INDIANAPOLIS — Beware of the big, bad plaintiff’s attorney.
His people are putting flyers on car windshields at work sites, tacking up posters or handing out cards at truck stops, reaching out on social media, even offering free meals for so-called informational sessions.
His ultimate goal is to get a questionnaire in the hands of a disgruntled truck driver in the hope of enlisting the driver in a class-action lawsuit, according to three attorneys who defend motor carriers in court when their employees become combatants.
Is the driver getting his proper meal or rest breaks? Was he asked to pay for tools? Is he willing to allow an attorney to look at his pay stub?
“Even though there are some discriminating plaintiffs’ counsels who will decide in a particular situation it’s not worth going forward given the facts, it’s rare that they can’t find something that they can make their class-action claim off of,” said Angela Cash, an attorney with Scopelitis, Garvin, Light, Hanson & Feary. “Class-action lawsuits are like the plague. Every business owner hopes they pass by their company’s door.”
Cash spoke at a June 5 session of the 2018 Scopelitis Law Seminar, which the law firm put on for about 600 of its clients. The firm specializes in trucking legal issues.
One recent poll showed that up to 60% of businesses have faced a class-action lawsuit in the past six years, Cash said. A poll of the Scopelitis seminar attendees showed that 24% had been hit with a class-action lawsuit, while 34% said they had been hit with more than one class action.
“Whether you’re one of the lucky ones who not yet have been targeted, rest assured that with the money at issue, there is a target on your back,” Cash added.
“Your people aren’t the bad guys here,” Scopelitis attorney Jay Taylor said. “It’s the plaintiff’s attorney that’s the wolf at the door trying to get to your people.”
Taylor said motor carriers can do two things to mitigate the chances of being sued.
“The first one is simply compliance with hour-and-wage laws,” Taylor said. “The problem is that compliance isn’t the solution — it’s part of the solution — but it doesn’t immunize you from a lawsuit. Compliance can win your case in the end, but sometimes it takes so long to unwind these cases once they get started that a win doesn’t feel as much like a win as it should.”
The other involves “relationship management” and “driver engagement,” according to Taylor.
Taylor said Scopelitis attorneys have been involved in hundreds of depositions with employees who have filed class-action lawsuits.
“The one thing that comes through is that these things are rarely turning against you over the kinds of wage-and-hour violations that you’re being sued for,” Taylor said. “Plaintiffs’ attorneys are coming up with the legal claims, but they’re looking for an unhappy employee to use as a vehicle to serve that claim.”
Of course, Taylor recommends that carriers review their hour-and-wage policies, and actually make sure they are being implemented in a fair manner. But a driver’s relationship with the organization is fundamentally important, and many of them associate their identity with their jobs, he said.
A few common things that seem to make drivers unhappy:
• They don’t get the miles they were promised.
• They thought they would get more home time.
• They have a poor relationship with a dispatcher.
• They may be unhappy with their equipment.
“At the end of the day, it’s really all about the perceptions of drivers; that they’re being treated with dignity, that they’re valued as team members and that they’re being listened to and heard when they have complaints,” Taylor said.
Scopelitis attorney James Spolyar said carriers should have in place a team that can spring into action when they get hit with a class-action lawsuit. The team should include a lead contact to coordinate the flow of information among the company and its legal defense firm, an operations representative, a safety department representative, accounting department representative and a coordinator within the IT department.
“The bottom line,” Spolyar added, “a little forethought can go a long way on seeing you through a class action.”