In Robinson v. Shell Oil Co.,
No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme
Court held that term "employees" in Title VII includes former employees.
Thus, a former employee may sue a former employer for alleged retaliatory post-employment
actions, such as negative references to prospective employers.
[Editor's note: Please note that this is a Title VII decision, and did not involve an STAA,
or a nuclear or environmental whistleblower complaint].
The driver of an escort vehicle is an "employee" under
49 U.S.C. app.§ 2301(2)(D). Obsorn v. Cavalier Homes
of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10
(Sec'y July 17, 1991).
VII A 2 a EMPLOYEE; COVERAGE OF MESSENGER UNDER STAA
In Caimono v. Brinks, Inc., 95-STA-4 (ALJ
Sept. 7, 1995), the ALJ concluded that a messenger for an armored
car company who rode in the car to make deliveries, was not an
employee within the meaning of the whistleblower provision of the
STAA. The ALJ found only two prior cases involving complainants
other than drivers. Both involved mechanics, who were
specifically named in the statutory definition as an employee.
The ALJ concluded that absent being specifically named in the
statutory definition, "one employed by a motor carrier . . .
should have to positively demonstrate that his employment
directly affected motor vehicle safety. . . ." Slip op. at
2.
VII A 2 b Mechanic; coverage under
STAA
A mechanic who is employed by a commercial motor carrier and who
in the course of his employment directly affects commercial
motorivehicle safety meets the STAA definition of
"employee." 49iU.S.C. app. § 2301(2)(B). Cf.
Rehling v. Sandel Glass Co., 91-STA-33 (Sec'y Jan. 6, 1992),
slip op. at 5-8 (intrastate truck driver's manner of vehicle
operation and condition of equipment directly affected commercial
motor vehicle safety on major thoroughfares where he traveled).
Gay v. Burlington Motor Carriers, 92-STA-5 (Sec'y
May 20, 1992).
EMPLOYEE; COVERAGE OF MESSENGER ON ARMORED TRUCK [STAA Digest VII A 2 c]
In Caimano v. Brink's, Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), the Secretary held that a messenger whose
duties directly affected commercial motor vehicle safety was a
covered employee under the whistleblower provision of the STAA.
The Secretary found the messenger's duties to be analogous to
that of a freight handler, which is a position specifically
included within the statutory definition. The Secretary also
noted that on delivery runs, it is the messenger rather than the
driver who is in charge.
In Rockefeller v. Carlsbad Area Office, U.S.
Dept. of Energy, ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998-CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), the ARB found that an
environmental specialist for the U.S. Department of Energy could not maintain a STAA
whistleblower complaint against either the Department of Energy nor a private company. The
ARB held:
The STAA's definition of "employee" explicitly excludes "an
employee of the United States Government," and the definition of
"employer" explicitly excludes "the Government." 49
U.S.C. §31101(2)(B), §31101(3)(B). There is no ambiguity in these
scope provisions, and therefore we can rely upon their plain meaning. Moreover,
the United States is immune from suit absent an explicit statutory
waiver of sovereign immunity. United States Dep't of Energy v.State of Ohio, 503 U.S. 607, 615 (1992) (any waiver of the government's
sovereign immunity must be "unequivocal"). Here we have
an explicit statutory invocation of such immunity. Therefore, with
respect to his complaint against DOE, neither Rockefeller nor DOE is covered by
the statute.
Slip op. at 6-7. The ARB rejected Complainant's contention that the Secretary's decision in
Flor v. U.S. Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994), is binding precedent
for the proposition that government employees may sue their government employers under the
STAA. The ARB found that decision in Flor did not purport to address or decide that
issue.
[STAA Whistleblower Digest VII A 2 d]
FEDERAL GOVERNMENT IMMUNE FROM SUIT UNDER STAA WHISTLEBLOWER PROVISION
In Moore v. U.S. Dept. of Energy, ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 31, 2001), the Board re-affirmed its holding in Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy, ARB No. 99-022, ALJ No. 1998-CAA-10 (ARB Oct. 31, 2000), to the effect that the STAA definitions of "employee" and "employer" constitute an express invocation of sovereign immunity.
In Luckie v. United Parcel Service, Inc., ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for the Respondent's Alabama district. The STAA defines a covered employee as "a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier." 49 U.S.C.A. § 31101(a)(2)(A). The ALJ found that the Complainant was a covered employee under the STAA whistleblower provision as "either a freight handler or a person who directly affected commercial vehicle safety in the course of his employment or both." The ARB, however, found that that the Complainant's infrequent touching of packages in connection with a claims investigation did not qualify him as a freight handler under the STAA. In addition, the ARB found, as a matter of law, that the Complainant was not an individual who directly affected commercial motor vehicle safety because his job duties did not directly impact the safety of UPS's commercial motor vehicles. Although the Complainant referenced concerns about UPS's response to post 9/11 fears of truck bombs, the ARB found that the Complainant had no responsibility for the operational safety of UPS's commercial motor vehicles; nor was he responsible for reporting, auditing, or reviewing any safety defects in those vehicles. Those functions were the responsibility of another UPS department. The ARB, therefore, concluded that the Complainant was not a covered employee under the STAA.
[STAA Whistleblower Digest VII A 2 e]
COVERED EMPLOYEE; UPS DISTRICT SECURITY MANAGER
In Luckie v. United Parcel Service, 2003-STA-39 (ALJ Dec. 2, 2004), one of the Complainant's duties was to be a UPS District Security Manager. In addition, unrefuted testimony showed that he handled damaged packages in performing security checks and resolving damage claims. The ALJ found that because the "Respondent is a company engaged in transporting of packages, both interstate and intrastate, while using commercial motor vehicles within the meaning of the STAA, and the Complainant played a role in accomplishing that mission in a safe and lawful manner in both his position as manager and an employee of that company" the Complainant was a covered employee under the whistleblower provision of the STAA. Slip op. at 11.
The ALJ should not have raised in his Recommended Decision and
Order the issue of whether the complainant was an
"employee" under the STAA where the complainant had not
had an opportunity to establish coverage because the defense had
not been raised below and the record had not been developed on
the issue. Because the complainant could not prevail on the
merits of his claim, however, the case was not remanded.
