Be Bold Be Bald 2014

Be Bold Be Bald 2014

Tardiness: A Satirical Analysis of the "Best" Excuses

Completely off topic from trucking defense, but still associated with employee management, I thought I would share some of the best excuses for tardiness anticipating so lame excuse for tardiness over an employee's anticipated surgery. (side note: I am being sarcastic for the purpose of satire so calm down.)

 

A dozen HR professionals and hiring managers out of a poll of 2,201 shared excuses they’ve heard from employees arriving late to work that are so silly that they’re hilarious.

 

The following were actual excuses given and determined be the best in a  survey, conducted by Harris Poll on behalf of the surveying masters at Career Builder:

• Zebra congestion. Employee claimed a zebra running down the highway held up traffic (turned out to be true).
• Rough night. Employee woke up on the front lawn of a house two blocks away from his home.
• Feline shenanigans. Employee’s cat got stuck in the toilet.
• Couldn’t make breakfast. Employee ran out of milk for cereal and had to buy some before getting ready for work.
• Cozy parking. Employee was late to work because he fell asleep in the car when he got to work.
• Temporary blindness. Employee accidentally put superglue in her eye instead of contact lens resolution, and had to go to the emergency room. How did she get there?
• Free candy = national holiday. Employee thought Halloween was a work holiday.
• Roofing issues. Employee said a hole in the roof caused rain to fall on the alarm clock and it didn’t go off.
• The suspense was brutal. Employee was watching something on TV and really wanted to see the end.
• Short-term memory loss. Employee forgot that the company had changed locations.
• Tangled. Employee got a hairbrush stuck in her hair.
• Boogeyman paid a visit. Employee was scared by a nightmare.

Survey says:

 

Reactive Airways Dysfunction Syndrome (RADS)

In your legal career, eventually you will come across RADS (Reactive Airways Dysfunction Syndrome), even in trucking litigation, particularly when hauling hazardous materials.

 

One of the oddest and difficult cases to defend in the trucking industry involved a person who claimed to have developed RADS from the leaking of hazardous chemicals in product delivered.

 

For a moment, disregard the issue of liability or if Carmack would apply to limit the personal injury damages from cargo delivered (see prior blogs on Carmack defenses). For now, let's focus on the diagnoses and cause of RADS.

 

So what exactly do you know about RADS?

What is RADS?

 

There is disagreement as to the exact definition/nature of RADS. The term "Reactive Airways Dysfunction Syndrome" was first used by S.M. Brooks and his colleagues in a 1985 article in a magazine published y the American College of Chest Physicians (the article is attached). Brooks defined RADS as "an asthma-like illness [developed] after a single exposure to high levels of an irritating vapor, fume, or smoke."

Over time, many in the medical community have begun to mistakenly use RADS as a synonym for asthma. There is agreement among the authors of the article I read that RADS is distinct from asthma.

 

How is RADS treated?

  

RADS may be treated with prescription medications or anti-inflammatory drugs. The research I conducted led to the conclusion that complete treatment of the disease is possible. Of course, treatment is only successful if the patient avoids continued exposure to the irritants that caused the disease.

How is RADS diagnosed?

 

Every Driver Has A Story

Summary of Cellphone Laws by State

The following is a great asset for a quick reference to the cellphone laws in each state. Thanks to Harvey Mensch with ATTIC for sending to me. Thanks to the Insurance Institute for Highway Safety for posting this information.

 

Remember, texting and driving is against the law in 44 states. ³In Louisiana, all learner's permit holders, irrespective of age, and all intermediate license holders are prohibited from driving while using a hand-held cellphone. All drivers younger than 18 are prohibited from using any cellphone. All drivers, irrespective of age, issued a first driver’s license are prohibited from using a cellphone for one year. The cellphone ban is secondary for novice drivers ages 18 and older.

Cellphone Laws



I hope this helps you. Please call if you need anything else from us.



Mark Perkins

Perkins & Associates, LLC

318-222-2426

Healthcare Fraud Still OUT of Control!

Although I cannot go into detail, I was recently contacted  about a possible insurance fraud investigation.  In the defense arena, this is an area that we are constantly on guard, but it is so difficult to prove fraud when a person claims pain.

 

There are those cases in which a patient is "doctor-shopping" to get pain medication, but "pain management" is now a cottage industry in which  providers and lawyers are finding more and more ways to game the system. It takes a lot of research, time and money to discover fraud. Yet we MUST be diligent.

