Recently, the Administrative Review Board (which issues final agency decisions for the Secretary of Labor in cases arising under a wide range of worker protection laws, including the Surface Transportation Assistance Act) ruled in favor of a motor carrier that allegedly terminated the employment of one of its drivers in retaliation for complaining about unsafe working conditions. The case is Israel v. Schneider National Carriers, Inc., ARB Case No. 09-115. The Administrative Review Board ("ARB") concluded that although Mr. Israel may have engaged in so-called protected activity, such actions played no role in Schneider National's decision to sever its relationship with him.

While Mr. Israel was on leave of absence in connection with his workers' compensation claim, he filed a "whistleblower" claim under the Surface Transportation Assistance Act ("STAA"), alleging Schneider National retaliated against him for complaining about purportedly unsafe working conditions on at least three occasions. Notwithstanding Israel's multiple complaints, the ARB concluded his failure to maintain communications with Schneider National concerning his health and return-to-work status, and his refusal to return the keys to his truck, constituted the sole reason for his termination from employment.

This case illustrates the importance of adequately documenting communications to and from drivers—or the lack thereof—on medical leave of absence. The case also reminds transportation managers that the applicable burden of proof standard under the STAA is, as of August 2007, the so-called "mixed motive" approach—not the oft-cited McDonnell Douglas burden-shifting approach. This means a complainant under the STAA need only show that protected activity (e.g., refusing to drive a vehicle under allegedly unsafe driving conditions) is a "contributing factor" in the termination decision.

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