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POLICY AND WORK SEPARATION ISSUES
Note: This information is meant to make it easier to defend your company against unwarranted unemployment claims from drivers who have been discharged for driving-related problems. As always, in close or questionable situations, it is best to consult a human resources professional or employment law attorney before taking any action against an employee, filing a claim response, or participating in an appeal hearing.
Many employers have drivers on staff. Unemployment claims involving drivers who have been fired for uninsurability present special problems for employers. Keeping a few guidelines in mind can give an employer a much better chance of defending against such a claim:
proper questions on the job application concerning driving record and background;
clear policy on insurability as a condition of continued employment as a driver;
prompt reporting of accidents and violations to the insurance carrier;
cooperation with insurance carrier regarding records and insurability determinations;
furnishing appropriate evidence to TWC in case of an unemployment claim; and
using the driver's license laws to be aware of a driver's record and to properly protest an unemployment claim.
Job Application Questions Relating to Driving Record and Background
Employers are allowed to ask for any information necessary to checking an applicant's driving record, driving experience, and background. That would include the driver's license number. However, remember that many professional drivers are licensed in more than one state. Ask applicants to list all driver's licenses they hold and to give the numbers and expiration dates of all licenses. You will need those numbers to check the driving records in those other states. Have the applicants give written consent for you to get their motor vehicle records, and be ready to follow any particular requirements of other states in that regard. An alternative is to have the applicants get certified copies of their motor vehicle records for you; it is certainly your right to make that a condition of processing their applications for employment.
A company should also ask the applicants to list any accidents or motor vehicle law violations they have had within a specified period of time in the past. If an applicant's information differs from what the official motor vehicle records indicate, ask the applicant to explain. If there are any questionable accidents or tickets listed on the motor vehicle records, be sure to ask for specifics.
Concerning background checks, be careful. The federal law known as the Fair Credit Reporting Act (FCRA) contains strict requirements for certain types of background checks. If an employer plans to use any kind of outside agency to investigate an applicant's or employee's background, the employer must first obtain that person's written authorization for the check and disclose to that person a summary of the person's rights under the FCRA. (Such a summary may be obtained from any agency that might do such a check and should be furnished as part of the service you pay the agency to perform.) If the applicant refuses to give you such written authorization, you have the right to disqualify them from further consideration. If employment is denied or terminated as the result of such a check, that fact must be disclosed to the applicant, along with an explanation of the problem leading to the denial or termination of employment and the name, address, and phone number of the agency that conducted the investigation.
It is certainly permissible to ask about criminal history on the job application. Do not ask only about prior "convictions". In Texas, a common form of sentencing is deferred adjudication. If the person being sentenced satisfies the terms of probation specified by the court, no final conviction is entered on the individual's record, and they may legally claim never to have been convicted of that particular offense. However, they may not claim never to have pled guilty or no contest to the offense, since pleading guilty or no contest is one of the conditions for deferred adjudication in the first place. It is just a matter of asking the question in the right way. One way of asking a question about prior criminal background would be as follows: "During the past (x) years, have you been convicted of, or have you pled guilty or no contest to, any of the following charges: a felony of any kind, driving while intoxicated, driving under the influence of a prohibited, controlled, intoxicating, or illegal substance, or (fill in the blank)." This is not to say that the mere existence of criminal problems in the past should be a bar to employment under all circumstances. To be fair and to avoid possible discrimination charges, be sure to inquire only about criminal offenses or driving-related offenses that are relevant to the job in question.
In general, the job application should make it clear to applicants that supplying wrong or incomplete information can result in them not being hired, or if the problem is discovered after hire, can result in their discharge from employment.
Clear Policy on Uninsurability
The company's policies applying to employees with driving duties should address the following points:
all drivers must maintain a clean driving record;
all drivers must be insurable at any time they are performing driving duties;
all drivers must have a valid driver's license at any time they are performing driving duties;
any driver with a suspended or revoked driver's license may be taken off driving duties;
any driver who becomes uninsurable, as determined by the employer's insurance carrier, agrees to be reassigned to other duties, or may be terminated from employment at the company's option;
drivers who are reassigned due to uninsurability, lack of a clean driving record, or lack of a valid driver's license agree that they will accept whatever alternative assignments the company may give them and that they understand that a reduction in pay may result from the reassignment;
any employee performing driving duties agrees to report any accidents in which they are involved as a driver or any violations of any motor vehicle laws for which they are cited by a law enforcement authority; such report to the company shall be made immediately or as soon as possible following the event;
failure to promptly report accidents or motor vehicle law violations will result in disciplinary action, up to and possibly including discharge; and
any driver involved in an accident or cited by a law enforcement official for violating a motor vehicle law must turn over any documentation relating to such incident as soon as possible to the employer, and must cooperate with the employer in verifying the information with other parties involved and with law enforcement authorities.
In developing such policies, employers should consult their insurance carriers, since each shares the common interest of keeping only good drivers on the roads.
For a sample policy dealing with these issues, see the topic titled "Driver Policy".
