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Retaliating against employees who raise safety concerns



By Gina Helou

Roadworthy or safety worry?
The employee was a seasonal dump truck driver for the construction company.  The company attempted to assign the same truck to each driver daily for, among other reasons, safety purposes.  For approximately three years, from 2007 to 2010, the employee drove the same  truck for each construction season. The employee, however, in May of 2010, was assigned a new truck, and after a visual inspection, he informed his supervisor that the truck was not safe to drive because asphalt had collected around the tail pan.  A dirty tail pan was a violation of the company’s work rules.  The supervisor knocked some of the asphalt off the tail pan in an attempt to remedy the problem, but the employee was not satisfied and refused to drive the truck.  He was then assigned to another truck, which he again found to be unsafe after a near-collision on the road when the truck abruptly pulled to the left.  The employee voiced his complaints regarding the safety of the truck and refused to drive it again until the employer had someone else take it for a test drive. The employer complied.

The test-driver stated the truck did indeed pull to the left, but the truck was still roadworthy.  For fear of losing his job, the employee agreed to drive the truck for that day.  After the day’s work ended, the employee had the company’s mechanic check the truck, who stated the steering wheel was off-center.  The employee made a note of this fact in his daily log report which he submitted to the employer.  Over the course of the next few days, with the employee making verbal complaints to supervisors and noting his safety concerns about the trucks in his log reports, the employer issued several warnings to the employee and ultimately terminated him.  Among the warnings were two related to the safety complaints.  One warning was for refusing to drive the newly assigned truck with the dirty tail pan, and a second warning was issued for delaying the start of his shift by requesting a test-drive of the second truck because it pulled to the left.     

Seventh Circuit analysis
The Seventh Circuit noted the STAA was enacted in response to “widespread violations of commercial motor vehicle safety regulations.” Congress enacted protections for employees through the STAA, finding that employees were in the most suitable position to identify safety violations.  For that reason, Congress wanted to promote and encourage employees to alert employers to any safety violations.  The STAA makes any complaints made by an employee regarding safety violations a protected activity, which, in turn, makes it illegal for employers to retaliate against employees for engaging in such an activity.  

Based on the evidence, the Seventh Circuit found that the employee had placed his employer on notice of his safety concerns both verbally and in writing.  The company argued that the safety complaints had no bearing on the decision to terminate the employee, however, the Seventh Circuit disagreed.  The Seventh Circuit found the employer specifically stated that the written warnings were the grounds for termination, and two of those warnings were issued based on the employee’s safety concerns over his various assigned trucks. Therefore, the Seventh Circuit reversed the district court’s decision to dismiss the employee’s lawsuit, as there was sufficient evidence submitted that the employee’s complaints were protected activity under the STAA.

Practice points
Although this case is still pending, it serves as a reminder for construction companies who employ drivers of commercial motor vehicles that the STAA provides certain protections for employees who raise reasonable safety concerns.



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