Mace v. Ona Delivery Systems, Inc., 91-STA-10
(Sec'y Jan. 27, 1992).
An "employer" is "any person engaged in a business
affecting commerce who owns or leases a commercial motor vehicle
in connection with that business, or assigns employees to operate
it in commerce, but such term does not include the United States,
an State, or a political subdivision of a State . . . ." 49
U.S.C. app. § 2301(3).
Killcrease v. S & S Sand and Gravel, Inc., 92-
STA-30 (Sec'y Feb. 2, 1993).
[STAA Whistleblower Digest VII B 1]
COVERED EMPLOYER; COMPANY WITH ABILITY TO CONTROL TERMS OF COMPLAINANT'S EMPLOYMENT
The STAA covers independent contractors, 49 U.S.C.A. § 31101(2); 29 C.F.R. § 1978.101(d). Where a company is not the Complainant's immediate employer, but it exercised control over his employment (e.g., by requesting that the immediate employer not send the Complainant back to the job), such control is sufficient to establish STAA coverage. SeeFeltner v. Century Trucking, Ltd., ARB No. 03-118, ALJ Nos. 2003-STA-1 and 2 (ARB Oct. 27, 2004).
[STAA Digest VII B 1]
IDENTIFICATION AND LOCATION OF PROPER RESPONDENT
In Sexton v. Kroll's Trucking, ARB No. 04-030, ALJ No. 2003-STA-18 (ARB Apr. 29, 2005), there had been some confusion about what entity had employed the Complainant, and OSHA had conflated two entities, one of which had only rented space to the Complainant's employer. The only address on record was for the company that rented the space. The ALJ dismissed that entity and dismissed the case. On review, the ARB affirmed the ALJ's decision to dismiss the wrongly named entity, but because the record did not indicate that the other entity was ever informed of the complaint, OSHA's investigation into the complaint, or the proceedings before the ALJ, the ARB remanded the case to the ALJ for further proceedings.
On remand, the ALJ noted that the case could not proceed to hearing because there was no address for the remaining Respondent. The ALJ recounted that the evidence of record established that the Complainant's Employer was a short lived enterprise of only three months, and that its owner's whereabouts were unknown. Because OALJ does not have investigators, the ALJ was compelled to remand the case to OSHA to endeavor to locate the Respondent. Sexton v. Kroll's Trucking, ALJ No. 2003-STA-18 (ALJ May 19, 2005).
[STAA Digest VII B 1]
INDEPENDENT CONTRACTOR; COMMON LAW TEST
In Metheany v. Roadway Package Systems, Inc., 2000-STA-11 (ALJ June 20, 2000), the ALJ concluded that Complainant was an independent contractor rather an employee, and therefore not covered under the STAA whistleblower provision. In making this
ruling, the ALJ applied the common law test found in Nationwide Mutual Ins. Co. v.
Darden, 112 S. Ct. 1344 (1992); see alsoReid v. Secretary of Labor, 106
F.3d 401 (6th Cir. 1996). The ALJ looked at the language of the contract, which clearly indicated
an intent not to consider Complainant an employee, and which specified that Respondent's
personnel would have no authority to direct him as to the manner or means employed to achieve
Respondent's business objectives (although the ALJ noted that work such as knowledge of traffic
patterns, road conditions, etc. is routine for drivers and not indicative of independence and non-
employee status). The ALJ took into account that Respondent required Complainant to provide
his own tractor for pulling Respondent's trailers, and that costs and expenses incident to
ownership were to be borne by Complainant. Moreover, Complainant had the discretion to hire
and assign any qualified drivers for runs.
VII.B.1. Personal liability
In Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y
Oct. 1, 1993), the Secretary held that the owner and President of
Respondent would not be held individually liable under the
circumstances. OSHA did not clearly indicate that the
owner/president and Respondent were both named Respondents in the
case. Moreover, there was no direct evidence that the
owner/president discharged or ordered Complainant to be
discharged; rather the testimony credited by the ALJ indicated
that the owner/president was not involved in the discharge
decision or its execution.
[Editor's note: It is not clear what the circumstances were.
The ALJ made rulings on this issue orally at the hearing and did
not treat them separately in his recommended decision. What I
think happened was that OSHA did not notify Morin of his being
personally named as a Respondent. The ALJ did not allow the
Assistant Secretary to add Morin as a Respondent. I guess the
Secretary's ruling is that because of unclear notice of being
named individually and because the evidence did not indicate
personal involvement in the discharge decision, Morin would not
be held personally accountable.]
VII.B.1. Definition of "employee"
An "employee" is a driver of a commercial motor
vehicle, a mechanic, a freight handler, or any individual other
than an employer "who is employed by a commercial motor
carrier and who in the course of his employment directly affects
commercial motor vehicle safety * * *." 49 U.S.C. app.
§ 2301(2).
Killcrease v. S & S Sand and Gravel, Inc., 92-
STA-30 (Sec'y Feb. 2, 1993).
VII B 1 Private carrier
In Killcrease v. S & S Sand and Gravel, Inc.,
92-STA-30 (Sec'y Feb. 2, 1993), the Respondent contended that it
was not subject to the STAA. The Secretary analyzed the
statutory and regulatory provisions in concluding that the
Respondent was subject to the STAA:
General provision imposing liability
STAA section 405(a) provides that "[n]o person
shall discharge * * * any employee * * * because such
employee * * * has filed any complaint * * * relating to a
violation of a commercial motor vehicle safety rule, regulation,
standard, or order * * * ." 49 U.S.C. app. § 2305(a)
(emphasis added).
STAA section 405(b) provides that "[n]o person shall
discharge * * * an employee * * * for refusing to operate
a vehicle when such operation constitutes a violation of any
Federal rules, regulations, standards, or orders applicable to
commercial motor vehicle safety or health * * *." 49 U.S.C.
app. § 2305(b) (emphasis added).
Definition of "person"
A "person" is "one or more individuals,
partnerships, associations, corporations, business trusts, or any
other organized group of individuals" for purposes of the
subchapter, 49 U.S.C. app. § 2301(4).