 

I recently was made aware of major scam in Pennsylvania and reminded by Robert Stickley

to regularly investigate the medical providers to see if there are pending criminal charges against providers. Even though the following is a year old, it occurred in Louisiana:

 

Louisiana Woman Sentenced for Health Care Fraud 

"On September 5, 2013, in Baton Rouge, La., Sonya Lewis Williams was sentenced to 37 months in prison for health care fraud and money laundering. Williams was also ordered to pay $1,223,471 in restitution to the Department of Health and Human Services/Centers for Medicare and Medicaid Services. According to court documents, Williams operated two companies known as Fusion Services, LLC (Fusion) and Grace Social Services, LLC (Grace). Williams established the two companies for the purpose of using unlicensed social workers to visit Medicare beneficiaries in their homes several times a week to perform case management, counseling, and social interaction services. Williams submitted false claims for reimbursement from Medicare indicating that the beneficiaries had received individual, face-to-face psychotherapy from a licensed clinical social worker when no such services had been provided. Medicare paid Fusion and Grace approximately $349,715 as a result of the billings. Much of the profits were transferred from company bank accounts into Williams’ personal accounts."

 

Robert's experience taught him  to perform an internet search of plaintiffs' treating physicians in all trucking cases that contain one or more fraud markers.  There are many resources available for free on the internet, including one from the Feds that can be found here:  http://www.irs.gov/uac/Examples-of-Healthcare-Fraud-Investigations-Fiscal-Year-2013

 

You will sickened and shocked when you go to the number of cases in fiscal years 2012, 2013 and 2014 and see how many billions of dollars are defrauded from the federal government.

 

I hope this helps you as it helped me. If there is anything we can do for you, please don't hesitate to call.

Mark Perkins

 

 

 

Is There an Easy Way to Obtain Records and Depose Doctors from the Veteran's Administration? Short Answer: No.

Although the Veterans Administration has fallen under recent scrutiny for the backlog of patients to be seen, those of us the private practice of law have long been frustrated with the process of obtaining medical records from the Veterans Administration.

 

Does anyone know of streamlined method to obtain the medical records? From my perspective, it takes months to get the records and then we often do not get all of the records. If you want to depose a VA doctor, you can plan on there being even more delay.

 

Suppose your firm would like to depose some of the doctors at the VA who treated a plaintiff. When contact was made with the VA hospital to get the dates when those doctors were available, the VA informs your firm that you would first have to seek approval for the depositions from the VA’s general counsel and that he would likely require the plaintiff to sign a release allowing the doctors to give their depositions regarding the treatment.

 

Under federal law, may the VA compel your firm to first obtain and produce to the VA a release from the plaintiff/patient before being allowed to depose the doctors who treated the patient?

 

The question presented does not have a definitive answer. Combining the regulations 38 C.F.R. 14.809 with 38 C.F.R. 1.511, it could be determined that the VA Hospital has both authority and a duty to get a patient’s consent before the VA produces doctors for a deposition regarding that patient. But it is not clear that the requirements found in 38 C.F.R. 1.511, which require consent from the patient, are applicable to depositions, and there is no language found in 38 C.F.R. 14.800 et seq. that would require the VA to receive consent from the patient before producing a doctor for a deposition.

 

The answer to the question presented starts with what is referred to as Touhy regulations.

Touhy regulations

“Pursuant to 5 U.S.C.A. § 301, executive branch agencies may prescribe regulations for their own internal governance, conduct of business, record keeping, and document custody. Such regulations are commonly known as “housekeeping” regulations, and do not authorize the agency to withhold information from the public. Housekeeping regulations that create agency procedures for responding to subpoenas are often termed “Touhy regulations,” in reference to the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). In Touhy the Court ruled that agency employees may not be held in contempt for refusing to answer a subpoena, if prohibited from responding by a superior.” COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d 269, 272 n. 3 (4th Cir. 1999) (describing the origin of the term “Touhy regulations”).

 

Touhy regulations have been enacted by many U.S. departments including the VA Hospital. “The VA has promulgated Touhy regulations governing its employees' testimony.”  CCA of Tennessee, LLC v. Dep't of Veterans Affairs, 09CV2442 WQH CAB, 2010 WL 1734953 (S.D. Cal. Apr. 27, 2010), citing 38 C.F.R. § 14.800–14.810.

 

38 C.F.R. 14.800 – 810 governs the testimony of department personnel and production of department records in legal proceedings.

 

In CCA, a federal district court was asked by the defendant, CCA, in a state court action to review CCA’s Touhy request to the VA to produce for a deposition the doctor of the plaintiff in the state court case.  The VA refused the Touhy request, which prompted CCA to file suit in federal court under the APA.  The court in CCA, found that the VA was allowed to deny the request to depose the VA doctor under reasons provided in 38 C.F.R. 14.804. The court held in favor of the VA and granted the VA summary judgment.

