UPS Freight fined after firing driver who refused to drive without a required ELD

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Updated Jan 7, 2021

The Department of Labor has ordered UPS Freight to pay a truck driver who refused to drive unless his truck was equipped with an electronic logging device.

An investigation by the DOL’s Occupational Safety and Health Administration (OSHA) revealed that UPS Freight managers at the company’s Londonderry, New Hampshire, facility allegedly retaliated against the trucker for refusing to drive. UPS said it is contesting the fines because the situation has been resolved through other channels.

OSHA ordered UPS Freight to pay the driver $15,273 in compensatory damages, $30,000 in punitive damages and approximately $2,700 in back wages plus interest. OSHA alleged that UPS violated the Surface Transportation Assistance Act (STAA) by firing the unnamed driver in March 2019.

OSHA said the driver’s supervisor was not trained on ELD requirements and that company managers attempted to coerce the driver into violating ELD regulations. The driver was allegedly fired for “gross insubordination” after he told his managers he wouldn’t drive unless his truck was equipped with an ELD or a mounting device for a portable ELD. UPS later modified the termination to a suspension.

UPS said in a statement to Overdrive that it reported the driver’s concern to the Federal Motor Carrier Safety Administration and reached a settlement with the agency, then worked with the local union to reinstate the driver without loss of pay. The company said it is contesting the situation with OSHA since it has already been resolved with FMCSA.

When FMCSA receives a complaint, it investigates the situation and notifies the carrier if a violation is found. The carrier and FMCSA then negotiate a settlement that usually includes a fine and a change in the carrier’s processes. As reported in Overdrive‘s feature package about the first four years of the FMCSA’s Coercion Rule, those fines are paid to the government, not to the driver involved.

UPS wouldn’t comment further on the terms of the settlement. But according to FMCSA’s Analysis and Information online database, the parties agreed to a $9,220 settlement for violation of the Coercion Rule and one other violation related to driver licensing. The violation of 49 CFR 390.6, the prohibition of coercion of a driver to violate a regulation, marks a fifth enforcement case in which the FMCSA fined a carrier for such violation — ongoing reporting in Overdrive documented four other such cases over the nearly four-year history of the coercion prohibition being in effect. This case was closed in mid-to-late September, just after the period analyzed. (Read more about multifaceted aspects of the rule via links at the bottom of this story.)

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In addition to the fines, OSHA is requiring UPS to clear the driver’s personnel file of any reference to the issues in this situation, post a notice informing employees of their whistleblower protections, refrain from firing or discriminating against employees who engage in STAA-protected activity, and not use a driver’s refusal to drive because of a good faith concern that doing so would violate a FMCSR as a contributing factor in a termination decision.

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