Definition of "employee"
An "employee" is a driver of a commercial motor
vehicle, a mechanic, a freight handler, or any individual other
than an employer "who is employed by a commercial motor
carrier and who in the course of his employment directly affects
commercial motor vehicle safety * * *." 49 U.S.C. app.
§ 2301(2).
Definition of "employer"
An "employer" is "any person engaged in a business
affecting commerce who owns or leases a commercial motor vehicle
in connection with that business, or assigns employees to operate
it in commerce, but such term does not include the United States,
an State, or a political subdivision of a State . . . ." 49
U.S.C. app. § 2301(3).
Definition of "commercial motor vehicle"
A "commercial motor vehicle" includes "any self-
propelled * * * vehicle used on the highways in commerce
principally to transport passengers or cargo" with a gross
vehicle weight rating of ten thousand or more pounds. 49 U.S.C.
app. § 2301(1).
Definition of "commercial motor carrier"
The term "commercial motor carrier" is not defined in
the subchapter but has been interpreted to include motor carriers
and motor private carriers described at 49 U.S.C. §
10102(13) (14), (15), and (16) (1988). See 29 C.F.R.
§ 1978.101(e).
Relationship between motor common carrier, motor contract
carrier and motor private carrier
A motor carrier either (1) holds itself out to the general public
to provide motor vehicle transportation for compensation (motor
common carrier) or (2) provides motor vehicle transportation for
compensation under a continuing agreement (motor contract
carrier). A motor private carrier transports property owned by
it, via motor vehicle, for sale or to further a commercial
enterprise.
In Killcrease, the Respondent was a private carrier
engaged in truck transport of sand and gravel which it mined,
processed, transported by commercial motor vehicle, and sold.
Therefore, it was a commercial motor carrier covered under STAA
section 405.
The Respondent also constituted an employer within the STAA
definition because its business affected commerce in that it
regularly transported (via its employees operating commercial
motor vehicles) sand and gravel, mined and processed at its pit
and plant in Lenox, Alabama, to customer facilities in other
locations in Alabama and occasionally to one location in Florida
(including occasionally backhauling sodium nitrate on a contract
basis).
The fact that Respondent's drivers regularly operated vehicles on
national interstate highways also supported a finding that it was
engaged "in commerce".
The Secretary distinguished regulatory schemes in which
classification of a "motor private carrier" can require
a quantum of transportation between States or across national
boundaries. E.g., 49 U.S.C. §§ 3101-3104 (DOT);
49 U.S.C. Subtitle IV (ICC). STAA section 405 has a remedial
purpose that applies a more generic "commercial motor
carrier" that is not statutorily defined. Absent a
statutory definition, the Secretary concluded that it is
appropriate to accord "commercial," deriving from
"commerce," its legal meaning. [Editor's note:
Secretary did not explain what commercial's legal meaning is or
provide a citation of authority] In addition, the Secretary
concluded that the legislative history of the STAA militates in
favor of construing the term expansively to describe motor
carriers "in" or "affecting" commerce.
See H.R. Conf. Rep. No. 987, 97th Cong., 2d Sess. at 163-
164, reprinted in 1982 U.S. Code Cong. & Admin. News
(USSCAN), 3639, 3744-3745.
The House Conference Report noted Department of
Transportation authority to regulate "primarily with
regard to vehicles that cross State lines or national
boundaries or perform the intrastate portion of a continuous
interstate movement" and expressed the intent to extend
that authority so that "commercial motor vehicle
operations both in and affecting interstate and
foreign commerce" are regulated under the safety
subchapter (now 49 U.S.C. app. §§ 2301-2307).
H.R. Conf. Rep. No. 987 at 163, 1982 USCCAN at 3744
(emphasis added). Coverage under the subchapter extends,
for example, to vehicles designed to transport ten or more
persons to ensure "the highest levels of safety in this
particularly important transportation area." H.R.
Conf. Rep. at 164, 1982 USCCAN at 3745. Elsewhere in Title
49 coverage generally is limited to vehicles designed to
transport 15 or more persons. Compare with other
covering provisions where Congress explicitly has specified
application, e.g., 49 U.S.C. app. § 2306(f)
(commercial motor vehicle; meaning limited to section);
2314(c)(3) (interstate system); 2315(b)(2) (national
intercity truck route network); 2503(1) (commercial motor
vehicle); 2503(4) (interstate commerce); 2503(5) (intrastate
commerce); 2515(b) (commercial motor vehicle).
In Wilson v. Bolin Associates, Inc., 91-STA-4
(Sec'y Dec. 30, 1991), the ALJ unnecessarily employed the
doctrine of piercing the corporate veil to find the respondent's
CEO personally liable for back wages in a STAA complaint because,
as the person who discharged complainant, the CEO was liable
under the express language of section 2305. The Secretary noted
that the statute provides that "[n]o person shall
discharge" (emphasis added) an employee for conduct
protected by the STAA, and defines a person as "one or more
individuals . . . ." 49 U.S.C. §§ 2305(a), (b);
2301(4). She also noted that this approach was consistent with
an analogous employee protection provisions at Section 11(c) of
the Occupational Safety and Health Act of 1970, 29 U.S.C. §
660(c), and with other substantive law areas with similar
statutory language, i.e., Section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. § 9607. See Donovan v. Diplomat
Envelope, Inc., 587 F. Supp. 1417, 1425 (E.D.N.Y. 1984),
aff'd, 760 F.2d 253 (2d Cir. 1985) (unpublished);
Kelley v. Thomas Solvent Co.,727 F. Supp. 1532, 1541-45
(W.D. Mich. 1989).
Western and Ryerson were joint employers. Western was a leasing
agent of truck drivers, and Ryerson leased drivers from Western.
The employment responsibilities were shared between Ryerson and
Western. An incident occurred involving complainant in which he
refused to haul an unsafe load for Ryerson. Complainant's
assignments with Ryerson were subsequently terminated, and
Western declined to place complainant with another company for
work.
