Page 42 - ATR 6 2018 web

temporary or total disability payments because Judge Brooks’ ruling was on a consultation with competent legal
are tied to the worker’s average weekly preliminary motion rather than a final counsel is prudent to assess whether
earnings. By ratcheting up earnings judgment, “there is no way for a carrier your company’s pay system might
levels for otherwise lower-paid drivers, like PAM to immediately appeal this make it a target of similar claims. But
Browne could increase the workers’ decision.” Instead, the company would one specific step to take is to make
compensation awards such injured driv- have to wait for the entire case to be sure your company handbooks and job
ers might command. resolved at the trial court level — and descriptions expressly state that unin-
Third, while Browne’s precedential in the meantime bear the associated terrupted sleep time and meal breaks
value and scope may be limited, it is litigation expense — before it could seek do not constitute hours worked. If
almost certain that the Browne decision to correct the recent ruling. It is also they do not, then ALL of the hours in
will embolden other attorneys to file worth noting that attorneys like those any 24-hour period will be considered
other class actions on behalf of drivers prosecuting Browne may want to avoid work hours. Another step is to review
and driver trainees like the one against appellate review — and a possible rever- company pay policies for drivers and
PAM. And while Browne appears to be sal — and instead angle to take a dis- assistants and assess whether any could
one of only two cases nationwide to counted settlement in the case at hand be impacted by Browne’s conclusion
rule that drivers must be paid for time in order to use Judge Brooks’ ruling as that carriers can deducted only 8 hours
spent in the sleeper berth, it is certainly a springboard for filing similar suits of “sleeper berth” time in any 24-hour
possible that other courts may embrace against other trucking companies. Thus, period. If so, then consider modifying
Judge Brooks’ reasoning. it is possible that Browne may never those policies to avert future exposure.
That prospect becomes more likely receive direct scrutiny by an appellate
if the Judge’s decision is never appealed court. ON THE HORIZON
and overturned. It is an inevitable fea- While this “sleeper berth” pay issue
ture of litigation that companies facing WAYS TO DEAL WITH BROWNE represents a somewhat surprising new
negative rulings at a case’s preliminary So what steps might a trucking legal development, it is not the only
stages may be induced to limit exposure company take to try to ameliorate the labor issue confronting the trucking
through settlement. As Pianka notes, potential impact of Browne? Obviously, industry. Several other labor-related
issues — such as the status of indepen-
dent contractors as “joint employers”
DIGITAL MAGAZINE NOW AVAILABLE! under the Fair Labor Standards Act and
how “regular” pay rates are computed
for purposes of overtime — are also in a
state of flux.
The Browne decision has drawn the
attention of trucking executives due to
its impact on the cost of doing business
and the potential for copycat suits land-
ing on their doorstep. As Association
President Shannon Newton observes,
“Our industry has faced nuclear ver-
dicts to the tune of hundreds of mil-
lions of dollars from trial attorneys
capitalizing on vulnerabilities in our
industry. I hope this decision is not
indicative of things to come in 2019
and beyond.”
While appellate review might well
You may view Arkansas Trucking Report—complete with sound effects—online within a reverse Judge Brooks’ ruling and thereby
week of distribution. deter a proliferation of other suits, it
Another awesome feature of this great new technology is that websites in the is possible that no appeal will ever be
digital magazine are “live.” So, viewers may click on a site featured in an ad and be taken, or that the appeals court might
transported directly to an advertiser’s website.
affirm the Judge’s holding. As a result,
Check it out: www.arkansastrucking.com it may be that other trucking compa-
This is just one more service that we’re happy to offer on behalf of our ATR advertisers. nies will have to litigate this issue in
Arkansas or elsewhere. ATR

42 Issue 6 2018 | ARKANSAS TRUCKING REPORT