAA’s 180-day statute of limitations starts ticking from the day that you first learn that you have been subject to such an adverse action.

It is therefore prudent to act with reasonable haste if you intend to bring a claim against your employer. Give us a call (952) 657-5780) if you would like a free consultation to discuss that possibility further!

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!