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November
9, 2004
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Headline
News
Performing Unbiased Investigations Into Alleged Employee Wrongdoing
Is Essential
By:
R. Eddie Wayland
King & Ballow
It is now common
sense to advise employers to have policies encouraging employees to
report alleged harassment. These policies, of course, are intended to
allow the company to investigate and deal with harassing conduct. Many
employers, however, still fail to follow through with thorough, unbiased
investigations and appropriate corrective action for wrongdoing. This
can be a costly mistake.
In Nestler v. Compass Group U.S.A., Inc. an employer’s
failure to undertake a proper investigation resulted in a $15 million
dollar punitive damage award, reported to be the largest punitive damages
award ever for a single plaintiff sexual harassment claim. The plaintiff
worked as a marketing coordinator for the company running the on-campus
dining facilities at the State University of New York. Soon after she
began her employment, her supervisor began making unwanted sexual advances
and remarks to her. After enduring the harassment for some time, the
employee lodged a complaint with the human resources department, pursuant
to company policy. The company concluded the supervisor had an “inappropriate
management style.” However, it failed to conclude he had engaged
in sexual harassment. The plaintiff was told the investigation had revealed
no wrongdoing. The plaintiff subsequently resigned, citing the supervisor
harassment and the company’s inaction.
The plaintiff’s proof at trial indicated the company undertook
only a limited investigation. She alleged the investigation was not
geared toward helping her. Instead, the plaintiff claimed, the company’s
investigation was focused on preserving its $15 million dollar contract
with the university. The subsequent proof also disclosed information
inconsistent with what the plaintiff had been told. By the end of the
trial, according to media reports, the jury was visibly angry with the
company for its failure to investigate and respond appropriately.
This is just one more example of the need for thorough, unbiased investigations.
While investigations may be unpleasant, they are necessary. Thorough,
good faith investigations demonstrate an employer’s commitment
to its EEO and harassment policies. They are excellent proof of an employer’s
attempts to prevent and remedy potential harassment. However, as this
case demonstrates, they can be a pitfall for the unwary. Employers should
review their investigation procedures and train people responsible for
conducting investigations to ensure such efforts are appropriate and
accomplish the desired objectives.
R. Eddie Wayland, a labor and employment attorney, is a partner
with King & Ballow. King & Ballow is special counsel to the
Truckload Carriers Association.
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Do You Have Correct HOS Documents? FMCSA Clarifies Supporting Docs
The Federal Motor
Carrier Safety Administration (FMCSA) issued a Supplemental Notice of
Proposed Rulemaking (SNPRM) in the November 3, 2004, Federal Register
on hours of service (HOS) supporting documents that carriers must keep
and use to verify the accuracy of driver’s logbooks. In the SNPRM,
the agency intends to clarify that each motor carrier has the duty under
the current regulations to:
1) verify the
accuracy of driver’s HOS and records of duty status (RODS) –
and this obligation extends to the HOS and RODS of independent drivers
or owner-operators while driving for the motor carrier;
2) ensure that each driver collects and submits to the employing motor
carrier all supporting documents with the RODS; and
3) ensure all motor carriers know of the requirement to maintain supporting
documents in a method that allows cross-reference to the RODS.
The SNPRM also proposes
a supporting document based self-monitoring system that would be the
motor carrier’s primary method for ensuring compliance with the
HOS regulations. Furthermore, the agency proposes to permit the use
of electronic documents as a supplement to, and, in certain circumstances,
in lieu of, paper supporting documents. Industry comments on the SNPRM
must be received by FMCSA by January 3, 2005.
