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Wednesday, August 27, 2014

Transportation employers, can you survive an OSHA audit?

By: Tommy Eden and David Smith

The federal Occupational Safety and Health Administration and the Federal Motor Carrier Safety Administration are tag-teaming transportation employers. They’ve signed a Memorandum of Understanding in which they agree to share information about allegations of safety, coercion, and retaliation.

The FMCSA Auditor is on the left. 
And last week, OSHA ordered a Michigan asphalt company to pay almost $1 million to a foreman and two drivers who claimed that they were fired in violation of the Surface Transportation Assistance Act for engaging in protected activity related to driver hours of service.

It’s a mistake for trucking employers to breathe a sigh of relief when the FMSCA auditor drives away – the OSHA inspector may be right behind. Here are some areas you should look at before any auditor or inspector arrives:

*Forklift Compliance. Are forklifts in good working order, with legible data plates and functioning seatbelts that are consistently used? Are attachments approved by the manufacturer? Do you regularly conduct required pre-shift inspections? Have all operators been trained and evaluated, and then re-evaluated every three years?

*Loading Docks. Do you regularly review procedures and check equipment used to prevent trailers from mistakenly pulling away while being loaded? And, if any loading dock is 4 feet high or higher, to prevent forklifts or employees from falling off the dock?

*Terminal shop and fuel islands. These are considered “low-hanging fruit” for OSHA inspectors, who frequently find unguarded or unanchored grinders and drills, use of compressed air without safety nozzles, lack of eyewash facilities, trailer top repair work without fall protection, and unlabeled containers of oil, antifreeze, or even window washer fluid.

Watch out for that low-hanging fruit!
*Safety shoes. OSHA inspectors have even been known to cite employers for not requiring dock employees to wear safety shoes with protective toes.

*FMSCA compliance. Yes, even the OSHA inspector may tell you in the closing conference that employees alleged FMCSA violations, such as exceeding hours of service, falsification of logs, or improper maintenance of tractors and trailers. The OSHA inspector may also notice and refer visible FMCSA compliance issues, such as improperly loaded trailers, missing or erroneous hazardous material placards, or hazardous cargo that is improperly packaged and leaking, or missing the required labels.

*Whistleblowers. Of course, because the primary focus of the MOU is whistleblower protection, either an FMCSA auditor or an OSHA compliance officer would quickly refer any claim of safety-related retaliation. Those complaints would be referred to OSHA’s Whistleblower Protection Programs division for investigation. All trucking employers should already have in place an effective whistleblower protection policy, with training for managers, supervisors, and employees.

With a good safety and whistleblower policy in place, you should be ready for the FMCSA-OSHA “tag team.”

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and represents FMCSA regulated employers in Workplace Drug & Alcohol Testing Practice Area, He can be contacted at or 334-246-2901. Blog This column was co-written by David Smith from Constangy’s OSHA practice group in Atlanta who can be contacted at or 404-230-6785. 

Friday, August 22, 2014

Federal Motor Carrier Safety Administration, OSHA, Sign Agreement Strengthening Protections for Workers from Coercion, Retaliation

OSHA New Release July 24, 2014
WASHINGTON – The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) and the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) have signed a Memorandum of Understanding to strengthen the coordination and cooperation between the agencies regarding the anti-retaliation provision of the Surface Transportation Assistance Act (STAA).  The Memorandum allows for the exchange of safety, coercion and retaliation allegations, when received by one agency, that fall under the authority of the other.
The STAA protects drivers and other individuals working for commercial motor carriers from retaliation for reporting or engaging in activities related to certain commercial motor vehicle safety, health or security conditions.

“This strengthened partnership with OSHA extends our inter-agency collaboration specifically to include the sharing of reports of alleged coercion – companies forcing or intimidating truck or bus drivers to violate federal safety regulations,” said FMCSA Administrator Anne S. Ferro.  “Pressuring drivers to stay behind the wheel beyond their hours-of-service limits, or to disregard other federal safety rules, seriously jeopardizes the safety of every traveler on our highways and roads.  Commercial truck and bus companies that knowingly endanger the motoring public, or retaliate against whistleblowing employees, will be prosecuted to the fullest extent of the law.”
“Commercial vehicle drivers who report injuries, hazards and illegal work practices should not fear retaliation for speaking out about unsafe work conditions,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.  “Through this agreement, we are sending a clear message that silencing workers who try to do the right thing is unacceptable for workers and also unsafe for the public.”

