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January 13, 2014 4:00 AM, EST

OSHA Orders Fleets to Pay Fired Drivers After Whistleblower-Protection Violations

By Jonathan S. Reiskin, Associate News Editor

This story appears in the Jan. 13 print edition of Transport Topics.

Two trucking fleets received orders from the Labor Department’s Occupational Safety and Health Administration to compensate workers who were fired after they said they were unable to drive because of illness.

OSHA described the carriers — Prime Inc. and Oak Harbor Freight Lines — as violating “whistleblower” protections in the Surface Transportation Assistance Act. Both companies denied wrongdoing and said they will appeal the rulings from OSHA administrative law judges.

The order against Prime, No. 21 on the Transport Topics Top 100 list of for-hire carriers, calls for the company to pay a former employee nearly $101,000 in back wages and damages and take other corrective action, based on a situation that started in 2008.

“Prime’s policy is to not comment on pending litigation. Prime is appealing this investigative finding, and litigation will begin shortly,” company spokesman Clayton Brown said. “The next step is to have a trial on the merits.”

Oak Harbor, a regional less-than-truckload carrier based in Auburn, Wash., was ordered to pay unspecified lost wages, remove any occurrence from the driver’s personnel file and post notices so drivers can read about their rights under the STAA, the agency said in a Jan. 2 statement. The case dates to 2010.

Oak Harbor spokesman Mike Hobby said the company has “a long record of compliance with the DOT and OSHA laws and a safety record that illustrates we hold the safety of our people and the motoring public as a first priority.”

He said the agency was not forthcoming in presenting its charges against the company.

“Oak Harbor had to file suit against OSHA to get OSHA to issue their preliminary findings so that Oak Harbor could defend its actions. . . . Oak Harbor believes the process is now moving forward and when all the facts are considered, the findings will be that Oak Harbor did not violate the law,” Hobby said.

OSHA enforces whistleblower protection for U.S. workers under 17 statutes, including STAA, which includes commercial motor vehicles, according to the agency’s website.

During fiscal 2007, OSHA received 1,966 whistleblower cases under all 17 laws and 297 were STAA cases. By fiscal 2013, which ended Sept. 30, the agency received 2,920 new cases to consider and 360 were brought under STAA.

“There aren’t a large number of these cases relative to other claims,” said attorney Andrew Fay of the Boston office of law firm LeClairRyan, “but the general trend is that they’re up. There’s been a definite increase.”

Fay said whistleblower cases are seldom ruinous because punitive damages are capped at $250,000.

“But carriers are typically not insured for this, so that means they have to pay the whole judgment out of their back pockets,” he said.

He urged carriers to take all claims seriously and to investigate allegations thoroughly. There have been instances, Fay said, where employees have invented whistleblower complaints after being fired so as to gain compensation.

There were 3,272 whistleblower cases closed during fiscal 2013. Of that number, 48.7% were dismissed and 20.4% were withdrawn. The remaining were settled or sent to court.

Should a driver say he or she is unable to operate a truck, managers should not force a person to drive, Fay said.

“If you do so, you’re asking for trouble. Maybe put them on the dock that day, but have a policy in place and make it clear to employees,” he said.