by Allen B. Roberts and Michael J. Slocum
Under a final rule (“Final Rule”) issued by the Occupational Safety and Health Administration (“OSHA”), commercial motor carriers that own or lease a vehicle in a business affecting interstate commerce or assign employees to operate such a vehicle are impacted by Surface Transportation Assistance Act of 1982 (“STAA”) whistleblower protections available to drivers of commercial motor vehicles (including independent contractors when personally operating a commercial motor vehicle), mechanics, and freight handlers, as well as others who directly affect commercial motor vehicle safety or security in the course of employment. OSHA explained that the Final Rule, issued and published in the Federal Register on July 27, 2012, implements amendments to the STAA made by the Implementing Recommendations of the 9/11 Commission Act of 2007 (the “9/11 Commission Act”), and also seeks to “clarify and improve OSHA’s procedures for handling STAA whistleblower claims, as well as to set forth interpretations of STAA.”
We highlight some significant features of the revised regulations:
· Protected Activity Expanded – Prior to passage of the 9/11 Commission Act, STAA’s whistleblower provision had extended only to certain activities regarding commercial motor vehicle safety. The 9/11 Commission Act expanded that protection to activities regarding commercial motor vehicle security as well.
· Burden of Proof Relaxed – Before passage of the 9/11 Commission Act, whistleblower complaints under the STAA were analyzed using the burden-shifting framework applicable to claims under Title VII of the Civil Rights Act of 1964. Under that framework, once a complainant established a prima facie case of discrimination, an inference of retaliation arose and the burden shifted to the employer to demonstrate evidence of a legitimate and non-retaliatory motivation. If an employer satisfied this requirement, the burden shifted back to the complainant to show by a preponderance of the evidence that the employer’s proffered motivation was only a pretext for retaliation. The 9/11 Commission Act, however, replaced this burden-shifting analysis with the less stringent framework established by the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”). Under the AIR21 structure, which is applicable also to several other statutes, including the Sarbanes-Oxley Act, the Consumer Product Safety Improvement Act, the Food Safety Modernization Act, and the Consumer Financial Protection Act, a complainant’s burden is met by demonstrating only that the protected activity was a “contributing factor” to the adverse employment action; once that burden is carried, to defend and avoid liability, an employer must produce “clear and convincing” evidence that it would have taken the adverse employment action absent the whistleblower’s alleged protected activity.
· Remedies Expanded – In addition to prior remedies of reinstatement and backpay, the 9/11 Commission Act allows whistleblowers to be awarded interest on backpay as well as compensation for any special damages sustained as a result of unlawful discrimination, including litigation costs, expert witness fees, and reasonable attorneys’ fees, plus punitive damages of up to $250,000.
· Access to Federal Courts for Jury Trial – While the filing of a complaint with OSHA remains a requirement for pursuit of an STAA whistleblower claim of retaliation, the complainant may elect to discontinue the administrative action and proceed instead in a U.S. district court, with the right to a jury trial, if there has not been a final Department of Labor decision within 210 days after the administrative filing and the delay is not due to the complainant’s bad faith.
· Waivers Not Effective – Rights and remedies of STAA whistleblowers may not be waived by any agreement, policy, form, or condition of employment.
· Filing Liberally Construed – For purposes of determining whether there has been a timely filing within the STAA’s 180-day statute of limitations, a complaint will be considered ‘‘filed’’ onthe date of postmark, facsimile transmittal, electronic communication transmittal, hand delivery, delivery to a third-party commercial carrier, in-person filing at an OSHA office—and even a telephone call. No particular form is required for the filing of a complaint; oral complaints will be reduced to writing by OSHA, and OSHA will accept complaints in other languages if the complainant is unable to file a complaint in English.
The significant changes evident in the Final Rule show that employers operating businesses covered by the STAA should assess its impact on their existing policies and procedures—and any potential whistleblower complaints that may be facilitated by it.