The Grawe Gazette – General Counsel
By The Grawe Group, LLC, August 2021
This week a Florida jury awarded the parents of a teenager killed in a truck accident $100 million in compensatory damages and $900 million in punitive damages. The news reports suggest the trucking companies did not defend themselves, the truck drivers involved were not qualified, and the trucking companies were bad companies. No one needs to shed a tear for them. But the dollars awarded make no sense. It will never be paid, and there was never any chance of it being paid. But it makes the plaintiff attorneys involved look good in advertising and among their peers, and it makes the industry look bad.
What can you do?
First, invest time and resources in preventing accidents and maintaining a strong safety culture. Don’t settle for talk, don’t settle for just buying the technology. Make sure your actions match your words. Make sure you are using the technology and data effectively.
Second, engage with your state trucking association on lawsuit abuse reform. We probably will not have a lot of success getting hard caps on liability, but we can bring some balance to the litigation rules.
Risks in Capacity Recruiting & Retention
The most talked about issue in transportation today is capacity: recruiting it and retaining it. Last month we shared thoughts about how to approach driver onboarding and driver retention differently to get different results. No matter what you do to address capacity shortages, keep in mind some legal risks common to recruiting and onboarding capacity.
- False advertising. These claims come in a variety of forms, including allegations of violating franchise marketing rules (rising claim from owner operators). The prevention cure = be honest in your advertising and recruiting. Don’t mislead. Keep your website up to date, verify your ads and posts are accurate. Social media advertising is prolific; make sure your posters are current on what promises you can meet for drivers. Pay, home time, equipment, operating areas, etc. should all be represented fairly.
- ADA. One common mistake companies make is having zero tolerance policies. Trucking companies get in trouble when they say a driver can never have had a failed drug test, must have 1-year medical card, or don’t accept any SPEs from the DOT. Addiction is a disability. A medical issue that forces a 6-month card is a disability. A condition that requires an SPE is a disability. This does not mean you must say yes, but it does mean you cannot automatically say no. Consider each situation on its own. Can the person do the job safely, legally, professionally, and on-time? Verify with your recruiting and qualification teams your actions don’t suggest you have zero tolerance policies.
- Carrier selection. As a broker in today’s capacity crunch, it can be tempting to ease your carrier selection guidelines. That may be okay, but be thoughtful, and surgical in your approach. If the U.S. Supreme Court or Congress acts to protect brokers from negligent hiring claims (they each have the opportunity to do so now, but the outlook is not promising), then brokers can focus elsewhere, but until then brokers need to make sure their carrier selection guidelines and protocols are updated (written and actual need to match), consistently followed, and thoughtfully designed so you have a good defense to such claims.
The Grawe Group Updates
- We’re hitting the road! Industry events are back, and we are excited to see friends and colleagues on the conference circuit. In September, you can find us presenting at Home Delivery World in Philadelphia; ATA Safety, Security, and Human Resources in Indianapolis; Iowa Motor Truck Association in Des Moines; and TCA Annual in Las Vegas. If you are there, look us up, we’d love to connect.
- It is always a good idea to keep an eye on what is around the bend. This week we published our latest episode of the Grawe Pod, a discussion on the PRO Act’s future and how trucking and logistics companies can prepare their business for the next 6-18 months.
- To help you prepare for what’s around the bend, we are excited to offer a free risk assessment. We will spend time with you and your team to analyze how well your business is prepared for the legal and business risks facing the industry. Check out the details on our website or reach out to us directly with an email to firstname.lastname@example.org.
- Driver Appreciation Week is fast approaching. It’s a good time to celebrate your drivers (if you are looking for gear and branding ideas Arcon does good work), but it is also a good reminder to make sure your actions show your appreciation for your drivers year round (e.g., better pay design, good utilization, home time promises kept, meaningful relationships, etc.).
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!