New Prime, Inc., (also known as “Prime“) was found guilty of violating the Surface Transportation Assistance Act after firing a driver that had chosen to shut down at the base of Donner Pass during hazardous weather. We were recently notified of this personally by trucking employment law attorney Paul Taylor of Taylor & Associates, Ltd.
In a decision issued on March 15, 2010, Department of Labor Judge Daniel Leland ruled that New Prime, Inc. (also known as “Prime“) illegally fired Cynthia Ferguson because she refused to continue operating a commercial vehicle in hazardous weather. In Ferguson v. New Prime, Inc., Ferguson, a leased driver for Prime, was fired shortly after she refused to driver through Donner Pass in the Sierra Nevada Mountains with a loaded tractor-trailer set during hazardous weather. Paul Taylor of the Truckers Justice Center filed a claim on behalf of Ferguson with the Department of Labor alleging that Prime illegally fired her. Prime alleged that it fired Ferguson because she operated the truck at a deficit.
Judge Leland ordered Prime to reinstate Ms. Ferguson as a driver, pay back wages of more than $ 26,600, pay $ 50,000 as compensation for Ferguson’s emotional distress, and pay $75,000 in punitive damages. Judge Leland also ordered Prime to pay Ms. Ferguson’s attorney fees, and remove unfavorable information from her DAC Report.
Trucker Drivers Are Ultimately Responsible
Truck drivers are held responsible for the safe operation of their vehicle. If a driver gets in an accident, regardless of the cause, the driver is responsible. Whether your load shifts, you have a mechanical failure, you slide off the road in hazardous conditions, or driver error is the cause – it makes no difference. An accident is an accident in the eyes of the law, and the eyes of trucking companies, and a driver must be certain that the truck is safe to operate, the conditions are safe to drive in, and the load is properly secured. You will find circumstances on occasion where a driver is cleared of responsibility for an incident, but this is rarely the case.
Cynthia Ferguson informed Prime that the conditions on Donner were too dangerous to drive, and here is the key excerpt from her Qualcomm:
Driver: 12/26/2008 06:24 DONNER PASS REQUIRES CHAINSAND HAS BEEN CLOSED OFF AND ON FROM YESTERDAY UP TO NOW. I WONT BE TRAVELING ANY FURTHER UNTIL THEY CLEAR THE ROAD
Dispatcher: 12/26/2008 06:58 why didnft you cross it yesterday? you should have been across the country twice by now
Dispatcher: 12/26/2008 07:01 chain up asap
We had a long discussion regarding Cynthia Ferguson’s lawsuit between several experienced drivers and attorney Paul Taylor and there were a lot of interesting facts uncovered about Ms Ferguson’s performance as a driver. After 15 years on the road I wouldn’t be doing my duty to make this appear as if Ms Ferguson was an angel and Prime was a ruthless dictator. That doesn’t appear to be the case at all. Ms Ferguson was training a student at the time, “Darla”, and here is an official statement from Cynthia Ferguson’s dispatcher Jeremy Thomas:
“Cynthia told me she trained at her last company and was a good trainer. So far since I have made her a trainer I have had to repower her 3 times on the last 4 loads and the only load she delivered it took her 6 days to move across country and had to be resch (rescheduled) 3 times due to weather. The weather was bad but most trucks pushed thru with little delays. Darla feels comfortable driving in the weather but Cynthia will not give her the chance to do it. While down in the weather Darla would like practice backing and pretrips but Cynthia will not practice with her at all Darla says. Darla says Cynthia seems bipolar and has a terrible attitude in general. I have had complaints from Butlb Olsa Allij and most every one that deals with her says she is very unpleasant to work with. Extremely rude person has not made a paycheck since she came to Prime.”
Is Ms Ferguson’s performance as a driver relevant in this lawsuit? No – not at all. As interpreted by the FMCSA, The Surface Transportation Assistance Act (STAA) 49 C.F.R. Section 392.14 clearly states:
“The driver is clearly responsible for the safe operation of the vehicle and the decision to cease operation because of hazardous conditions.”
Then why am I bringing up the driver’s average mileage, performance as a trainer, and attitude if it isn’t relevant to the case?
Many Lessons To Be Learned
There are a number of important lessons to be learned from this situation. It appears that Prime may have intended to fire Ms Ferguson for poor performance and a poor attitude, and this latest incident was the straw that broke the camel’s back. Prime illegally listed Ms Ferguson’s refusal to drive in hazardous conditions as one of the reasons for firing her, but clearly they had a long list of complaints.
The question is, would we be talking about this at all if Prime wouldn’t have illegally listed her decision to shut down as a cause for firing? It appears not. It appears that she was going to be fired for a number of legal reasons, but by listing her refusal to drive in hazardous conditions as one of the causes, Prime broke the law, was rightfully sued, and lost. If not for this, Ms Ferguson may have simply been fired and become one more turnover statistic in the trucking industry.
Having Success As A Truck Driver
The trucking industry is an incredibly tough place to make a living, and being a truck driver is one of the most demanding jobs you will ever find anywhere. It often requires:
- Sacrificing time at home with family and friends
- A relentless work ethic
- Strong character
- The ability to continuously adapt to a large variety of ever-changing circumstances
- People skills
- A great attitude
- Street smarts
- Elite driving skills
- Outstanding judgment
- Relentless attention and focus
….and a whole lot more. I drove for 15 years and I never worked in the office of a trucking company or in management for a single day of my life. I’m blue collar all the way, raised in an extended family of steel workers, auto workers, farmers, mechanics, and carpenters. I was raised in a small town, with small town values of working hard, treating people well, and taking pride in all you do. I had the greatest parents in history and I thank my lucky stars every day of my life for all the success I’ve had because of everything they’ve taught me. Nobody is more lucky than I.
But nothing I’ve done was more difficult than trucking. You have to stand up for yourself. You have to know when to stand your ground, and know when to compromise and take one for the team. You’ll find that most of the time you’ll have to go it alone, because the truth is it’s rare that anyone will ever have your back as a driver – except maybe in this case a lawyer like Paul Taylor, who is “the third generation of a trucking family” as he mentions on his website. He did an excellent job here in defending Cynthia and this case will serve as a precedence for all drivers forever forward. A dispatcher should never, ever question a driver’s decision to shut down for safety reasons.
But understand that the trucking industry has a lot of gray areas, a lot of unwritten rules, a lot of high expectations, and a lot of difficulties to overcome. You saw the list of what it takes to make it in this industry, and that never changes no matter how long you’ve been a driver. Understand the circumstances in this particular case, and always keep in mind what a privilege it is for all of us to be alive and healthy in this great country with the opportunity to pursue whatever career we feel suits us best.
Don’t take that for granted. Don’t stop appreciating what you have. Work hard. In fact, work damn hard! Treat people well. Be smart, be safe, and be the best you can possibly be at everything you do. We’re all guilty of coming up short at times in our lives with nobody but ourselves to blame. But here we are with yet another new day and a fresh chance to make up for those times. Take advantage of that opportunity and make the most of it.
Carpe diem – and do it with pride.
I’d love to hear everyone’s comments regarding this situation, but please make sure you understand the circumstances well before commenting. Take a few minutes to examine the links above and then let us know what you think.