Employers & labor lawyers, please chime in...

[cashflyer]

I have a situation that will be boiling over by tomorrow; maybe by tonight. I consulted with an attorney today, but was really displeased with his advice.

I admit that I made a few mistakes with this guy, but need to now make sure that I have an exit strategy and don't get mired in an unresolvable conflict. ( I couldn't resist... sorry )

He's an OTR truck driver for my company.
There are actually 3 issues tangled together here:

Start of issue #1

This applicant was referred to me by the state employment office / job service, and came to me explaining how he was not making enough money with his current employer and that Christmas was coming up, etc. Unfortunately, he is an ex con (felony) and my business requires travel to Canada. The job flyer that he was given at job service even clearly stated "MUST BE ELIGIBLE FOR TRAVEL INTO CANADA". I told him that I would like to help him out, but that he would need a travel permit (called a Criminal Rehabilitation permit), and that the agency we use to handle this charges $750. He told me he was broke and couldn't afford it.

I offered to him that if he really wanted the job, I would advance him the money for the permit and he could pay me back with deductions from his first 4 paychecks. He agreed. He even signed an approval for the deductions. The word deductions is plural because on day one of his job, he explained that he didn't have any day-to-day money for being on the road, and I advanced him $500 cash. This was also on the approval sheet.

Start of issue #2

Oh 12/13, he dropped a load in Reidsville, NC - then decided he was going to come home. An unapproved 212 mile deviation. I discovered the truck was out-of-route (it has a satallite tracker!) at around 93 miles and phoned to let him know he was busted. He claimed that he missed his exit. (by 93 miles??)

Start of issue #3

The same day he was busted out of route, he decides that "since you hired me, knowing I am an ex-con, then YOU should be the one paying the $750"

On 12/15, he phones me up and starts complaining about the deduction on his paycheck, and how I have ruined Christmas for his 3 kids. He tells me that if I had kids, that I "wouldn't do people like that." He also tells me that I'm breaking some sort of Federal law, and that he's going to see an attorney.

On 12/16 he dropped a load in Atlanta. It was Saturday, and at night, so I was not in the office to check tracking data periodically. Monday morning I found out the truck was sitting in Greenville, unloaded, and had been since Sunday. Around 150 miles of unapproved travel. I called him and told him to bring the truck to the office. I intended to fire him then and there, but he said that the dispatchers had authorized the trip. Now I had to have all the communications records pulled (all coms are recorded) and reviewed for that day - which takes time. I sent him on with the truck and told dispatch to find him a load asap.

A few hours later, they found him a load.
I came in on Tuesday and found that he had REFUSED the load!!!
(I guess he had to meet with the arrorney that day... )

On Wednesday, I received my fuel card statement. On it I was surprised to see that in addition to fuel, he has been taking $20 and $40 at a time from the ATM for himself.

Also on Wednesday, I get the communication report. Nobody approved the trip to Greenville. The tape has him telling the dispatcher that he is going to Greenville.

Wednesday night, he phones me and starts raising t-total hell about that $750 again. This time, he went to great lenghts to provoke me into an argument, using coarse language and shouting a lot. He again went to his story about me breaking a federal law, and asked if I was planning to stop the deduction. I said no... and I head him say aside from the phone to somebody else, "did you hear that?". Then, "Good, I got me a witness."


Now it's Thursday, and I've had enough. It's going to cost me a chunk of change to have him deadhead from Memphis to Greenville, but I told him to have the truck at the shop by midnight. (00:01 starts a new payday)

Summary and questions are in the next message.....

[cashflyer]

Sorry for making that so long winded.

Anyway, the attorney I spoke to today tells me that I can not deduct the stolen money from his wages. The attorney says that if it goes to court, all he has to do is say that it was for truck related expenses and the burden of proof is on me as the acuser.

The attorney did not advise about the $750, because honestly I forgot to bring that up. I figured with a signed approval, that I was golden - but now I'm second guessing that idea.

