I have written about the subject of your legal protection when you refuse to drive in bad weather several times in the past. However, I need to write about this subject again because winter 2010-2011 has been one of those seasons where one winter storm is followed by another.
The employee protection provisions of the Surface Transportation Assistance Act ("STAA") protect commercial drivers from retaliation because they have refused to drive in violation of a commercial vehicle safety regulation. The STAA also protects drivers from retaliation because they have refused to drive based upon an objectively reasonable apprehension (concern) of serious injury. In order to be protected a driver must be able to prove either (a) a violation of a commercial vehicle safety regulation would have occurred but for the refusal; or (b) that a reasonable driver with similar experience and under similar circumstances would have believed that driving was dangerous.
The Federal Motor Carrier Safety Regulations state as follows at 49 C.F.R. § 392.14:
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Hazardous conditions; extreme caution.
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. . . .
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49 C.F.R. § 396.7(a) states as follows:
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Sec. 396.7 Unsafe operations forbidden.
(a) General. A motor vehicle shall not be operated in such a condition as to likely cause an accident or a breakdown of the vehicle.
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In several cases the Department of Labor (DOT does not have jurisdiction over these claims), has found a refusal to drive in hazardous weather conditions to be protected under the STAA. See, [u]Robinson v. Duff Truck Line, Inc.[/quote], 1986-STA-3 (Sec’y Mar. 6, 1987), and Eash v. Roadway Express, Inc., 2000-STA-47 (ARB June 27, 2003).
In Duff Truck Line, Inc., Robinson was scheduled to drive on his regular bid from Louisville, KY to Lima, OH. It rained throughout the afternoon that day and began to snow about 3:00 or 4:00 p.m. Television stations warned against driving on highways north of Louisville. The employer argued that other drivers had successfully completed their dispatches through bad weather without incident. The Secretary of Labor found that hazardous weather conditions existed and that Robinson had engaged in a protected activity by refusing to drive in violation of 49 C.F.R. § 392.14.
In finding that Robinson’s apprehension of serious injury was reasonable, the Secretary of Labor relied on the following factors:
1. Robinson observed weather and road conditions around his house;
2. Robinson heard weather warnings advising against driving on the highways he would have had to take;
3. Robinson was familiar with the roads, having driven his run five days a week, including in ice and snow;
4. Robinson knew the driving problems presented by driving a commercial vehicle on icy and snow roads.
In order to be protected under the STAA, A driver must be acting reasonably in determining weather and road conditions before refusing to drive due to bad weather. Here are some tips to follow:
A. Monitor Weather Reports on Radio and Television;
B. Use various Internet sites to assess conditions (download the reports for use as evidence);
C. Contact other drivers who may have driven through the poor weather conditions, or who may also be assessing conditions. The truck stop lounge may be a good place to start.
D. Contact government officials such as State Patrol or State DOT to obtain their advice.
E. Contact your employer to determine whether other drivers have reported concerning driving conditions.
Remember - Just because other drivers successfully reach their destinations does not mean the driving was safe. Moreover, the Federal Department of Transportation has issued an advisory indicating that it is your call to make as to whether or not driving is safe. The advisory states as follows:
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392.14 Hazardous Conditions; Extreme Caution.
Question 1: Who makes the determination, the driver or carrier, that conditions are sufficiently dangerous to warrant discontinuing operation of a CMV [commercial motor vehicle]?
Guidance: Under this section, the driver is clearly responsible for the safe operation of the vehicle and the decision to cease operation because of hazardous conditions.
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Once you have made the determination not to drive, you need to clearly communicate to the employer the basis for your work refusal. Use of the Qual-Comm or PeopleNet system followed by a telephone call usually is best. Use a camera to photograph the message that you send.
Tell the dispatcher that you believe that it is unsafe to drive at the present time. Tell him what you have done to assess driving conditions. Tell him you have spoken with other drivers, watched weather reports on television and monitored weather reports on the Internet in the direction of your travel. Be as specific as possible. For example, if the Ohio DOT has issued an advisory against all travel in Ohio, and you are scheduled to drive through Ohio, tell dispatch "I was monitoring the Internet and saw where Ohio DOT is advising against all travel tonight in Ohio." You could also add (if true), "I was in the lounge at the TA here in Cleveland and watching The Weather Channel. The announcer said that roads were icy on I-80, and I the news showed photos of tractor-trailers in the ditches."
It is also important that you give the carrier options. Tell your dispatcher that you will drive when conditions improve enough to make driving safe. Be respectful at all times, even if the dispatcher is not respectful toward you.
Finally, it is important that you keep good documentation. Retain copies of weather reports, if possible. Photograph your Qual-Comm communications with dispatch. You may even want to consider keeping a diary to note the times you made telephone calls to your employer and to summarize what you told the employer. This will help you prove your case in the event you are fired in retaliation for a protected work refusal.
Paul O. Taylor
Truckers Justice Center
900 West 128th Street, Suite 104
Burnsville, MN 55337
(651) 454-5800
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NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY CLIENT RELATIONSHIP.
Weather is terrible, but dispatch tells you to drive.
