Isenberg addresses legal/contract issues at Markel conference

by Adam Ledlow

TORONTO, Ont. – Trucking company employees are expected to know about a lot more than just trucks, from human rights to CVORs, said teacher, writer and lawyer of 35 years, Miriam Isenberg, to a crowd of top trucking industry professionals at the Markel National Conference in May. Isenberg addressed delegates on the importance of being aware of law changes and how they affect your business.

“The trucking industry is one of the toughest in the world,” said the former transportation company owner. “You’re expected to know everything.”

But she said many don’t take employee issues seriously enough.

“It’s important to know your legal rights.”

Isenberg’s first piece of advice concerned employee/contractor issues. She said not to pay workers on a gross basis unless they’re incorporated.

“If some (employees) are paid gross or as contractors, you may have a problem,” she said. “The situation may need to meet certain tests or the government may charge both employee/worker EI and CPP.”

She also said it’s imperative for both managers and employees to know their rights and responsibilities. These should be laid out in written policies on subjects such as harassment, workplace violence, security, confidentiality, leaves of absence and termination of employment.

The latter, Isenberg said, could get you into trouble when dealing with workers with disabilities. She gave an example of a worker who suffered from chronic depression and was forced to miss a number of workdays as a result. The company eventually let the worker go in favour of someone who could offer better attendance. But because the worker’s depression was considered a disability, he received a hefty settlement – to the tune of $500,000.

“Get advice when dealing with disabilities,” Isenberg warned. “The minute someone says, ‘I have a disability’, you must accommodate them.”

If a carrier employs O/Os, Isenberg said there should be a written agreement setting out the terms and conditions of the relationship.

“You don’t want an O/O who’s a bit of an entrepreneur,” she said.

Some key points Isenberg said to consider when writing a contract included WSIB (Workplace Safety and Insurance Board) issues (clarifying whether or not a contractor is covered), responsibility for equipment, insurance coverage and expenses.

“A written agreement is a protection for both the company and the contractor,” she said. “It helps avoid litigation.”

Calculating hours worked, especially overtime hours, can be a sticky situation if once again they’re not outlined properly in writing. Isenberg noted that much of the confusion stems from the definition of overtime hours. For example, the written pay agreement should note that paid lunch hours don’t count towards total hours worked and thus wouldn’t qualify as overtime if included in the total.

“You must make rules like this clear or you’ll have yourself an overtime problem,” she said.

Another recommendation from Isenberg was for companies to have a driver’s manual to cover both company and contract drivers.

“A driver’s manual is an excellent tool to prove to the Ministry of Transportation that you are providing training,” she told the crowd.

She said the manual should be used for safety and compliance training, setting company expectations for drivers, procedures in case of accidents, discipline/sanctions for driver actions and legal requirements. Among the most important legal requirements mentioned were customs regulations.

“Customs is a nightmare right now,” she said. “The fines are horrendous. Every week (drivers are) getting $5,000 to $10,000 fines.”

Health and safety issues also rank high in legal concerns, which Isenberg said can be costly. Once again, policies and procedures must be set out in writing and posted publicly. Improper procedures could result in hundreds of thousands of dollars in fines.

“We’re talking big, big fines,” she said. She said Bill C-45, Criminal Code legislation, which adds potential Criminal Code penalty to health and safety, could be a real concern for companies not following proper procedures. Companies found in the wrong might not only face large fines as penalties, but also jail time.

“It’s time that everybody in this room got serious about health and safety,” she said.Audits, and the importance of performing Self Audit at least twice a year, was the final legal issue discussed that has potential to ruin a company financially. She said if you don’t receive notice of an audit to immediately get a Self-Audit kit. From there, make sure driver and equipment files are in order and monitor logbooks.Isenberg offered one final point about the penalties for not following proper legal procedure for the crowd to consider: “No company is beyond going bankrupt,” she said.

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