When Michael McGovern and I started this website in 2016, we wanted to create a place where tow companies (as opposed to tow drivers) could safely and quickly obtain accurate legal information from attorney’s knowledgeable in the towing industry. In doing so, we recognize that, maybe more now than ever, there is a big difference between tow company owners and tow drivers as much of the risk tow companies now face comes from claims made by drivers against their employers. We are careful not to publicize this information in other publications for fear that it may be read by tow companies and drivers alike. However, we feel comfortable publishing it here because our subscribers are owners or high level employees.
When a tow company is being sued for minimum or overtime wage violations, one of the first issues both parties must confront is how many hours the tow driver actually worked. Because of the unusual nature of the tow business where drivers are on shift for long periods of time but not actually performing tows, it is not uncommon for the tow company to say “I have no idea how many hours claimant worked.”
When a tow company takes possession of a vehicle, a variety of legal obligations are impacted. One of these is the creation of a bailment. A bailment describes a legal relationship where physical possession of property is transferred from one person to another person. In the tow business, a bailment is established once a motor vehicle belonging to someone else comes into the possession of the tow company. The owner of the vehicle is “bailor” and the tow company is the “bailee.” But what do these fancy legal words mean?
In my neck of the woods, it is commonplace for tow companies to monitor the police radio waves with an electronic scanner. This has become even more frequent with the advent of the cell phone and download of a police scanner app. But is the use of a police scanner itself an illegal act?
The good old boy “tow rotation” goes something like this. The law enforcement agency or municipality has a police chief that has been place in for years. During these years, the Chief has used the same tow company for police towing. There is no written rotation. The only policy, so to speak, is the Chief uses his old buddy for towing and if you’re not his buddy, you’re probably not getting the tows.
For the few years, the lawyers at this website have been cautioning tow companies to make sure that their wage payment practices are in check because the consequences of failing to do so can be devastating. Lawyers that are looking to sue tow companies for these violations are also aware of this fact. Some lawyers that are particularly enthused about suing tow companies have actually been advertising looking for these types of cases. Don’t believe me?
Claims for unlawful employment practices are on the rise. As such, it is wise for tow companies to review the basic premises of unlawful employment claims.
In Demma v. Chicago 24 Hour Towing, Inc., the United States District Court for the Northern District of Illinois provided further clarification on the Motor Carrier Exemption to the Fair Labor Standards Act. In this case, a group of tow truck drivers contended that they were not paid overtime wages as required by the Fair Labor Standards Act, which generally requires that tow truck companies compensate any employee who works in excess of 40 hours per week at a rate 1.5 times the normal hourly wage.
Anyone who has attended a Towlawyer seminar has probably heard Michael McGovern and I warn about the risks and rewards of private property towing. Private property towing is contentious and most everyone seems to dislike private property towers. Therefore, our message is simple: if you want to succeed in private property towing, you have to be perfect. You have to dot every “I” and cross every “T” every time. If you don’t, you have given an angry consumer an opening to sue for civil violations or, even worse, an opening for a prosecutor to prosecute for criminal violations.
If you’re out and about on December 4, 2017, you may notice truckers out in force protesting the controversial ELD Mandate. One report says protests have been planned in at least 40 states in advance of December 18, 2017, which is when Phase 2, the Compliance Phase, of the ELD Mandate takes place.