Asphalt contractor’s tab for firing hours of service-wise staff nears $1M

Finding Asphalt Specialists Inc. violated the Surface Transportation Assistance Act by terminating a foreman and two truck drivers who had expressed hours of service compliance concerns, Occupational Safety and Health Administration has ordered the Pontiac, Mich., paving contractor to pay $954,000 in back wages plus compensatory and 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,” says Assistant Secretary of Labor for OSHA Dr. David Michaels. 

After repeatedly raising concerns to an Asphalt Specialists co-owner about exceeding hours of service thresholds when job assignments failed to allow for the Federal Motor Carriers Safety Administration’s rest period, the foreman was terminated in June 2012. A second truck driver was terminated in April 2013 after questioning the number of work hours the contractor required and refusing to sign an affidavit denying a work requirement in excess of legally permitted hours. A third driver was terminated three months later after citing vehicle maintenance and driving-time concerns. OSHA has ordered Asphalt Specialists to reinstate the three employees; in addition to back wages, they will receive $50,000 (foreman) and $30,000 (drivers) in compensatory damages, and $200,000 each in punitive damages.

The Surface Transportation Assistance Act (STAA) prohibits private fleet owners from discharging or retaliating against employees 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. The back wage and damages order is subject to OSHA Office of Administrative Law Judges appeal by any of the parties in the case.

The Asphalt Specialists order follows closely a memorandum of understanding the agency reached with the FMCSA regarding the STAA anti-retaliation provision. It allows for the exchange of safety, coercion and retaliation allegations, when received by one agency, that fall under the authority of the other. “This strengthened partnership extends our inter-agency collaboration specifically to include the sharing of reports of alleged coercion—companies forcing or intimidating drivers to violate federal safety regulations,” notes FMCSA Administrator Anne Ferro. “Pressuring drivers to stay behind the wheel beyond their hours-of-service limits, or to disregard other federal rules, seriously jeopardizes the safety of every traveler on our highways and roads.”

OSHA investigates employee complaints of retaliation by commercial truck companies. FMCSA is responsible for regulating fleet operators 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; plus, drug and alcohol testing.

Under the memoradum, 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 agreement also provides that FMCSA will process OSHA requests for information from various Department of Transportation databases.