USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION VII -- EMPLOYER/EMPLOYEE

In Robinson v. Shell Oil Co. , No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme Court held that term "employees" in Title VII includes former employees. Thus, a former employee may sue a former employer for alleged retaliatory post-employment actions, such as negative references to prospective employers.

[Editor's note: Please note that this is a Title VII decision, and did not involve an STAA, or a nuclear or environmental whistleblower complaint].

[STAA Whistleblower Digest VII A 2]
COVERED EMPLOYEE; INDEPENDENT CONTRACTOR

VII.A.2.a.
STAA definition of employee

The driver of an escort vehicle is an "employee" under 49 U.S.C. app.§ 2301(2)(D). Obsorn v. Cavalier Homes of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17, 1991).

VII A 2 a
EMPLOYEE; COVERAGE OF MESSENGER UNDER STAA

In Caimono v. Brinks, Inc. , 95-STA-4 (ALJ Sept. 7, 1995), the ALJ concluded that a messenger for an armored car company who rode in the car to make deliveries, was not an employee within the meaning of the whistleblower provision of the STAA. The ALJ found only two prior cases involving complainants other than drivers. Both involved mechanics, who were specifically named in the statutory definition as an employee. The ALJ concluded that absent being specifically named in the statutory definition, "one employed by a motor carrier . . . should have to positively demonstrate that his employment directly affected motor vehicle safety. . . ." Slip op. at 2. VII A 2 b Mechanic; coverage under STAA

A mechanic who is employed by a commercial motor carrier and who in the course of his employment directly affects commercial motorivehicle safety meets the STAA definition of "employee." 49iU.S.C. app. § 2301(2)(B). Cf. Rehling v. Sandel Glass Co., 91-STA-33 (Sec'y Jan. 6, 1992), slip op. at 5-8 (intrastate truck driver's manner of vehicle operation and condition of equipment directly affected commercial motor vehicle safety on major thoroughfares where he traveled).

Gay v. Burlington Motor Carriers, 92-STA-5 (Sec'y ay 20, 1992).

VII A 2 c Armored Truck essenger

EMPLOYEE; COVERAGE OF MESSENGER ON ARMORED TRUCK
[STAA Digest VII A 2 c]

In Caimano v. Brink's, Incorporated, 95-STA-4 (Sec'y Jan. 26, 1996), the Secretary held that a messenger whose duties directly affected commercial motor vehicle safety was a covered employee under the whistleblower provision of the STAA. The Secretary found the messenger's duties to be analogous to that of a freight handler, which is a position specifically included within the statutory definition. The Secretary also noted that on delivery runs, it is the messenger rather than the driver who is in charge.

[STAA Whistleblower Digest VII A 2 d]
COVERED EMPLOYEE; STATE EMPLOYEE; WHETHER A UNIVERSITY IS AN ARM OF THE "STATE" IS A LEGAL ISSUE THAT CANNOT BE DECIDED BY THE ADMISSION OR STIPULATION OF THE PARTIES

In Lewis v. Virginia Commonwealth University Police Dept. , ARB No. 10-008, ALJ No. 2009-STA-39 (ARB June 16, 2011), the ALJ granted summary decision on the ground that the STAA excludes state employees from coverage. On appeal, the ARB found that it was undisputed that the Complainant was an employee of Virginia Commonwealth University (VCU). The ARB found, however, that whether VCU is a "state" under the STAA is a legal issue that cannot be decided by the admission or stipulation of the parties. The ARB thus looked to caselaw and the Virginia code to determine that VCU is an arm of the state, and thus agreed with the ALJ's grant of summary decision.

[STAA Digest VII A 2 d]
EMPLOYER/EMPLOYEE; GOVERNMENT EMPLOYEE NOT COVERED EMPLOYEE UNDER THE STAA; GOVERNMENT HAS NOT WAIVED SOVEREIGN IMMUNITY UNDER STAA

In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998-CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), the ARB found that an environmental specialist for the U.S. Department of Energy could not maintain a STAA whistleblower complaint against either the Department of Energy nor a private company. The ARB held:

The STAA's definition of "employee" explicitly excludes "an employee of the United States Government," and the definition of "employer" explicitly excludes "the Government." 49 U.S.C. §31101(2)(B), §31101(3)(B). There is no ambiguity in these scope provisions, and therefore we can rely upon their plain meaning. Moreover, the United States is immune from suit absent an explicit statutory waiver of sovereign immunity. United States Dep't of Energy v. State of Ohio , 503 U.S. 607, 615 (1992) (any waiver of the government's sovereign immunity must be "unequivocal"). Here we have an explicit statutory invocation of such immunity. Therefore, with respect to his complaint against DOE, neither Rockefeller nor DOE is covered by the statute.

Slip op. at 6-7. The ARB rejected Complainant's contention that the Secretary's decision in Flor v. U.S. Department of Energy , 93-TSC-1 (Sec'y Dec. 9, 1994), is binding precedent for the proposition that government employees may sue their government employers under the STAA. The ARB found that decision in Flor did not purport to address or decide that issue.

[STAA Whistleblower Digest VII A 2 d]
FEDERAL GOVERNMENT IMMUNE FROM SUIT UNDER STAA WHISTLEBLOWER PROVISION

In Moore v. U.S. Dept. of Energy , ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 31, 2001), the Board re-affirmed its holding in Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , ARB No. 99-022, ALJ No. 1998-CAA-10 (ARB Oct. 31, 2000), to the effect that the STAA definitions of "employee" and "employer" constitute an express invocation of sovereign immunity.

[STAA Digest VII A 2 e]
COVERED EMPLOYEE; SECURITY MANAGER

In Luckie v. Administrative Review Board, USDOL , No. 07-13997 (11th Cir. Mar. 24, 2009)(per curiam) (unpublished) (case below ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39), the Eleventh Circuit affirmed the ARB's finding that a District Security Manager's occasional touching of packages -- unrelated to uploading, unloading, or the sorting of packages -- failed as a matter of law to qualify the Complainant as a freight handler under the whistleblower provision of the STAA. The court also affirmed the ARB's ruling rejecting the ALJ's conclusion that the Complainant was covered because he was "an individual who directly affected commercial safety." The ARB found that found that the ALJ failed to consider whether the Complainant's security responsibilities directly affected commercial motor vehicle safety. Reviewing the record, the ARB concluded as a matter of law that the Complainant's job responsibilities -- which affected worker safety in UPS facilities -- did not directly affect safety on the highways.