Prompt Reporting of Problems to the Insurance Carrier
It is essential to provide your insurance carrier with up-to-date information relating to your drivers. This is so that you can ask the insurance company to make a prompt determination as to whether a particular driver will remain insurable under the policy. You do not want to end up losing an unemployment claim just because the problem causing uninsurability happened too far in the past. That happens in cases where the insurance carrier makes insurability or continued coverage determinations only one every 12, 18, or 24 months. Such intervals are far too large to be of use to employers who might have to deal with unemployment claims from drivers who are suddenly declared uninsurable or otherwise excluded from coverage long after driving problems occurred. The employer should do its best to let no more than a month pass between the incident and the discharge, if discharge becomes necessary. If the TWC claim examiner or hearing officer seems troubled by the interval between the final incident and the discharge, point out that you were simply trying to be fair to the employee by not taking unduly hasty action and that it takes time for an insurance company to make a determination.
Cooperation with Insurance Carrier
Going hand in hand with prompt reporting of accidents and violations is the issue of cooperating with the insurance company regarding records and insurability determinations. This is one of those "I'll scratch your back if you'll scratch mine" propositions. Furnish whatever documentation you have regarding insurability issues to your insurance carrier, and ask the carrier to do the same for you. You will need such documentation in case you have to fire a driver and the driver files an unemployment claim, and the insurance company needs the documentation to be able to make a prompt insurability determination.
Furnishing Appropriate Evidence to TWC in Case of an Unemployment Claim
In order to have a decent chance of winning an unemployment claim involving a claimant who has been discharged, an employer must show two main things: first, that the discharge occurred due to a specific act of misconduct connected with the work that happened close in time to the discharge, and second, that the claimant either knew or should have known that discharge could result from such a problem. The burden of proving misconduct is on the employer. That means that if you are dealing with an unemployment claim from a driver you terminated, you must show sufficient evidence to justify a disqualification.
If the driver was terminated for excessive accidents, you will have to show that specific accidents occurred at specific times and that the claimant was at fault in whatever accidents contributed to the decision to discharge. That is especially the case with the final accident. If the final accident was not the claimant's fault, you will probably lose the case, since disqualification is based upon a final incident of misconduct, and if the most recent misconduct was one or two accidents ago, those problems would be too remote to have been the "proximate" cause of dismissal, i.e., the precipitating factor in the discharge.
Excessive Motor Vehicle Law Violations
If the driver was terminated for excessive traffic violations or violations of other motor vehicle laws, you will need to prove that the violations occurred and that the claimant was at fault in the violations. You can show the claimant was at fault if you have some kind of evidence showing that the claimant paid a traffic ticket, was convicted and sentenced to some kind of fine or other penalty, or entered a guilty or no contest plea in order to receive probation, a suspended sentence, deferred adjudication, or some other form of alternative sentencing.
Failing to Promptly Report Problems
If the driver was discharged for failing to promptly report accidents or violations, you will need to show that the accidents or violations occurred and that the claimant failed to make a reasonable effort to promptly notify your company under whatever notification policy you have (click the link for a sample policy). You will also need to show how the claimant either knew or should have known he could be fired at that time and for that reason.
Loss of License to Drive
If a driver loses his job due to losing his license, the TWC ruling will depend upon whether the problems leading to loss of the license were within the claimant's power to control. If the claimant draws benefits, the employer should certainly ask for chargeback protection if it had no alternative but to lay the claimant off, i.e., was required by a state or federal law or regulation to discontinue the claimant's driving duties.
Supplying Wrong or Incomplete Information on the Job Application
If the driver was fired for falsifying the job application or for failing to supply all pertinent information, the employer will need to present a copy of the application and copies of any documentation showing how the claimant's original information was false or incomplete. Look back at the information above concerning "convictions". Do not fire a claimant and expect a favorable ruling from TWC if the problem was that the application asked only about "convictions" and the claimant failed to list a deferred adjudication sentence that was successfully completed. If that situation has happened to your company, you need to redesign your job application as noted above.
If the driver was fired for uninsurability, you will need to prove that the incidents causing uninsurability happened close in time to the discharge and were the claimant's fault. Drivers are sometimes declared uninsurable for problems that happened before they went to work for the employer. While the employer may need to lay such drivers off, TWC will not disqualify them from unemployment benefits, since any possible misconduct on their part occurred prior to working with the employer and was thus not misconduct "connected with the work". However, this does not apply if the problems occurring prior to employment were not reported on the job application. In that case, that would fall under the "falsification of a job application" category (see above).
Using the Driver's License Laws to Get Needed Information
Due to the Texas Commercial Driver's License Act and similar laws in other states, it is fairly easy to be aware of a driver's record and to properly protest an unemployment claim involving serious license or driving record problems. Under those state laws, which in turn were mandated by a federal law, there is a nationwide database of driving records of people who have commercial driver's licenses. Those laws also require prompt reporting of any problems that might affect a driver's ability to hold or renew a commercial driver's license. Using the database, employers should have another way of getting information relating to the ability and qualifications of applicants and drivers. In Texas, the Texas Department of Public Safety can give information on how a company can obtain such records.
In addition to cooperating with law enforcement authorities and their insurance carriers, employers may also contact the employer commissioner's office for assistance on this subject at 1-800-832-9394. As is usually the case, timely information can make all the difference.
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