Whistleblower Protections for Transportation Employees

Andrew Schlegel Employment and Labor, Regulations, Transportation

Federal law protects transportation employees who complain about or report safety, health and security issues and violations. The Surface Transportation Assistance Act (STAA), 49 U.S.C. ยง 31105, prohibits employers from discharging, disciplining, or discriminating against employees who:

  • file a complaint regarding safety or security issues;
  • the employer believes will file a complaint regarding safety or security issues;
  • refuse to operate a vehicle because of a violation of safety, health or security standards;
  • refuse to operate a vehicle because of a “reasonable apprehension” of serious injury because of a vehicle’s condition;
  • accurately reports hours on duty;
  • cooperate in investigations into the company’s safety and security; and
  • furnish information to the Secretary of Transportation, Secretary of Homeland Security, the National Transportation Safety Board, or any other regulatory or law enforcement agency investigating an injury or damage claim.

While I know that no one reading this post would fire an employee for engaging in the above protected activities, anyone who fires an employee who has ever engaged in any of the actions protected by STAA needs to protect themselves from possible STAA claims. This is especially important because the burden of proof is heavier on the employer than it is on the (former) employee. In order to succeed with their STAA claim, the (former) employee need only show that engaging in a protected activity was a contributing factor in the personnel action. In contrast, to combat the claim the employer must demonstrate by clear and convincing evidence that the former employee would have been disciplined or fired anyway, despite engaging in the protected activities.

The cost of losing a STAA claim can be quite steep. The Secretary of Labor can order:

  • the employer to take affirmative action to abate the violation;
  • reinstatement of the fired employee;
  • payment of compensatory damages, back pay, interest, special damages, litigation costs, expert witness fees and attorney fees; and
  • punitive damages of up to $250,000.

These damages are in addition to any damages that the former employee may be entitled to under state law.

As you can see, the stakes are high. The time to protect your business from these claims is before they ever occur. Make sure employee files are kept up to date and include information on any issues with the employee. When an employee engages in any of the protected behavior, thank them for bringing the issue to their attention. When an employee is let go, document the reasons for the dismissal, and make those reasons clear to the former employee. Your actions can prevent STAA claims from arising, as well as make defending actions easier if a claim is brought despite your best efforts.

This is, of course, only a brief article on the implications of STAA. If you have any further questions regarding STAA, I would be happy to discuss them with you.