Be proactive with employment liability, attorney tells trucking executives

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Potential employment law issues and liability are real risks, but they can be managed effectively, an attorney who specializes in trucking employment law told trucking executives Wednesday, June 11, at the CCJ Spring Symposium in Tuscaloosa, Ala.

Eddie Wayland — a partner at King & Ballow who supervises the Nashville-based law firm’s ligitation efforts — told Symposium attendees that such management involves implementing a simple, practical approach to auditing potential employment law risks, combined with targeting proactive measures to minimize risks.

“Job descriptions are worth their weight in gold,” Wayland said during his “Controlling Loss in the Employment Arena” presentation. “Go home and write yourself a work description.”

Wayland, who also serves as outside general counsel for the Truckload Carriers Association, listed 11 high-risk areas that should serve as red flags to employers. “There is a duty to reasonably accommodate,” he said:

  • Equal employment opportunity, including discrimination; discipline and discharge; and recruiting and hiring. Recent litigation trends in this arena include associational discrimination (associations with people of another race), pregnancy, religion (holidays, observance time off, religious dress/garments, prayer at work and religious artifacts at work) sex discrimination and genetic information. A new law effective Nov. 21 protects employees and the insured from discrimination based on the genetic information of employee or family members, Weyland said.
  • Disability. Recent litigation trends here include substantial limitation, record of a disability, perceived disability (not truly disabled under the law, but the employer perceives a worker that way), duty to accommodate, associational discrimination (someone else in the family has a disability), and application of Department of Transportation regulations for drivers.
  • Harassment (sexual, racial or national origin). Employers have a duty to investigate and to take remedial action, Weyland said: “If you don’t have a harassment policy in today’s environment, you’re foolish.” Litigation alleging a hostile work environment also is becoming more prevalent, he said.
  • Family and Medical Leave Act issues, including recognizing/designating, monitoring/managing, National Defense Authorization Act amendments to FMLA, and concurrent benefits. “Train or give some education to your management or supervisors,” Weyland said. Even decisions made here by lower-level managers can get a company in trouble, as the court shows no distinction between chief executive officers and middle and lower management, he said.
  • Retaliation. An employee can win on his retaliation claim even if he loses on his underlying claim, Weyland said. The Surface Transportation Assistance Act protects workers from retaliation for whistleblowing on matters regarding safety and security, he said. Other retaliation claims regard lack of a formal investigation by the employer, and employer retaliation against a co-worker of the employee who makes a complaint.
  • Wage and hour/Fair Labor Standards Act issues, including overtime, overtime exemptions (statutory, white collar and Motor Carrier Act Exemption) and proactive measures.
  • Union activity and/or maintaining nonunion status. “The time to start talking to your employees about why they don’t need a union is now,” Weyland said.
  • Immigration/work authorization status, including I-9 compliance and Social Security issues.
  • Worker’s compensation.
  • Employment contracts.
  • Occupational Safety and Health Administration and hazardous-materials issues.