[STAA Digest VII A 2 e]
COVERED EMPLOYEE; SECURITY MANAGER WHO WAS NOT RESPONSIBLE FOR COMMERCIAL MOTOR VEHICLE SAFETY

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for the Respondent's Alabama district. The STAA defines a covered employee as "a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier." 49 U.S.C.A. § 31101(a)(2)(A). The ALJ found that the Complainant was a covered employee under the STAA whistleblower provision as "either a freight handler or a person who directly affected commercial vehicle safety in the course of his employment or both." The ARB, however, found that that the Complainant's infrequent touching of packages in connection with a claims investigation did not qualify him as a freight handler under the STAA. In addition, the ARB found, as a matter of law, that the Complainant was not an individual who directly affected commercial motor vehicle safety because his job duties did not directly impact the safety of UPS's commercial motor vehicles. Although the Complainant referenced concerns about UPS's response to post 9/11 fears of truck bombs, the ARB found that the Complainant had no responsibility for the operational safety of UPS's commercial motor vehicles; nor was he responsible for reporting, auditing, or reviewing any safety defects in those vehicles. Those functions were the responsibility of another UPS department. The ARB, therefore, concluded that the Complainant was not a covered employee under the STAA.

[STAA Whistleblower Digest VII A 2 e]
COVERED EMPLOYEE; UPS DISTRICT SECURITY MANAGER

In Luckie v. United Parcel Service , 2003-STA-39 (ALJ Dec. 2, 2004), one of the Complainant's duties was to be a UPS District Security Manager. In addition, unrefuted testimony showed that he handled damaged packages in performing security checks and resolving damage claims. The ALJ found that because the "Respondent is a company engaged in transporting of packages, both interstate and intrastate, while using commercial motor vehicles within the meaning of the STAA, and the Complainant played a role in accomplishing that mission in a safe and lawful manner in both his position as manager and an employee of that company" the Complainant was a covered employee under the whistleblower provision of the STAA. Slip op. at 11.

VII A 3 ALJ should not raise employee issue where defense not raised below and record not developed on issue

The ALJ should not have raised in his Recommended Decision and Order the issue of whether the complainant was an "employee" under the STAA where the complainant had not had an opportunity to establish coverage because the defense had not been raised below and the record had not been developed on the issue. Because the complainant could not prevail on the merits of his claim, however, the case was not remanded. Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992).

VII.B.1. Definition of "employer"

An "employer" is "any person engaged in a business affecting commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it in commerce, but such term does not include the United States, an State, or a political subdivision of a State . . . ." 49 U.S.C. app. § 2301(3).

Killcrease v. S & S Sand and Gravel, Inc., 92- STA-30 (Sec'y Feb. 2, 1993).

[STAA Whistleblower Digest VII B 1]
COVERED EMPLOYER; COMPANY WITH ABILITY TO CONTROL TERMS OF COMPLAINANT'S EMPLOYMENT

The STAA covers independent contractors, 49 U.S.C.A. § 31101(2); 29 C.F.R. § 1978.101(d). Where a company is not the Complainant's immediate employer, but it exercised control over his employment ( e.g. , by requesting that the immediate employer not send the Complainant back to the job), such control is sufficient to establish STAA coverage. See Feltner v. Century Trucking, Ltd. , ARB No. 03-118, ALJ Nos. 2003-STA-1 and 2 (ARB Oct. 27, 2004).

[STAA Digest VII B 1]
IDENTIFICATION AND LOCATION OF PROPER RESPONDENT

In Sexton v. Kroll's Trucking , ARB No. 04-030, ALJ No. 2003-STA-18 (ARB Apr. 29, 2005), there had been some confusion about what entity had employed the Complainant, and OSHA had conflated two entities, one of which had only rented space to the Complainant's employer. The only address on record was for the company that rented the space. The ALJ dismissed that entity and dismissed the case. On review, the ARB affirmed the ALJ's decision to dismiss the wrongly named entity, but because the record did not indicate that the other entity was ever informed of the complaint, OSHA's investigation into the complaint, or the proceedings before the ALJ, the ARB remanded the case to the ALJ for further proceedings.

On remand, the ALJ noted that the case could not proceed to hearing because there was no address for the remaining Respondent. The ALJ recounted that the evidence of record established that the Complainant's Employer was a short lived enterprise of only three months, and that its owner's whereabouts were unknown. Because OALJ does not have investigators, the ALJ was compelled to remand the case to OSHA to endeavor to locate the Respondent. Sexton v. Kroll's Trucking , ALJ No. 2003-STA-18 (ALJ May 19, 2005).

[STAA Digest VII B 1]
INDEPENDENT CONTRACTOR; COMMON LAW TEST

In Metheany v. Roadway Package Systems, Inc. , 2000-STA-11 (ALJ June 20, 2000), the ALJ concluded that Complainant was an independent contractor rather an employee, and therefore not covered under the STAA whistleblower provision. In making this ruling, the ALJ applied the common law test found in Nationwide Mutual Ins. Co. v. Darden , 112 S. Ct. 1344 (1992); see also Reid v. Secretary of Labor , 106 F.3d 401 (6th Cir. 1996). The ALJ looked at the language of the contract, which clearly indicated an intent not to consider Complainant an employee, and which specified that Respondent's personnel would have no authority to direct him as to the manner or means employed to achieve Respondent's business objectives (although the ALJ noted that work such as knowledge of traffic patterns, road conditions, etc. is routine for drivers and not indicative of independence and non- employee status). The ALJ took into account that Respondent required Complainant to provide his own tractor for pulling Respondent's trailers, and that costs and expenses incident to ownership were to be borne by Complainant. Moreover, Complainant had the discretion to hire and assign any qualified drivers for runs.

VII.B.1. Personal liability

In Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993), the Secretary held that the owner and President of Respondent would not be held individually liable under the circumstances. OSHA did not clearly indicate that the owner/president and Respondent were both named Respondents in the case. Moreover, there was no direct evidence that the owner/president discharged or ordered Complainant to be discharged; rather the testimony credited by the ALJ indicated that the owner/president was not involved in the discharge decision or its execution.

[Editor's note: It is not clear what the circumstances were. The ALJ made rulings on this issue orally at the hearing and did not treat them separately in his recommended decision. What I think happened was that OSHA did not notify Morin of his being personally named as a Respondent. The ALJ did not allow the Assistant Secretary to add Morin as a Respondent. I guess the Secretary's ruling is that because of unclear notice of being named individually and because the evidence did not indicate personal involvement in the discharge decision, Morin would not be held personally accountable.]

VII.B.1. Definition of "employee"

An "employee" is a driver of a commercial motor vehicle, a mechanic, a freight handler, or any individual other than an employer "who is employed by a commercial motor carrier and who in the course of his employment directly affects commercial motor vehicle safety * * *." 49 U.S.C. app. § 2301(2).

Killcrease v. S & S Sand and Gravel, Inc., 92- STA-30 (Sec'y Feb. 2, 1993).

VII B 1 Private carrier

In Killcrease v. S & S Sand and Gravel, Inc., 92-STA-30 (Sec'y Feb. 2, 1993), the Respondent contended that it was not subject to the STAA. The Secretary analyzed the statutory and regulatory provisions in concluding that the Respondent was subject to the STAA:

General provision imposing liability

STAA section 405(a) provides that " [n]o person shall discharge * * * any employee * * * because such employee * * * has filed any complaint * * * relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order * * * ." 49 U.S.C. app. § 2305(a) (emphasis added).

STAA section 405(b) provides that "[n]o person shall discharge * * * an employee * * * for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health * * *." 49 U.S.C. app. § 2305(b) (emphasis added).

