OSHA backs UPS driver who refused to drive without an ELD

A UPS Ground driver who was fired for refusing to drive without an ELD will receive more than $47,000 in compensatory and punitive damages, according to an announcement from the U.S. Department of Labor.

Last month, the Labor Department’s Occupational Safety and Health Administration issued a news release on a finding that UPS Freight violated the Surface Transportation Assistance Act when managers retaliated against a driver at the Londonderry, N.H., facility. The driver had refused to operate a commercial motor vehicle that did not have either a permanent electronic logging device or a mounting device for a portable ELD.

OSHA ordered UPS Freight to pay the driver $15,273 in compensatory damages, $30,000 in punitive damages, and approximately $2,700 in back wages plus interest. The driver filed a whistleblower complaint against the company. Per Department of Labor guidelines, the agency does not release the names of employees involved in whistleblower complaints.

According to the news release, OSHA investigators determined that in March 2019 the driver refused in good faith to drive a truck without either a permanent ELD or a mounting device for a portable ELD because he believed doing so would violate the Federal Motor Carrier Safety Regulations. FMCSR required the driver to use an ELD, and the company to provide a vehicle with either a permanent ELD or a portable ELD mounted in a fixed position during his assigned route.

Investigators also determined that the driver’s supervisor was not trained on FMCSR’s requirements for ELDs and that company managers “attempted to coerce the complainant into violating the regulation” the release stated. When the driver refused to comply, the company terminated him for “gross insubordination.”

Investigators reportedly found that the company later modified the driver’s termination to a suspension and engaged in post-reinstatement harassment.

In addition to the monetary award, OSHA also ordered the company to take additional corrective actions to resolve violations of the whistleblower provisions of STAA, including:

• Clear the driver’s personnel file of any reference to the issues involved in the investigation.
• Post a notice informing all employees of their whistleblower protections under STAA.
• Refrain from firing or discriminating against any employee who engages in STAA-protected activity.
• Not use a driver’s refusal to drive because of a good-faith concern that doing so would violate an FMCSR as a contributing factor in any termination decision.

“Truck drivers are protected from retaliation when they refuse to violate laws put in place to protect their safety and health,” OSHA Regional Administrator Galen Blanton said in the news release. “This order underscores the agency’s commitment to protect workers who exercise their right to ensure the safety of themselves and the general public.”

OSHA enforces the whistleblower provisions of the Surface Transportation Assistance Act and more than 20 whistleblower statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. More information on whistleblower protections can be found at OSHA’s Whistleblower Protection Programs webpage.