 

 

Section 14.805 sets out the contents of the demand or request made to the VA. “The request or demand for testimony or production of documents shall set forth in, or be accompanied by, an affidavit, or if that is not feasible, in, or accompanied by, a written statement by the party seeking the testimony or records or by the party’s attorney, a summary of the nature and relevance of the testimony or records sought in the legal proceedings containing sufficient information for the responsible VA official to determine whether VA personnel should be allowed to testify or records should be produced. Where the materials are considered insufficient to make the determination as described in § 14.807, the responsible VA official may ask the requester to provide additional information.”

 

Nothing in section 14.805 mentions consent is necessary by the applicable patient for his medical records to be released or for doctors to provide testimony about the treatment of the patient. The only requirement shown in section 14.805 is that attorneys of a party  provide a written statement summarizing the nature and relevance of the testimony requested.

 

In simple bullet point fashion that means we need to:

 

·         Request the deposition in writing

·         Tell how the deposition is relevant and needed (summary of the relevance of the testimony)

·         Provide the topics which the deposition will cover (covers the nature of the testimony).

 

Section 14.802(a) defines “demand”  as an “Order, subpoena, or other demand of a court of competent jurisdiction, or other specific authority or under color of law, for the production, disclosure, or release of VA information or records or for the appearance and testimony of VA personnel as witnesses.”

 

Section 14.802(b) defines “request” as “Any informal request, by whatever method, from a party, a party’s attorney, or any person acting on behalf of a party, for the production of VA records or information or for the testimony of VA personnel as witnesses, which has not been ordered by a court of competent jurisdiction or other specific authority or under color of law.”

 

Section 14.802(f) defines “testimony” as “testimony in any form, including personal appearances in court, depositions, recorded interviews, telephonic, televised or videotaped testimony or any response during discovery or similar proceedings, which response would involve more than the production of records.”

 

Section 14.807(e) provides the procedure followed by the VA if a court denies the VA’s request for a stay on requests or demands. “If a court of competent jurisdiction or other appropriate authority declines to stay the effect of the demand or request in response to action taken pursuant to § 14.807(d), or if such court or other authority orders that the demand or request be complied with notwithstanding the final decision of the appropriate VA official, the VA personnel upon whom the demand or request was made shall notify the responsible VA official of such ruling or order. If the responsible VA official determines that no further legal review of or challenge to the ruling or order will be sought, the affected VA personnel shall comply with the demand, order or request. If directed by the appropriate VA official after consultation with the appropriate United States Attorney’s office, however, the affected VA personnel shall respectfully decline to comply with the demand, request or order.”

 

In other words, if the court does not award the VA a stay when it requests a stay, the VA personnel is required to provide the testimony or records… unless the appropriate VA official instructs them not to. Basically, the VA does what it wants.

 

 

Section 14.804 provides the factors the VA personnel consider when deciding whether to comply with a request to produce someone for a deposition or for records.  Those factors may be summarized as follows:

Isn't it About Time Defendants Fight Back With Sanctions Motions for Frivolous Claims? Whoa! That May Not Happen!

"It seems like the same lawyers are the ones filing frivolous lawsuits over and over, and judges are not enforcing the sanctions available to discourage this practice."

Louisiana Code of Civil Procedure Article 863(B) states that:

"pleadings must be signed by a party to certify that (1) the pleading  is not being presented for any improper purpose, such as to  harass, cause unnecessary delay or needlessly increase the cost of  litigation; (2) each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a non-frivolous  argument for the extension, modification, or reversal of  existing law; (3) each allegation or other factual assertion in  the pleading has evidentiary support or, for a specifically  identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation  or discovery." La. C.C. P. Art. 863(B)(1)(2)(3). (2011)

In Harrison v. McNeese State University, the Third Circuit Court upheld a Calcasieu trial court’s imposition of sanctions against a pro se litigant-student, determining that the sanctions were proper and reasonable. Harrison v. McNeese State University, 635 So.2d 318 (La. App. 3 Cir. 1994). In Harrison, a student filed suit against a university following a suspension for refusing to remove pornographic material from his class assignment at his instructor’s request. Id. Harrison sued the university for refusing to refund his tuition and fees, falsely arresting him at the University library, issuing a slanderous grade report of all "Fs" when the correct graded should have been "Ws" and violating his freedom of expression. Id. The case proceeded to trial and his action was dismissed. Id Subsequently, the University brought an action for sanctions against Harrison for filing frivolous pleadings and failing to present any evidence to support his claims. Id. The trial court imposed $6,845.45 in attorney’s fees, and the appellate court upheld this award, opining the following:

"The obligation imposed upon litigants and their counsel who

sign a pleading is to make an objectively reasonable inquiry

into the facts and law. Subjective good faith will not satisfy the

duty of reasonable inquiry. By choosing to represent himself,

a party assumes the responsibility of familiarizing himself with

applicable procedural and substantive law. His failure to do so

does not give him any greater rights than a litigant represented

by an attorney." Id.