Other points of
interest in the SNPRM include:
• The FMCSA
proposes to allow carriers to use electronic, laser or automated technology
(e.g., global positioning systems (GPS), automatic vehicle identifier
transponders, electronic bills of lading used by customs officials
in the U.S. and other countries, and state driver-vehicle inspection
reports (using pen-based computer systems)) in conjunction with paper
supporting documents as long as the electronic supporting documents
are retained for the same period as the paper documents and can be
produced within 48 hours of demand in hard copy;
• The agency
is proposing to:
1) add definitions
for the terms “supporting document”, “employee”,
and “driver”;
2) add a section entitled, §395.10 Systematic verification and
record retention;
3) modify the record retention requirements in §§390.29
and 390.31; and
4) clarify the motor carrier’s responsibility to monitor drivers’
compliance with the HOS and verify the accuracy of the drivers’
RODS.
As far as clarifying
the definitions of “employee” and “driver” in
the SNPRM the agency specifies that all commercial motor vehicle drivers
(including independent contractors) are considered to be employees of
the motor carrier for the purposes of this rule;
• Under
the proposed changes to §390.29, motor carriers could retain
their time records, RODS and supporting documents at a location of
their choice. However, the location would have to be suitable for
preserving the records, and would have to able to be produced within
48 hours of a request by an authorized enforcement official.
• The agency
is proposing that the motor carrier must keep the supporting documents
for a period of six months after receipt, unless another authority
requires a longer period of time.
• The FMCSA
proposes in §395.10(h) that a motor carrier would be subject
to civil and criminal penalties under 49 U.S.C. 521 for the following:
1) failing to
have an effective system to verify and maintain records of duty status
and supporting documents;
2) failing to prevent a driver from falsifying his/her records of
duty status;
3) failing to prevent alteration of supporting documents;
4) failure to prevent a driver from exceeding the hours of service;
and
5) failure to have an effective system to verify and maintain records
or duty status and supporting documents.
It should be mentioned
as well, that the FMCSA noted in the SNPRM that it is continuing to
study electronic on-board recorders (EOBRs) and determining a standard
for data collection for these devices. A copy of the November 3 Federal
Register notice can be downloaded by clicking
here for a PDF and here
for an HTML. If you have any questions or feedback on this issue,
please contact Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org.
Top
Final
Rule on Changes to Haz-Mat Communications Requirements
In the November
4, Federal Register, the DOT’s Research and Special Programs
Administration (RSPA) issued a Final Rule in which the agency amends
the Hazardous Materials Regulations (HMR) to improve hazard communication
for hazardous materials transported in commerce (Docket HM-206B). The
effective date of these amendments is October 1, 2005, however, RSPA
is authorizing voluntary compliance with the amendments adopted in this
Final Rule beginning December 6, 2004. In the Final Rule, the agency
is adopting the following revisions to the HMR that are intended to
enhance the identification of HM in transportation and improve the availability
of emergency response information:
• Permitting
the use of Pantone Formula, an industry guide for colors, for hazard
warning labels and placards;
• Expanding the use of labels specified in the Compressed Gas
Association Pamphlet C-7 on cylinders used to transport division 2.1,
2.2 and 2.3 gases to all modes of transportation;
• Requiring a NON-ODORIZED marking on certain packages containing
unodorized liquefied petroleum gas;
• Allowing a FUMIGANT marking to be removed from a transport
vehicle or freight container before the lading is unloaded provided
the vehicle or freight container has undergone sufficient aeration;
• Clarifying that beeper or other types of call-back systems
do not meet the requirements in §172.604 for emergency response
telephone numbers;
• Clarifying that international shipments of Class 9 materials
may utilize the placarding exception for Class 9 materials while the
shipment is being transported in the U.S.;
• Clarifying that a return shipment of a package that contains
less than a reportable quantity of a Class 9 hazardous substance may
be offered for transportation and transported with markings and placards
in place; and
• Clarifying emergency response information and training requirements
for combustible liquids.
It should be noted
as well, that based on the industry comments received to their June
11, 2003 Notice of Proposed Rulemaking (NPRM) on this issue that RSPA
is not adopting provisions proposed in that NPRM concerning the design
of poison-by-inhalation (PIH) labels and placards, the use of retro
reflective materials for certain placards, marking requirement for shipments
of temperature-controlled Type B organic peroxides, and the organic
peroxide subsidiary FLAMMABLE LIQUID label.
