Thursday, July 7, 2016

Does the law really protect drivers who play by the rules?

The law as written protects drivers who stand up for safety concerns and do the right thing – at least on paper. But the slow pace of justice pushes enforcement so far into the future that the law is often little or no help to an individual driver.

Last month, for example, the Occupational Safety and Health Administration (OSHA) announced in a press release that a major carrier had been ordered to pay back wages to a driver the company had fired (FMCSA refers cases of wrongful termination to OSHA, which enforces “whistle blower” workplace rules).

Back pay amounted to $126,870 plus $50,000 for compensatory damages and $100,000 punitive damages. But we’ll come back to the subject of money.

My interest was drawn to the time this case had taken. The driver had been fired in 2012 – four years earlier. That’s the time it takes a toddler to reach kindergarten or a teenage child to enter and finish high school.

According to OSHA, the average time from complaint to findings in 2015 was 257 days, roughly eight months. So far this year the average is 273 days, about nine months.

What does even the narrowest time gap mean to a driver facing an ethical choice with only minutes to decide?

Let’s say you report a safety problem with the truck, malfunctioning lights for example, but dispatch replies, “The load is hot. Just go.”

Should you take a stand and risk being fired? Or should you take the load in order to pay the rent and keep food on the family table? If you are fired, how long will it take to get another job? Maybe only weeks, maybe months, maybe more. How will that play out if you and your family live paycheck to paycheck as so many of us do? 

In our hypothetical case, the rules clearly support the driver. But the snail-paced enforcement of those rules just as clearly benefits employers. Employers may lose individual cases, but the sluggishness of justice may prevent drivers from reporting such coercion at all.

And then there’s the money. If OSHA finds in your favor the carrier may be obliged to pay what you would have earned since you were fired. Like the major fleet case noted above, you may win compensatory damages for humiliation, pain, and suffering, etc. In this case it was $50,000. Next come punitive damages, money to punish the company, to keep them from wrongfully firing again. Here it was $100,000.

Sounds like a lot, right? But this particular carrier does more than $1 billion a year in business. A fine of $100,000 or of $250,000 impresses no one in a company that large. It’s probably worth more than that just to send a message to its other drivers. In fact, the carrier in that case has already appealed OSHA’s award.

Are your chances better in the courts?

Court cases typically take much more time than regulators.

“The wheels of justice turn very slowly in the civil arena. Sometimes it’s court-made rules, sometimes lawyer rules. It’s to make certain that each side has time to respond, to put together their argument,” said Jeff O’Connell, an attorney with Road Law, an Oklahoma-based law firm that specializes in traffic and trucking cases.

If termination involves a constitutional issue or discrimination based on gender, ethnicity, religion, or sexual orientation, and you have documented evidence, you may win a large punitive award. “That doesn’t happen very often,” McConnell said.

So with no pot of gold at the end of the rainbow, lawyers are unwilling to take a case on contingency - for a piece of the ultimate payout.

“You can imagine as a lawyer how much time and effort it takes if you’re fighting a big carrier,” O’Connell said. “They’ve got a lot of resources.”

That means the client bringing the action, presumably the driver, has to pay the lawyer with no assurance there will be any payout at all. It could cost more to sue than you can possibly win.

Are things better if you’re an owner operator?

“Whistle blower protection is theoretically applicable to an owner operator, someone who is a non-employee. But it’s totally ineffective,” said Todd Spencer, OOIDA’s Vice President. Driver coercion occurs every day, he explained, to company drivers and owner operators alike.

“The coercion goes on without real evidence other than anecdotal from drivers,” Spencer said. “If you don’t make deliveries on time, for whatever the reason, you’re not going to have a future.”

Very clearly, basic safety regulations are written to protect the driver, but the enforcement structure that arises from those rules tilts heavily toward the employer. The result, of course, is the coercion that goes unreported day after day.

For many drivers, the potential cost of reporting coercion is just too high.