 

 
  

As reported in the Louisiana Lawsuit Abuse Watch in October 2012,  candidates to the Louisiana Supreme Court acknowledged  abusive lawsuits are a problem in Louisiana's courts.

 

Jeff Hughes, Tim Kelley and Bill Morvant, were asked  in response to a survey by Louisiana Lawsuit Abuse Watch. When asked whether or not frivolous lawsuits and excessive damage awards are a problem in our courtrooms, candidate Morvant said, "I do think we see a fairly high number of suits that either should not have been filed or should have been resolved without litigation (amount in controversy does not justify the litigation expenses)."

 

Responding to the question of whether or not Louisiana's civil justice system adequately deters and penalizes frivolous litigation, Morvant said, "We presently have in place La. CCP art. 863 that empowers the court to sanction a party or counsel (plaintiff or defendant) for conduct that violates its provisions. This includes improper or baseless pleadings. However, courts are very reluctant to impose sanctions except in extreme cases."

 

Candidate Hughes agreed. "It seems like the same lawyers are the ones filing frivolous lawsuits over and over, and judges are not enforcing the sanctions available to discourage this practice."

 

Candidate Kelley also agreed. "Without question frivolous lawsuits and excessive judgments are a problem in our courtrooms," Kelley responded. "I do not feel that Louisiana's civil justice system adequately deters and penalizes frivolous lawsuits," he continued.

 

Also, a recent survey conducted by the American Tort Reform Association and Sick of Lawsuits found most Americans agreed with these candidates, with a strong majority-89 percent-saying they believe lawsuit abuse is a "problem."

 

This view was shared across the political spectrum, with 94 percent of Republicans, 89 percent of Independents and 86 percent of Democrats all in agreement. Candidate Jeffrey L. Sanford, however, disagreed when responding to the LLAW survey. When asked whether or not frivolous lawsuits and excessive damage awards are a problem in our courtrooms, candidate Sanford said, "No. I can't think of a case where a frivolous judgment was granted or upheld on appeal. Nor can I think of an  excessive award."

 

LLAW is a non-partisan, non-profit legal watchdog organization that represents more than 5,000 citizens and small businesses across the state. LLAW is now using the surveys to educate its supporters and voters across the state.

 

What do you think? Do we do enough to counter claim when there are obviously abusive and frivolous claims filed?

 

Share your thoughts.

Update: Carmack Amendment May Preempt/Dismiss State Law Claims of Bodily Injury

As recently shared by Beata Shapiro at the Transportation Logistics Counsel Annual conference:

 

Liability: A motor carrier providing transportation services is liable to a shipper for damage or loss to cargo. The liability imposed is for the actual loss or injury to the property. See 49 U.S.C. 14706(a).

 

 

Preemption: Federal preemption is the doctrine that federal law precludes and prevents the application of contrary state law. Courts consistently hold that the remedies provided by the Carmack Amendment preempt state law claims against a carrier for loss or damage to interstate shipments, such as negligence, breach of contract, and state consumer protection laws. See Smith v. United Parcel Service, 296 F.3d 1244, 1246 (11th Cir. 2002); York v. Day Transfer Co., 525 F. Supp. 2d 289, 297-98 (D. R.I. 2007). Some courts have even precluded personal injury claims arising out of transportation services based on the Carmack Amendment.

 

York v. Williams Moving Company, 525 F. Supp. 2d 289 (D. R.I. 2007)

- Plaintiffs’ personal property suffered mold damage when stored during transport.

- Plaintiffs’ alleged, among other injuries, physical injuries and emotion pain and suffering due to the delivery of moldy property. 

- Defendants moved for summary judgment. The court held that these damages were preempted by the Carmack Amendment because "such damages stem directly from the shipment and delivery of their goods…."

 

 

Alessandra v. Mullen Bros., 1999 Mass. Super. Lexis 399 (Mass. Super. 1999)

- Defendant moved Plaintiff’s property from her home into a warehouse. Plaintiff's property was exposed to pesticides while in storage. Defendant then transported the property to Plaintiff’s new residence.

- Plaintiff claimed the pesticides caused her to have a physical reaction requiring medication attention.

- The court dismissed all of Plaintiff’s state law claims, even those alleging bodily injury, because of Carmack Amendment preemption.

