ALJ Order Expands Joint Employer Liability Under the Surface Transportation Assistance Act

March 23, 2010

On March 11, 2010, Administrative Law Judge Rae issued an order holding that an agreement which provides a joint employer with the ability to accept or cancel the assignment of a leased employee may be sufficient to establish liability under the Surface Transportation Assistance Act (STAA).  In Myers v. AMS Staff Leasing, the respondent contracted with trucking company New Rising Fenix, Inc. to provide payroll, benefits, and human resource services.  The respondent moved to dismiss, arguing that they did not exercise sufficient control over the complainants to establish liability under the STAA.  In support, the respondent cited cases holding that employment leasing contract provisions required by Florida law are not sufficient to create liability under the Fair Labor Standards Act (FLSA).

Judge Rae agreed that the FLSA and STAA are sufficiently similar to exempt an employer from liability on the sole basis of statutorily mandated contact provisions.  However, the respondent still failed to demonstrate that it did not have the ability to control the complainants since the joint employers’ contract provided the respondent with the discretion to cancel the assignment of certain employees.

For more information about The Employment Law Group® law firm’s Commercial Motor Carrier Whistleblower Practice.

ALJ Awards Trucker Punitive Damages After Being Fired for Refusing to Drive in Dangerous Conditions

March 23, 2010

On March 15, 2010, Administrative Law Judge Daniel Leland awarded Cynthia Ferguson over $151,000 including $75,000 in punitive damages, holding that she was terminated in retaliation for refusing to drive in hazardous conditions.  On a cross country trip, Ferguson encountered extremely inclement weather approaching Donner Pass in the Sierra Nevada Mountains.  Ferguson observed a truck in a ditch and another forced to stop in the middle of the road due to black ice.  She also received reports from other drivers advising her not to cross the pass until the conditions improved.  Ferguson told her employer of the situation and her decision to stop driving.  Her employer pressured her to continue on and later terminated her.

Judge Leland held that a reasonable person in Ferguson’s position would have concluded that the weather conditions presented a serious danger and if Ferguson had not stopped, she would have violated federal regulations prohibiting the operation of commercial motor vehicles in conditions that are likely to cause an accident or breakdown.  The employer argued that it fired Ferguson for carrying a negative balance with the company. 

Judge Leland acknowledged that the negative balance could be a legitimate reason to terminate Ferguson but found that comments made by Ferguson’s supervisor and the temporal proximity between Ferguson’s protected activity and termination established a mixed motive.  As a result of her employer’s “total disregard not only for her and her co-driver’s safety but for the safety of other drivers on the road,” Judge Leland awarded Ferguson $75,000 in punitive damages, $50,000 for emotional distress, back pay, reinstatement, costs, and attorney’s fees.  The case is Ferguson v. New Prime, Inc. and a copy of the order is available here.

For information about The Employment Law Group® law firm’s Commercial Motor Carrier Whistleblower Practice, click here.

ARB Adopts Burlington Northern Standard for Whistleblower Retaliation Claims

October 20, 2008

In Melton v. Yellow Transp. Inc., the Department of Labor’s Administrative Review Board (ARB) clarified that it will apply the Burlington Northern standard to whistleblower cases when determining whether an employer violated a whistleblower retaliation protection provision.  This decision is significant because under Burlington, an employment action is materially adverse if it is capable of dissuading a reasonable employee from engaging in whistleblowing activity, a broad standard focused on the chilling effect of an adverse employment action.  While the concurring opinion purports to apply the Burlington Northern standard, it concluded that the issuance of a warning letter did not affect the terms of Melton’s employment and hence is not an actionable adverse action.  Melton’s attorney is appealing the ARB’s decision on the ground that the warning letter had a chilling effect on Melton, i.e., it would deter Melton from engaging in further protected conduct, and therefore constitutes actionable retaliation.