Definition of "person"

A "person" is "one or more individuals, partnerships, associations, corporations, business trusts, or any other organized group of individuals" for purposes of the subchapter, 49 U.S.C. app. § 2301(4).

Definition of "employee"

Definition of "employer"

Definition of "commercial motor vehicle"

A "commercial motor vehicle" includes "any self- propelled * * * vehicle used on the highways in commerce principally to transport passengers or cargo" with a gross vehicle weight rating of ten thousand or more pounds. 49 U.S.C. app. § 2301(1).

Definition of "commercial motor carrier"

The term "commercial motor carrier" is not defined in the subchapter but has been interpreted to include motor carriers and motor private carriers described at 49 U.S.C. § 10102(13) (14), (15), and (16) (1988). See 29 C.F.R. § 1978.101(e).

Relationship between motor common carrier, motor contract carrier and motor private carrier

A motor carrier either (1) holds itself out to the general public to provide motor vehicle transportation for compensation (motor common carrier) or (2) provides motor vehicle transportation for compensation under a continuing agreement (motor contract carrier). A motor private carrier transports property owned by it, via motor vehicle, for sale or to further a commercial enterprise.

In Killcrease, the Respondent was a private carrier engaged in truck transport of sand and gravel which it mined, processed, transported by commercial motor vehicle, and sold. Therefore, it was a commercial motor carrier covered under STAA section 405.

The Respondent also constituted an employer within the STAA definition because its business affected commerce in that it regularly transported (via its employees operating commercial motor vehicles) sand and gravel, mined and processed at its pit and plant in Lenox, Alabama, to customer facilities in other locations in Alabama and occasionally to one location in Florida (including occasionally backhauling sodium nitrate on a contract basis).

The fact that Respondent's drivers regularly operated vehicles on national interstate highways also supported a finding that it was engaged "in commerce".

The Secretary distinguished regulatory schemes in which classification of a "motor private carrier" can require a quantum of transportation between States or across national boundaries. E.g., 49 U.S.C. §§ 3101-3104 (DOT); 49 U.S.C. Subtitle IV (ICC). STAA section 405 has a remedial purpose that applies a more generic "commercial motor carrier" that is not statutorily defined. Absent a statutory definition, the Secretary concluded that it is appropriate to accord "commercial," deriving from "commerce," its legal meaning. [Editor's note: Secretary did not explain what commercial's legal meaning is or provide a citation of authority] In addition, the Secretary concluded that the legislative history of the STAA militates in favor of construing the term expansively to describe motor carriers "in" or "affecting" commerce. See H.R. Conf. Rep. No. 987, 97th Cong., 2d Sess. at 163- 164, reprinted in 1982 U.S. Code Cong. & Admin. News (USSCAN), 3639, 3744-3745.

The House Conference Report noted Department of Transportation authority to regulate "primarily with regard to vehicles that cross State lines or national boundaries or perform the intrastate portion of a continuous interstate movement" and expressed the intent to extend that authority so that "commercial motor vehicle operations both in and affecting interstate and foreign commerce" are regulated under the safety subchapter (now 49 U.S.C. app. §§ 2301-2307). H.R. Conf. Rep. No. 987 at 163, 1982 USCCAN at 3744 (emphasis added). Coverage under the subchapter extends, for example, to vehicles designed to transport ten or more persons to ensure "the highest levels of safety in this particularly important transportation area." H.R. Conf. Rep. at 164, 1982 USCCAN at 3745. Elsewhere in Title 49 coverage generally is limited to vehicles designed to transport 15 or more persons. Compare with other covering provisions where Congress explicitly has specified application, e.g., 49 U.S.C. app. § 2306(f) (commercial motor vehicle; meaning limited to section); 2314(c)(3) (interstate system); 2315(b)(2) (national intercity truck route network); 2503(1) (commercial motor vehicle); 2503(4) (interstate commerce); 2503(5) (intrastate commerce); 2515(b) (commercial motor vehicle).

[STAA Digest VII B 2]
INDIVIDUAL LIABILITY UNDER THE STAA; REQUISITE FACTOR IS WHETHER THE INDIVIDUAL HAS THE ABILITY TO HIRE, TRANSFER, PROMOTE, REPRIMAND OR DISCHARGE THE COMPLAINANT

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the ARB held that the ALJ correctly found the Respondent's owner (who had made the final decision to fire the Complainant) individually liable for payment of monetary damages to the Complainant, but erred in finding such liability for the Respondent's holding operations manager and dispatcher.� See 49 U.S.C.A. § 31105(a)(1) (a person may not discharge an employee for conduct protected by the STAA); 29 C.F.R. § 1978.101(k) (defining a person as one or more individuals); Assistant Sec'y of Labor v. Bolin Assocs. , No. 1991-STA-004, slip op. at 5 - 6 (Sec'y Dec. 30, 1991).� The latter was not an owner, and testified that she was not really in a position to fire people at the company. The ARB stated that the "requisite control over an employee for purposes of individual liability includes "the ability to hire, transfer, promote, reprimand, or discharge the complainant . . . ." USDOL/OALJ Reporter at 8 (citations omitted).� Here, the operations manager had recommended the Complainant's firing, but she did not have the requisite control over the Complainant's employment for individual liability under the STAA.� In a footnote, the ARB distinguished the type of "control" that is analyzed in "joint employer" situations where the ability to influence another employer to take actions against a complainant is at issue.

[STAA Digest VII B 2]
INDIVIDUAL LIABILITY; PRESIDENT AND SOLE SHAREHOLDER; SPOUSE OF PRESIDENT AND SOLE SHAREHOLDER

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), the ARB affirmed the ALJ's determination that the president and sole shareholder ("the owner") of the Respondent was individually liable for violating the STAA. On appeal, the Respondent argued that its owner's actions were within the course and scope of her employment, and therefore she was not individually liable for the debts or actions of the Respondent as a separate legal entity. The ARB, however, found that the STAA's express language covers a person who is an employer, that there was no question that the owner was the Complainant's employer, and that she was engaged in the commercial motor vehicle business as the president of the Respondent.

The ARB also affirmed the ALJ's finding that the Respondent's owner's spouse was not individually liable. On appeal the Complainant argued that the owner's spouse was a joint employer because he managed the Respondent's equipment, hired staff, conducted inventory, and fielded equipment complaints. The ARB wrote: "The crucial factor in determining whether an entity is a joint employer with another is whether the entity exercised control over the complainant's employment. ... Such control includes the ability to hire, transfer, promote, reprimand, or discharge the complainant, or to influence another employer to take such actions against a complainant. USDOL/OALJ Reporter at 8 (citations omitted). The ARB found that the record showed that while the owner's spouse advised his wife about her business, stored and maintained his truck at the Respondent's facility, and helped with equipment issues, he exercised no control over the Complainant's employment and played no role in hiring or firing him.