 

Glass v. Crimmins Transfer Co., 299 F. Supp. 2d 878 (C.D. Ill. 2004)

- Defendants stored Plaintiffs’ personal property during a move. The property developed mold and fungus.

- Plaintiffs filed suit against Defendants seeking compensation for their property damage, emotional distress, and physical injury. They brought claims for breach of contract, fraudulent concealment, negligence, and Carmack Amendment damages.

- The court granted Defendants’ motion for summary judgment finding that Plaintiffs’ state law claims, including those alleging personal injuries and emotional distress, were preempted by the Carmack Amendment.

 

Moffit v. Bekins Van Lines Co., 6 F.3d 305 (5th Cir. 1993)

- Defendant transported Plaintiffs’ household goods. Plaintiffs wanted delivery before Christmas. Defendant did not deliver the goods on time.

- Plaintiffs brought suit alleging claims of outrage, intentional and negligent emotional distress, breach of contract, breach of an implied warranty, breach of an express warranty, a violation of the Texas Deceptive Trade Practices Act, slander, misrepresentation, fraud, negligence, and violation of obligations as a common carrier.

- Defendant moved for summary judgment. The court granted the motion holding that the Carmack Amendment preempted all of Plaintiffs’ state law claims.

 

As you can see all of these claims arise out of damages associated with the delivery of the cargo, which the Carmack Amendment focuses. In the circumstances when a plaintiff is making a claim for injuries related to a vehicular accident, the Carmack preemption would likely NOT apply to have the bodily injury claims dismissed. Yet, when someone claims an injury due to mold or falling cargo or failure to timely deliver cargo, then you may have basis to dismiss the bodily injury claims and remove the matter to federal court because of federal preemption.

 

But there are still cases that don't go our way on the issue.

Gross Negligence and Punitive Damages Under Texas Law

 

The following information may be somewhat outdated so please review recent decisions and statutes on the subject of gross negligence; however, for an overview read on. Please leave your thoughts and opinions too.

There are two basic elements to a claim of gross negligence under Texas law. First, when "viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others."

 

Second, "the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the right, safety or welfare of others." Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). Either element can be proven by circumstantial evidence, but evidence of simple negligence is not proof of either. Id.

The first elements reference to "an extreme degree of risk" refers only to "the likelihood of serious injury." It does not include the "the remote possibility of injury or even a high probability of minor harm." Id.

Finally, the "actual awareness" necessary to satisfy the second element requires that the actor actually knew of the danger, but subsequent actions or omissions demonstrate disregard. Id.

 

 

Punitive Damages?

In Texas, punitive damages may be assessed against a corporation for gross negligence, but "only if the corporation itself commits gross negligence." The grossly negligent act or omission must be directly attributable to the corporation. Id.

A corporation can be held liable for punitive damages (1) "if it authorizes or ratifies" the gross negligence of an employee or agent or (2) "if it commits gross negligence through the actions or inactions of a vice principal." Id. at 922.

The definition of "vice principal encompasses: (a) corporate officers; (b) those who have authority to employ, ( c) those engaged in the performance of nondelegable or absolute duties of the master; and (d) those to who the master has confided the management of the whole or a department or a division of the business." Id.

In making the determination whether the acts complained of should be attributed to the corporation, the court must take into account all surrounding circumstances and facts and not just review individual elements or facts. Also, the fact finder is allowed make reasonable inferences from the corporations action/inaction or the facts as they were at the relevant time. Id.

 

Illustrative Cases

Checklist to Prevent Employer Liability for Improper Background Checks

The following is fully attributed to +Rick Norman for  the excellent outline of the legal issues of properly conducting background check of prospective employees.

An employer who hires an unacceptable employee may suffer losses because of the employee's inefficiency or because of the damage caused by the employee for which the employer is responsible. A background check may screen out problematical employees and, under R.S. 23:291(D), may afford the employer immunity from liability.

a. Employer Liability for Negligent Hiring or Negligent Retention

An employer is generally not liable for the intentional tort of its employee unless the employee is acting within the ambit of his assigned duties and in furtherance of the employer's objectives. (Baumeister v. Plunkett, 673 So.2d 994 (La.1996) However, even in situations where the employer is not vicariously liable for the torts of its employees, it may be directly liable under the theory of negligent hiring and/or retention. (Roberts v. Benoit, 605 So.2d 1032 (La.1991) on rehearing; Jackson v. Ferrand, 658 So.2d 691 (La.App. 4th Cir.1994); Bohmfalk v. City of New Orleans, 628 So.2d 1143 (La.App. 4th Cir.1993); Williams v. Butler, 577 So.2d 1113 (La.App. 1st Cir.1991).