The Secretary interpreted the Surface Transportation Assistance
Act as not requiring a joint employer to knowingly participate in
a violation committed by another joint employer for liability to
accrue to the non-participating employer. In reaching such
interpretation, the Secretary relied on the broad definition of
"person" under the Act and on the balance of interests
sought to be achieved by Congress in enacting it. The Secretary
recognized that the Act's objective of substantially reducing
economic loss to employees was essential for promoting safety on
highways. Permitting an employee to recover against a joint
employer without showing that such employer knowingly
participated in the violation furthered the Act's overall policy
objectives. Palmer v. Western Truck Manpower,
Inc., 85-STA-16 (Sec'y Mar. 13, 1992).
[STAA Digest VII B 3]
EMPLOYER-EMPLOYEE RELATIONSHIP; LACK OF INVOLVEMENT IN HIRING OR FIRING DECISIONS
A respondent carrier that operated through independent contractor drivers, paid its independent contractors a percentage of gross receipts, screened drivers to make sure they qualified under its liability insurance and DOT regulations, but did not engage in the hiring or firing decisions of its independent contractors, who were responsible for withholding state and federal taxes and providing workers' compensation and unemployment insurance for their own employees, was not the Complainant's employer within the meaning of the STAA. Forrest v. Dallas and Mavis Specialized Carrier Co., ARB No. 04-052, ALJ No. 2003-STA-53 (ARB July 29, 2005).
[STAA Digest VII B 3]
JOINT EMPLOYER; INSUFFICIENT TO MERELY STATE THAT A COMPANY BE
INVESTIGATED AS A "POSSIBLE JOINT EMPLOYER"; RATHER, MUST
ALLEGE AN EMPLOYMENT RELATIONSHIP EXISTED
Where Complainant merely prayed in his complaint that a named co-Respondent, which
was not Complainant's employer, be investigated as "possible joint employer", the
ALJ granted the co-Respondent's motion for summary decision, noting that Complainant must
allege a set of facts which, if proven, could support his claim of entitlement to relief, and that
Complainant had not alleged the essential element of an employment relationship between
himself and the co-Respondent. Rockefeller v. U.S.
Dept. of Energy,1998-CAA-10 and 11 (ALJ Sept. 28, 1998).
JOINT EMPLOYER; VICARIOUS LIABILITY
[STAA Digest VII B 3]
Under the employee protection provision of the STAA, a joint
employer may be held vicariously liable, even in the absence of
knowing participation, for the discriminatory acts of another.
Cook v. Guardian
Lubricants, Inc., 95-STA-43, slip op. at 2 n.1 (Sec'y
May 1, 1996), citing Palmer v. Western Truck Manpower,
Inc., 85-STA-16 (Sec'y May 13, 1992), aff'd Western Truck
Manpower, Inc. v. United States Dept. of Labor, 12 F.3d 151,
153-54 (9th Cir. 1993)(Ninth Circuit, however, did not reach
strict liability aspect). The Secretary observed in
Cook that "[k]nowing participation is not established
when an employer has merely acquiesced in the discriminatory
conduct of a joint employer, as 'an entirely innocent and
unconscious instrument' of the perpetrating employers..."
Slip op. at 29, citing Carrier Corp., v. NLRB, 768 F.2d
778, 783 (6th Cir. 1985) (quoting NLRB v. Gluek Brewing
Co., 144 F.2d 847, 855 (8th Cir. 1944)). In Cook,
however, the Respondent was found to have knowingly participated
in the discrimination, making the strict liability aspect of this
rule unnecessary to invoke.
In cases involving leasing of drivers and trucks to a
separate business entity that shares employment responsibilities
with the respondent employer, the two entities are deemed joint
employers for the purpose of determining liability under the
STAA. Slip op. at 12.
In the instant case, the Respondent had an independent
contractor arrangement with the Complainant where the Respondent
provided and maintained the truck tractor and paid the
Complainant from revenues received from the assigned freight
company. The freight companies each exercised enough control
over the Complainant's day-to-day work assignments, including the
authority to reject the Complainant's services, to be considered
joint employers. In addition, the record established an
interrelationship between the operations of the Respondent and
the two transport companies, which the Secretary considered a
"significant factor." In essence, the Respondent
leased truck to drivers, and then drivers and trucks to freight
companies, while the transport companies were engaged in the
business of transporting freight. The Secretary noted that
because "this case involves an independent contractor
arrangement, a narrower range of employment responsibilities are
involved than those discussed in Palmer." Slip op.
at 13 n.10.
VII B 3 Joint Employers
In Palmer v. Western Truck Manpower, 85-STA-6
(Sec'y Jan. 16, 1987), the ALJ properly applied NLRB case law in
determining that Complainant was jointly employed by a trucking
company (WTM) and the company that leased Complainant's services
(Ryerson) from the trucking company.
Of the four criterion generally applied in NLRB cases to
determine whether there is joint employment -- namely
interrelation of operations, common management, centralized
control of labor relations and common ownership -- the ALJ
reasoned that the most important for purposes of the STAA is the
criterion of the interrelation of operations, and concluded that
such interrationship existed between WTM and Ryerson.
"Where a corporations possesses sufficient indicia of
control to qualify as a joint employer 'is essentially a factual
issue'." Tanforan Park Food Purveyors Council v.
N.L.R.B., 656 F.2d 1358, 1360 (9th Cir. 1981) quoting from
Boire v. Greyhound Corp., 376 U.S. 473 (1964). Thus,
where it has been established that a business entity controlled
the work schedules, assigned the work and decided when additional
workers were needed, a joint employer relationship has been
found. Sun-Maid Growers of California v. N.L.R.B., 687
F.2d 56, 59 (9th Cir. 1980).
In Palmer, Ryerson owned the trucks and supervised
Complainant; Complainant reported to work at the Ryerson yard and
punched a clock there; the time card was a WTM form used by
Ryerson's dispatcher to compute wages and benefits which he
phoned to WTM; Ryerson gave assignments and Complainant turned in
his "tac" reports to Ryerson; Ryerson approved overtime
and other time off, and Complainant reported inability to work
due to illness to Ryerson; vacation was handled by a calendar
from WTM which individual drivers noted desired vacation days --
changes were reported by drivers to Ryerson and approval by
Ryerson was required.