I'm going to fire him for refusing that load. Simple, clear, no chance of arguing it in court.

But, I really hate to walk away from the money he has been stealing from me.

And more than that, I want to be sure that there isn't some stupid-arse law that I broke with that $750.

I think I'm clear on the $500.




Oh, one more thing... the truck has a petty cash box with $100 for road tolls. If that's missing, and he has no toll receipts, can I get that back?? (Hell, I guess not... it would be my word against his as to whether he had tolls to pay.)

If what I've been told is accurate, then this is one EFFed up system we have.

[the]

I'm not a lawyer, but have some experience in this area. Do you have any kind of insurance policy that would provide coverage in the event of a wrongful termination claim? I think that would have some relevance as to strategy moving forward.

[cashflyer]

No. I have only the basic stuff.
Property liability, workers comp, and the likes.

But "wrongful termination" should not be a problem.
1) Between his unauthorized trips and his load refusal, I am confident that I have "just cause".
2) South Carolina is a "right to work" state, meaning that I can fire him "for cause" or for "no cause" - so long as the reason isn't discriminatory. The only difference between cause or no cause is whether he can collect unemployment against me - and he hasn't been employed long enough to collect anyway.

[Superman]

I'm not an attorney either. I wonder if the paperwork around the $750 and the $500 is clear on the subject of repayment, clear on the fact that the money was advanced to the driver and clear on the purposes of those advances. In Washington State, agreed-to payroll deductions must go to the benefit of the worker. Deductions that do not are illegal.

And I would also say here that while I am one of those bleeding heart liberals who believe in labor unions and workers, my allegiance to those workers is conditioned on their integrity and service and fairness to their employers. This fellow needs to be spanked. Hard.

[the]

Sure, you'd probably prevail in the end. Most states are "no cause" states.

But whether a termination was wrongful, that's for a jury to decide. Whether you discriminated against him because of his background (I know that makes no sense, given that you hired him knowing his background, but that won't stop him), or for other reasons, etc.

And as you know, for a jury to decide doesn't come free. Lots of $$$ spent fighting against some sleezy contingency lawyer looking to make a few thousand by filing a suit, causing you to incur legal fees, and then shaking you down for a nuisance value settlement.

As to deducting from his wages, I'd venture that your lawyer is probably right, I think that's a very touchy issue under most state's laws. Whatever you do, you don't want to put yourself in a position where you've now done something wrong.

IMO, the best result in a case like this is a negotiated termination, if that is possible with him. Your goal is to (1) get him gone, AND (2) get him to sign a release waiving all possible claims relating to his employment.

If you have to give up the hundreds that he stole from you, etc., it's probably worth it if you can get a release, take it as a lesson, and move forward with the business of your business.

[cashflyer]

Well, the permit is HIS. His to keep forever. It allows him to take any job with any trucking company that requires travel into Canada. It also allows him to travel into Canada for vacations or whatnot. I consider this "to his benefit". It opens opportunity for him.

If it were a document that were tied to my company specifically, I would have paid for it.


As for the $500, well that was a cash advance that he requested. I can't really think of an argument against that being repaid to the company.

On the deduction approval, line 1 reads "$750 paid to Canada Border Crossing Services for a crossing permit". I guess that may not be as specific as it could be.

Originally posted by the
Whatever you do, you don't want to put yourself in a position where you've now done something wrong.

Exactly.

[the]

Get it behind you, use the relatively small amounts involved here as a carrot, and get a release. Pay the lawyer to draft the release.

[svandamme]

750 USD for a travel permit??? is it gold plated?

sounds a bit high for an adminstrative thing

[JeremyD]

How long has he been with you? #1 Most states have an orientation period of 90 days - term without cause - no adverse action -

#2 - check his application - if he falsefied ANYTHING - term for cause - violated company policy

#3 - did he disclose all his infractions?? My experience with felons is they will typically list one or two - but not the laundry list of issues they have = if not - term for cause

#4 - most states have clauses where you can not withhold pay - but what you can typically do is wait until your next "normal payperiod" before processing the last check - wait until all company property is returned - don;t bend over backwards - and consider this an expensive lesson.

