No employer wants to hear a worker say: "I'm calling my lawyer," because litigation – justified or not - is always best avoided.
Fleet Owner spoke to several lawyers who specialize in truck driver and employment issues to find out why drivers ring their barristers. Although many lawyers focus on their niches, there is some consensus on what issues prompt drivers to seek legal help.
Number 5: CDL/moving violations.
No surprise here, but many trucking lawyers report that they often leave this area to law firms that have this specialty carved out for themselves. Nationwide legal firms, often low-cost, have popped up that represent lawyers in various states and refer cases to them. Some firms offer a 'pay as you drive' retainer payment plan which pays for representation if it's ever needed.
Number 4: Not being paid for work.
"A lot of drivers work for owner-operators who have one or two trucks leased to a carrier. The carrier pays the owner operator, but the owner- operator doesn’t pay the driver," says attorney Paul Taylor of Taylor & Associates in Burnsville, Minnesota.
He says that sometimes they will pass on a case because the O-O is a deadbeat – he simply has no money - and there is no way to make the driver whole.
"Many times, though, we take cases where drivers are paid on percentage, and the company is not giving them copies of the rated pay bills, which they’re required by law to do. We make a demand [for the bills] and if they refuse it’s usually a pretty good indication that there might be some skimming going on."
Number 3: Adverse actions such as wrongful firing, demotion, unfair discipline.
Some actions may not seem fair but they are legal, says Taylor. "A driver may say 'they told me I was fired because I was late for a load, but I had to take care of my kid' or whatever. I have to tell them that there’s nothing we can do about it because the law doesn’t require an employer to act fairly. It requires them to act legally.”
However, a common complaint that lawyers hear is retaliation over a safety-related issue. "Employers need to be more thoughtful when they are about to impose an adverse action on an employee such as discipline or termination," says Richard R. Renner, an attorney with Kalijarvi, Chuzi, Newman & Fitch in Washington, DC. "If they can do it in a way in which the driver would understand and agree it’s appropriate, that really reduces the employer's liability. But what we see too often is that the supervisor or manager really is upset about the driver raising a safety or compliance concern and they impose an adverse action by fiat. Out of the blue they get fired, for example, and that’s a good way to drive them to a lawyer."
Another common related complaint is being punished for 'refusal to drive.' "These are the majority of calls I get," says Irving, Texas-based attorney Monika D. Jenkins who represented for eight years trucking firms and insurance companies who had been sued for negligence. She opened her own firm last year and focuses on drivers because she's more interested in employment law. "I know the trucking companies’ perspective when it comes to lawsuits and liability… These can be whisteblower cases."
Whistleblower drivers are protected by the Surface Transportation Assistance Act (STAA) which outlines protections against illegal discharge or retaliation based, among several reasons, for filing a complaint "related to the violation of a commercial motor vehicle safety or security rule." The law was signed by President Reagan in 1982 and strengthened by President Bush in 2007. While the number of cases received by the federal government is relatively small, 463 in 2014, it was the highest year on record and the numbers have been increasing. Most cases are settled by an attorney and truck carrier before they reach the attention of federal officials.
Number 2: Drug and Alcohol tests.
This is an area in which lawyers may help the least because of the basic nature of the tests. Either you take the test or you don't. Either you pass or you don't. There's not much wiggle room, lawyers say, but that doesn't stop drivers from seeking help.
"Right now I've got a refusal case where the driver wasn’t given the exact address for his test," says Taylor. "He was given the town and he was on his way and then he got out of cell phone range [so he couldn't call for the address]. At least that’s his version."
Other times drivers say they were stuck in traffic or decided to wait until the traffic died down and then missed their appointments. "There's not much I can do in these kinds of situations," Taylor says.
Number 1: DAC reports.
"I handle a great deal of issues concerning DAC reporting," states Jenkins. Taylor concurs: "They're our number one call."
DAC reports can make or break a truck driving career so accuracy is vital, lawyers say. It's also an area that, with the right knowledge and skills, can be cleared up.
Fortunately for drivers, DAC reports are covered under the Fair Credit Reporting Act, which covers all consumer reports like credit reports. Unfortunately, the burden falls on the consumer, in this case the driver, to find and correct inaccuracies.
Many drivers report that they can't seem to get hired by a new carrier, and they don't understand why until they see their DAC report. It may contain information they didn't know about or, in some instances, what they consider to be inaccurate reporting.
"Most of the DAC issues revolve around preventable versus non-preventable accidents," says Taylor. "For example, a driver runs off the road, lands in a ditch and says there was black ice. The company may not view it the same way as the driver."
Taylor adds: "Sometimes our goal isn’t necessarily to get money. Sometimes it's simply to clean up the DAC report and get it into a neutral reference so the driver can find new employment."