WTM maintained time records and issued Complainant's paycheck,
withholding taxes and made his social security payments, and
maintained workers' compensation coverage on him; WTM appeared as
the employer at any grievance proceedings; WTM had the ultimate
responsibility for discipline.
VII.B.3. Joint liability despite co-respondent's efforts
to ameliorate situation
Where the record indicated, inter alia, that Complainant's
earlier conduct may have justified a discharge, but no action had
been taken on the basis of such conduct until after Complainant
had engaged in protected activity, Respondent failed to establish
that it would have rejected Complainant for reemployment even if
Complainant had not engaged in protected activity. Palmer
v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16,
1987).
An additional aspect of Palmer is that Complainant
had joint employers, a trucking company and a company that leased
Complainant's services. The leasor refused to reemploy
Complainant. The Secretary held that if the leasor's reason was
motivated by Complainant's protected activity, the trucking
company was liable by virtue of being a joint employer. The
Secretary dismissed the ALJ's finding that the trucking company
did not violate the STAA because it made genuine efforts to have
the leasor reinstate Complainant and tried to place Complainant
with other trucking companies. The Secretary found such actions
irrelevant.
[Editor's note: The leasor was not made a party before the
ALJ.]
VII B 3 ALJ Remand
In White v. "Q" Trucking Company, 93-STA-
28 (ALJ Nov. 9, 1993), the ALJ recommended a remand to the Wage
and Hour Division for an investigation of whether an additional
party was liable as a joint employer and should be joined as a
party as required by Rule 19(a) of the Federal Rules of Civil
Procedure.
VII B 3 Joint Employer/knowing participation
The Secretary held that the STAA does not require "knowing
participation" of a joint employer's conduct towards the
complainant in order to impose back pay liability. Nevertheless,
the Secretary found that Western had knowingly participated in,
facilitated, and contributed to Ryerson's discriminatory conduct
towards Palmer.
Based on the Secretary's factual determination, Western is liable
to Palmer whether the standard of liability for joint employers
is strict liability or knowing participation. Thus, the court
did not address the standard of liability issue. The court
stated that factual determinations of the Secretary must be
upheld unless they are unsupported by substantial evidence. The
court found substantial evidence to support the Secretary's
conclusions. Therefore, the Secretary's decision was affirmed.
Western Truck Manpower, Inc. v. United States Dept. of
Labor, 12 F.3d 151 (9th Cir. 1993).
VII B 3 Joint Employers equally liable under STAA
In Slay v. Superior Transportation Systems, 88-STA-
1 (Sec'y Feb. 29, 1988), Respondent, Superior Transportation
Systems (STS), contracted to provide transportation services to
shippers, but owned no trucks and employed no drivers.
Complainant was employed as a truck driver for Discovery
Transportation Systems (DTS). The Respondent contracted with
DTS to deliver a load to a third party, Manville. Several days
after Complainant completed the delivery of that load,
Complainant notified his dispatcher that he did not have
sufficient hours to make an unrelated delivery. Shortly
thereafter Complainant was fired from his employment with DTS.
Subsequently Complainant told that the reason for his termination
was his belligerent conduct during his delivery of the load to
Manville. Respondent had contacted DTS and Complainant
contended that his discharge was in retaliation for refusing to
drive when he did not have enough hours to make another delivery.
Having determined that Respondent STS was subject to the STAA as
Complainant's employer, the Secretary held that STS and DTS were
Complainant's joint employers and as such they were both liable
for the acts of the other. The Secretary based this finding on
the communality of stockholders in both entities, the shared
office space, the performance of administrative functions by STS
for DTS, the general interrelationship between the function
performed by the "sister" entities, and most
importantly, the ultimate effective control by STS of who could
and who could not be employed as a driver on a load tendered by
it to DTS.
The STAA applies to interstate commerce and to intrastate
commerce that affects interstate commerce. See Taylor v.
J.K.Trucking, ___ STA ___ (Sec'y Oct. 31, 1988). Evidence of
minimal interstate commerce is not sufficient to establish
activity in interstate commerce. It is not necessary however, to
cross state lines to be within the ambit of Congress' power to
regulate interstate commerce. Its power extends not only to
actual commerce among the states but to such intrastate
activities as exert a substantial effect on interstate commerce.
Thus, where an Employer baled and sold scrap paper, picked by
complainant during intrastate collection runs to an out-of-state
buyer, the intrastate collection of paper, though not a major
portion of the employer's total activities, substantially
affected interstate commerce. The Secretary also found that
since Employer merely baled the scrap paper and did no further
processing of it before sale to the out-of-state buyer, there was
no break in the interstate movement of the paper. Nidy v.
Benton Enter., 90-STA-11 (Sec'y Nov. 19, 1991) (Secretary
did not reach issue of whether purely intrastate transportation
is covered by the STAA).
VII B 4 Hauling of mails affects interstate
commerce
In Gagnier v. Steinmann Transportation, Inc., 91-
STA-46 (Sec'y July 29, 1992), the Secretary found it
"obvious" that a Respondent's transportation activities
of hauling the United States mails affect interstate commerce,
and therefore is covered under the STAA whistleblower protection
provision. See Nidy v. Benton Enterprises, 90-STA-11
(Sec'y Nov. 19, 1991).
VII B 4 Engaged "in commerce"
In Killcrease v. S & S Sand and Gravel, Inc.,
92-STA-30 (Sec'y Feb. 2, 1993), the Respondent contended that it
was not subject to the STAA. The Secretary analyzed the
statutory and regulatory provisions in concluding that the
Respondent was subject to the STAA:
General provision imposing liability
STAA section 405(a) provides that "[n]o person
shall discharge * * * any employee * * * because such
employee * * * has filed any complaint * * * relating to a
violation of a commercial motor vehicle safety rule, regulation,
standard, or order * * * ." 49 U.S.C. app. § 2305(a)
(emphasis added).
STAA section 405(b) provides that "[n]o person shall
discharge * * * an employee * * * for refusing to operate
a vehicle when such operation constitutes a violation of any
Federal rules, regulations, standards, or orders applicable to
commercial motor vehicle safety or health * * *." 49 U.S.C.
app. § 2305(b) (emphasis added).
