Whistleblower Law Blog
DOL ARB Holds Truck Driver’s Refusal to Drive Unsafe Truck is a Discharge under STAA
In Klosterman v. E.J. Davies, Inc., the Administrative Review Board (ARB) held that an employee who left work after refusing to drive an unsafe truck had suffered an adverse action under the retaliation provision of the Surface Transportation Assistance Act (STAA), even though the employer interpreted his conduct as voluntary resignation. The ARB articulated the standard determining whether there for an adverse action under STAA:
…under [ARB] precedent, “an employer who decides to interpret an employee’s actions as a quit or resignation has in fact decided to discharge that employee.” Minne, ARB No. 05-005, slip op. at 14. See also Ass’t Sec’y & Vilanj v. Lee & Eastes Tank Lines, Inc., 1995-STA-036, slip op. at 4-6 (Sec’y Apr. 11, 1996) (employer violated the STAA when it reacted to complainant’s refusal to drive by “consider[ing] [complainant] to have voluntarily quit” rather than by addressing condition complainant had raised, thus by implication employer engaged in adverse action by deciding that complainant had “quit”); Ass’t Sec’y & Lajoie v. Envtl. Mgmt. Sys., Inc., 1990-STA-031, slip op. at 5-6 (Sec’y Oct. 27, 1992) (overturning ALJ’s determination that employee had “voluntarily quit,” the Secretary held that employer had “engaged in adverse action” by “[discharging]” employee when employer “was not willing to address [employee’s] complaint and considered [complainant] discharged if he failed to capitulate” by driving even though employer had not addressed complainant’s concern); Fronczak v. N.Y. State Dep’t of Corr. Servs., 2 Fed. Appx. 213, 215-17 (2d Cir. 2001) (unpublished).
The ARB applied this standard to the facts in Klosterman, finding that it was the employer’s behavior rather than the employee’s which led to the end of the employment relationship. The employer told the employee to drive the truck or go home. The employee chose to go home. Since the employer did not address the employee’s complaints regarding safety, the employer effectively discharged the employee and incorrectly considered the employee’s refusal to drive the unsafe truck as the employee having quit.
The ARB further held that a phone conversation with an OSHA representative is sufficient to meet the 180 day statute of limitation for filing a complaint. STAA does not require the complaint to be in writing. For more information about The Employment Law Group® and its Whistleblower Law Practice, click here.