Asphalt Specialists Inc.
Ehstoday 3090 Paving

Asphalt Specialists Tells Workers to Hit the Pavement, OSHA Says Not So Fast

Aug. 19, 2014
Asphalt Specialists has been ordered by OSHA to pay nearly $1M in compensation and must reinstate drivers terminated for raising safety concerns.

Asphalt Specialists Inc. violated the Surface Transportation Assistance Act, according to OSHA, when it wrongfully terminated a foreman and two truck drivers who had raised safety concerns. According to OSHA and the terminated workers, they were directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers.

Headquartered in Pontiac, Mich., the asphalt paving company was ordered to reinstate the three employees to their former positions with all pay, benefits and rights. The company was ordered to pay a total of $953,916 in damages: $243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages.

According to the Surface Transportation Assistance Act, “A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because … the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health or security”

According to OSHA, Asphalt Specialists expected workers to ignore the DOT-mandated 10-hour rest period between shifts.

“It is illegal for an employer to retaliate against employees who report work-related safety concerns or violations of federal transportation regulations, which require drivers to have a minimum 10-hour rest period between shifts,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “OSHA is committed to protecting workers from retaliation for exercising basic worker rights.”

Steve Wright, the company’s outside general counsel, told the Detroit Free Press: “OSHA, before making these findings, didn’t look at any of the information we provided. All these people were terminated for proper reason.”

OSHA tells another story.

The foreman was terminated from employment on June 30, 2012. OSHA claims he repeatedly raised concerns to the company’s co-owner about exceeding hours of service when job assignments repeatedly failed to allow for the 10-hour rest period mandated by the Department of Transportation.

At least twice, said OSHA, the foreman and the crew were expected to work more than 27 hours straight. The employee “rightfully refused to operate a vehicle in an unsafe manner, which potentially could cause serious injury to the worker, co-workers or the public,” according to OSHA.

OSHA ordered the foreman to be reinstated and to receive back wages of $147,457, less any applicable employment taxes; $50,000 in compensatory damages and $200,000 in punitive damages.

The company refers to the ASI Way when talking about safety for employees, but this diagram of the ASI Way does not include safety as one of the company's core elements.

The second truck driver was terminated from employment on April 26 after he also raised concerns about the number of work hours required by the company and “refused to sign an affidavit denying that he was required to work in excess of the number hours legally permitted,” said the agency.

OSHA claims Asphalt Specialists sought the affidavit to use in their response to the agency’s investigation of the fired foreman’s claims. OSHA has ordered this driver to be reinstated and to receive back wages of $44,379, less any applicable employment taxes; $30,000 in compensatory damages and $200,000 in punitive damages.

The third driver was terminated from employment on July 8, 2013, after raising concerns about vehicle maintenance and about the number of hours they were expected to drive. OSHA has ordered the driver to be reinstated and to receive back wages of $52,080, less any applicable employment taxes; $30,000 in compensatory damages and $200,000 in punitive damages.

The Surface Transportation Assistance Act covers private-sector drivers and other employees of commercial motor carriers. Companies covered by the STAA may not discharge their employees or retaliate against them for refusing to operate a vehicle because doing so would either violate a federal commercial motor vehicle rule related to safety, health or security, or because the employee had a reasonable apprehension of serious injury to themselves or the public because of a vehicle’s safety or security condition.

Any of the parties in this case can file an appeal with the department’s Office of Administrative Law Judges.

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