§31105 — Title 49 Transportation | U.S. Code

Summary

Protects people who work with commercial motor vehicles from being fired, punished, or treated unfairly about pay, job terms, or job privileges for certain safety- and security-related actions. Employers may not punish workers for filing or helping with complaints about safety rules, for refusing to drive when doing so would break safety rules or would likely cause serious harm (after trying and failing to get the employer to fix the danger), for honestly reporting hours, for cooperating with federal safety or security investigations, or for giving information about crashes or incidents. A worker’s fear of danger is protected only if a reasonable person in the same situation would see a real risk. If a worker believes they were punished, they or someone for them must file a complaint with the Secretary of Labor within 180 days. The Secretary will investigate, decide within 60 days whether the complaint seems valid, and send written findings. If the Secretary finds a violation, the preliminary order can require the employer to stop the violation, reinstate the worker with the same pay and terms, and pay damages including back pay with interest, special damages, litigation costs, expert fees, and reasonable attorney fees. Punitive damages may be up to $250,000. The worker or employer can object within 30 days and ask for a hearing. The Secretary must issue a final order within 120 days after the hearing. If there is no final decision within 210 days (and the delay is not the worker’s fault), the worker may sue in federal court. A person affected by a final order can ask a U.S. court of appeals for review within 60 days. The Secretary enforces orders in federal court if needed. The law does not reduce other federal or state protections or let employers make workers give up these rights. One-line term: "Employee" means drivers (including contractors when driving), mechanics, freight handlers, and others who directly affect commercial motor vehicle safety or security, excluding government employees. Additional rules protect workers’ identity from disclosure by the Departments of Transportation and Homeland Security, with limited exceptions, and require DHS to set up and handle reports about vehicle security problems.

Title 49, §31105

Transportation — Source: USLM XML via OLRC

(a)(1)A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because—

(A)(i)the employee, or another person at the employee’s request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order, or has testified or will testify in such a proceeding; or

(ii)the person perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order;

(B)the employee refuses to operate a vehicle because—

(i)the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or

(ii)the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;

(C)the employee accurately reports hours on duty pursuant to chapter 315;

(D)the employee cooperates, or the person perceives that the employee is about to cooperate, with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or

(E)the employee furnishes, or the person perceives that the employee is or is about to furnish, information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.

(2)Under paragraph (1)(B)(ii) of this subsection, an employee’s apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the hazardous safety or security condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the hazardous safety or security condition.

(b)(1)An employee alleging discharge, discipline, or discrimination in violation of subsection (a) of this section, or another person at the employee’s request, may file a complaint with the Secretary of Labor not later than 180 days after the alleged violation occurred. All complaints initiated under this section shall be governed by the legal burdens of proof set forth in section 42121(b). On receiving the complaint, the Secretary of Labor shall notify, in writing, the person alleged to have committed the violation of the filing of the complaint.

(2)(A)Not later than 60 days after receiving a complaint, the Secretary of Labor shall conduct an investigation, decide whether it is reasonable to believe the complaint has merit, and notify, in writing, the complainant and the person alleged to have committed the violation of the findings. If the Secretary of Labor decides it is reasonable to believe a violation occurred, the Secretary of Labor shall include with the decision findings and a preliminary order for the relief provided under paragraph (3) of this subsection.

(B)Not later than 30 days after the notice under subparagraph (A) of this paragraph, the complainant and the person alleged to have committed the violation may file objections to the findings or preliminary order, or both, and request a hearing on the record. The filing of objections does not stay a reinstatement ordered in the preliminary order. If a hearing is not requested within the 30 days, the preliminary order is final and not subject to judicial review.

(C)A hearing shall be conducted expeditiously. Not later than 120 days after the end of the hearing, the Secretary of Labor shall issue a final order. Before the final order is issued, the proceeding may be ended by a settlement agreement made by the Secretary of Labor, the complainant, and the person alleged to have committed the violation.

(3)(A)If the Secretary of Labor decides, on the basis of a complaint, a person violated subsection (a) of this section, the Secretary of Labor shall order the person to—

(i)take affirmative action to abate the violation;

(ii)reinstate the complainant to the former position with the same pay and terms and privileges of employment; and

(iii)pay compensatory damages, including backpay with interest and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.

(B)If the Secretary of Labor issues an order under subparagraph (A) of this paragraph and the complainant requests, the Secretary of Labor may assess against the person against whom the order is issued the costs (including attorney fees) reasonably incurred by the complainant in bringing the complaint. The Secretary of Labor shall determine the costs that reasonably were incurred.

(C)Relief in any action under subsection (b) may include punitive damages in an amount not to exceed $250,000.

(c)With respect to a complaint under paragraph (1),11 So in original. Probably should be “subsection (b)(1),”. if the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to such action, be tried by the court with a jury.

(d)A person adversely affected by an order issued after a hearing under subsection (b) of this section may file a petition for review, not later than 60 days after the order is issued, in the court of appeals of the United States for the circuit in which the violation occurred or the person resided on the date of the violation. Review shall conform to chapter 7 of title 5. The review shall be heard and decided expeditiously. An order of the Secretary of Labor subject to review under this subsection is not subject to judicial review in a criminal or other civil proceeding.