Definition of "person"
A "person" is "one or more individuals,
partnerships, associations, corporations, business trusts, or any
other organized group of individuals" for purposes of the
subchapter, 49 U.S.C. app. § 2301(4).
Definition of "employee"
An "employee" is a driver of a commercial motor
vehicle, a mechanic, a freight handler, or any individual other
than an employer "who is employed by a commercial motor
carrier and who in the course of his employment directly affects
commercial motor vehicle safety * * *." 49 U.S.C. app.
§ 2301(2).
Definition of "employer"
An "employer" is "any person engaged in a business
affecting commerce who owns or leases a commercial motor vehicle
in connection with that business, or assigns employees to operate
it in commerce, but such term does not include the United States,
an State, or a political subdivision of a State . . . ." 49
U.S.C. app. § 2301(3).
Definition of "commercial motor vehicle"
A "commercial motor vehicle" includes "any self-
propelled * * * vehicle used on the highways in commerce
principally to transport passengers or cargo" with a gross
vehicle weight rating of ten thousand or more pounds. 49 U.S.C.
app. § 2301(1).
Definition of "commercial motor carrier"
The term "commercial motor carrier" is not defined in
the subchapter but has been interpreted to include motor carriers
and motor private carriers described at 49 U.S.C. §
10102(13) (14), (15), and (16) (1988). See 29 C.F.R.
§ 1978.101(e).
Relationship between motor common carrier, motor contract
carrier and motor private carrier
A motor carrier either (1) holds itself out to the general public
to provide motor vehicle transportation for compensation (motor
common carrier) or (2) provides motor vehicle transportation for
compensation under a continuing agreement (motor contract
carrier). A motor private carrier transports property owned by
it, via motor vehicle, for sale or to further a commercial
enterprise.
In Killcrease, the Respondent was a private carrier
engaged in truck transport of sand and gravel which it mined,
processed, transported by commercial motor vehicle, and sold.
Therefore, it was a commercial motor carrier covered under STAA
section 405.
The Respondent also constituted an employer within the STAA
definition because its business affected commerce in that it
regularly transported (via its employees operating commercial
motor vehicles) sand and gravel, mined and processed at its pit
and plant in Lenox, Alabama, to customer facilities in other
locations in Alabama and occasionally to one location in Florida
(including occasionally backhauling sodium nitrate on a contract
basis).
The fact that Respondent's drivers regularly operated vehicles on
national interstate highways also supported a finding that it was
engaged "in commerce".
The Secretary distinguished regulatory schemes in which
classification of a "motor private carrier" can require
a quantum of transportation between States or across national
boundaries. E.g., 49 U.S.C. §§ 3101-3104 (DOT); 49 U.S.C.
Subtitle IV (ICC). STAA section 405 has a remedial purpose that
applies a more generic "commercial motor carrier" that
is not statutorily defined. Absent a statutory definition, the
Secretary concluded that it is appropriate to accord
"commercial," deriving from "commerce," its
legal meaning. [Editor's note: Secretary did not explain what
commercial's legal meaning is or provide a citation of authority]
In addition, the Secretary concluded that the legislative history
of the STAA militates in favor of construing the term expansively
to describe motor carriers "in" or
"affecting" commerce. See H.R. Conf. Rep. No.
987, 97th Cong., 2d Sess. at 163-164, reprinted in 1982
U.S. Code Cong. & Admin. News (USSCAN), 3639, 3744-
3745.
The House Conference Report noted Department of
Transportation authority to regulate "primarily with
regard to vehicles that cross State lines or national
boundaries or perform the intrastate portion of a continuous
interstate movement" and expressed the intent to extend
that authority so that "commercial motor vehicle
operations both in and affecting interstate and
foreign commerce" are regulated under the safety
subchapter (now 49 U.S.C. app. §§ 2301-2307).
H.R. Conf. Rep. No. 987 at 163, 1982 USCCAN at 3744
(emphasis added). Coverage under the subchapter extends,
for example, to vehicles designed to transport ten or more
persons to ensure "the highest levels of safety in this
particularly important transportation area." H.R.
Conf. Rep. at 164, 1982 USCCAN at 3745. Elsewhere in Title
49 coverage generally is limited to vehicles designed to
transport 15 or more persons. Compare with other
covering provisions where Congress explicitly has specified
application, e.g., 49 U.S.C. app. § 2306(f)
(commercial motor vehicle; meaning limited to section);
2314(c)(3) (interstate system); 2315(b)(2) (national
intercity truck route network); 2503(1) (commercial motor
vehicle); 2503(4) (interstate commerce); 2503(5) (intrastate
commerce); 2515(b) (commercial motor vehicle).
VII B 4 Interstate commerce; construction of facility
of interstate commerce; driving on interstate or
connecting highways without crossing state
lines
In Schuler v. M & P Contracting, Inc., 94-STA-
14 (Sec'y Dec. 15, 1994), the ALJ recommended dismissal of the
complaint on the ground that Respondent is not a covered employer
under the STAA because it "is not engaged in an activity
which substantially or minimally affects interstate
commerce."
The Secretary noted that Complainant introduced evidence that he
drove trucks for Respondent hauling material from a construction
project at an Airport, and alleged [apparently] that he drove
trucks in connection with work on a National Interstate Highway.
The Secretary then noted that Supreme Court decisions made it
clear that repairs or construction of a facility of interstate
commerce is engaging in commerce. In addition, the
Secretary noted that he has held under the STAA that driving
trucks on National Interstate, U.S. or interconnecting State
Highways demonstrates that otherwise covered employees are
engaged in commerce, even if state lines have not been
crossed.
VII B 4 In commerce versus affecting commerce
In Taylor v. T.K. Trucking, Inc., 88-STA-4 (ALJ
July 7 1988), Complainant was discharged from his employment with
Respondent for refusing to drive while impaired due to alcohol
and fatigue. Respondent's motor vehicles all has a gross vehicle
weight rating of more than 10,000 pounds. Although Respondent
hauled cargo solely within the state of Florida, it was also
established that in the course of Complainant's employment with
Respondent, he hauled cargo for another trucking company. The
point of origin for that cargo included Georgia and other
locations outside of Georgia.