Louisiana recognizes claims against an employer that hires an employee with dangerous propensities who injures third persons at work. An employer may be liable for negligent hiring if it knew or should have known that the employee posed a threat to others. Similarly, an employer is liable for negligent retention when it continues to employ an employee knowing his dangerous propensities.

When the employer hires an employee who will have a unique opportunity to commit a crime in the performance of his duties, the employer has a duty to exercise reasonable care in hiring the employee, and a continuing duty to exercise reasonable care in retaining the employee. (Smith v. Orkin Exterminating Company, Inc., 540 So.2d 363 (La.App. 1st Cir.1989).

Louisiana courts have found the employer to have breached its duty when it failed to adequately inquire about the employee's criminal history. (Lou–Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir.1973); Williams v. Butler, 577 So.2d 1113 (La.App. 1st Cir.1991); Smith v. Orkin Exterminating Company, Inc., 540 So.2d 363 (La.App. 1st Cir.1989). However, the employer is not negligent where it conducts a reasonable background investigation and where the wrong committed was not foreseeable based on the nature of any previous criminal conduct by the employee. (Lou–Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir.1973

To prove negligent hiring, the injured third person must prove:

a duty owed by the employer in selecting or retaining the employee

a breach of the duty


cause in-fact (The duty to properly hire and retain the employee must be the cause-in-fact of the injury)

Smith v. Orkin Exterminating Company, Inc., 540 So.2d 363 (La.App. 1st Cir.1989). In the context of the tort of negligent hiring/retention, Louisiana courts generally have not cited the requirement of C.C. art. 2320 that, to be liable, the employer must have been in a position to prevent the crime, perhaps relying on the later R.S. 9:3921

scope of liability; and

damages

Hey Westlaw Louisiana’s Non-Compete Statute IS DIFFERENT from the Statute on Employer Immunity Background Checks !

Background checks are extremely important in the trucking business. They are regularly at issue in the litigation of cases of negligent hiring. Recently, when reviewing changes in the law regarding employee background checks (LSA R.S. 23:291), I noticed that several cases cited the statute addressing  non-compete agreements. 

For example, Elite Coil Tubing Solutions, LLC v. Guillory 93 So.3d 861, (La. App. 2 Cir. 2012) and Bellard v. Gautreaux 675 F.3d 454 (La App. 5 Cir 2012) referenced the statute giving an employer qualified when  checking  a prospective employee’s background.

I was trying to figure out HOW an immunity statute had anything to do with a non-compete agreement, but I figured out that the citations transposed ONE number. The non-compete statute is LSA R.S. 23:921, while the immunity statute is LSA R.S. 23:291.

I was surprised that there was insufficient proofreading by someone in the appellate courts. Then again, it’s completely understandable to transpose a number, right? Maybe not since there are over 500 cases accurately citing the non-compete statute.

There aren't as many references to the employer immunity for background statute, but there are some excellent law review articles and the procedure to conduct background checks has been addressed in a few law review articles. So I assumed someone was “cutting and pasting” too much because I noticed the same erroneous citation in the following cases:

1. Emergency Staffing Solutions, Inc. v. Morehouse Parish Hosp. Service Dist. No. 1 2011 WL 1337371, (W.D.La 2011),
2. Arthur J. Gallagher & Co. v. Babcock 2011 WL 121891, (E.D.La. 2011),  
3. Arthur J. Gallagher Risk Management Services, Inc. v. Todd 2010 WL 2179753, (La.App. 3 Cir. 2010)
4. West Carroll Health System, LLC v. Tilmon  93 So.3^rd  1131 (La. App 2 Cir 2012)

To be clear, I make mistakes regularly...er uh...occasionally; however when SIX of the most recent cases dealing with NON-COMPETE agreements referenced the employer immunity statute, something was troubling. Knowing that this could not be accurate, I pulled up the official citation, which costs more to use, for each of these cases and discovered that the statute was accurately cited in the official text, but WESTLAW made a mistake in transposing the numbers in the unofficial overview of the cases and statutes.

Thanks Westlaw, I wasted an hour reviewing the cases that inaccurately referenced the incorrect statute. Westlaw, please make sure you have better proof-reading!

To assist employers and attorneys who want to review the law on properly conducting background checks of prospective employees, the statute is LSA-R.S. 23:291

§ 291. Disclosure of employment related information; presumptions; causes of action; definitions

Non-Trucking, but Perhaps the Biggest Religious Liberty Decision Influenced by Local Attorney from Shreveport, LA

The following was shared with me by my friend, Mike Johnson. I wish I could claim any part of this. At least I can share the good news and hard work, and be reminded that when he first started with the ADF he shared space with me at 401 Market Street, Suite 900. I could not be more honored for my friend.