FMCSA and OSHA each play a specialized role in protecting the safety of commercial drivers and of the motoring public.  OSHA investigates employee complaints of retaliation by commercial truck and bus companies.  FMCSA is responsible for regulating both industries and – along with its state law enforcement partners – ensuring company and driver compliance with federal safety regulations, including driver on-duty and driving time limits to prevent fatigue, commercial driver’s licenses rules, medical qualifications, drug and alcohol testing, hazardous materials safety standards and others.

In the last nine years, OSHA has processed more than 2,800 cases under STAA.  Recently, OSHA ordered an Iowa waste removal company to reinstate a driver and pay the employee more than $123,000 in compensation after the company terminated the driver for raising safety concerns over company routes that violated U.S. Department of Transportation regulations, potentially causing serious injury to the worker, co-workers or the public.  For more information on that case, read the press release at:
Under the MOU, FMCSA will refer employees who complain of retaliation to OSHA, and OSHA will provide FMCSA with copies of complaints filed and findings issued under STAA.  The agencies will report to each other annually on information shared during the previous year.  The MOU also provides that FMCSA will process OSHA requests for information from various FMCSA databases.

The public, commercial drivers, motor carriers and other industry members may file a safety, service or discrimination complaint against a household goods moving company, bus or truck company, including hazardous materials hauler or a cargo tank facility, by calling toll free 1-888-DOT-SAFT (1-888-368-7238) from 9:00 a.m. to 7:00 p.m., Monday through Friday, Eastern Time.  Complaints may also be submitted through FMCSA’s National Consumer Complaint website at:

FMCSA was established as a separate administration within the U.S. Department of Transportation on January 1, 2000, pursuant to the Motor Carrier Safety Improvement Act of 1999.  Its primary mission is to reduce crashes, injuries and fatalities involving large trucks and buses.  For more information on FMCSA’s safety programs and activities,

OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act and 21 other statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety and consumer financial reform regulations.  Additional information is available at:

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees.  OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.  For more information, visit

Asphalt Specialists ordered to pay nearly $1M in compensation and to reinstate drivers terminated for raising safety concerns

OSHA Press Release 8-18-2014
PONTIAC, Mich. – Asphalt Specialists Inc. has been found in violation of the Surface Transportation Assistance Act by the U.S. Department of Labor's Occupational Safety and Health Administration for wrongfully terminating a foreman and two truck drivers. They had raised safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers.

Headquartered in Pontiac, the asphalt paving company was ordered to reinstate the three employees to their former positions with all pay, benefits and rights. The company was ordered to pay a total of $953,916 in damages: $243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages.

"It is illegal for an employer to retaliate against employees who report work-related safety concerns or violations of federal transportation regulations, which require drivers to have a minimum 10-hour rest period between shifts," said Assistant Secretary of Labor for OSHA Dr. David Michaels. "OSHA is committed to protecting workers from retaliation for exercising basic worker rights."

The foreman was terminated from employment on June 30, 2012. The foreman repeatedly raised concerns to the company's co-owner about exceeding hours of service when job assignments repeatedly failed to allow for the 10-hour rest period mandated by the Department of Transportation. At least twice, the foreman and the crew were expected to work more than 27 hours straight. The employee rightfully refused to operate a vehicle in an unsafe manner, which could potentially cause serious injury to the worker, co-workers or the public. OSHA has ordered the foreman to be reinstated and to receive back wages of $147,457, less any applicable employment taxes; $50,000 in compensatory damages and $200,000 in punitive damages.

The second truck driver was terminated from employment on April 26, 2013. The employee also raised concerns about the number of work hours required by the company and refused to sign an affidavit denying that the worker was required to work in excess of the number hours legally permitted. Asphalt Specialists sought the affidavit to use in their response to OSHA's investigation of the fired foreman's claims. OSHA has ordered this driver to be reinstated and to receive back wages of $44,379, less any applicable employment taxes; $30,000 in compensatory damages and $200,000 in punitive damages.

The third driver was terminated from employment on July 8, 2013, after raising concerns about vehicle maintenance and about the number of hours they were expected to drive. OSHA has ordered the driver to be reinstated and to receive back wages of $52,080, less any applicable employment taxes; $30,000 in compensatory damages and $200,000 in punitive damages.

