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Monday, December 27, 2021

NJ Employment Whistleblower Attorney- Employer Retaliation Against Drivers

All employment positions must be carried out under the umbrella of state and federal laws, and for some driver employees that includes maintaining an accurate driving-time logbook. Valid whistleblower claims can relate to your objecting to what you reasonably believe is your employer committing fraud upon the public or the government, or complaining about violation of other laws such as the New Jersey Law Against Discrimination. I have successfully represented employees in whistleblower claims and was successful in recovering six figure settlement money for them. In one such case,  the employer terminated the head of HR who was in charge of hiring. The employer instructed the head of HR to not hire persons of a certain race; when the employee objected to this illegal business practice and refused to do so, the employer illegally terminated her in retaliation. Sadly, this type of situation happens more frequently than one might expect.

In New Jersey, the New Jersey Conscientious Employee Protection Act (CEPA) is among the most far reaching and strongest whistleblower protection for employees in the country. If your employer has classified you as an independent contractor who is paid as reported on a 1099, it does not mean that you may not have this CEPA whistleblower protection because employers frequently mis-classify their employees to save money and avoid liability.

Drivers of Motor Coaches

Both non-profit public motor coaches and commercial private employers of bus drivers and others whose employment requires driving with a Commercial Drivers License (CDL), must comply with all State and Federal Department of Transportation (DOT) Regulations.

For the objective of the safety of passengers, drivers and the public, New Jersey and the federal government passed regulations that employers must adhere to for their bus driver employees. The Federal Motor Carrier Safety Regulations have minimum standards for those involved with the operation of commercial motor vehicles in interstate commerce, in order to cover all people and entities involved in interstate operation of these commercial vehicles. Employers of bus drivers  must comply with Federal Motor Carrier Safety Regulations (FMCSRs).

Regulations issued by FMCSA are published in the Federal Register and compiled in the U.S. Code of Federal Regulations. NJ State and Federal Departments of Transportation have adopted these regulations and at times have added their own regulations.

Some of the United States Department of Transportation Regulations issued by FMCSA for Motor Carriers of Passengers are as follows, which may be subject to change:

Hours of Service for Motor Carriers of Passengers

General – Part 395

The hours-of-service rules for drivers of passenger-carrying commercial motor vehicles (CMVs) are different from the rules for property-carrying CMVs. Note that Non-business Private Motor Carriers of Passengers are not subject to the record keeping requirements of this part, such as maintaining a logbook or record of duty status.

Maximum Driving Time for Passenger – Carrying Vehicles – § 395.5

No motor carrier of passengers shall permit or require any passenger-carrying CMV driver to drive:

More than 10 hours following 8 consecutive hours off duty, or

For any period after having been on duty 15 hours following 8 consecutive hours off duty.

No motor carrier of passengers shall permit or require any passenger-carrying CMV driver to drive, regardless of number of motor carriers using the driver’s services, for any period after the driver has been on duty:

60 hours in any 7 consecutive days if the carrier does not operate CMVs every day of the week; or

70 hours in any 8 consecutive days if the carrier operates CMVs every day of the week.

Off-Duty Time

“Off-duty time” is not specifically defined in the regulations. In effect, it is any time that is not “driving time,” “on-duty time,” or “sleeper berth” as defined in § 395.2.

The following guidelines must be met before a driver is considered off duty for meal and other routine stops made during a work shift:

The driver must be relieved of all duty and responsibility for the care and custody of the bus or passenger-carrying CMV, its accessories, and any passengers, baggage and freight that it may be transporting.

During the stop, and for the duration of the stop, the driver must be at liberty to pursue activities of his/her own choosing.

On-Duty Time – § 395.2

On-duty time means all time from the time a driver begins work or is required to be in readiness for work until the time the driver is relieved from work and all responsibilities for performing work. Performing other compensated work for a person who is not a motor carrier is also on-duty time. Note: the complete definition of on-duty time can be found in § 395.2.

Travel Time – § 395.1(j)

When a driver at the direction of a motor carrier is traveling, but not driving any vehicle or assuming any other responsibility to the carrier (“cushioning”), such time shall be counted as on-duty time unless the driver is afforded at least 8 consecutive hours off duty when arriving at destination, in which case he/she shall be

considered off duty for the entire period.

Relief Drivers

On long-distance trips requiring straight-through driving, motor coach companies may send a relief driver ahead.

In cases when the driver is driven or uses public transportation to get to a layover location, and the driver has 8 consecutive hours off duty after arriving, travel time may be recorded as off duty.

If the CMV driver drives him/herself in a non-CMV, time spent driving the non-CMV to a layover location must be recorded as on duty, not driving.

Note: This is just a partial list of state and federal regulations that apply and some exceptions apply to the above.

If you quit your job, you may lose right to prevail in a lawsuit

If you quit your job, you may lose right to prevail in a lawsuit. If you are thinking of quitting, or you think you will be fired, you should know that you may lose your right to prevail in a lawsuit unless you first take certain legally required measures to to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office immediately to discuss your options in the safest way for you.

Statistics prove that  employees who quit their employment have an extremely lower  rate of prevailing in a lawsuit  than employees who were terminated. This is because if an employee quits, the former employee will have to prove what is known in legal terms as a “constructive discharge” which is a very high threshold to prove.

If You Complained about What You Reasonably Believed to Be Your Employer’s Illegal Practices and Your Employer Retaliated               

Do not sit on your rights, or you may lose the right to file your claim. If you think you have been retaliated against for complaining about or reporting to your employer what you believe are your employer’s illegal practices, it is essential for you to contact an experienced, competent and successful employment whistleblower attorney who will be aggressive about enforcing your rights as soon as possible.

If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct, you should contact this law firm as soon as possible. I am an experienced and compassionate employment attorney who will be aggressive about enforcing your rights.  I am successful in bringing whistleblower lawsuits against governmental entities and private employers and recovering money for whistleblower workers.

If you are being subjected to such unlawful workplace retaliation, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept whistleblower and discrimination cases from all over New Jersey.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.


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