"As I discussed this morning with Tim Brando and have explained in several other interviews over the past 24 hrs, the 5-4 victory for public prayer in Town of Greece v. Galloway, is perhaps the biggest religious liberty decision in decades, and will have far-reaching implications.  What I haven't said publicly is that the Lord told me all of this was going to happen one night at our little kitchen table in late June 2007.  Kelly remembers the night very well.

 

At the time, I was serving as Senior Legal Counsel for the Alliance Defense Fund (ADF), and had been responding to our organization's growing number of calls for advice and assistance from city councils and county boards around the country. It seemed public officials everywhere had begun receiving the same basic threat letter from the ACLU and other radical secularist groups that these public bodies must immediately cease opening their meetings with prayer (or at the very least censor the prayers so that the name of JESUS could never be mentioned again).

 

Of course, this demand ignored more than two centuries of cherished tradition in our country and was a gross and intentional misinterpretation of the First Amendment's guarantee of religious freedom.  But to my alarm, many local and state governmental bodies simply gave in to the threats to avoid the cost of a lawsuit, and tragically stopped opening their meetings with prayer.  

 

After responding and trying to cover so many of these skirmishes in such rapid fashion, I was praying that night in June 2007 about what we needed to do to address these attacks more efficiently.  The Lord spoke to my heart and specifically gave me the idea to carefully craft a model prayer policy and a lengthy legal information letter that we could send out to local public bodies in a nationwide initiative, accompanied by a guarantee if any public officials adopted our policy and got sued--we would defend them free of charge.  In short, the Lord impressed upon my heart very clearly that it was time to play offense.  The Lord told me very specifically that this would be a pivotal battle in our country's history and that we would ultimately PREVAIL on it at the U.S. Supreme Court.

 

The Lord made this SO clear to me that I jumped up from the table and excitedly explained to Kelly the entire vision and exactly what I felt the Lord showing me would happen.  Over the next several days, I sold my ADF colleagues on the plan and crafted the legal information letter and model policy that I was convinced would ultimately pass constitutional muster and save the tradition of uncensored public invocations.  

 

Truckers Call 1-800 Number for Help!

 

Now there is an elite group of thousands of highly qualified businesses providing  truck services for truck drivers everywhere ANY TIME. This first national network is designed to benefit every truck driver by providing a convenient and trustworthy way to quickly find help. Included in the network is attorneys experienced in trucking defense, towing, repairs, tires, mobile mechanic, oil changes and more.

Simply call 800-TRUCK-HELP and select from a very short menu. You will instantly be connected to a truck help business.

Right now drivers must use various search methods to find various  businesses for help. If in unfamiliar territory, they don’t know who to contact or who to trust. 800-TRUCK-HELP phone provides  an instant connection to a network of reputable businesses that provide drivers the help they need, when they need it and where they need it.

The larger companies have a list of qualified vendors, but smaller companies with five to 100 tractors may not have nationwide list, so what do they do? Make multiple calls, get referrals and hope they get qualified vendors.

What if the DRIVERS or trucking companies  need immediate help following a serious accident? Do they know what to say, what to do?  They need experienced assistance without "shooting in the dark." Trucking defense attorneys are already vetted, experienced attorneys so they will know that the person they are calling can help. 

Imagine  driver is traveling from point A to B and all of a sudden he needs to find a tire store or mechanic or tow truck… just call 800-TRUCK-HELP, select from a short voice menu and get instantly connected to the business providing  the service  needed in the area.
 

As each of the businesses continues to make clients aware of 800-TRUCK-HELP,  it won't be long before the number becomes the standard phone number drivers call to get the the help needed.
 

Go ahead and try it. Call 800-TRUCK-HELP to check it out. In the meantime, if you need us, call us at 318-222-2426, 318-617-1960 or e-mail me at perkins@perkinsfirm.com.

Overbroad Trucking Handbooks May Equal Unfair Labor Practices!

I recently  read  an article by Maxine Neuhauser that I thought you would be interested.

At will employment disclaimers in employee handbooks are the norm, but recent decision by the NLRB should remind employers that they are NOT a blanket insulation.  

As you read this information, if you are NOT subject to the laws and regulations of being unionized then these decisions do NOT apply.  Otherwise, pay close attention because many trucking companies have unions and are subject to the provisions of NLRB

 In Boch Imports, Inc. d.b.a. Boch Honda and International Ass'n of Machinists, Case No. 1-CA-83551 (Jan. 13, 2014), the ALJ ruled that provisions in the employee handbook of a retail automobile dealership ("Boch" or "Company") constituted unfair labor practices in violation of Section 8 (a)(1) of the National Labor Relations Act ("Act").

