A truck driver was illegally fired for reporting legitimate safety issues, the Department of Labor (DOL) has determined.
OSHA has ordered the employer to pay back wages with interest as well as compensatory and punitive damages.
The agency’s federal whistleblower investigation targeted W-L Construction & Paving Inc., which is a subsidiary of CRH — which in turn is a global provider of building materials solutions.
Safety Issues and a Broken Tooth
The DOL said that on July 12, 2023, while driving to work, the unnamed driver broke his tooth while biting into a sandwich. Though he made it to work, he told his supervisor when he got there that he needed to leave due to his dental emergency.
The next day, the driver told his supervisor that he would not be able to work due to pain from the dental emergency. He said he did not feel safe operating a commercial motor vehicle because his face was swollen and he was having problems with his vision.
Eight days later, the driver left work after finishing an eight-hour shift. About an hour later, his supervisor asked him to return so that he could haul another load. The driver said no, citing safety issues and explaining that he had been drinking and was not able to drive.
More Health Issues
At the end of August of 2023, the driver called in to work to say he could not work because he was coughing up blood, further highlighting safety issues.
Near the end of September, W-L’s general manager terminated the driver’s employment.
The driver contacted HR and said he had been terminated for his complaints relating to hours of service. HR initially changed the termination to a suspension, but it terminated the driver in early October of 2023 based on its finding that he was terminated based on poor attendance.
More specifically, the employer said the driver accumulated 10 attendance infractions between July and September of 2023.
Policy? What Policy?
OSHA said three of those 10 infractions were related to safety issues and the driver’s protected refusals to drive. It also said that though the employer supposedly has a policy calling for termination after three consecutive absences or no-shows without proper notification, it does not consistently enforce the policy.
Moreover, OSHA said, the driver never had three consecutive absences or no-shows without proper notification. He told his supervisor when he would late or absent, OSHA said.
The agency said the driver engaged in protected activity when he complained about hours of service near the end of April of 2023 and when he told his employer on two separate occasions that he was too sick to drive. These were legitimate safety issues.
OSHA determined that the driver’s engagement in those protected activities were a contributing factor in the decision to terminate his employment.
OSHA Faults Employer for Safety Issues
The employer did not provide enough evidence to show it would have terminated the driver’s employment if he did not engage in the protected activity, the agency determined.
It said the driver and his family have “suffered tremendously” due to the employer’s illegal conduct and that it was appropriate to award both compensatory and punitive damages.
The agency ordered the employer to pay $56,558.95 as of September 11, 2024, with that amount growing each week until reinstatement is offered.
It also ordered payments of $1,759.30 in interest, $115,694.19 in compensatory damages and $10,000 in punitive damages.
It further ordered the employer to pay the driver’s reasonable attorneys’ fees.
The agency also banned the employer from retaliating against the driver and ordered it to post a notice about the case for employees.
Employers Are Accountable
“W-L Construction & Paving Inc. illegally retaliated against an employee who raised legitimate concerns about their ability to meet the company’s demands without jeopardizing their safety or that of others,” said OSHA Regional Administrator Michael J. Rivera in Philadelphia. “Our nation’s supply chain and economy depend on commercial drivers operating their rigs safely to deliver their cargo. OSHA will hold employers accountable when they ignore workers’ concerns about their safety and that of others. Workers should know speaking freely without fear of retaliation when safety is compromised is protected right under federal law.”
