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Both bans virtually invite plaintiffs’ within days after an accident to demon- INdepeNdeNT coNTRacToR
counsel in highway-accident lawsuits strate empathy and quiet strength and STaTUS
to inquire about a truck driver’s phone- to do a “deep dive” to identify interests A motor carrier’s use of indepen-
use, up to and including the time of and obstacles to a settlement. Usually dent-contractor owner-operators is both
the accident. Attorneys may also verify a mediation session is scheduled soon a business opportunity and a risk of liti-
whether the motor carrier has poli- after. The goals are a faster resolution, gation. Legal challenges include workers
cies forbidding texting and hand-held lower transactional costs for both sides, compensation claims, employment class
phone-use, what steps it took to train and a major early-settlement discount actions that start by reclassifying the
drivers on those policies, and what it for the motor carrier defendant. carrier’s contractors as employees, state
has done to enforce them. Trucking companies can sometimes unemployment tax audits, and Internal
For those reasons, trucking com- develop the capability in house. But Revenue Service assessments of employ-
pany owners must ensure that, at a what is essential is to have a negotiator ment taxes. If successful, these lawsuits
minimum, the company training and who is an expert in communication, and administrative agency actions can
policy manuals incorporate specific someone who is calm, experienced in cost a motor carrier millions of dollars.
information on the bans, and include trucking litigation, gifted at reading However, the risk has been reduced
the bans in driver-orientation and peri- people and situations, familiar with in Arkansas due to the Arkansas Trucking
odic driver safety meetings. Motor car- state-of-the-art negotiating techniques, Association persuading the Arkansas
riers should also consider having each and tough when necessary. The results, Legislature to allow owner-operators
driver sign a form – worded differently though always varying with the specific access to workers compensation coverage
for company drivers than for indepen- facts and with no guarantees, can often under a motor carrier’s workers com-
dent contractors – certifying he/she is be a true business-value proposition: pensation policies while retaining their
aware of the hand held cell phone and major savings achieved through an independent-contractor status.
texting bans. early, fair, discounted settlement. The degree of control that the
Finally, some carriers have con- motor carrier maintains over its’ owner
sidered prohibiting all phone use while STaTe employmeNT laWS operator is a factor in defending chal-
driving, but if operational consider- Motor carriers are often the lenges that the owner operator is actu-
ations are likely to preclude universal targets of employment class actions ally an employee. Motor carriers should
enforcement, such a prohibition could seeking tens of millions of dollars for consider the following strategies to help
make things worse for the carrier in a alleged noncompliance with minimum show that they do not have a “right to
future lawsuit. wage, overtime, and state break laws. control” the contractor and that the
Some of these lawsuits have argued contractor does have entrepreneurial
faIlINg To NegoTIaTe that situations in which an employee is freedom:
When faced with how to defend a paid on some activity, such as per-trip, (1) in lease-purchase programs, offer
severe highway accident lawsuit, consid- per-stop, or cents-per-mile formulas, vehicles for lease through an affili-
er ‘the art of compromise’ as an oppor- violates certain state laws that require ated equipment-leasing company,
tunity not a challenge. Negotiation is employees be paid for each hour use a capital lease not an operating
an alternative to the trucking company worked or for each discrete activity lease, and allow a contractor-lessee
owner or manager’s usual approach performed. to take the vehicle eventually to
to defending severe highway accident Other suits claim a motor car- a third-party motor carrier with
lawsuits – which is to deny, delay, and rier has improperly classified drivers as sound financials and safety-rating;
defend. This tactic can string out for exempt from overtime pay. A number
years and at great expense to both sides. of class actions allege a carrier’s failure (2) make it easy for contractors to trip
The alternative, called “Negotiation to provide meal and rest breaks at state- lease to other carriers occasionally;
Counsel,” focuses on major highway- mandated intervals. (3) provide contractors an opportunity
accident lawsuits where the motor car- A clearly defined compensation to have multiple trucks and employ-
rier’s fault is clear, but the amount of policy explaining what a motor car- ee-drivers and to hire substitute
the damages – often in the millions or rier’s activity-based pay system covers drivers;
tens of millions of dollars – is not. A may limit exposure to minimum wage (4) give contractors choice among and
Negotiation Counsel is essentially an claims. Carriers can help themselves within charge-back programs;
expert negotiator who works on a sepa- by tailoring their policies and driver
rate track from the motor carrier’s liti- handbooks to the wage and hour laws (5) avoid time-based compensation
gation defense counsel. of each state through which their trucks and build in opportunities for con-
The Negotiation Counsel meets pass. tractors to increase or decrease their
with claimants and their attorneys profits;

34 arkansas Trucking reporT | issue 3 2013