The introduction to the handbook welcomed employees and stated, "As an employee, you will want to know what you can expect from our Company and what we expect from you. This Handbook provides information regarding our Company's current benefits, practices, and policies as well as some of the Company's expectations regarding your performance."

The unfair labor charges focused  on several  policies. Prior to the hearing, the employer had revised all but one of the provisions to which the NLRB objected. The ALJ nevertheless entertained the charges that had been filed regarding all the unrevised policies and found that the following provisions constituted ULPs:

• Confidential and Proprietary Information. This provision prohibited employees from disclosing or authorizing the disclosure or use of any "Confidential Information," which was defined as including "compensation structures and incentive programs."
   

  The ALJ found that the Confidential and Proprietary Information provision and, in particular, "the restriction on "‘compensation structures' and ‘incentive programs' could lead an employee to believe that his ability to discuss his terms and conditions of employment with fellow employees, the media or a union were limited by this provision" and, therefore, violated Section 8(a)(1) of the Act.

• Discourtesy. This provision included the following prohibition: "All employees are expected to be courteous, polite and friendly both to customers and to their fellow employees. The use of profanity or disrespect to a customer or co-worker or engaging in any activity which could harm the image of the Company is strictly prohibited . . . ."
  
  

  Although the ALJ found that the first part of the provision was satisfactory, he held that the prohibition against "engaging in any activity which could harm the image of the Company" was "clearly susceptible of being understood to limit employees in their right to engage in a strike, work stoppage or similar forms of concerted activities" and, as such, constituted a ULP.

• Inquiries Concerning Employees. This provision stated, in relevant part, "All inquiries from outside sources concerning employees should be directed to the Human Resources Department. An employee shall not provide personal information of any nature concerning another employee (including references) to any outside source unless approved by the Human Resources Department and authorized, in writing by the employee . . . ."
  
  

  The ALJ found that this provision clearly violated Section 8(a)(1) of the Act by preventing employees from discussing the employees' terms and conditions of employment with union representatives and from cooperating with the NLRB, the media, or governmental agencies that might be investigating the Company.

• Social Media Policy. This policy included provisions that:
  • prohibited employees from disclosing any information about the Company's employees or customers;
  • required employees to identify themselves when posting comments about the Company or comments related to the Company's business or a policy issue;
  • prohibited employees from referring to the Company in postings that would negatively impact the Company's reputation or brand;
  • prohibited employees from engaging in activities that could have a negative effect on the Company, even if it occurs off Company property or off the clock;
  • prohibited employees from using the Company's logos for any reason;
  • prohibited employees from posting videos or photos that are recorded in the workplace;
  • required employees to contact the Company's Vice President of Operations before making statements to the media;
  • required employees to provide the Company with access to any commentary posted by employees on social media sites; and
  • required employees to write and post respectfully.

With little discussion, the ALJ found that the above provisions of the Social Media Policy constituted ULPs "as employees would reasonably construe these provisions as preventing them from discussing their conditions of employment with their fellow employees, radio and television stations, newspapers or unions or limiting the subjects that they could discuss."

• Solicitation and Distribution. This provision restricted persons who are not employed by the Company from soliciting and distributing literature or other materials at any time on property adjacent to the Company's premises.
  
  

  The ALJ characterized the prohibition of solicitation and distribution of materials on public property, i.e., "on property adjacent to the Company's premises" as a "clear violation" of Section 8(a)(1).

  
  
• Dress Code and Personnel Hygiene. This provision stated, in relevant part, "Employees who have contact with the public may not wear pins, insignias, or other message clothing which are not provided to them by the Company . . . ."
  
  

  The Company did not revise the Dress Code policy prior to the hearing.

  
  

Although not expressly stated by the ALJ, it appears that the Complaint was made on behalf of employees in the service department, comprised of service technicians who perform repair and maintenance on the cars that are brought into the facility and service advisers who meet with customers to discuss the work that needs to be performed, write up the service orders, and check in the cars for service (e.g., checking the odometer and inspecting the exterior of the vehicle for damage).

The employer required service technicians to wear blue and grey Company-issued jackets and a Company hat. The technicians interact with customers on road tests and sometimes discuss work on a customer's car; in addition, customers can watch the service technicians at work through a large glass window in the waiting area.

The ALJ noted that the employer  uniformly prohibited the wearing of any kind of pin or button because of the potential for pins to cause accidental damage to vehicles (e.g., by falling into an engine or scratching a vehicle's interior or exterior). With respect to insignias, however, the ALJ noted that, after the Boston Marathon bombing, the employer  conducted a fundraiser for Boston Strong and, on that day, permitted employees to wear Boston Bruins, Boston Red Sox, and similar shirts.