A copy of the complete
November 4 Federal Register notice can be download by clicking
here for a PDF and here
for an HTML. If you have any questions or feedback on this issue,
please contact Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org.
Top
FMCSA
Offers Drug and Alcohol Implementation Manuals
The Federal Motor
Carrier Safety Administration (FMCSA) Director, Office of Enforcement
and Compliance recently forwarded a memorandum to their Division Administrators
and State Directors notifying them of the agency’s recently updated
publication “Implementation Guidelines for Alcohol and Drug Regulations
in Highway Transportation.” The announcement went on to further
state that these revised manuals were being shipped to these Administrators
and State Directors for use by them, state partners and any other industry
representatives as deemed appropriate.
Charles Horan, FMCSA
Director, Office of Enforcement and Compliance was quoted in the memorandum
as follows: “Our regulations require motor carriers to implement
a successful controlled substances use and alcohol misuse program. This
updated information will assist the industry to achieve this goal. It
also explains what elements are required if an employer has no controlled
substances and/or alcohol testing program in place. In addition, we
have revised the guidelines to reflect recent changes to the Federal
drug/alcohol testing regulations to help employers meet these requirements.
The publication also provides the employer valuable compliance information.
The booklet also contains pertinent questions to ask motor carriers
and there are a number of new regulations that should help improve compliance
in our industry. We believe that sharing information with your State
partners, motor carriers and others concerning these guidelines, and
incorporating the programs outlined in the publication will be beneficial
to motor carrier programs and contribute to our mutual goal of reducing
crashes, fatalities and injuries.” For further information regarding
this manual go to FMCSA’s website at www.fmcsa.dot.gov.
For further questions
or additional information, contact Rich Clemente at (703) 883-8847 or
email: rclemente@truckload.org.
Top
TSA Fingerprint Based CDL-HM Background Checks Protocols Due for Release
The Transportation
Security Administration (TSA) recently reported that they plan to issue
“in the immediate future” rules governing how they will
conduct the fingerprint-based background checks on drivers seeking or
renewing a hazardous materials (HM) endorsement on their Commercial
Driver’s License (CDL). In a recent letter forwarded to the American
Trucking Associations (ATA), the agency addressed the industry’s
concerns about the short time between an October release date for the
protocols and the January 31, 2005 deadline for implementation. “ATA
is concerned that states will not have adequate time or funds to set
up the systems needed. This also includes a concern that the shortened
time frame will not be sufficient to complete the data collection and
background check adjudication processes, due to the transient nature
of hazmat drivers…. TSA will do everything possible to assist
all states in complying with provisions of the USA Patriot Act related
to hazmat drivers,” according to Marianna Merritt, Director of
TSA’s Credentialing Program Office. That said, what is anticipated
in their upcoming Register notice, [which was “promised”
by the end of October] is guidance for the states, with the assistance
of a contractor, in performing the fingerprint portion of the background
checks.
The agency had issued
a Final Rule on April 6, 2004 which amended its prior November 7, 2003
Interim Final Rule (IFR) establishing security threat assessment standards
for commercial drivers authorized to transport HM. With that ruling,
TSA officially changed the date on which fingerprint-based background
checks must begin in all States until January 31, 2005. Other points
of interest in that IFR include:
o Prior to January
31, 2005, the TSA will conduct name-based, terrorist-focused checks
on drivers who are currently authorized to transport HM;
o Prior to the
January 31, 2005 deadline, TSA will work with the States to begin
fingerprint collection and submission using pilot programs; and
o The agency will
complete a rulemaking proceeding regarding the collection of fees
to cover the cost of each security threat assessment.
TCA will keep you
posted on future details with this issue, if you have any questions
or need further information, please contact Rich Clemente at (703) 838-8847
or email: rclemente@truckload.org.