The ALJ found that Respondent was liable under the STAA despite
its status as an intrastate carrier. In making his findings, the
ALJ distinguished between the standards of "affecting
commerce" and "in commerce". In order for the
STAA to be applicable, it must be shown only that the carrier was
"affecting commerce". "This 'affecting commerce'
standard can be compared with the much narrower scope of the 'in
commerce' language, i.e., in the Fair Labor Standards Act
(employees engaged 'in the production of goods for
commerce')." The choice made by Congress to use the standard
"affecting commerce" rather than "in
commerce" evidences Congressional intent to reach as many
employers as is constitutionally permissible.
The Secretary adopted the findings of the ALJ. (Sec'y Oct. 24,
1988).
VI B 4 Intrastate trucking company affects commerce
and is liable to the STAA
In Taylor v. T.K. Trucking, Inc., 88-STA-4 (Sec'y
Oct. 31, 1988), Complainant was discharged from his employment
with Respondent for refusing to drive while impaired due to
alcohol and fatigue. Respondent's motor vehicles all has a gross
vehicle weight rating of more than 10,000 pounds. Although
Respondent hauled cargo solely within the state of Florida, it
was also established that in the course of Complainant's
employment with Respondent, he hauled cargo for another trucking
company. The point of origin for that cargo included Georgia and
other locations outside of Georgia.
The Secretary accepted the ALJ's finding that despite the fact
that Respondent was an intrastate carrier, Respondent was engaged
in a business affecting commerce within the meaning of the Act.
In making this finding, the ALJ concluded that Respondent's
activities had a close and substantial relation to trade, traffic
and commerce among the states (Respondent was responsible for
hauling shipments for other trucking companies. These shipments
included Hersheys Chocolate and Clorox, which had their origin
outside the state of Florida.)
VII B 4 Motor carrier whose truck do not cross state lines;
affected interstate commerce nonetheless
In Arnold v. Associated Sand and Gravel Co., Inc.,
92-STA-19 (Sec'y Aug. 31, 1992), the respondent was engaged in
the intrastate sale and delivery of cement. Its drivers
transported cement over major state and interstate highways. It
also manufactured concrete pipe which it sold wholesale and
delivered intrastate for use in commercial projects. On rare
occasions, the respondent may travel out-of-state to pick up
products. A separate company delivers dry bulk cement
originating out-of-state to the respondent.
The respondent contended that it was not covered under the
whistleblower provisions of the STAA because it did not engage in
interstate commerce.
The Secretary found that the respondent was a private carrier
engaged in truck transport of cement and concrete pipe which it
manufactures, transports by commercial motor vehicle, and sells,
and therefore reasonable constituted an employer covered under
section 405(a) of the STAA. She also found that the respondent
constituted an employer within the STAA definition because its
business affects commerce in that
it operate ready-mix facilities in the States of
Washington and Oregon,
it sells concrete pipe to utility contractors,
it imports bulk cement from out-of-state for use in
manufacturing its products,
it assigns employees to operate commercial motor
vehicles in connection with its business, and those drivers
operate on routes carrying traffic through California,
Oregon, and Washington, and across the Northern United
States. See Howe v. Domino's Pizza Distribution
Corp., 89-STA-11 (Sec'y Jan. 25, 1990) (test is not
whether a state line is crossed but whether the vehicle is
driven on a highway, directly affecting motor vehicle
safety).
its drivers regularly operate on National Interstate
Highways. See Brennan v. Keyser, 507 F.2d 472, 474-
475 (9th Cir. 1974), cert. denied, 420 U.S. 1004
(1975) (operators performing work on highways serving as
interstate connections engaged in commerce for purposes of
FLSA coverage). To the same effect: Gray v. Swanney-
McDonald, Inc., 436 F.2d 652 (9th Cir. 19xx), cert.
denied, 402 U.S. 995 (1971).
The Secretary distinguished DOT and ICC regulations that indicate
that this respondent would not comprise a "motor private
carrier."
Corporations are within the STAA definition of
"person." 49 U.S.C. app. § 2301(4). Obsorn
v. Cavalier Homes of Alabama, Inc. and Morgan Drive Away,
Inc., 89-STA-10 (Sec'y July 17, 1991).
A corporation that leased truck tractors and driver transport
services for assignment within a pool of manufacturers is within
the STAA definition of "employer." 49 U.S.C. app.
§ 2301(3). Obsorn v. Cavalier Homes of Alabama, Inc.
and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17,
1991).
VII B 5 b STAA definition of employer
Where a dispatcher was employed by a home manufacturer but acted
as an agent for a truck leasing and driver services company (he
assigned drivers; took employment applications from and
interviewed drivers; "recommended whether the leasing
company should suspend or bar drivers from serving the home
manufacturer, and signed checks issued by the leasing company to
compensate the drivers), and where at one time drivers were
employed directly by the home manufacturer and the home
manufacturer later continued to control which drivers were
assigned to transport its mobile homes, the manufacturer was an
"employer" within the meaning of 49 U.S.C. app. §
2301(3). Obsorn v. Cavalier Homes of Alabama, Inc. and
Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17
1991).
In Slay v. Superior Transportation Systems, 88-STA-
1 (Sec'y Feb. 29, 1988), Respondent, Superior Transportation
Systems (STS), contracted to provide transportation services to
shippers, but owned no trucks and employed no drivers.
Complainant was employed as a truck driver for Discovery
Transportation Systems (DTS). The Respondent contracted with
DTS to deliver a load to a third party, Manville. Several days
after Complainant completed the delivery of that load,
Complainant notified his dispatcher that he did not have
sufficient hours to make an unrelated delivery. Shortly
thereafter Complainant was fired from his employment with DTS.
Subsequently Complainant told that the reason for his termination
was his belligerent conduct during his delivery of the load to
Manville. Respondent had contacted DTS and Complainant
contended that his discharge was in retaliation for refusing to
drive when he did not have enough hours to make another delivery.
Based on the showing that STS was engaged in a business affecting
commerce and effectively had the power to control DTS's
assignment of drivers, including Complainant, when a shipment
tendered by it to DTS was involved, the Secretary affirmed the
ALJ's finding that Respondent, STS was Complainant's employer and
therefore was subject to the STAA.
