When Should I Refuse to Drive under STAA?

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.

This brief overview provides some examples of what does and does not count as a “refusal” under STAA. STAA’s broad protections for refusals to drive are codified at 49 U.S.C. § 31105(a)(1)(B), which prohibits employers from taking an adverse action against the employee if:

(B) the employee refuses to operate a vehicle because—(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or (ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;

The first portion, 49 U.S.C. §31105(a)(1)(B)(i), focuses on refusals to operate a commercial motor vehicle because doing so would violate an applicable regulation or standard. This applies to any applicable state and federal regulations. For example, your pre-trip inspection might reveal that a tire had been worn down and no longer had sufficient tread depth, or a brake light missing on your assigned trailer, or a check-engine warning light illuminated on the dashboard. These and numerous other maintenance issues are detailed in the Federal Motor Carrier Safety Regulations of the Department of Transportation, located in Title 49 of the Code of Federal Regulations. You can access these regulations online at the FMSCA’s website here, or you can purchase a hard copy of the regulations here. If you determine that any such maintenance issues exist, you should inform the appropriate managerial personnel that you refuse to operate the vehicle until the maintenance issues are addressed and fixed.

49 U.S.C. §31105(a)(1)(B)(i) protects refusals to operate one’s vehicle when doing so would require one to violate hours-of-service violations. For example, you might be given an assignment after you’ve already been on-duty for 14 hours, and agreeing to perform the assignment might mean that you would violate the federal regulation requiring drivers to take a 10-hour break. You might be in such a situation because your employer is trying to run drivers thin and maximize profits, or it might be just the result of a clerical or dispatching mistake made by your employer. In both cases, you can offer to complete the route as soon as it would be possible for you do so without violating hours-of-service regulations. However, you should also make clear to your employer that you refuse to drive in violation of hours-of-service regulations.

Additionally, the second portion, 49 U.S.C. §31105(a)(1)(B)(ii), protects an employee’s refusal to drive when the employee has a “reasonable apprehension” that serious injury could befall the employee or the public if the vehicle were operated. For example, it might be the case the you detect alarming issues (for example, hearing unexpected grinding or screeching) while driving a vehicle, but mechanics are unable to locate a problem when you bring it in for maintenance. Even if no underlying maintenance issues or defects end up being discovered, your prior refusal to operate your vehicle could plausibly be considered a protected refusal based on reasonable apprehension. For another example, you might become ill and remain uncertain whether you should drive your assigned route or refuse to do so. Federal regulations (49 C.F.R. 392.3) explicitly protect your right to refuse to drive when you are ill or fatigued. This right of refusal is also protected by 49 U.S.C. §31105(a)(1)(B)(ii)’s assurance that one can refuse based on reasonable apprehension of injury.

In sum, you should readily refuse to operate a vehicle if doing so would require you to violate federal regulations. Of course, a variety of situations can make things more complex--for example, you might conduct a thorough pre-trip inspection but a serious maintenance issue nevertheless arises when you are over the road, far from the home terminal out of which you are based. Refusing to operate the vehicle could thus come at significant expense and hassle to your employer. Even in this situation, you should still refuse to drive your vehicle until the maintenance issues have been resolved. Depending on the situation, the most appropriate option may be to pull over to the side of the road and drive no farther. If feasible, it may be acceptable to drive the vehicle immediately to the nearest facility for it to be repaired. Importantly, in such a scenario you should never abandon the vehicle. Even if one’s assigned truck has broken down, one should promptly contact one’s supervisors to determine the next course of action. If it becomes absolutely necessary in such a situation for you to leave the vehicle, then you should first contact your supervisor and save documentation (whether via Qualcomm, text message, or some other format) of your supervisor affirming that your action will not be considered an “abandonment.” Having such a notation on your record can make it exceedingly difficult to find subsequent employment.

What Counts As A Complaint Under STAA?

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.

This brief overview provides some examples of what does and does not count as a “complaint” under STAA. STAA’s broad protections for complaints are codified at 49 U.S.C. § 31105(a)(1)(A):

(1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because—(A)(i) the employee, or another person at the employee’s request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order, or has testified or will testify in such a proceeding; or(ii) the person perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order.