Top
OSHA
National Advisory Committee on Ergonomics Sets November Meeting
Trucking Industry Still Unaffected
The Occupational
Safety and Health Administration (OSHA) announced in the October 25
Federal Register that the National Advisory Committee on Ergonomics
(NACE) has scheduled its sixth public meeting on November 16-17 in Washington,
DC. The NACE was chartered for a two-year term back in late 2002, to
provide advice and recommendations on ergonomic guidelines, research,
and outreach and assistance. The committee has met five times prior,
with the most recent meeting held on May 11-12, 2004. For this upcoming
meeting, the Committee’s working groups on Research, Guidelines
and Outreach will meet on the 16th, and will report back to the full
Committee on the following day. In addition, on November 17th OSHA’s
Assistant Secretary John Henshaw will address the Committee.
Voluntary ergonomic
guidelines have already been developed and implemented by OSHA for the
nursing home and retail grocery industries, and in addition, Administrator
Henshaw recently announced on September 2 that employers and workers
in the poultry processing industry now have a set of voluntary guidelines
to draw on to help reduce ergonomic-related injuries. The trucking industry,
however, has of yet been unaffected with any proposed or draft ergonomic
guidelines resulting from recommendations by the NACE or other OSHA
initiatives on this issue. However, we feel it is important to inform
you that the NACE has established a working group to identify additional
industries for guidelines based on injury data collected by the Bureau
of Labor Statistics (BLS).
The NACE will meet
on November 16-17 at the Holiday Inn on the Hill, 415 New Jersey Avenue,
N.W., Washington, DC 20001. A copy of the October 25 Federal Register
notice can be found by clicking
here for a PDF and here
for an HTML. TCA will keep you informed if the trucking industry
is affected in any way by these on-going meetings and discussions, and
if you have any questions or comments please contact Rich Clemente at
(703) 838-8847 or email: rclemente@truckload.org.
Top
Mandatory
Controls Proposed by Customs for C-TPAT Program
TCA recently learned
that the Bureau of Customs and Border Protection (CBP) is currently
circulating a “draft” proposal to the industry that if enacted,
would place mandatory requirements for importers involved in the Customs
Trade Partnership Against Terrorism (C-TPAT). According to this “draft”
initiative, the CBP is proposing minimum mandatory standards in the
following areas in which importers enrolled in C-TPAT must comply:
1) business partner
requirements;
2) container security;
3) physical access controls;
4) personnel security;
5) procedural security;
6) security training and threat awareness;
7) physical security; and
8) information technology security.
C-TPAT is a joint
government-business initiative to build cooperative relationships that
strengthen overall supply chain and border security. C-TPAT recognizes
that Customs can provide the highest level of security only through
close cooperation with the ultimate owners of the supply chain –
importers, carriers, brokers, warehouse operators and manufacturers.
Through this initiative, Customs is asking businesses to insure the
integrity of their security practices and communicate their security
guidelines to their business partners within the supply chain.
The “latest”
information from the CBP is that they are working on a new version of
the C-TPAT initiative based on responses from the industry that they
have received to date. In addition, CBP is intending to extend mandatory
application of the C-TPAT program to other parties such as motor carriers
and intermediaries. It is also expected that the new requirements will
be extended to domestic transportation interests. We will keep you posted
on further developments with this program, for questions or information
please contact Rich Clemente at (703) 838-8847 or be email: rclemente@truckload.org.
Top
New Driver Drug & Alcohol Testing Accident Information Rules Now Effective
As a reminder on October
29, 2004 FMCSA rules went into effect requiring employers to maintain
all accident and drug/alcohol testing information obtained from previous
employers as well as drivers’ authorizations to obtain the information.
FMCSA states that if an applicant refuses to provide a written consent
form to obtain his/her driver safety performance history the motor carrier
is forbidden from allowing that person to operate a commercial motor
vehicle. Motor carriers will need to keep their drivers’ vehicle
accidents for three years beginning retroactively with accidents that
occurred after April 29, 2003.
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