VII.B.2.
Personal liability of individual who took adverse action against complainant

In Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991), the ALJ unnecessarily employed the doctrine of piercing the corporate veil to find the respondent's CEO personally liable for back wages in a STAA complaint because, as the person who discharged complainant, the CEO was liable under the express language of section 2305. The Secretary noted that the statute provides that "[n]o person shall discharge" (emphasis added) an employee for conduct protected by the STAA, and defines a person as "one or more individuals . . . ." 49 U.S.C. §§ 2305(a), (b); 2301(4). She also noted that this approach was consistent with an analogous employee protection provisions at Section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c), and with other substantive law areas with similar statutory language, i.e., Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9607. See Donovan v. Diplomat Envelope, Inc., 587 F. Supp. 1417, 1425 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d Cir. 1985) (unpublished); Kelley v. Thomas Solvent Co., 727 F. Supp. 1532, 1541-45 (W.D. Mich. 1989).

[STAA Digest VII B 3]
RESPONDENT THAT CONTRACTED WITH LEASING FLEET NOT SHOWN TO BE A JOINT EMPLOYER OR AGENT WHERE INDEPENDENT CONTRACTOR OPERATING AGREEMENT SHOWED THAT LEASING FLEET HAD SOLE RESPONSIBILITY FOR ITS EMPLOYEES, AND WHERE CIRCUMSTANCES AND TIMELINE SHOWED THE RESPONDENT PLAYED NO ROLE IN THE DISCHARGE

In Smith v. CRST International, Inc. , ARB No. 11-086, ALJ No. 2006-STA-31 (ARB June 6, 2013), the Complainant was an over-the-road truck driver for Lake City Enterprises, Inc. (LCE), which was a small leasing fleet under contract with the Respondent, CRST. LCE had discharged the Complainant after he complained about the faulty condition of a trailer. In a separate STAA proceeding, LCE was found to have violated the STAA in firing the Complainant. In the instant case, the Complainant contended that CRST had collaborated with LCE in his termination. The ALJ granted summary decision in favor of CRST on the ground that CRST had shown that it was not the Complainant's employer, and the Complainant had not established why CRST should not be granted summary decision on this ground. On appeal, the Complainant argued that LCE was CRST's agent when it fired him, and that CRST employees acted within the scope of their agency when they collaborated to accomplish the discharge. The ARB determined, however, that undisputed evidence supported the ALJ's conclusions that CRST was not a joint employer and that LCE did not act as CRST's agent when it fired the Complainant.

CRST and LCE's independent contractor operating agreement provided that LCE would use its equipment and drivers to transport, load, and unload freight such as steel coils and bars on CRST's behalf. While LCE's drivers had to submit to required federal and state physical examinations and comply with CRST's drug and alcohol policy, the agreement provided that LCE had sole responsibility for its employees and that no person LCE might engage shall be considered CRST's employee. The ARB agreed with the ALJ that, under the agreement, CRST did not delegate to LCE the authority to make employment decisions on its behalf. In addition, other provisions of the exclusive agent agreement supported the conclusion that LCE had complete and sole responsibility over hiring; setting wages, hours, and working conditions; adjusting any grievances; and supervising, training, disciplining, and firing all employees. Finally, the ARB found the factual circumstances showed that only LCE's owner was motivated to fire the Complainant, and the timeline of events showed that CRST placed no role in LCE's discharge of the Complainant.

[STAA Digest VII B 3]
VICARIOUS LIABILITY UNDER THE STAA WHISTLEBLOWER PROVISION; DIFFERENCE BETWEEN INTEGRATED ENTERPRISE TEST AND JOINT EMPLOYER TEST

In Myers v. AMS/Breckenridge/Equity Group Leasing 1 , ARB No. 10-144, ALJ Nos. 2010-STA-7 and 8 (ARB Aug. 3, 2012), the ALJ found the Respondent AMS was vicariously liable under a STAA whistleblower complaint as a "joint employer" because it had contractually reserved the "ability to control" the Complainant's work, even though it did not "actually" exercise that control. The ARB reversed.

In Myers , AMS was a payroll company for New Rising Fenix, Inc. (NRF). NRF hired the Complainants, ran the day-to-day trucking operations and controlled the Complainants' assignments. Although AMS sometimes leased employee services to NRF, it did not do in the instant case. The Complainants, who worked as a team, were fired by NRF after complaining to dispatch about a malfunctioning truck and contacting the Arizona Department of Public Safety about the problems. The Complainants then filed a complaint with OSHA under the STAA, and later amended the complaint adding and pursuing AMS rather than NRF. After a hearing, the ALJ found that the discharge violated the STAA whistleblower provision, and, relying on ARB precedent, found that AMS was vicariously liable as a joint employer.

On appeal, the ARB noted that its precedent from environmental whistleblower cases had been applied in STAA cases, but admonished that rules developed under one statute should only be applied to another only after careful and critical examination. Before turning to its precedent, the ARB reviewed the STAA statute and the implementing regulations to find that "to the extent that there is 'joint employer liability' under STAA, it must be determined under the gloss of the statutory term 'person.'" Slip op. at 8. The ARB continued: "As collectively defined by the STAA statute and regulations, the term 'person' incorporates two important concepts relevant to this case. First, 'person' expressly includes 'one or more' corporations, meaning a single corporation or combination of corporations. 29 C.F.R. § 1978.101(k). Second, for two or more corporations to constitute a 'person,' the statute implicitly requires that those corporations be so interrelated that they can be fairly considered a single 'person.' This implication is inferred from the plain meaning of the term 'person,' which conjures up a single entity." Slip op. at 8-9 (footnote omitted). The ARB then turned to its own caselaw for guidance on the factors necessary to establish a sufficient relatedness.

The ARB noted the four factor test stated in Palmer v. Western Truck Manpower , 1985-STA-6 (Sec'y Jan. 16, 1987), to determine whether two corporations were so interrelated to justify treating them as one entity (interrelation of operations, common management, centralized control of labor relations, and common ownership).

For cases involving an "integrated enterprise," a corporation may be liable without knowing participation because the act of one corporate entity is necessarily the act of both. In the instant case, however, no party suggested that AMS and NRF were an integrated enterprise, and the ALJ did not so find. Rather, the focus was on joint employer liability.

The ARB, quoting the 10th Circuit's decision in Bristol v. Board of Cnty Comm'rs , 312 F.3d 1213, 1218-19 (10th Cir. 2002), explained the difference between the joint employer test and the integrated enterprise concept. The integrated enterprise test asks whether two nominally separate entities should be treated as one, while the joint employer test assumes that the alleged employers are separate entities. If separate entities, the joint employer test treats them as joint employers if they share or co-determine essential terms and conditions of employment. In the instant case, the ARB determined that, under the facts as found by the ALJ, AMS was not a joint employer. AMS never actually exercised its contractually reserved power to control the Complainants' work. The ARB found that without exercising actual control, AMS "was simply a single corporate 'person' under STAA." Slip op. at 11. AMS did not violate the STAA in its own corporate capacity. It did not control NRF's trucking operations, did not participate in NRF's decision to fire the Complainants, and did not know of the Complainants' protected activity.

