Truck with Mountain
Plaintiff's Attorneys Try to Take Advantage of CSA

By Kevin Anderson


Kevin Anderson
Kevin Anderson

We all knew it was coming; plaintiff's attorneys have started to devise ways to use CSA against motor carriers.  The American Association for Justice (formerly the Association of Trial Lawyers of America) published an article in its February 2011 magazine outlining how plaintiff's attorneys (now wanting to be known as "civil justice attorneys") should use particular discovery steps to use CSA and PSP data against motor carriers.  While it is disconcerting to know that the plaintiff's attorneys are organizing around CSA, it is beneficial to know how they plan to use the data so you can take steps to protect your company.

 

The article had three main areas of focus.  First, the Pre-employment Screening Program (PSP).  We have discussed this program previously here.  The plaintiff's attorneys plan to use the PSP as a double edged sword.  If you do not utilize the program to screen job applicants for safety violations, they will paint your company as lackadaisical when it comes to doing your due diligence when hiring drivers.  However, if you do use PSP, the plaintiff's attorneys will request the report and information obtained.  The plaintiff's attorney will latch on to any violation contained in the report.  To protect against attacks based on PSP data, each motor carrier should develop a policy to screen all driver job applicants through PSP.  It would be virtually impossible to staff a trucking company only with drivers who have no violations.  Rather, each company needs to develop a policy, and abide by it, as to what violations, by number and/or severity, will disqualify a driver from employment with your company and only offer positions to those drivers that meet your company's PSP policy.

 

Second, the plaintiff's attorneys will be focusing on CSA interventions.  Plaintiff's attorneys will be trying to identify and take advantage of any and all CSA interventions under taken against your company in the three years before the accident and for one year after the accident.  In response to a plaintiff's attorney's use of interventions, your company should be prepared to provide documentation regarding its response to any CSA intervention.  As has been discussed here, the lowest level of CSA intervention is a warning letter.  While a motor carrier is not required to respond directly to a warning letter, every motor carrier should be taking corrective action if they receive a warning letter.  With any form of intervention, the motor carrier should be documenting all corrective action taken in response to CSA interventions.  This documentation will lessen the impact of a plaintiff's attorney's arguments regarding the interventions.

 

Finally, the plaintiff's attorneys will be trying to use any BASIC "Alert" against the motor carrier.  The article suggests using requests for admissions including:

 

  • Do you admit that a violation of a BASIC can lead to a crash?
  • Do you admit that violation of a BASIC increases the risk of a crash?
  • Do you admit that any violation of a BASIC is unsafe?
  • Do you admit that violation of a BASIC endangers the public?

These requests for admission initially appear fairly damning, even if highly dubious for a number of reasons.  Fortunately, last week there was a settlement regarding CSA's Safety Measurement System (SMS) public website between the FMCSA and three motor carrier trade associations - The National Association of Small Trucking Companies (NASTC), The Expedite Alliance of North America (TEANA), and the Air & Expedited Motor Carrier Association (AEMCA).  The key changes that FMCSA will make to the SMS public website by March 25, 2011 will be to replace any ALERT symbol currently displayed in orange on the SMS website with the symbol of an exclamation mark inside a yellow triangle.  The FMCSA will also revise the disclaimer language on the SMS website to read:

 

The data in the Safety Measurement System (SMS) is performance data used by the Agency and enforcement community. A triangle symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring.  The symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 31144.  Readers should not draw conclusions about a carrier's overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation's roadways. Motor carrier safety ratings are available at http://safer.fmcsa.dot.gov and motor carrier licensing and insurance status are available at http://li-public.fmcsa.dot.gov.

 

They key point to take away is that motor carriers must become more vigilant in ensuring their compliance with the safety regulations because the data is going to be much more transparent under CSA.  If your company needs assistance in developing a policy to use PSP in hiring or responding to an FMCSA intervention, please do not hesitate to contact us.

 

Kevin Anderson - Email Kevin 

Whistleblower Protections for Transportation Employees

By Andrew Schlegel

 

Andrew Schlegel
Andrew Schlegel

Federal law protects transportation employees who complain about or report safety, health and security issues and violations.  The Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, prohibits employers from discharging, disciplining, or discriminating against employees who:

  • file a complaint regarding safety or security issues;
  • the employer believes will file a complaint regarding safety or security issues;
  • refuse to operate a vehicle because of a violation of safety, health or security standards;
  • refuse to operate a vehicle because of a "reasonable apprehension" of serious injury because of a vehicle's condition;
  • accurately  reports hours on duty;
  • cooperate in investigations into the company's safety and security; and
  • furnish information to the Secretary of Transportation, Secretary of Homeland Security, the National Transportation Safety Board, or any other regulatory or law enforcement agency investigating an injury or damage claim. 

While I know that no one reading this post would fire an employee for engaging in the above protected activities, anyone who fires an employee who has ever engaged in any of the actions protected by STAA needs to protect themselves from possible STAA claims.  This is especially important because the burden of proof is heavier on the employer than it is on the (former) employee.  In order to succeed with their STAA claim, the (former) employee need only show that engaging in a protected activity was a contributing factor in the personnel action.  In contrast, to combat the claim the employer must demonstrate by clear and convincing evidence that the former employee would have been disciplined or fired anyway, despite engaging in the protected activities.   

 

The cost of losing a STAA claim can be quite steep.  The Secretary of Labor can order:

  • the employer to take affirmative action to abate the violation;
  • reinstatement of the fired employee;
  • payment of compensatory damages, back pay, interest, special damages, litigation costs, expert witness fees and attorney fees; and
  • punitive damages of up to $250,000.

These damages are in addition to any damages that the former employee may be entitled to under state law.

 

As you can see, the stakes are high.  The time to protect your business from these claims is before they ever occur.  Make sure employee files are kept up to date and include information on any issues with the employee.  When an employee engages in any of the protected behavior, thank them for bringing the issue to their attention.  When an employee is let go, document the reasons for the dismissal, and make those reasons clear to the former employee.  Your actions can prevent STAA claims from arising, as well as make defending actions easier if a claim is brought despite your best efforts.

 

This is, of course, only a brief article on the implications of STAA. If you have any further questions regarding STAA, I would be happy to discuss them with you.

 

Andrew Schlegel - Email Andy
The information presented in this communication should not be construed to be formal legal advice
nor the formation of a lawyer/client relationship.