The Dept. of Labor’s Occupational Safety and Health Administration (OSHA) has ordered Brush Creek-based trucking company Mark Alvis Inc. to reinstate a former truck driver and pay him more than $180,000 in back pay, interest, and compensatory and punitive damages. OSHA determined the company illegally terminated him for refusal to drive while fatigued and ill and to violate hours- of-service regulations.

The order follows OSHA’s determination that the company violated the trucker’s rights under the whistleblower provisions of the Surface Transportation Assistance Act by terminating him for his refusal to drive while fatigued and ill as well as to violate the hours-of-service requirements outlined in the Federal Motor Carrier Safety Regulations.

“America’s truck drivers have the right to refuse to drive when they are fatigued and/or ill and when they may be in violation of hours-of-service requirements, as permitted by current federal trucking regulations,” said Cindy A. Coe, OSHA’s regional administrator in Atlanta. “OSHA will ensure that these basic worker rights are protected and will prosecute any employer found violating them.”

On May 4, 2010, the driver was assigned to deliver a truck of milk and, in the process of inspecting one of the tanker trailers, he slipped and banged his chest and stomach against the ladder. Although he felt pain, the driver proceeded with the delivery as planned.

Upon arrival at his destination, the driver was instructed to perform another delivery. He informed his dispatcher that he could not proceed with another delivery at that time because he was ill and fatigued, and did not have sufficient allowable hours remaining to do so according to federal regulations.

The driver then returned to the company’s yard, where he was told to remove his belongings from his truck. The company asserted to OSHA that the employee quit upon removing his belongings. However, OSHA conducted an investigation – which was initiated upon receiving a whistleblower complaint from the driver – that found evidence showing he was terminated for refusing the last delivery.

The order issued by OSHA also requires the trucking company to expunge any adverse references relating to the discharge from the complainant's personnel records, and to post a notice for employees and provide a fact sheet to them with notification of their rights under the STAA.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or the government. Employees who believe they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA’s Whistleblower Protection Program.