Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

On January 11, 2005, Timothy Elbert told his bosses at True Value that the brakes on a trailer were broken and he would not drive it.  Two days later, they fired him. Elbert had worked for the company for 16 years.

Since 1983, the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, has protected the employees of motor carriers from retaliation for refusing to drive unsafe equipment, refusing to violate the hours of service rule or other safety laws, or for raising safety concerns. Under STAA, truck drivers have 180 days to file a written complaint with OSHA to seek relief for retaliation. Unfortunately, OSHA's record on ruling for truck drivers has been slow and disappointing.  When truck drivers appeal to the Office of Administrative Law Judges (ALJs), it can take months or longer to get a hearing, and then again to get a decision, and the decisions can still be disappointing.  The required review by the Administrative Review Board (ARB) can take years.  

As part of the Implementing Recommendations of the 9/11 Commission Act in 2007, Congress updated the STAA whistleblower protection (and created new protections for public transportation and railway workers). The updates include a right to file a civil action in federal district court if the Department of Labor (DOL) takes more than 210 days to issue a final order, and a right seek punitive damages up to $250,000. 

When Elbert filed his complaint with OSHA, True Value claimed that it fired him for becoming argumentative with a dispatcher about signing a new policy on tracking fuel and miles, and also for making up the claim that the brakes were bad.  OSHA accepted this claim and determined that Elbert's complaint had no merit.  Elbert appealed to an ALJ who also accepted the managers' claim that they fired Elbert for his abrasiveness, and not because of his protected activity.  The ALJ even held that it was okay to fire Elbert for believing that Elbert made up the brake problem as the managers did not learn about Elbert's corroboration for the problem until after they decided to fire him.

Elbert's case was pending at the ARB when the 2007 STAA amendments passed.  Elbert's attorney, Paul Taylor of the Truckers Justice Center, promptly filed a new civil action in U.S. District Court.  That court dismissed the case saying that the new procedure would apply only to violations that happened after the amendments became effective.  On appeal, Taylor argued that as the amendments are procedure and not substantive (except for the new provision for punitive damages), they should apply to cases that were pending at the time they were enacted.  Taylor noted that the district court action did not seek punitive damages, so that provision should not affect this case.  The Eighth Circuit disagreed.  The court was concerned about the "additional costs to True Value" from relitigating Elbert's claims. Even though Elbert was not seeking punitive damages, the court said that applying the law retroactively deprived True Value of how the new remedy could impact employee relations. The court did not address how punitive damages are meant to deter others from the unlawful conduct, and this purpose is served by applying such damages now for conduct that was already unlawful before the remedy was enacted. The court affirmed the lower court's dismissal.

Elbert's case still awaits a final decision from the ARB.  Meanwhile, this case shows the practical benefits that can flow from careful drafting of new legislation.  If Congress had just said that it wanted the amendments to apply to pending cases, then Elbert would have his day before a jury.  Perhaps Congress will be so attentive when it considers new whistleblower protection bills next year. Perhaps the next administration will manage whistleblower cases more promptly, and with a spirit that gives life to the protection Congress originally intended. See the National Whistleblowers Center (NWC) Roadmap for Change. We can continue to hope.