One member of the Board wrote a concurring opinion finding that the ALJ correctly determined that AMS and NRF were joint employers, but � relying on NLRB authority in cases involving similar factual circumstances � would have found that AMS was not liable for NRF's retaliatory actions.

VII.B.3. A Joint Employer May Be Liable under the Surface Transportation Assistance Act Even If Such Employer Did Not Itself Knowingly Participate in a Violation Committed by the Other Joint Employer

Western and Ryerson were joint employers. Western was a leasing agent of truck drivers, and Ryerson leased drivers from Western. The employment responsibilities were shared between Ryerson and Western. An incident occurred involving complainant in which he refused to haul an unsafe load for Ryerson. Complainant's assignments with Ryerson were subsequently terminated, and Western declined to place complainant with another company for work.

The Secretary interpreted the Surface Transportation Assistance Act as not requiring a joint employer to knowingly participate in a violation committed by another joint employer for liability to accrue to the non-participating employer. In reaching such interpretation, the Secretary relied on the broad definition of "person" under the Act and on the balance of interests sought to be achieved by Congress in enacting it. The Secretary recognized that the Act's objective of substantially reducing economic loss to employees was essential for promoting safety on highways. Permitting an employee to recover against a joint employer without showing that such employer knowingly participated in the violation furthered the Act's overall policy objectives. Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y Mar. 13, 1992).

[STAA Digest VII B 3]
EMPLOYER-EMPLOYEE RELATIONSHIP; LACK OF INVOLVEMENT IN HIRING OR FIRING DECISIONS

A respondent carrier that operated through independent contractor drivers, paid its independent contractors a percentage of gross receipts, screened drivers to make sure they qualified under its liability insurance and DOT regulations, but did not engage in the hiring or firing decisions of its independent contractors, who were responsible for withholding state and federal taxes and providing workers' compensation and unemployment insurance for their own employees, was not the Complainant's employer within the meaning of the STAA. Forrest v. Dallas and Mavis Specialized Carrier Co. , ARB No. 04-052, ALJ No. 2003-STA-53 (ARB July 29, 2005).

[STAA Digest VII B 3]
JOINT EMPLOYER; INSUFFICIENT TO MERELY STATE THAT A COMPANY BE INVESTIGATED AS A "POSSIBLE JOINT EMPLOYER"; RATHER, MUST ALLEGE AN EMPLOYMENT RELATIONSHIP EXISTED

Where Complainant merely prayed in his complaint that a named co-Respondent, which was not Complainant's employer, be investigated as "possible joint employer", the ALJ granted the co-Respondent's motion for summary decision, noting that Complainant must allege a set of facts which, if proven, could support his claim of entitlement to relief, and that Complainant had not alleged the essential element of an employment relationship between himself and the co-Respondent. Rockefeller v. U.S. Dept. of Energy ,1998-CAA-10 and 11 (ALJ Sept. 28, 1998).

JOINT EMPLOYER; VICARIOUS LIABILITY
[STAA Digest VII B 3]

Under the employee protection provision of the STAA, a joint employer may be held vicariously liable, even in the absence of knowing participation, for the discriminatory acts of another. Cook v. Guardian Lubricants, Inc. , 95-STA-43, slip op. at 2 n.1 (Sec'y ay 1, 1996), citing Palmer v. Western Truck Manpower, Inc. , 85-STA-16 (Sec'y May 13, 1992), aff'd Western Truck anpower, Inc. v. United States Dept. of Labor , 12 F.3d 151, 153-54 (9th Cir. 1993)(Ninth Circuit, however, did not reach strict liability aspect). The Secretary observed in Cook that "[k]nowing participation is not established when an employer has merely acquiesced in the discriminatory conduct of a joint employer, as 'an entirely innocent and unconscious instrument' of the perpetrating employers..." Slip op. at 29, citing Carrier Corp., v. NLRB , 768 F.2d 778, 783 (6th Cir. 1985) (quoting NLRB v. Gluek Brewing Co. , 144 F.2d 847, 855 (8th Cir. 1944)). In Cook , however, the Respondent was found to have knowingly participated in the discrimination, making the strict liability aspect of this rule unnecessary to invoke.

In cases involving leasing of drivers and trucks to a separate business entity that shares employment responsibilities with the respondent employer, the two entities are deemed joint employers for the purpose of determining liability under the STAA. Slip op. at 12.

In the instant case, the Respondent had an independent contractor arrangement with the Complainant where the Respondent provided and maintained the truck tractor and paid the Complainant from revenues received from the assigned freight company. The freight companies each exercised enough control over the Complainant's day-to-day work assignments, including the authority to reject the Complainant's services, to be considered joint employers. In addition, the record established an interrelationship between the operations of the Respondent and the two transport companies, which the Secretary considered a "significant factor." In essence, the Respondent leased truck to drivers, and then drivers and trucks to freight companies, while the transport companies were engaged in the business of transporting freight. The Secretary noted that because "this case involves an independent contractor arrangement, a narrower range of employment responsibilities are involved than those discussed in Palmer ." Slip op. at 13 n.10.

VII B 3 Joint Employers

In Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987), the ALJ properly applied NLRB case law in determining that Complainant was jointly employed by a trucking company (WTM) and the company that leased Complainant's services (Ryerson) from the trucking company.

Of the four criterion generally applied in NLRB cases to determine whether there is joint employment -- namely interrelation of operations, common management, centralized control of labor relations and common ownership -- the ALJ reasoned that the most important for purposes of the STAA is the criterion of the interrelation of operations, and concluded that such interrationship existed between WTM and Ryerson.

"Where a corporations possesses sufficient indicia of control to qualify as a joint employer 'is essentially a factual issue'." Tanforan Park Food Purveyors Council v. N.L.R.B., 656 F.2d 1358, 1360 (9th Cir. 1981) quoting from Boire v. Greyhound Corp., 376 U.S. 473 (1964). Thus, where it has been established that a business entity controlled the work schedules, assigned the work and decided when additional workers were needed, a joint employer relationship has been found. Sun-Maid Growers of California v. N.L.R.B., 687 F.2d 56, 59 (9th Cir. 1980).

In Palmer, Ryerson owned the trucks and supervised Complainant; Complainant reported to work at the Ryerson yard and punched a clock there; the time card was a WTM form used by Ryerson's dispatcher to compute wages and benefits which he phoned to WTM; Ryerson gave assignments and Complainant turned in his "tac" reports to Ryerson; Ryerson approved overtime and other time off, and Complainant reported inability to work due to illness to Ryerson; vacation was handled by a calendar from WTM which individual drivers noted desired vacation days -- changes were reported by drivers to Ryerson and approval by Ryerson was required.

WTM maintained time records and issued Complainant's paycheck, withholding taxes and made his social security payments, and maintained workers' compensation coverage on him; WTM appeared as the employer at any grievance proceedings; WTM had the ultimate responsibility for discipline.

VII.B.3. Joint liability despite co-respondent's efforts to ameliorate situation

Where the record indicated, inter alia, that Complainant's earlier conduct may have justified a discharge, but no action had been taken on the basis of such conduct until after Complainant had engaged in protected activity, Respondent failed to establish that it would have rejected Complainant for reemployment even if Complainant had not engaged in protected activity. Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987).

