As another year comes a close, it is always time to reflect back and give thanks. We are privileged to be a part of the towing community and am extremely grateful for the friendships and opportunities this industry has provided. We wish everyone and their families a safe and happy holiday.
When it comes to the tow business, the answer is…it depends. I would say as a general rule, courts disfavor “restrictive covenants” in the workplace. A restrictive covenant is, by definition, something that restricts another from doing something. A covenant not to compete is one example of a restrictive covenant. Typically, they are introduced at the inception of one’s employment and, as a condition of accepting employment, the prospective employee agrees to a number of post-employment conditions, such as non-competing with the company, not soliciting the company’s customers, and otherwise not using the customer’s confidential information.
Cities throughout the United States receive incentives for doing business with a minority-owned or woman-owned business. This includes minority-owned or woman-owned tow businesses. The law defines these types of businesses as socially and/or economically disadvantaged. So what does this mean for a tow business?
Clever insurance companies occasionally point to the Carmack Amendment as another avenue to collect from tow companies who have damaged motor vehicles in their possession. For those unfamiliar with these types of claims, the Carmack Amendment is a federal law that may create liability for tow companies transporting motor vehicles across the state lines. Unlike conventional liability claims, if applicable, the Carmack Amendment imposes liability on tow companies if the claimant can show that the goods were originally in an undamaged condition and were later damaged.
There was a truly tragic story this month involving a tow truck driver in Watertown, Massachusetts. 68-year-old Benita Horner was involved in a fatal accident that allegedly resulted in Ms. Horner being struck and pinned beneath a tow truck while crossing an intersection. Moments later, the victim’s 38-year-old son, who witnessed his mother being run over, jumped into the tow truck and allegedly repeatedly stabbed the driver, who sustained critical injuries. The victim’s son, who is reporting as having a history of mental health issues, was arrested and charged with attempted murder, assault and battery, and resisting arrest. Meanwhile, no charges have been announced against the tow truck driver.
At TowLawyer.com we often get calls from subscribers frustrated over the lack of enforcement of laws and regulations that apply to their local towing operations. Nothing is more infuriating that seeing a flagrant violation of a towing ordinance or police department regulation by a competitor that goes unenforced. For example, a local ordinance requires all tow trucks to carry a fire extinguisher and broom but none of your competitor’s trucks have that equipment. Or the police department rotation rules require a 10-foot chain-link fence capped with strands of barbed-wire but your competition only has a rickety 6-foot fence patched up with chicken wire and pieces of tin.
Happy Labor Day! The tow industry is filled with dedicated and hard working people. Workers who show up to work battling weather, road hazards and other adverse conditions day in, day out. We hope everyone gets some down time this weekend and has a relaxing and safe holiday with family and friends. -TowLawyer
In last week’s blog, I described I case I had involving a night dispatcher who complained about minimum and overtime wage violations. In that situation, the tow company thought they didn’t have to pay either minimum or overtime wages because he paid the dispatcher a salary of $300.00. But just paying a salary, without more, does not make the employee exempt from minimum and overtimes wages.
My first wage and hour case in the tow industry didn’t even involve tow operators. It involved a disgruntled night dispatcher who was being paid $300.00 per week to answer the phones from 7:00 p.m. to 7:00 a.m., seven (7) days a week. She was permitted to take all of the calls on her cell phone, meaning for large portions of the night when the phone wasn’t ringing, she slept at home.
Liens are always a hot topic in the tow community. When properly asserted, they can be a powerful collecting tool. However, like anything, done incorrectly, they expose a tow company to potential liability.