[STAA Whistleblower Digest VII B 5 c]
PARTY; WHETHER LAWYER AND LAW FIRM REPRESENTING A RESPONDENT MAY BE A "PERSON" WHO MAY BE SUED UNDER STAA WHISTLEBLOWER PROVISION
In Somerson v. Mail Contractors of America, ARB No. 03 042, ALJ No. 2003 STA 11 (ARB Oct. 14, 2003), Complainant alleged that the filing of a request for a protective order and witness interview restriction in a prior case constituted a violation of STAA whistleblower law, naming Employer's attorney and his law firm as respondents. The ALJ recommended dismissal of the complaint in regard to the attorney and law firm on the ground, inter alia, that they were not employers as defined by 49 U.S.C.A. § 31101(3)(A). The ARB wrote:
Thus, the ALJ's dismissal of the complaint against MCOA's legal representatives was based initially on his determination that a "person" under 49 U.S.C.A. § 31105(a) must be an "employer" under 49 U.S.C.A. § 31101(3)(A). However, a "person" is defined under the STAA's interpretive regulations as "one or more individuals, partnerships, associations, corporations, business trusts, legal representatives or any group of persons." 29 C.F.R. § 1978.101(i). Thus the definition of "person" does not exclusively restrict its coverage to "employers," and in fact, specifically includes "legal representatives." It is indisputable that the provision includes employers and that in most cases a "person," who is in the position to discharge, discipline or discriminate against an employee, will be an employer.
The ARB, however, declined to decide this issue, as it disposed of the case on other grounds. See alsoSomerson v. Mail Contractors of America, ARB No. 03 042, ALJ No. 2003 STA 11 (ARB Dec. 16, 2003) (Order Denying Complainant's Motion to Vacate, strongly reinforcing that the ARB had not determined this issue in the Oct. 14, 2003 decision).
[STAA Whistleblower Digest VII B 5 c] EMPLOYER; OUTSIDE COUNSEL FOR RESPONDENT
[STAA Digest VII B.5.c.]
EMPLOYER/EMPLOYEE; GOVERNMENT EMPLOYEE NOT COVERED
EMPLOYEE UNDER THE STAA; GOVERNMENT HAS NOT WAIVED SOVEREIGN
IMMUNITY UNDER STAA
In Rockefeller v. Carlsbad Area Office, U.S.
Dept. of Energy, ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998-
CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), the ARB found that an
environmental specialist for the U.S. Department of Energy could not maintain a STAA
whistleblower complaint against either the Department of Energy nor a private company. The
ARB held:
The STAA's definition of "employee" explicitly excludes "an
employee of the United States Government," and the definition of
"employer" explicitly excludes "the Government." 49
U.S.C. §31101(2)(B), §31101(3)(B). There is no ambiguity in these
scope provisions, and therefore we can rely upon their plain meaning. Moreover,
the United States is immune from suit absent an explicit statutory
waiver of sovereign immunity. United States Dep't of Energy v.State of Ohio, 503 U.S. 607, 615 (1992) (any waiver of the government's
sovereign immunity must be "unequivocal"). Here we have
an explicit statutory invocation of such immunity. Therefore, with
respect to his complaint against DOE, neither Rockefeller nor DOE is covered by
the statute.
Slip op. at 6-7. The ARB rejected Complainant's contention that the Secretary's decision in
Flor v. U.S. Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994), is binding precedent
for the proposition that government employees may sue their government employers under the
STAA. The ARB found that decision in Flor did not purport to address or decide that
issue.
[STAA Digest VII B 5 c]
EMPLOYER; DOES NOT APPLY TO UNITED STATES, A STATE , OR A
POLITICAL
SUBDIVISION OF A STATE
In Moore v. U.S. Dept. of Energy, 1998-CAA-16 (ALJ Dec. 24, 1998),
the ALJ granted Respondent's motion to dismiss the STAA component of Complainant's
complaint, where there was no factual dispute that Complainant at all times relevant was an
employee of the United States government. The ALJ held, as a matter of law, that employees of
the United States government are expressly excluded from protection under the STAA.
See 49 U.S.C. §§ 31101(2)(B) and (3)(B); 29 C.F.R. § 1978.101(d).
[STAA Digest VII B 5 c]
EMPLOYER; DOES NOT APPLY TO UNITED STATES, A STATE , OR A POLITICAL
SUBDIVISION OF A STATE
Where Complainant was an employee of the U.S. Department of Energy, the ALJ, in a
recommended decision on summary judgment, found that Complainant could not invoke the
whistleblower provision of the STAA because of the statutory exclusion of the United States
from the definition of an "employer" under that Act. Rockefeller v. U.S.
Dept. of Energy, 1998-CAA-10 and 11 (ALJ Sept. 28, 1998), citing 49 U.S.C.
§
31101(3)(A)(B), and Killcrease v. S&S Sand and Gravel, Inc.,1992-STA-30 @ 2 n.1
(Sec'y, Feb. 2, 1993). The ALJ rejected Complainant's citation to Flor v. U.S. Dept. of
Energy, 1993-TSC-1 (Sec'y Dec. 9, 1994) (Complainant in Flor included a STAA
complaint; Secretary found that Complainant had filed a timely STAA complaint), on the ground
that the issue of the statutory exemption of the United States was not addressed in that decision.
In Rowland v. Easy Rest Bedding, Inc., 93-
STA-19 (Sec'y Nov. 21, 1994), the Secretary detailed the
factors relevant to determining successorship and
successorship liability in labor-related cases:
whether the successor company had notice of the
charge;
the ability of the predecessor to provide relief;
whether there has been substantial continuity of
business operations;
whether the new employer uses the same plant;
whether the new employer uses the same or
substantially the same work force;
whether the new employer uses the same or
substantially the same supervisory personnel;
whether the same jobs exist under substantially
the same working conditions;
whether the new employer uses the same machinery,
equipment and methods of production, and
whether the new employer produces the same
products.
Secretary of Labor on behalf of Keene v. Mullins,
888 F.2d 1448, 1453-54 (D.C. Cir. 1989), citing EEOC v.
MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1094
(6th Cir. 1974).
