Thursday, September 8, 2011

For The Love Of ADA Freight Haulage Can Be A Legal Minefield

Truck Drivers and Operators Both Face Discrimination Problems
Shipping News Feature

US – UK – In what many in Britain are calling a claim culture the Courts are hearing more and more cases, many of which are spurious, in which people feel they, or their reputations, have been damaged in some way. A brief look at some of the cases on both sides of the Atlantic involving freight hauliers and their drivers may serve to illustrate the minefield which awaits those who, knowingly or unknowingly, transgress.

In the UK a decision was made to overturn a wrongful dismissal suit against European logistics group Wincanton who had dismissed two of their commercial vehicle drivers after they allowed their driving licences to expire whilst actively working for the group. Despite the fact the two men had worked for the company for almost two decades Wincanton sacked them when it discovered the error during one of the company’s twice yearly document verification checks.

An Industrial Tribunal originally found the decisions to sack the men unfair despite acknowledging that, in the event of an accident, the ‘consequences of driving without a licence were too horrific to contemplate’ but said the drivers were partly at fault and therefore reduced any compensation proportionately.

The decision was overturned on appeal as it was found that the fact that there were no incidents which directly affected the company during the period the men were driving illegally was irrelevant, the potential for harm was sufficiently serious and the case would create a precedent in that an employee should not be able to avoid dismissal after an act of serious negligence whether or not it actually caused harm to the employer.

In the US a case is to proceed against Old Dominion Freight Lines (ODFL), a haulage outfit of similar size to Wincanton (ODFL employs around 5,800 drivers to the European firms 6,500) after they dismissed a driver for problems with alcohol. In the US alcoholism is a recognised disability and in this case the trucker himself realised his affliction and reported it to the company.

ODFL , in line with US Department of Transport regulations, had no choice but to immediately suspend the driver and send him off on a course of counselling. The company however simultaneously instructed their employee that he would no longer be eligible for a driving position, allegedly a stance which they had taken in the past in similar cases.

The case is however not being brought directly by the employee but by the U.S. Equal Employment Opportunity Commission (EEOC) who say that the company cannot impose such conditions as this course breaches the Americans With Disabilities Act (ADA) and has therefore filed a suit, not merely for the opportunity for employment within the company as a driver, but punitive and compensatory damages plus back pay and a Court injunction to prevent reoccurrence.

As usual with these precedent setting suits one thing is certain, there will be a cost, both financial and personal, to one or more of the parties involved.

The final case we are looking at is one which any large haulage outfit should also be aware of in that sometimes what may seem to be a minor administrative oversight can have the most damaging consequences at some future time. Legal proceedings in the case began over eight years ago when an argument, familiar to freight haulage operators globally, broke out between the company and drivers who felt they were being underpaid.

The crux of the problem, potentially involving millions of dollars of underpaid wages, is the allegation that the software used by US truck group Swift does not accurately reflect distances driven. The company apparently historically employs the mileages given in Rand McNally’s Household Goods Mileage Guide which drivers contend habitually under records their actual mileages, on which pay is based, by between 6 and 10%.

Swift are up against legal outfit Hagens Berman who issued a statement saying, ‘We believe that the software program chosen by Swift is not compatible with the company’s obligations under the drivers’ employment agreements. We look forward to pointing out this inconsistency in court and recovering drivers’ lost wages.’

Given that the law firm are still looking for Swift employees who worked for the company from 1998 to the present day and a decision that the case can now proceed to trial has just been announced by the Court, a negative judgement for Swift could involve a very expensive pay off for a group which utilises 16,000 trucks and claims to be, ‘The largest motor carrier in the United States and probably the World.’