An additional aspect of Palmer is that Complainant had joint employers, a trucking company and a company that leased Complainant's services. The leasor refused to reemploy Complainant. The Secretary held that if the leasor's reason was motivated by Complainant's protected activity, the trucking company was liable by virtue of being a joint employer. The Secretary dismissed the ALJ's finding that the trucking company did not violate the STAA because it made genuine efforts to have the leasor reinstate Complainant and tried to place Complainant with other trucking companies. The Secretary found such actions irrelevant.

[Editor's note: The leasor was not made a party before the ALJ.]

VII B 3 ALJ Remand

In White v. "Q" Trucking Company, 93-STA- 28 (ALJ Nov. 9, 1993), the ALJ recommended a remand to the Wage and Hour Division for an investigation of whether an additional party was liable as a joint employer and should be joined as a party as required by Rule 19(a) of the Federal Rules of Civil Procedure.

VII B 3 Joint Employer/knowing participation

The Secretary held that the STAA does not require "knowing participation" of a joint employer's conduct towards the complainant in order to impose back pay liability. Nevertheless, the Secretary found that Western had knowingly participated in, facilitated, and contributed to Ryerson's discriminatory conduct towards Palmer.

Based on the Secretary's factual determination, Western is liable to Palmer whether the standard of liability for joint employers is strict liability or knowing participation. Thus, the court did not address the standard of liability issue. The court stated that factual determinations of the Secretary must be upheld unless they are unsupported by substantial evidence. The court found substantial evidence to support the Secretary's conclusions. Therefore, the Secretary's decision was affirmed.

Western Truck Manpower, Inc. v. United States Dept. of Labor, 12 F.3d 151 (9th Cir. 1993).

VII B 3 Joint Employers equally liable under STAA

In Slay v. Superior Transportation Systems, 88-STA- 1 (Sec'y Feb. 29, 1988), Respondent, Superior Transportation Systems (STS), contracted to provide transportation services to shippers, but owned no trucks and employed no drivers. Complainant was employed as a truck driver for Discovery Transportation Systems (DTS). The Respondent contracted with DTS to deliver a load to a third party, Manville. Several days after Complainant completed the delivery of that load, Complainant notified his dispatcher that he did not have sufficient hours to make an unrelated delivery. Shortly thereafter Complainant was fired from his employment with DTS. Subsequently Complainant told that the reason for his termination was his belligerent conduct during his delivery of the load to anville. Respondent had contacted DTS and Complainant contended that his discharge was in retaliation for refusing to drive when he did not have enough hours to make another delivery.

Having determined that Respondent STS was subject to the STAA as Complainant's employer, the Secretary held that STS and DTS were Complainant's joint employers and as such they were both liable for the acts of the other. The Secretary based this finding on the communality of stockholders in both entities, the shared office space, the performance of administrative functions by STS for DTS, the general interrelationship between the function performed by the "sister" entities, and most importantly, the ultimate effective control by STS of who could and who could not be employed as a driver on a load tendered by it to DTS.

VII B 4 STAA; interstate/intrastate commerce

The STAA applies to interstate commerce and to intrastate commerce that affects interstate commerce. See Taylor v. J.K.Trucking, ___ STA ___ (Sec'y Oct. 31, 1988). Evidence of minimal interstate commerce is not sufficient to establish activity in interstate commerce. It is not necessary however, to cross state lines to be within the ambit of Congress' power to regulate interstate commerce. Its power extends not only to actual commerce among the states but to such intrastate activities as exert a substantial effect on interstate commerce. Thus, where an Employer baled and sold scrap paper, picked by complainant during intrastate collection runs to an out-of-state buyer, the intrastate collection of paper, though not a major portion of the employer's total activities, substantially affected interstate commerce. The Secretary also found that since Employer merely baled the scrap paper and did no further processing of it before sale to the out-of-state buyer, there was no break in the interstate movement of the paper. Nidy v. Benton Enter., 90-STA-11 (Sec'y Nov. 19, 1991) (Secretary did not reach issue of whether purely intrastate transportation is covered by the STAA).

VII B 4 Hauling of mails affects interstate commerce

In Gagnier v. Steinmann Transportation, Inc., 91- STA-46 (Sec'y July 29, 1992), the Secretary found it "obvious" that a Respondent's transportation activities of hauling the United States mails affect interstate commerce, and therefore is covered under the STAA whistleblower protection provision. See Nidy v. Benton Enterprises, 90-STA-11 (Sec'y Nov. 19, 1991).

VII B 4 Engaged "in commerce"

General provision imposing liability

Definition of "person"

A "person" is "one or more individuals, partnerships, associations, corporations, business trusts, or any other organized group of individuals" for purposes of the subchapter, 49 U.S.C. app. § 2301(4).

Definition of "employee"

An "employee" is a driver of a commercial motor vehicle, a mechanic, a freight handler, or any individual other than an employer "who is employed by a commercial motor carrier and who in the course of his employment directly affects commercial motor vehicle safety * * *." 49 U.S.C. app. § 2301(2).

Definition of "employer"

An "employer" is "any person engaged in a business affecting commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it in commerce, but such term does not include the United States, an State, or a political subdivision of a State . . . ." 49 U.S.C. app. § 2301(3).

Definition of "commercial motor vehicle"

A "commercial motor vehicle" includes "any self- propelled * * * vehicle used on the highways in commerce principally to transport passengers or cargo" with a gross vehicle weight rating of ten thousand or more pounds. 49 U.S.C. app. § 2301(1).

Definition of "commercial motor carrier"

Relationship between motor common carrier, motor contract carrier and motor private carrier

A motor carrier either (1) holds itself out to the general public to provide motor vehicle transportation for compensation (motor common carrier) or (2) provides motor vehicle transportation for compensation under a continuing agreement (motor contract carrier). A motor private carrier transports property owned by it, via motor vehicle, for sale or to further a commercial enterprise.

The fact that Respondent's drivers regularly operated vehicles on national interstate highways also supported a finding that it was engaged "in commerce".

The Secretary distinguished regulatory schemes in which classification of a "motor private carrier" can require a quantum of transportation between States or across national boundaries.
E.g., 49 U.S.C. §§ 3101-3104 (DOT); 49 U.S.C. Subtitle IV (ICC). STAA section 405 has a remedial purpose that applies a more generic "commercial motor carrier" that is not statutorily defined. Absent a statutory definition, the Secretary concluded that it is appropriate to accord "commercial," deriving from "commerce," its legal meaning. [Editor's note: Secretary did not explain what commercial's legal meaning is or provide a citation of authority] In addition, the Secretary concluded that the legislative history of the STAA militates in favor of construing the term expansively to describe motor carriers "in" or "affecting" commerce. See H.R. Conf. Rep. No. 987, 97th Cong., 2d Sess. at 163-164, reprinted in 1982 U.S. Code Cong. & Admin. News (USSCAN), 3639, 3744- 3745.

