Article

Protecting Yourself From Lawsuits Part 2: Employment Bombshells

June 2010, TruckingInfo.com - Feature

by Steve Sturgess, Executive Editor

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In employment there are a number of litigation bombshells waiting to explode into your face if you don't hear - and respond to - the ticking you should be hearing.

Listen for the

So said attorney Eddie Wayland at the Truckload Carriers Association annual meeting earlier this year.

If you don't respond quickly and appropriately to these ticking time bombs, "The first thing you know, you're in the middle of a case with $250,000 and up in damages," he warned.

His presentation was based around several employment situations where seemingly trivial disputes had the potential for disaster. Although the actual situations he portrayed were fictitious, each was based on trial experience from Wayland's firm King and Ballow, with offices in Nashville, Tenn., and La Jolla, Calif.

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His first caution was around labor organizing by unions. That, he said, calls for an immediate response. But employers must also be very conscious of the dangers presented by various cases and developments in the law, especially involving fair labor standards, the Equal Pay Act, religious accommodations and charges of harassment.

Fit for duty?

In his first fictitious example, a driver hired at an already heavy 345 pounds gained and lost weight between 340 and 450 pounds such that he could barely lift a box to help in the discharge of his duties. The driver was judged not fit for his job and placed on safety hold. The driver, since he couldn't do his job, was eventually fired.

Wayland warned that this is by no means a clear-cut case under the Americans With Disability Act.

Since 2009, anyone who claims a mental or physical disability is assumed to have it unless it can be proven otherwise. Obesity in and of itself is not a disability, said Wayland, citing a court ruling involving Watkins Motor Lines. But if the obesity is a result of some physiological reason, obesity may be considered a disability, and that means there is a case to defend under the ADA.

One way to avoid this situation is to be more cautious in your hiring policy, such as requiring new hires to have a body mass index (BMI) of less than 40. In fact, it's a very good policy to have even current employees tested for sleep apnea if their BMI is over 30, warned Wayland. At higher numbers than that, he said, there is a significant danger of sleep apnea, with the attendant dangers of fatigue-induced accidents - or at least that's the case that could be made in court.

So the first lesson of the session was to craft hiring practices that would not permit bombshells later.

Warming to his theme, Wayland talked about medical and salary discrimination with an example of a female employee who first asked for voice recognition software to address a carpal-tunnel-syndrome disability. This employee also complained she was not being paid the same as a male employee doing the same job. To make matters worse, the employee also decided to bring a suit for overtime payment that escalated into a suit for all the company's employees in similar situations.

These things need to be nipped in the bud by the firm's A-team, said Wayland. "What starts out as a piddly-ass situation could end up costing a million," he said.

Discrimination

These cases illustrate the need to be on top of discrimination and fair labor standards issues. But there are other bombshells waiting for the employer who is not on top of things. Particularly singled out were religious and sexual discrimination and accommodation issues and charges of harassment.

Religious issues are a minefield, said Wayland. Like the issue of overweight hires cited earlier, this can best be addressed in the hiring process with a policy addressing areas where confrontations could occur, and exactly how such issues are to be dealt with.

But some cannot be avoided, as in the example of a driver who converted to the Rastafarian faith. This involved the growing of dreadlocks that under the rules of the religion cannot be trimmed or in any way treated but by washing with water alone. As can be imagined, this could quickly result in a driver being adrift of the appearance code written in to the original hiring contract.

Wayland, in his presentation, made this already complex situation even more difficult by suggesting this driver has a relationship with another worker in the company, who is then subjected to derogatory remarks from fellow workers because of her relationship with the dreadlocked driver. This is now becoming harassment, and there is a major problem developing that needs experienced help addressing.

What can the company do to extricate itself from an escalating series of conditions each with serious implications should it come to litigation?

Wayland's answer is to get the A-team on board. This may be an experienced human resources department that has seen these issues before and successfully steered around them. But if it is a small company without the resources to deal with these issues, professional help should be sought.

Most importantly, local managers must recognize the flags that are going up and report early in the process that things are getting out of control. In Wayland's words, you don't want to be shot in the foot before you've even started the race.

From the June 2010 issue of Heavy Duty Trucking.

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