The key to all this is get it up front. If he's a minority or one of the protected classes - then all bets are off - its not worth it. If he's a white dude under 40 = then he has no rights - no hope of any rights and you can basically do what you want.

[Don Wohlfarth]

Sounds like rehabilitation worked wonders for this guy. Some of these guys have a sob story as long as your arm. They suck you in with a tale of trying to get back on their feet, no money, couple kids...You reach out a helping hand and he shoves the bat up your a$$. BTDT
Big lesson to be learned here. Check with the last 2-3 places he worked. Ignore the BS of why he left, why you can't call, all the rest of the crap he can come up with. Simple question, would they hire him back.
Right now you're pi$$ed because he's threatened wrong full discharge, yada, yada.
Tell him to give you the travel licence back and a letter saying he is surrendering the licence because you have agreed to waive the $750 advance for the licence and the $500 advance. He may even go for it as he knows you've got some paperwork agreeing to the repayment of the the money. Cut your loses as he has more experience screwing people than you do.
If you can get the licence back send it and a copy of the signed letter cancelling the licence.

[Dantilla]

I learned long ago that I'm better off chasing tomorrow's money, rather than yesterday's.

Get rid of him ASAP, and forget it. The $1250? That's tuition in the school of hard knocks. A very valuable education.

[Superman]

Actually, I'm very much in agreement with the folks who suggest you move forward. I especially like the use of the money as a carrot for settlement.

[cashflyer]

Originally posted by svandamme
750 USD for a travel permit??? is it gold plated?

That includes process agent fees, FBI records, etc, etc. A package deal is somewhat necessary with truck drivers, as they don't have the time to usually do all the legwork themselves.

Originally posted by JeremyD
How long has he been with you?

The key to all this is get it up front. If he's a minority or one of the protected classes - then all bets are off - its not worth it. If he's a white dude under 40 = then he has no rights - no hope of any rights and you can basically do what you want.

20 days as of tomorrow.

I am a white dude under 40. He is... not.

Originally posted by Don Wohlfarth
If you can, get the licence back send it and a copy of the signed letter cancelling the licence.

The processing isn't even completed yet. And I called the agent today and cancelled the service. They will refund $450.00.



A check of the satallite tracker just now shows that he's travelled an amazing 280 miles in the last 7 hours. At this rate, he will not be in town till after 3 am. The pay scale here is "$143 per day for any day dispatched more than 4 hours". How much you want to bet that it's after 4am when he rolls in??

[JeremyD]

Cut your loses - pay it out and consider it tuition.

What does the barber say?




Next...

[stomachmonkey]

next...

[Joeaksa]

I would even think of sending another driver out to pick up the truck where-ever it is. Do NOT tell him its happening, just have the dispatchers get a good load for it coming back to his home area, one that you know he will accept and pick up.

Have YOUR driver go there and give him a notice of release or dismissal. Have him take his crap out of the truck and leave. Otherwise if you let him drive the rig back to the company he will do everything he can to mess the truck up and your $100 cash fund will be missing with no receipts to show for it.

[cashflyer]

Well, the truck made it to Greenville shortly before 3am. But he didn't bring the truck to the shop as he was instructed.

I'm about to call him, and I've made sure I have a witness in the office for any discussions that transpire.

He took money from an ATM without authorization. That's theft - have him busted and sent back. This guy is a total loser.

[Super_Dave_D]

Cut your losses and fire him immediately. Send someone to get the truck or have him bring it back. I would also tell him if he wants to make the seperation difficult that you would then persue criminal charges against him for theft. That money is gone and you wont get it back. Your lawyer is correct - you cant deduct for possible theft of monies.