The Grawe Gazette – General Counsel
Happy Holidays & Quick Hits
By Doug Grawe, December 2021
We want to wish all of our readers, clients, colleagues, and friends a happy, safe, holiday season. 2021 ends as one of the most action-packed in recent-history for trucking. As an industry we have received more mainstream attention (good and bad) in the past two years than we have in decades. We are facing stringent government mandates from cities, states, and the feds. Carriers have enjoyed incredible demand, only to face truck shortages and continued recruiting and retention challenges. Merger and acquisition activity has accelerated, and money is pouring into the industry from outsiders. It is a good time to be in trucking and a hard time to be in trucking, all at the same time. We are thankful for our opportunity to serve this great industry during these extraordinary times.
A few quick hits to end the year…
The ATA and many other firms and trade associations are doing an excellent job updating companies on OSHA’s vaccine mandates. Continue to stay tuned. The 6th Circuit lifted the stay on the ETS vaccine mandate from OSHA late this week, but as you might imagine, the ATA and many states, trade associations, and companies appealed the decision within hours. OSHA stated they will begin enforcement January 10, and enforcement of the testing mandates on February 9. If I am an employer over 100 employees (part-time and full-time are counted) I am preparing for the mandate in case it does go into effect, but I am not implementing the mandate yet. I would be monitoring the litigation for the final outcome.
The industry remains in wait mode on the Supreme Court and two significant cases. The first, the California Trucking Association’s challenge to California’s AB5, is a critical case on the future of independent owner operators in the industry. The second, is a challenge to broker liability in motor vehicle accident cases. SCOTUS has not officially decided to take either case yet, but they have asked for additional briefing, which is a positive sign.
Recently I have been asked to review some non-competes and non-solicitation agreements. Cities, states, courts, and the federal government are increasingly frowning upon non-compete agreements. Plus, the hyper-competitive labor market is giving employees leverage to pushback against non-competes. If you use non-competes, to keep them enforceable make sure you (1) narrow the geographic scope; (2) keep the restricted time period short (e.g., months, not years), (3) minimize what you consider a competing business, and (4) make sure the employee receives consideration (e.g., promotion, job, raise, bonus, etc.) for signing the agreement. Two-year non-competes that cover the entire U.S. and restrict the employee from working in trucking are not going to be enforceable.
Take Advantage of Holiday Downtime
As the year draws to a close, the Grawe Pod takes a look at the value of using the little December and January downtime to work on your business. Your podcast hosts Doug Grawe and Gary Randall discuss how December and January can offer a chance to lift your head out of the day-to-day. Doug and Gary walk through some examples of ways that trucking and logistics companies can take advantage of the few breaks to think about your business, your area, your metrics, your people and your alignment.
The Grawe Group, LLC is here to bring peace of mind to you and your business. We are a professional services firm focused on the transportation industry. With a team of experienced executives, we provide general counsel, executive leadership, and people development services for trucking and logistics companies. From legal and risk management matters, to operational, financial, and leadership challenges, the Grawe Group has the practical expertise in trucking and logistics to help you build sustainable success. www.thegrawegroup.com.
Check out the Grawe Pod, transportation’s general counsel podcast, for discussions on challenges industry leaders face in their business and how to address them. Now available on iTunes, Spotify, and other major podcast outlets!