The House Conference Report noted Department of Transportation authority to regulate "primarily with regard to vehicles that cross State lines or national boundaries or perform the intrastate portion of a continuous interstate movement" and expressed the intent to extend that authority so that "commercial motor vehicle operations both in and affecting interstate and foreign commerce" are regulated under the safety subchapter (now 49 U.S.C. app. §§ 2301-2307). H.R. Conf. Rep. No. 987 at 163, 1982 USCCAN at 3744 (emphasis added). Coverage under the subchapter extends, for example, to vehicles designed to transport ten or more persons to ensure "the highest levels of safety in this particularly important transportation area." H.R. Conf. Rep. at 164, 1982 USCCAN at 3745. Elsewhere in Title 49 coverage generally is limited to vehicles designed to transport 15 or more persons. Compare with other covering provisions where Congress explicitly has specified application, e.g., 49 U.S.C. app. § 2306(f) (commercial motor vehicle; meaning limited to section); 2314(c)(3) (interstate system); 2315(b)(2) (national intercity truck route network); 2503(1) (commercial motor vehicle); 2503(4) (interstate commerce); 2503(5) (intrastate commerce); 2515(b) (commercial motor vehicle).

VII B 4 Interstate commerce; construction of facility of interstate commerce; driving on interstate or connecting highways without crossing state lines

In Schuler v. M & P Contracting, Inc., 94-STA- 14 (Sec'y Dec. 15, 1994), the ALJ recommended dismissal of the complaint on the ground that Respondent is not a covered employer under the STAA because it "is not engaged in an activity which substantially or minimally affects interstate commerce."

The Secretary noted that Complainant introduced evidence that he drove trucks for Respondent hauling material from a construction project at an Airport, and alleged [apparently] that he drove trucks in connection with work on a National Interstate Highway. The Secretary then noted that Supreme Court decisions made it clear that repairs or construction of a facility of interstate commerce is engaging in commerce. In addition, the Secretary noted that he has held under the STAA that driving trucks on National Interstate, U.S. or interconnecting State Highways demonstrates that otherwise covered employees are engaged in commerce, even if state lines have not been crossed.

VII B 4 In commerce versus affecting commerce

In Taylor v. T.K. Trucking, Inc., 88-STA-4 (ALJ July 7 1988), Complainant was discharged from his employment with Respondent for refusing to drive while impaired due to alcohol and fatigue. Respondent's motor vehicles all has a gross vehicle weight rating of more than 10,000 pounds. Although Respondent hauled cargo solely within the state of Florida, it was also established that in the course of Complainant's employment with Respondent, he hauled cargo for another trucking company. The point of origin for that cargo included Georgia and other locations outside of Georgia.

The ALJ found that Respondent was liable under the STAA despite its status as an intrastate carrier. In making his findings, the ALJ distinguished between the standards of "affecting commerce" and "in commerce". In order for the STAA to be applicable, it must be shown only that the carrier was "affecting commerce". "This 'affecting commerce' standard can be compared with the much narrower scope of the 'in commerce' language, i.e., in the Fair Labor Standards Act (employees engaged 'in the production of goods for commerce')." The choice made by Congress to use the standard "affecting commerce" rather than "in commerce" evidences Congressional intent to reach as many employers as is constitutionally permissible.

The Secretary adopted the findings of the ALJ. (Sec'y Oct. 24, 1988).

VI B 4 Intrastate trucking company affects commerce and is liable to the STAA

In Taylor v. T.K. Trucking, Inc., 88-STA-4 (Sec'y Oct. 31, 1988), Complainant was discharged from his employment with Respondent for refusing to drive while impaired due to alcohol and fatigue. Respondent's motor vehicles all has a gross vehicle weight rating of more than 10,000 pounds. Although Respondent hauled cargo solely within the state of Florida, it was also established that in the course of Complainant's employment with Respondent, he hauled cargo for another trucking company. The point of origin for that cargo included Georgia and other locations outside of Georgia.

The Secretary accepted the ALJ's finding that despite the fact that Respondent was an intrastate carrier, Respondent was engaged in a business affecting commerce within the meaning of the Act. In making this finding, the ALJ concluded that Respondent's activities had a close and substantial relation to trade, traffic and commerce among the states (Respondent was responsible for hauling shipments for other trucking companies. These shipments included Hersheys Chocolate and Clorox, which had their origin outside the state of Florida.)

VII B 4 Motor carrier whose truck do not cross state lines; affected interstate commerce nonetheless

In Arnold v. Associated Sand and Gravel Co., Inc., 92-STA-19 (Sec'y Aug. 31, 1992), the respondent was engaged in the intrastate sale and delivery of cement. Its drivers transported cement over major state and interstate highways. It also manufactured concrete pipe which it sold wholesale and delivered intrastate for use in commercial projects. On rare occasions, the respondent may travel out-of-state to pick up products. A separate company delivers dry bulk cement originating out-of-state to the respondent.

The respondent contended that it was not covered under the whistleblower provisions of the STAA because it did not engage in interstate commerce.

The Secretary found that the respondent was a private carrier engaged in truck transport of cement and concrete pipe which it manufactures, transports by commercial motor vehicle, and sells, and therefore reasonable constituted an employer covered under section 405(a) of the STAA. She also found that the respondent constituted an employer within the STAA definition because its business affects commerce in that

it operate ready-mix facilities in the States of Washington and Oregon,
it sells concrete pipe to utility contractors,
it imports bulk cement from out-of-state for use in manufacturing its products,
it assigns employees to operate commercial motor vehicles in connection with its business, and those drivers operate on routes carrying traffic through California, Oregon, and Washington, and across the Northern United States. See Howe v. Domino's Pizza Distribution Corp., 89-STA-11 (Sec'y Jan. 25, 1990) (test is not whether a state line is crossed but whether the vehicle is driven on a highway, directly affecting motor vehicle safety).
its drivers regularly operate on National Interstate Highways. See Brennan v. Keyser, 507 F.2d 472, 474- 475 (9th Cir. 1974), cert. denied, 420 U.S. 1004 (1975) (operators performing work on highways serving as interstate connections engaged in commerce for purposes of FLSA coverage). To the same effect: Gray v. Swanney- McDonald, Inc., 436 F.2d 652 (9th Cir. 19xx), cert. denied, 402 U.S. 995 (1971).

The Secretary distinguished DOT and ICC regulations that indicate that this respondent would not comprise a "motor private carrier."

VII B 5 a STAA definition of person/corporation

Corporations are within the STAA definition of "person." 49 U.S.C. app. § 2301(4). Obsorn v. Cavalier Homes of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17, 1991).

VII B 5 b STAA definition of employer

A corporation that leased truck tractors and driver transport services for assignment within a pool of manufacturers is within the STAA definition of "employer." 49 U.S.C. app. § 2301(3). Obsorn v. Cavalier Homes of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17, 1991).

