On Transportation...

Paul Taylor, a friend of GAP’s, who represents whistleblowers in the trucking industry, passed along the following note.  Apparently, the Department of Labor is an astonishing (even for this government) seven years behind in issuing a congressionally required report with DOL’s recommendations for strengthening the surface transportation (trucker, bus, etc.) whistleblower protections implemented by DOL. 

Thank goodness Congress didn’t wait for DOL to act.  In August, President Bush signed into law the most complete whistleblower protection legislation ever passed by the U.S. Congress.  It amended the surface transportation whistleblower statute and added corresponding protections for rail and public transit employees. 

As Paul notes below:

“These are changes that truck safety advocates wanted made to the [law] and they were implemented with no help from DOT or DOL.

I have to wonder whether some of these changes might have been to the STAA years ago if DOT and DOL had done their job and had the report issued by June 2000 as directed by Congress.

Lives might have been saved if the provisions implemented on August 3, 2007, had been implemented 7 years ago.”

Please read the note below and thank the Members of Congress, particularly Rep. Ed Markey of Massachusetts, Rep. Bennie Thompson of Mississippi, and Sen. Daniel Inouye of Hawaii for taking action where two consecutive administrations failed.

On June 9, 1998, Congress passed legislation requiring, among other things, the Secretary of Transportation, "in conjunction with the Secretary of Labor" to investigate whether the statutory employee protections for truck drivers (49 U.S.C. Sec. 31105) and to report back to Congress concerning the results of the investigation and "include recommendations to address any statutory changes necessary to strengthen the enforcement of such employee protection provisions."

The report by DOT was due June 9, 2000.  It has not yet been issued.

For some unknown reason, the Department of Transportation or the Department of Labor, or both, either do not care about the Congressional mandate, or they do not want the results of the study conducted more than 7 years ago to be released.

Since 2002 I have been trying to find out when the report would be issued.  I enlisted the help of aides to my Congressman, John Kline (D-Minn.), and Congressman James Oberstar (D-Minn), Chairman of the House Transportation Committee.

I wrote letters to John Hill, FMCSA Administrator, on October 5, 2006, and April 4, 2007, asking when the report could be expected.  Mr. Hill did not answer my letters until July 12, 2007, after I called his office twice and asked to speak with him personally.  When Mr. Hill finally responded by letter to me, he asked me to deal with Carol Zok in his office (I have no problem with dealing subordinates so long as they are responsive).

Today I was informed that the mandatory report that was due from DOT nearly 7 1/2 years ago will be issued within the next 60 to 90 days.  Apparently the report is being reviewed by the Assistant Secretary of Labor for Occupational Safety and Health.

I am not holding my breath.

It should be noted that in May 2007, the House Education and Labor Committee held a hearing to address the Department of Labor's failure to timely decide whistleblower cases including cases filed by truck drivers.  The Committee also addressed whether or not whistleblower protections need to be strengthened for employees in the private sector.

On August 3, 2007, President Bush signed the Implementing Recommendations of the 9/11 Commission Act, Public Law 110-053…The amendments to the STAA expand the scope of activities that qualify for protection under the STAA including, but not limited to, a protection for commercial drivers accurately recording their activities on their records of duty status...

…The procedural amendments to the STAA also allow an employee/truck driver to pull his case away from the Department of Labor and put it in U. S. District Court with a jury trial.

These are changes that truck safety advocates wanted made to the STAA and they were implemented with no help from DOT or DOL.

I have to wonder whether some of these changes might have been to the STAA years ago if DOT and DOL had done their job and had the report issued by June 2000 as directed by Congress.

Lives might have been saved if the provisions implemented on August 3, 2007, had been implemented 7 years ago.

Notwithstanding the new amendments to the STAA, the mandatory report on the effectiveness of the STAA's whistleblower provisions and recommendations for strengthening the STAA should still be issued.  Additional changes for strengthening the STAA's whistleblower protections for truck drivers should include a provision vesting OSHA with administrative subpoena powers in STAA cases so that unscrupulous trucking companies cannot just thumb their noses at OSHA and frustrate their investigations.  Additionally, a provision should be implemented where the recommended decision and order of a DOL administrative law judge become the final order of the Secretary of Labor where the DOL's Administrative Review Board fails to issue a final order within one year after the case is fully briefed.  Right now the Administrative Review Board is taking more than 3 years to issue final orders after the ALJ's recommended decisions and orders are issued in cases fully tried on the merits.  That is unconscionable.

Paul Taylor
Truckers Justice Center
www.truckersjustice.com

We’ll keep you posted on the status of the report.  But, in the meantime, if you want to give the Department of Labor a call to find out what’s going on…

-- Adam Miles

Comments

[Paul Taylor]

Adam:

Thank you for posting the information.

The real tragedy in all this is the delay by the DOL's Administrative Review Board. The past protections for truck drivers were pretty good and the next protections are even better. If cases languish for years and then the ARB perverts the intent of the whistleblower protection laws that they are supposed to enforce, then nobody will blow the whistle. Even when a whistleblowing truck driver wins, he really does not win. He/she may lose his spouse, and put his family in poverty just for doing what is right.

The quality of Administrative Law Judge decisionmaking is generally pretty good. The best solution to the problem is to amend the law so that ALJ decisions are automatically affirmed as the final decision of the Secretary of Labor if the Administrative Review Board fails to act within a specified period of time after the ALJ issues a decision.

The jury trial option is good but more expensive than DOL's administrative processes. A whistleblower often lacks funds to proceed in U. S. District Court.

Paul Taylor
Truckers Justice Center
www.truckersjustice.com