Question:
I originally posted this question in the Safety Forum but it probably should be here.
Under a different topic ( Bedspread said:
ATTENTION DRIVERS:
Did You Know That...
You can act to protect yourself and the public from unsafe working conditions. For example you can:
* REFUSE to operate a commercial vehicle that fails to meet Federal safety requirements.
* REFUSE to violate a DOT regulation.
* REPORT violations of vehicle safety requirements.
* REFUSE to drive under conditions that you reasonably believe might cause serious injury to yourself or the public.
It is ILLEGAL for your employer to discriminate against you in any way solely because you take any of these actions. For example, your employer may not;
* Fire or demote you.
* Assign you to an undesirable job or shift.
* Take away your seniority.
* Take away earned sick leave or vacation time.
* Blacklist or threaten you.
So how about this?
Suppose your employer directs you to act in a manner which you consider to be hazardous but which is not covered under the FMCSR (e.g., while loading or unloading cargo).
Does a driver have any protection under the law if he refuses to comply?

Answer:

This is all well and good, but practically speaking any complaint will have adverse consequences. Period. In the movies everybody likes the guy who is a whistleblower. In reral life, everybody may like him, but they don't him to work for them. What specifically is the safety violation? Is this a one time thing or is is due to special circumstances? (a special one time contract or shortage of special equipment) Try to work with your boss and understand he has a business to run.
In many cases problems arise because different generations have different ideas of what is "hazardous". Aristotle wrote centuries ago that "men choose the wrong pathway because they are ignorant of the right." The handling of waste chemicals is a case in point. I knew men who owned cars carrying this stuff and hired men who handled the material in a most casual manner. They were ignorent men and simply did not understand the hazard.
The first question to ask yourself is: Why am I being involved? Is this your beef? If it is somebody elses beef mind your own business unless the hazard is so dangerous that life is genuinely endangered. Years ago, in another union, I knew a man who eventually ended up union president and then ended up fired. His crusading goal was "safety". He begame a royal pain-in-the neck about every little insignificant thing. If a fire extinguisher did not bear a current inspection date he squealed like a pig to the fire department. He did not separate the wheat from the chaff and finally everyone grew tired of the man who cried "wolf".
We have a number of safety problems where I work. They are serious, but I keep my mouth shut. They do not rise to the point where I care to take the lightening. Example? Men riding up and down to the car on the tines of fork lifts in all sorts of weather and riding with the lift clinging to the blade and the cargo. Then men who endangered themselves do so of their own volition. I can't be responsible for everyone. That's just a personal credo.
I have been around the block on this many times over the years and cannot recommend the way I have led my life to anyone. I had supervisors arrested and physically handcuffed on four separate ocasions. These situations involved the endangerment of others who were not involved in the creation of the hazard and who were to all effect innocent bystanders. On each of these ocasions eventually I had to leave the employ of the company and lost tremendously both financially and emotionally. Was I right? Sure. Take that to the bank and feed your kids. One of these ocasions involved the detonation of explosives in a hazardous manner causing fragments which nearly killed someone. No blast mat. The individual persisted in continueing to do what he wanted after being repeatedly warned I would take action. Another ocasion involved locking and chaining all fire exits in a building where many people worked at night to reduce theft. Think of the famous Triangle Shirtwaist fire where 104 women burned alive. I did.
You can expect, after the smoke settles for not a single one of your fellow employees to be a witness to the situation they so enthusiastically encourage you to report. No. Afterwards they will join in branding you as a "nut" and a "foul ball".
There are many rules and regulations governing hazard. My theory is, if it really is a hazard then go for the jugular. The jugular is in all states the penal law, and the applicable law is titled "Reckless endangerment".
In New York State: PL 120.25 "Reckless endangerment in the First Degree" is a Class D felony. A person is guilty of reckless endangerment in the first degree when, under circumstances evidencing a depraved indifference to human life, he recklessly engages in conduct which create a grave risk of death to another person.
Most of the workaday situations involve less hazardous situations. In 1970 Congress enacted the Occupational Safety and Health Act (OSHA) and that too covers "hazards that are causing or likely to cause death or serious physical harm to employees". OSHA violations are classed as:
(1) "Serious Violations" where there is a substantial probability that death or serious physical har,m could result from an existing condition or practice.
(2) "Other violations" Not serious violations but which have a direct or immediate relationship to occupational health or safety.
(3) "Repeated Violations". Where an employer has repeated the same violation after being told to cease and desist.
(4) "Imminent Danger Violations". Conditions or practiuces which reasonably could be expected to cause death of serious physical harm.
In theory this works great. In practice filing a complaints is troublesome, the investigation will come long afterwards, and the usual result will be a citation or minor fine and you will end up "on the list".
In the cases I choose to be involved with I dialed 911, and filed as a complaintent charges on the spot. You inform the officer "I'm not asking you to arrest this man. I'm telling you."
You really have to ask yourself though, if the situation is worth throwing yourself over the railroad tracks for? Years ago I worked with explosives. Men smoked around them. I did not consider this a super hazard. Yes, yes, I will get a thousand complaints to the contrary. It is not something I would have been involved in complaining about. Transporting blasting caps together with explosives, however, was something so serious as to warrent someone getting an immediate punch in the mouth, let alone taking legal action.
It is generally a "no-win" situation for an individual employee to get involved making a safety complaint against his boss. There are too many ways you can end up being fired. It is generally impossible for you to do your job withgout violating one or more regulations mandating you be fired at least three times a day and when the time comes about the boss will select one of these things, lay in wait for you, and your dismissal will be solely predicated on that event, despite the fact that nine thousand other people do the same thing every day.
If you have a union go to the shopsteward. If you don't have a union go to the safety coordinator off the record. These men are not monsters and often genuinely interested in reducing safety hazards. Remember though, once you have brought a hazard to a supervisors attention, and he decides to do nothing, if you bring the situation to the attention of someone above his head you make him look very bad. People do not like to look bad. Especially supervisors looking for management bonus money and promotions to feed the rugrats.
Try not to run your mouth off to fellow employees about the hazard but bring it up in a quiet off-the-record man to man meeting with an appropriate supervisor. Then don't go back and brag and take credit for "straightening things out."
The advent of worker protection legislation has by-and-by been a good and desireable thing. Use the law judiciously, appropriately and sparingly. And be prepared to pay consequences no matter what the law says. about them not taking action. You will make enemies and they will lay in wait. One day you won't be paying attention. You'll violate a company regulation clear and simple and they will have been keeping a record. Did you or did you not run that red light? Well...uh you see it's because I am interested in safety...
And then when you get into the inevitable accident somebody will be looking closely at you and making another decision.
"You backed into the guy's car. It cost three thousand dollars. You're fired. And you owe the guy three grand."
Another man who is a little less vocal will be told: "Well, try to be more careful. Our insurance will handle that."
That's the reality.
That's my two-cents.

Answer:

I appreciate the thoroughness, and candidness, of your reply newyorktwo. You offer good advice, as usual.
However, the situation I tried to describe isn't about filing a complaint, per se. My question is about legal protection for a driver who refuses to comply with a supervisor's direction because the driver believes that doing so would be a "Serious Violation" by OSHA standards.
Do OSHA standards even apply in this situation?

Answer:

You both raise good points. The Surface Transportation Assistance Act provides legal protection for drivers, mechanics and dispatchers who make complaints related to violations of the FMCSR's or who refuse to violate the regulations or refuse to drive unsafe commercial motor vehicles.