VII B 5 b STAA definition of employer

Where a dispatcher was employed by a home manufacturer but acted as an agent for a truck leasing and driver services company (he assigned drivers; took employment applications from and interviewed drivers; "recommended whether the leasing company should suspend or bar drivers from serving the home manufacturer, and signed checks issued by the leasing company to compensate the drivers), and where at one time drivers were employed directly by the home manufacturer and the home manufacturer later continued to control which drivers were assigned to transport its mobile homes, the manufacturer was an "employer" within the meaning of 49 U.S.C. app. § 2301(3). Obsorn v. Cavalier Homes of Alabama, Inc. and organ Drive Away, Inc., 89-STA-10 (Sec'y July 17 1991).

VII B 5 c Employer/Employee relationship established where Complainant worked for a trucking company from which Respondent subcontracted drivers

Based on the showing that STS was engaged in a business affecting commerce and effectively had the power to control DTS's assignment of drivers, including Complainant, when a shipment tendered by it to DTS was involved, the Secretary affirmed the ALJ's finding that Respondent, STS was Complainant's employer and therefore was subject to the STAA.

[STAA Whistleblower Digest VII B 5 c]
PARTY; WHETHER LAWYER AND LAW FIRM REPRESENTING A RESPONDENT MAY BE A "PERSON" WHO MAY BE SUED UNDER STAA WHISTLEBLOWER PROVISION

In Somerson v. Mail Contractors of America , ARB No. 03 042, ALJ No. 2003 STA 11 (ARB Oct. 14, 2003), Complainant alleged that the filing of a request for a protective order and witness interview restriction in a prior case constituted a violation of STAA whistleblower law, naming Employer's attorney and his law firm as respondents. The ALJ recommended dismissal of the complaint in regard to the attorney and law firm on the ground, inter alia , that they were not employers as defined by 49 U.S.C.A. § 31101(3)(A). The ARB wrote:

Thus, the ALJ's dismissal of the complaint against MCOA's legal representatives was based initially on his determination that a "person" under 49 U.S.C.A. § 31105(a) must be an "employer" under 49 U.S.C.A. § 31101(3)(A). However, a "person" is defined under the STAA's interpretive regulations as "one or more individuals, partnerships, associations, corporations, business trusts, legal representatives or any group of persons." 29 C.F.R. § 1978.101(i). Thus the definition of "person" does not exclusively restrict its coverage to "employers," and in fact, specifically includes "legal representatives." It is indisputable that the provision includes employers and that in most cases a "person," who is in the position to discharge, discipline or discriminate against an employee, will be an employer.

The ARB, however, declined to decide this issue, as it disposed of the case on other grounds. See also Somerson v. Mail Contractors of America , ARB No. 03 042, ALJ No. 2003 STA 11 (ARB Dec. 16, 2003) (Order Denying Complainant's Motion to Vacate, strongly reinforcing that the ARB had not determined this issue in the Oct. 14, 2003 decision).

[STAA Whistleblower Digest VII B 5 c]
EMPLOYER; OUTSIDE COUNSEL FOR RESPONDENT

See Somerson v. Mail Contractors of America Inc. , 2003 STA 11 (ALJ Jan. 10, 2003).

[STAA Digest VII B.5.c.]
EMPLOYER/EMPLOYEE; GOVERNMENT EMPLOYEE NOT COVERED EMPLOYEE UNDER THE STAA; GOVERNMENT HAS NOT WAIVED SOVEREIGN IMMUNITY UNDER STAA

In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998- CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), the ARB found that an environmental specialist for the U.S. Department of Energy could not maintain a STAA whistleblower complaint against either the Department of Energy nor a private company. The ARB held:

[STAA Digest VII B 5 c]
EMPLOYER; DOES NOT APPLY TO UNITED STATES, A STATE , OR A POLITICAL SUBDIVISION OF A STATE

In Moore v. U.S. Dept. of Energy , 1998-CAA-16 (ALJ Dec. 24, 1998), the ALJ granted Respondent's motion to dismiss the STAA component of Complainant's complaint, where there was no factual dispute that Complainant at all times relevant was an employee of the United States government. The ALJ held, as a matter of law, that employees of the United States government are expressly excluded from protection under the STAA. See 49 U.S.C. §§ 31101(2)(B) and (3)(B); 29 C.F.R. § 1978.101(d).

[STAA Digest VII B 5 c]
EMPLOYER; DOES NOT APPLY TO UNITED STATES, A STATE , OR A POLITICAL SUBDIVISION OF A STATE

Where Complainant was an employee of the U.S. Department of Energy, the ALJ, in a recommended decision on summary judgment, found that Complainant could not invoke the whistleblower provision of the STAA because of the statutory exclusion of the United States from the definition of an "employer" under that Act. Rockefeller v. U.S. Dept. of Energy , 1998-CAA-10 and 11 (ALJ Sept. 28, 1998), citing 49 U.S.C. § 31101(3)(A)(B), and Killcrease v. S&S Sand and Gravel, Inc. ,1992-STA-30 @ 2 n.1 (Sec'y, Feb. 2, 1993). The ALJ rejected Complainant's citation to Flor v. U.S. Dept. of Energy , 1993-TSC-1 (Sec'y Dec. 9, 1994) (Complainant in Flor included a STAA complaint; Secretary found that Complainant had filed a timely STAA complaint), on the ground that the issue of the statutory exemption of the United States was not addressed in that decision.

EMPLOYER; SUCCESSORSHIP LIABILITY
[STAA Digest VII B 6]

In Rowland v. Easy Rest Bedding, Inc. , 93- STA-19 (Sec'y Nov. 21, 1994), the Secretary detailed the factors relevant to determining successorship and successorship liability in labor-related cases:

whether the successor company had notice of the charge;
the ability of the predecessor to provide relief;
whether there has been substantial continuity of business operations;
whether the new employer uses the same plant;
whether the new employer uses the same or substantially the same work force;
whether the new employer uses the same or substantially the same supervisory personnel;
whether the same jobs exist under substantially the same working conditions;
whether the new employer uses the same machinery, equipment and methods of production, and
whether the new employer produces the same products.

Secretary of Labor on behalf of Keene v. Mullins , 888 F.2d 1448, 1453-54 (D.C. Cir. 1989), citing EEOC v. acMillan Bloedel Containers, Inc. , 503 F.2d 1086, 1094 (6th Cir. 1974).

[STAA Digest VII B 7] VEHICLE RATING OR WEIGHT

[STAA Digest VII B 7]
VEHICLE RATING OR WEIGHT

In Marinkovic v. Vasquez , No. 14-3069 (D. Md. June 16, 2015) (2015 U.S. Dist. LEXIS 77463), the Plaintiff alleged that the Respondent directed him to drive an ambulance, which he believed had a carbon monoxide leak. The court found that the Respondent's ambulance did not fit within the STAA, 49 U.S.C. § 31101(1) defintion of "commercial motor vehicle." The court found that the ambulance only weighed 9,400 pounds, only seated approximately six individuals, and did not transport any hazardous material nor a sufficient quantity of hazardous materials to require placarding under the statute. Thus, the Plaintiff could not, as a matter of law, assert a viable claim under the STAA.