(e)If a person fails to comply with an order issued under subsection (b) of this section, the Secretary of Labor shall bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.

(f)Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law.

(g)Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.

(h)(1)Except as provided in paragraph (2) of this subsection, or with the written consent of the employee, the Secretary of Transportation or the Secretary of Homeland Security may not disclose the name of an employee who has provided information about an alleged violation of this part, or a regulation prescribed or order issued under any of those provisions.

(2)The Secretary of Transportation or the Secretary of Homeland Security shall disclose to the Attorney General the name of an employee described in paragraph (1) of this subsection if the matter is referred to the Attorney General for enforcement. The Secretary making such disclosure shall provide reasonable advance notice to the affected employee if disclosure of that person’s identity or identifying information is to occur.

(i)(1)The Secretary of Homeland Security shall establish through regulations, after an opportunity for notice and comment, a process by which any person may report to the Secretary of Homeland Security regarding motor carrier vehicle security problems, deficiencies, or vulnerabilities.

(2)If a report submitted under paragraph (1) identifies the person making the report, the Secretary of Homeland Security shall respond promptly to such person and acknowledge receipt of the report.

(3)The Secretary of Homeland Security shall review and consider the information provided in any report submitted under paragraph (1) and shall take appropriate steps to address any problems or deficiencies identified.

(j)In this section, “employee” means 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—

(1)directly affects commercial motor vehicle safety or security in the course of employment by a commercial motor carrier; and

(2)is not an employee of the United States Government, a State, or a political subdivision of a State acting in the course of employment.

Notes & Related Subsidiaries

Historical and Revision Notes

Revised SectionSource (U.S. Code)Source (Statutes at Large) 31105(a)49 App.:2305(a), (b).Jan. 6, 1983, Pub. L. 97–424, § 405(a)–(d), 96 Stat. 2157. 31105(b)49 App.:2305(c). 31105(c)49 App.:2305(d). 31105(d)49 App.:2305(e).Jan. 6, 1983, Pub. L. 97–424, § 405(e), 96 Stat. 2158; Nov. 8, 1984, Pub. L. 98–620, § 402(51), 98 Stat. 3361. In subsection (a)(1), before clause (A), the words “in any manner” are omitted as surplus. The word “conditions” is omitted as included in “terms”. In clauses (A) and (B), the word “rule” is omitted as being synonymous with “regulation”. In clause (A), the word “begun” is substituted for “instituted or caused to be instituted” for consistency in the revised title and to eliminate unnecessary words. In clause (B), the words before subclause (i) are substituted for “for refusing to operate a vehicle when” and “or because of” for clarity and consistency. In subclause (ii), the words “vehicle’s unsafe condition” are substituted for “unsafe condition of such equipment” for consistency. Subsection (a)(2) is substituted for 49 App.:2305(b) (2d, last sentences) for clarity and to eliminate unnecessary words. In subsection (b)(1), the words “alleging such discharge, discipline, or discrimination” are omitted as surplus. In subsection (b)(2)(B), the words “Not later than 30 days after the notice under subparagraph (A) of this paragraph” are substituted for “Thereafter” and “within thirty days” for clarity. In subsection (b)(2)(C), the words “Before the final order is issued” are substituted for “In the interim” for clarity. Subsection (b)(3)(A) is substituted for 49 App.:2305(c)(2)(B) (1st sentence) for clarity and to eliminate unnecessary words. In clause (ii), the word “conditions” is omitted as included in “terms”. The provision for back pay is moved from clause (ii) to clause (iii) for clarity. In subsection (b)(3)(B), the words “a sum equal to the aggregate amount of all” and “and expenses” are omitted as surplus. The words “in bringing the complaint” are substituted for “for, or in connection with, the bringing of the complaint upon which the order was issued” to eliminate unnecessary words. In subsection (c), the words “or aggrieved” and “with respect to which the order was issued, allegedly” are omitted as surplus. The words “in accordance with the provisions of chapter 7 of title 5 and” are omitted because 5:ch. 7 applies unless otherwise stated. In subsection (d), the text of 49 App.:2305(e) (last sentence) is omitted as unnecessary.

Editorial Notes

Amendments

2007—Pub. L. 110–53 amended text of section generally. Prior to amendment, section related to, in subsec. (a), prohibition against discharge or discipline of, or discrimination against, an employee regarding pay, terms, or privileges of employment for certain actions, in subsec. (b), procedures for filing of complaint, in subsec. (c), judicial review and venue, and, in subsec. (d), civil action to enforce an order.

Statutory Notes and Related Subsidiaries

Employee Protections Pub. L. 105–178, title IV, § 4023,

June 9, 1998, 112 Stat. 415, provided that, not later than 2 years after

June 9, 1998, the Secretary of Transportation, in conjunction with the Secretary of Labor, was to report to Congress on the effectiveness of existing statutory employee protections under this section, with recommendations to address any statutory changes necessary to strengthen the

Enforcement

of these provisions.

§31105 Employee protections