Bottom Line
Road Law
Can they do that?

Jeff McConnell & James Mennella
Attorneys at Law

A hot topic for all employees or independent contractors is, “How do I get paid when my company/lessee isn’t paying me?” In an earlier article, we discussed filing wage and labor liens, which many OOIDA members have used to get paid. However, that remedy may not always work on a nationwide basis, and you may have to file a lawsuit.

In this issue, we’ll tell you about one OOIDA member’s ordeal when he tried to get paid by his employer for work he did and for repairs he made to the employer’s tractor and trailer.

For confidentiality purposes, let’s call this OOIDA member “Joe.” Now, Joe’s employer wouldn’t pay him the money owed under the terms of their agreement. So, Joe was forced to sue his employer in small claims court to recover his money. When Joe’s employer got a copy of the lawsuit, the employer filed a countersuit, claiming Joe was negligent when he allegedly damaged goods in shipment, causing the employer economic loss. The trial court decided in Joe’s favor and told the employer to pay him the money owed. But, and here’s the tricky part, the trial court also decided Joe had been negligent and told him to pay his employer for the damages. Even though Joe was paid ($1,500), he had to pay his employer for damages ($1,300). So, for all his trouble, he only ended up with $200. Joe filed an appeal because he didn’t think that judgment was fair.

On appeal, the court held that an employer usually is responsible for the actions of its employees and can’t withhold money out of their pay for damages. But an employer can withhold employees’ pay for damages as a result of “negligent acts” once the employer proves, in court, the employee was in fact negligent. In this case, the employer simply didn’t pay Joe the money owed him because they were a bad employer. When Joe sued, the employer in turn sued Joe claiming he owed for damages caused.

So what does all this mean? Basically, an employer doesn’t have the right to withhold your pay just because they believe you were negligent and damaged equipment or caused economic loss. In order for an employer to withhold pay for alleged negligent acts, they must file suit, unless there’s a contract saying they can. Had Joe’s employer withheld his pay without suing him, it may have been a different story.

An owner-operator who is leased to a motor carrier has an advantage over the typical company driver, in that the Federal Motor Carrier Safety Regulations (FMCSR) have very specific requirements in terms of the lease agreement and its contents. Before any driver goes to work for a company or leases equipment with a carrier, you should always be certain to read the documents you sign and agree to. If you don’t understand something, ask what it means. If you are an owner-operator, you will want to be certain the lease agreement you sign conforms to the FMCSR and spells out in writing the terms of your agreement. As you’re aware from the various OOIDA lawsuits, this doesn’t always guarantee a carrier won’t take advantage of you, but at least you have federal legislation, OOIDA and Road Law to protect you in court.

We hope you can use the information in this column to help with everyday, real life problems you face on the road. We invite you to send us any questions or comments you may have regarding transportation law to Road Law, 1330 N. Classen Blvd., Suite 215, Oklahoma City, OK, 73106; fax to (405) 272-0558; contact us through our Web site at; or call us at (405) 272-0555. We look forward to hearing from you.