Adverse Action Necessary

Before considering the further points below, remember that STAA’s protections kick in if and only if you’ve (1) filed a complaint, and (2) been subject to a subsequent adverse action by your employer. An “adverse action” can include being terminated, being disciplined, or being discriminated against with respect to pay, terms, or privileges of employment. For example, it might be considered an adverse action if your employer stops assigning you loads, or makes the workplace environment unduly hostile, or puts demonstrably false information on your DAC or other safety report. If you haven’t been subject to any adverse action, then there wouldn’t be any wrongful retaliation for you to seek recovery for under STAA.

Grievances Made to Coworkers Are Not Typically Complaints

Most likely, if you make a complaint to a fellow employee, this will not be considered a complaint protected by STAA. This is true whether you are merely expressing to a coworker that you don’t like your boss, and also even if you are expressing to a coworker that there are defects or maintenance issues with a truck or trailer your employer has assigned you. These typically don’t count as complaints because they aren’t made to personnel with the appropriate decisionmaking authority. If a trucking company is small enough, it might be the case that one’s boss is also one’s coworker--in this case, one’s grievance could count as a complaint under STAA because it would be made to a decisionmaker with the authority to terminate you, take disciplinary measures, or other adverse actions against you on behalf of the company. It also might be the case that one’s company policy delineates protocol for making complaints--for example, a larger company might direct them to human resources personnel. In such a case, it is likely that one’s grievance would be considered a complaint under STAA even if it was not made to a supervisor--namely, if one was following a specific company policy regarding how to make complaints.

Grievances Made to Mechanics Are Not Typically Complaints

As with coworkers, it is generally the case that grievances made to mechanics do not count as complaints under STAA. Again, in the case of small companies it is possible that owners/supervisors might double as the company’s mechanics.

Grievances Made to Supervisors, Managers, and Dispatchers are Complaints

It is often ideal if you express your complaint to a manager or supervisor, more specifically, the person(s) responsible for managing you. Of course, it’s usually the case that companies will have internal policies making clear that employees are supposed to report problems they have to their managers, so that managers can decide how to respond to the problem. Further, managers are usually in the position of having authority as decisionmakers--for example, whether to authorize maintenance to be done on trucks, whether to fire an employee, or whether to recommend firing an employee to the appropriate corporate personnel. Dispatchers act as managers over drivers, so grievances made to them typically are sufficient to be counted as complaints under STAA. This is especially the case for drivers who are on the road, since during this time dispatch is the driver’s primary point of contact with the employer. Reporting grievances about STAA violations to your supervisor, manager, and/or dispatcher is usually the most effective way for your grievance to be considered an internal “complaint” protected by STAA.

Grievances Filed with FMCSA are Complaints

As the above has made clear, STAA’s protections extend to internal complaints, when these complaints are made with one’s manager, supervisor, or dispatcher. STAA’s protections also extend to instances of external complaints, as when employees file an administrative action, such as an FMCSA grievance, against their employer. In this case, it is important that your appropriate manager or supervisor was aware that you filed the FMCSA grievance. If the supervisor has no reason to know that you were the one who filed such a grievance, then even though it counts as a complaint under STAA, it would not be a complaint that resulted in retaliatory adverse action--it couldn’t be retaliatory if the manager didn’t know about your complaint in the first place.

Summary

If you believe you may have a claim under STAA, first ask yourself (1) Did I engage in protected activity by verbalizing complaints about mechanical defects, hours-of-service violations, or other violations of STAA? If you’ve answered yes to that first question, next ask (2) Did I verbalize my complaints to the correct personnel, namely, to my manager, supervisor, and/or dispatcher? Finally, if you’ve answered affirmatively to that second question as well, then ask (3) Did my employer take an adverse action against me after I verbalized these complaints?

If you believe you have a complaint against your employer, or are unsure but would like to speak with someone further, give us a call ((952) 657-5780) for a free consultation!

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