The Surface Transportation Assistance Act covers private-sector drivers and other employees of commercial motor carriers. Companies covered by the STAA may not discharge their employees or retaliate against them for refusing to operate a vehicle because doing so would either violate a federal commercial motor vehicle rule related to safety, health or security, or because the employee had a reasonable apprehension of serious injury to themselves or the public because of a vehicle's safety or security condition.
Any of the parties in this case can file an appeal with the department's Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of the STAA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA's Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit

Same-Sex Trucking Trainer Ruled Discriminatory

By: Tommy Eden 
            St. Louis based New Prime Inc. implemented a "same-sex trainer policy" in 2004.  Prime is an interstate trucking company with over 4,000 trucks and about 6,700 drivers, both independent contractors and employees. It required all applicants who do not meet Prime's driver experience requirements to receive over-the-road training by an instructor and/or trainer who is the same gender as the applicant unless there is some pre-existing relationship between the female applicant and male instructor/trainer. The over the road training could take up to one year depending on the trainee’s level of past experience. Prior to the adoption of this policy, women were put on trucks with the first available instructor/trainer regardless of their gender. The same-sex trainer policy was adopted after Prime was involved in a sexual harassment case brought by three female truck driver trainees.

            The effect of this policy was that when a female applicant was ready to be assigned to a trainer or instructor a female driver had to be available and or was placed on a "female waiting list". Prime only had 5 female trainers and hundreds of female applicants. Prime did not have a male waiting list. The female waiting list could be longer than a year.

            Deanna Clouse, a female, applied for enrollment with Prime's driver training program. In January 2009, Clouse was told Prime would call her when they had a female trainer available but "not to hold her breath." She informed Prime that she was willing to be trained by a man in order to enter the training program but was told that was not allowed. After 6 months with no call, Clouse filed an EEOC charge. The EEOC then took on Clouse’s case and converted it into a class investigation, and later filed suit in Federal Court.

            Last week a Federal District Judge ruled that the Prime Same-Sex Training Policy was unlawfully discriminatory under Title VII of the Civil Rights Act of 1964. There is a class of 675 females who will most likely participate in the damage stage of the case.

Common Sense Counsel: The only thing worse than not reacting to complaints of harassment is over reacting. This week the Office of Federal Complaint Compliance issued directives on gender-identity discrimination. So when you do your next respectful workplace training consider including sexual orientation and gender identification and follow these seven tips: 1) include all protected classifications; 2) provide “suitable for work” examples; 3) explain various reporting channels; 4) make sure you are using a legally compliant policy; 5) avoid legalese; 6) do it regularly; and 7) get a signed policy receipt.

            Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter @tommyeden3 

Tuesday, August 12, 2014

Smokin’ Spuds in EEOC Deep Fryer

By: Tommy Eden 
A production supervisor for Smokin’ Spuds Inc. based in Colorado had a habit of licking his finger and putting it in the ears of at least two of the female workers as he sexually propositioned them, according to a recent EEOC lawsuit. He also allegedly touched female employees’ buttocks while they clocked in for work, forced others to sit on his lap in a dark office while he made inappropriately sexual remarks, licked his lips while watching them from a distance and other offensive conduct.

The EEOC claimed in a Federal Court complaint that at least three of the women named in the suit were forced to perform undesirable work and eventually fired after they opposed or reported the production supervisor’s conduct. When one of the female employees reported the supervisor’s sexual harassment to the manager, she was sent home for the rest of the day and asked to write a statement reporting the supervisor’s conduct. Two managers then met with her the following morning, and then told her to go to lunch while they decided what to do about her report concerning sexual harassment. When she returned approximately forty minutes later, a manager told her she was being terminated for being gone too long for lunch.

Smokin’ Spuds never took any disciplinary or corrective action against the offending supervisor, the suit claims. The case was filed by the EEOC on August 7, 2014 in the U.S. District Court for the District of Colorado. 

