Whistleblower Alert: Internal Complaints Are Protected Whistleblower Activity, ARB Affirms

Date: Feb 10, 2011

The Administrative Review Board (ARB), under the substantial evidence standard, has upheld the ruling of an Administrative Law Judge (ALJ) that Domino's Pizza violated the whistleblower provisions of the Surface Transportation Assistance Act when it terminated a commercial truck driver after he made internal complaints that he was being pressured to drive during rest periods. The case, Williams v. Domino's Pizza, DOL ARB No. 09-092, 1/31/11 (released 2/4/11), illustrates the importantance of tracking protected whistleblower activity and ensuring that protected speech does not become entangled in the cause for termination.

Lavan Williams was hired by Domino's Pizza as a commercial truck driver in January, 2007. To comply with driver hours of service rules, Domino's assigned two drivers to a route so that one could rest while the other drove. Williams complained to his supervisor on more than one occasion that his co-workers were pressuring him to work during his rest periods. Then, in late July or early August, 2007, Williams telephoned a company compliance hotline and made the same complaint. Although Williams was assured his call would remain confidential, two weeks later, Williams' supervisor met with him to discuss the complaint. At that meeting Williams refused to name the co-workers who had been pressuring him.

Three months later, Williams was involved in an accident while driving a work route. Under Domino's' policy drivers were required to call a company accident hotline within two hours of any accident. Williams did not call the hotline but he did try to call his distribution center, and submitted an accident report and diagram.

Four days later, Williams was suspended for failing to call the accident hotline. At that time, Williams' supervisor told him that if he was able to call the compliance hotline, he should have been able to call the accident hotline. Williams complained to headquarters' personnel that he believed he had been suspended for reporting a safety violation on the compliance hotline.

Williams was then terminated for failing to report the accident. Sometime later, Domino's' Human Resources department changed the reason for termination to job abandonment because Williams had allegedly failed to respond to the company's attempts to contact him. Thereafter, Williams filed a timely complaint with the Occupational Safety and Health Administration (OSHA) which handles whistleblower claims filed under the STAA and almost twenty other statutes. OSHA dismissed Williams' complaint following investigation as lacking merit. Williams appealed the decision and requested a de novo hearing before an ALJ, who ultimately ruled in Williams' favor. Domino's appealed the ALJ's decision to the ARB, but the Board rejected Domino's' appeal, holding that there was substantial evidence in the hearing record to support the ALJ's findings that Williams' protected activity was a contributing factor in Domino's' decision to terminate his employment. In this regard, Domino's made two critical errors: (1) conditioning whistleblower protection on Williams' naming others who had made similar complaints; and (2) mentioning Williams' protected conduct in justifying the termination decision. The company's failure to establish a practice of terminating other employees for failing to follow the accident call-in policy rendered the company unable to prove by clear and convincing evidence that it would have terminated Williams regardless of his protected activity.

Keller and Heckman provides assistance in all areas covered in this Alert including Whistleblower litigation and Transportation law. Interested employers should contact Michael Morrone at 202-434-4124 or morrone@khlaw.com.