Transportation employers, can you survive the federal audit "tag team"?

David Smith of Constangy’s OSHA practice group is co-author of this post.

The federal Occupational Safety and Health Administration and the Federal Motor Carrier Safety Administration are tag-teaming transportation employers. They’ve signed a Memorandum of Understanding in which they agree to share information about allegations of safety, coercion, and retaliation.

Tag Team-ROH_Wrestling's_Greatest_Tag_Team
The FMCSA auditor is on the left.

And last week, OSHA ordered a Michigan asphalt company to pay almost $1 million to a foreman and two drivers who claimed that they were fired in violation of the Surface Transportation Assistance Act for engaging in protected activity related to driver hours of service.

It’s a mistake for trucking employers to breathe a sigh of relief when the FMSCA auditor drives away – because the OSHA inspector may be right behind. Here are some areas you should look at before any auditor or inspector arrives:

*Forklift Compliance. Are forklifts in good working order, with legible data plates and functioning seatbelts that are consistently used? Are attachments approved by the manufacturer? Do you regularly conduct required pre-shift inspections? Have all operators been trained and evaluated, and then re-evaluated every three years?

*Loading Docks. Do you regularly review procedures and check equipment used to prevent trailers from mistakenly pulling away while being loaded? And, if any loading dock is 4 feet high or higher, to prevent forklifts or employees from falling off the dock?

*Terminal shop and fuel islands. These are considered “low-hanging fruit” for OSHA inspectors, who frequently find unguarded or unanchored grinders and drills, use of compressed air without safety nozzles, lack of eyewash facilities, trailer top repair work without fall protection, and unlabeled containers of oil, antifreeze, or even window washer fluid.

Fruit tree
Watch out for that low-hanging fruit!

*Safety shoes. OSHA inspectors have even been known to cite employers for not requiring dock employees to wear safety shoes with protective toes.

*FMSCA compliance. The OSHA inspector may tell you in the closing conference that employees alleged FMCSA violations, such as exceeding hours of service, falsification of logs, or improper maintenance of tractors and trailers. The OSHA inspector may also notice and refer visible FMCSA compliance issues, such as improperly loaded trailers, missing or erroneous hazardous material placards, or hazardous cargo that is improperly packaged and leaking, or missing the required labels.

*Whistleblowers. Of course, because the primary focus of the MOU is whistleblower protection, either an FMCSA auditor or an OSHA compliance officer would quickly refer any claim of safety-related retaliation. Those complaints would be referred to OSHA’s Whistleblower Protection Programs division for investigation. All trucking employers should already have in place an effective whistleblower protection policy, with training for managers, supervisors, and employees.

With a good safety and whistleblower policy in place, you should be ready for the FMCSA-OSHA “tag team.”

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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