 Common Sense Counsel: The EEOC just released 2013 statistics on Harassment Charges that the monetary relief has increased dramatically – from $82.1 million in fiscal year 2012 to $97.3 in fiscal year 2013. With Smokin’ Spuds troubles in mind, below are Constangy law partner Robin Shea’s, Top 12 Employer Harassment Mistakes:

 1. Having a harassment policy that covers sexual harassment only — nothing about race, national origin, disability, age, or religion.
2. Having a policy that requires the accuser to report the harassment through the chain of command.
3. Policy or training that is too legalistic.
4. No training.
5. Training that does not occur unless you’ve been sued.
6. Supervisors who, when receiving a harassment complaint, start investigating (or, heaven forbid, making determinations) on their own.
7. Related to No. 6, failure to timely notify Human Resources or your lawyer about a complaint of harassment.
8. Not promptly separating the accuser and the accused, to (a) prevent further incidents, or (b) prevent further false accusations. (Consider suspending the accused with pay while you investigate. For everybody’s protection.)
9. Overreaction.
10. Under reaction.
11. Failure to follow all leads when conducting your investigation.
12. Failure to follow up with the accuser after the investigation is over.

Robin’s full blog article is available at

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.comor 334-246-2901. Blog at and follow on twitter @tommyeden3

Wednesday, August 6, 2014

Solid Documentation Trumps FMLA Lawsuit

By: Tommy Eden
Erika Langenbach worked for Wal-Mart for over ten years, moving her way up the internal hierarchy. Her progress was consistent until she sought promotion to an Assistant Manager position. Eventually, she completed the company Management-In-Training program and began work as an Assistant Manager.

Although she had impressed her bosses with her previous work, the Assistant Manager position proved to be a challenge. Langenbach struggled with delegation, organization, and time management. 

Langenbach’s annual review took place three months prior to her July FMLA leave request. Her store manager gave her a competency score of 2.63 out of 5 and a rating of “Development Needed.” The review noted that Wal-Mart needed to see a “complete turn around” from Langenbach and a renewed sense of “urgency and time management.” It described specific issues complying with the overnight stocking program, attendance, and holding underperforming associates accountable.

Her mid-year evaluation took place after she returned from FMLA leave. Although the evaluation was prepared in July, before Langenbach took her leave, Wal-Mart decided to deliver it after she returned. This evaluation assessed Langenbach’s overall competency rating at 2.26 out of 5 and assigned her an overall performance rating of “Development Needed.” After receiving more negative performance reviews post FMLA leave, she was fired. Her termination happened to come five months after she returned from FMLA leave.

Langenbach then sued in Wisconsin Federal Court alleging that Wal-Mart retaliated against her for exercising her FMLA rights and discriminated against her because of her sex by delaying her promotion to Assistant Manager, paying her less than her male counterparts, and refusing to promote her further. The district court dismissed the suit following Wal-Mart’s motion for summary judgment, and the 7th Circuit Court of Appeals this week agreed with the dismissal finding that Langenbach had a history of documented performance issues that preceded her FMLA leave and that Wal-Mart had “voluminous evidence” to prove that she was not meeting its legitimate expectations.

Common Sense Counsel: How does an employer (fairly and respectfully) fire someone without getting sued, or win the case if they do? Or in the legal world, bullet proof your discharge decision? Asking yourself the following 5 questions before you pull the discharge trigger will help:

1) Can you prove that the employee had fair notice of the rules or standards of conduct or production standards?

2) Did you conduct a fair investigation before a decision was made?

3) Were you consistent in the manner in which discipline was administered?

4) Did you first utilize progressive discipline?

5) Have you developed an objective and respectfully worded paper document trail proving you followed each one of the above steps?

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at with June 10, 2013 Bullet Proofing Your Employee Discharge Decision OA News Article. Follow on twitter @teden3

Friday, August 1, 2014

Obama’s Scarlet Letter for Federal Contractors

By Tommy Eden
On July 31, 2014, President Barack Obama signed yet another Executive Order directing those companies who contract with the Federal Government to disclose an extensive category of labor violations, both on the Federal and State level. For those contractors where the estimated value of the supplies acquired or services provided exceeds $500,000, the contractor will be required to disclose to the contracting officer any administrative merit determinations, awards or decisions, rendered against it within the preceding three year period covering over 15 different categories of labor laws and standards. For contracts in excess of a million dollars, federal contractor will be prohibited from requiring mandatory arbitration of employment claims. The Executive Order becomes effective immediately.

Common Sense Counsel: For a Federal Contractor, the cost of non-compliance just got extremely high. Proactively prevention of all labor employment related claims using an extensive work-site compliance audit is your first step to avoiding the President’s Scarlet Letter which could cause loss of a federal contract.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter @tommyeden3