UPS challenges $47K judgment in OSHA whistleblower complaint
December 10, 2019
UPS Ground Freight is challenging an administrative ruling that would require them to pay more than $47,000 in compensatory and punitive damages to a driver who filed a whistleblower complaint against his managers at a New Hampshire facility, after he was fired for refusing to drive without an ELD.
Last month, OSHA issued a news release on its finding that UPS Ground 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 Ground 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.
A spokesman for the Richmond, Va.-based carrier says the company is challenging the ruling from the U.S. Department of Labor’s Occupational Safety and Health Administration because they already paid a settlement to the Federal Motor Carrier Safety Administration.
“UPS also worked with the local union to reinstate our employee without loss of pay,” UPS spokesman Matt O’Connor said in an email to Land Line on Tuesday. “UPS has contested the situation with OSHA because the situation has already been resolved.”
FMCSA’s enforcement records show that a settlement was reached between UPS Ground Freight and the agency on September 18, for violating Sections 383.37(a) and 390.6 of the FMCSRs. The settlement amount was listed as $9,220. Unlike the OSHA ruling however, the money paid in the FMCSA settlement goes to the government, not the driver.
Per Department of Labor guidelines, OSHA 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.