Trucking''s Porous Umbrella Effect

Copyright 2006, Traffic World, Inc.

As a lawyer who does a great deal of employment work for trucking companies, I often see the "umbrella effect." This is when a company assumes the laws that cover one set of employees covers all its employees. Unfortunately, that''s one umbrella that very likely can leave you without good cover.

At trucking companies, the tendency is to believe that the rules and laws that apply to drivers apply to all other employees. This can sometimes get companies into trouble. A recent illustration of the problem is a decision by the U. S. Court of Appeals for the Ninth Circuit involving UPS.

The Department of Transportation believes it is a hazard for persons with impaired hearing to operate as commercial motor vehicle drivers. Therefore, the DOT requires hearing tests as part of the physical examination for all commercial motor vehicle drivers. The government''s logic is that it is unsafe for a hearing-impaired driver to get behind the wheel of a truck with a gross vehicle weight or gross vehicle weight rating of at least 10,001 pounds.

But consider a truck with a gross vehicle weight rating of 10,000 pounds even. Because of a one-pound difference, the DOT regulations for commercial motor vehicles don''t apply to drivers of these trucks. But still, you would think that single pound would have no material effect on safety. If the government thinks it is unsafe for a hearing-impaired driver to get behind the wheel of a 10,001-pound-rated commercial motor vehicle, surely it is also unsafe for a hearing-impaired driver to drive a vehicle rated for one pound less.

That certainly made sense to UPS, which has many delivery trucks rated for less than 10,001 pounds gross vehicle weight. UPS believes applying the same hearing test to drivers of these vehicles that the DOT required for drivers of slightly heavier trucks makes sense.

But the Equal Employment Opportunity Commission thinks hearing tests for drivers discriminate against the disabled. The EEOC can''t do anything about CMV drivers, since Congress entrusted the DOT with rule-making authority for CMVs. However, the EEOC can and did tell UPS what it could do about physical requirements for non-CMV drivers. The EEOC supported a class-action lawsuit against UPS in California because UPS applied the DOT hearing standards to all its drivers.

The scary part is UPS lost. In a recent ruling, the Ninth Circuit Court of Appeals ruled it was illegal for UPS to apply DOT hearing standards to all of its drivers.

Wage and hour laws may also fall under trucking''s perilous "umbrella effect." Recently, companies have gotten into trouble when they assume truck-driver standards apply to all of their employees in the area of wage and hour laws.

Drivers pay is calculated by various methods -- by the mile, by commission, and so on. However, very few companies pay drivers overtime. There is a special exemption written into federal law, the "13(b)(1)" exemption. It applies only to drivers and a narrow class of other workers who affect highway safety.

This exemption leaves some trucking companies dangerously complacent about wage and hour matters. The problems arise when trucking companies, used to not paying overtime for the most visible segment of their employees, wrongly assume that other kinds of employees are also exempt from overtime.

Recent cases involve dock workers. In certain limited situations, the exemption may extend to dock workers, but typically it does not. Some plaintiffs'' lawyers have grown wise to the sloppy attention of trucking companies and several cases have been filed in the Northeast against trucking companies over the failure to pay overtime.

Wage and hour cases are not to be taken lightly. Although the amounts owed to individuals may be relatively low, the cases are almost always brought as class actions. If the employer has not rigorously maintained records, an employee''s testimony may be the final word on how many hours of overtime the employee is owed. An employer may be liable for attorney''s fees in such cases, fees that may exceed what the employee gets.

So don''t assume that because you do it one way for drivers you can do it the same way for all employees. Some umbrellas just aren''t that large.

-- Andy Scott is a partner with the Atlanta office of Fisher & Phillips.

For the full story: Log In, Register for Free or Subscribe