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Medford, Oregon Jury Slams Broker for Negligent Hiring – $1.68 Million in Punitive Damages Awarded

On March 1, 2012 a Medford jury rendered a verdict in a wrongful death case against a broker for $10,000 in non-economic damages (aka pain and suffering) and $1,678,000 in punitive damages. Although the jury also found the driver liable for $40,000 in non-economic damages and $3,471,000 in punitive damages, the lessons to be learned from the case are for brokers and shippers.   Facts.   Nestle Waters North America, the shipper, had a Shipper-Broker Contract with Heyl Logistics.  (NOTE: All references to “Heyl” are to Heyl Logistics, not Heyl Trucking.)  Heyl had a Broker-Carrier Contract with Eric Rangeloff, dba Washington Transportation. Nestle tendered a shipment to Heyl, Heyl tendered it to Washington Trucking, and Washington Trucking tendered the shipment to Forrest Rangeloff, Eric Rangeloff’s twin brother.

After picking up the load from Nestle in southern California and transporting it to the yard, Washington Trucking gave the shipment to Dan Clarey, its driver, to deliver to Portland.   While crossing the Siskiyou Summit, Clarey started to fall asleep at the wheel, clipped the mirror of another truck, jolted awake, and pulled hard to the right and hit the rear of a trailer being pulled by Kelly Linhart, another truck driver who had stopped on the shoulder, causing the trailer to hit Mr. Linhart, killing him instantly.   Clarey admitted, and tests confirmed, that he had methamphetamine in his system. Clarey subsequently pled guilty to criminally negligent homicide and driving under the influence and was sentenced to several years in prison.

It is important to point out that Ron Brown, dba I & J Transportation was named as a defendant because it previously leased equipment from  Forest Rangeloff, dba Range Transportation and provided service under I & J’s FMCSA authority and USDOT numbers. However, Ron Brown had terminated the equipment lease and sent a fax to Forest Rangeloff declaring the termination. In addition, Ron Brown reported Forrest Rangeloff’s theft of his FMCSA and USDOT registrations to both the Lake Havasu and Los Angeles police and to Internet TruckStop. Nevertheless, at the time of the collision, the equipment Clarey was driving was identified with I & J’s MC and USDOT numbers.

The Linhart Estate sued Nestle, Ron Brown, dba I & J Transportation, Eric Rangeloff, Heyl Truck Lines, Heyl Logistics and Clarey. At the time the case went to trial, the defendants remaining were Heyl Logistics and Clarey. Ron Brown, dba I & J Transportation settled before trial, but its name remained on the verdict form for purposes of allocating fault. Although we do not believe he settled, Clarey did not actively defend himself and we presume that his name was on the verdict form for purposes of allocating fault.   The Verdict.   The jury found Clarey 80% at fault, Heyl Logsistics 20% at fault, and Ron Brown (I & J) 0% at fault. No economic damages were awarded, but $50,000 in non-economic damages were awarded, meaning (under Oregon law) that Clarey was liable for $40,000 and Heyl was liable for $10,000).  In addition, the jury imposed $1,678,000 in punitive damages against Heyl and $3,471,000 in punitive damages against Clarey.

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Attorneys go After Bad Background Checks

Dear readers: I came across this email pasted below and thought it is something you all should be aware of.

Just when we thought it was safe to go back into the water, here is what I predict to be the first in a new area of Plaintiff’s pursuits:

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Law Offices of Devin H. Fok

Employment and Background Remedies

We represent people with criminal history who have been wrongfully denied employment with a California employer (or housing facility) due to a background check report. You will be entitled to a minimum of $10,000 if you have lost a job (or housing where applicable) due to:

1. A background check report that reported arrests not leading to conviction.

2. A background check report that reported crimes that have been expunged.

3. A background check report that reported crimes that are older than 7 years old.

4. A background check report that reported adverse driving history that are older than 7 years old.

5. A background check report that misreported a crime for which you were never charged.

6. A background check report that misreported the seriousness of the crime (i.e., misdemeanor reported as felony).

7. You were denied employment due to minor crimes that are not relevant to the job to be performed.

8. The employer failed to give you an opportunity to give you a copy of the background check report or an opportunity to dispute the information on the background check report.

9. A background check report that reported convictions for which you have successfully completed post conviction diversion or minor marijuana convictions that are older than 2 years old.

If you have received a copy of the background check report within the last 2 years that falls into one of the above categories, please scan and email the report tous for free evaluation and consultation. Your information will be kept strictly confidential. We will give you a response within 48 hours.

Our fees are 100% contingency. We do not charge unless you get paid.

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How to Use Social Security Number Traces for Employment Screening

Social Security Number (SSN) verification is one method that is used for employment screening purposes because it allows employers to verify the information submitted by a prospect employee with official Social Security records, as well as other information sources.
It is most effectively used in concert with other methods of Positive Candidate Identification, in order to assist the decision-maker in determining if the applicant has been truthful and forthcoming in the presentation of their full and/or alias names, prior addresses, and prior experience.

A social security trace obtained from multiple sources. Never rely on one source for this, as the sources vary in depth of reporting, update status, and in the case of the information coming from the SSA, directly, the extent of RELATED information, which can only be cross-attributed by proprietary providers of wide-spectrum identification information.  Identifying the candidate is the most vital first step in conducting employment background checks. It verifies a candidate’s:

-Social Security Number as legitimate,
-past and present addresses, as well as
-possible aliases or maiden names used

This search also establishes the time frame of when the social SSN was issued and put into use. These identity searches verify that the social security number (SSN) is valid; in what state it is issued, as well as whether or not to is actually registered to your candidate.
A SSN trace, combined with companion identity searches, such as driver histories and other private, semi-private and public record searches, is essential for uncovering a candidate’s possible criminal record(s).

These identity searches also reveal your candidate’s documented residence history and tells you where to search for criminal records.  In many cases competent identity searches, combined with wide area, proprietary criminal index lead generators can even identify criminal activity in areas that the subject did not reside in, a valuable tool for “hit and run” criminal acts.

Restrictions on Use

Company policy concerning the use of Identification products should be applied consistently to all workers; for example:

-If used for newly hired workers, verify information on all newly hired workers.
-If used to verify information on other workers in your database, verify the information for all workers in the entire database.

EEOC Wants to Ban Criminal Conviction Checks

It’s official, according to the latest EEOC presenter at Mid-Year meeting of the National Association of Professional Background Screeners in Orlando, Florida the EEOC and government decision-makers will not hesitate to look you straight in the eye and tell you that criminal conviction checks should be eliminated from the determination of employment candidacy in the American workplace.  This isn’t an issue of trying to keep Tom Lawson, CALHR member in business, this is an issue of protecting your right to protect yourselves from hiring dangerous or otherwise undesirable people.

It is patently clear that the EEOC has declared war on the background check industry and the American workplace and started with an easy target, which are employment credit reports . Several States have outlawed or severely restricted the use of employment credit reports in the hiring context as a result of their efforts.

The next step in their goal planning is to outlaw criminal conviction reporting, altogether, and that will summarily remove the single most valuable tool in the hiring managers’ toolbox to effectively limit the hiring of undesirable persons;  exposing customers, co-workers and visitors to potential danger in the workplace.

Ignoring most Consumer Reporting Agencies and end-users’ careful and judicious adherence to the laws surrounding the reporting and use of criminal records and other decisional criteria, the EEOC’s internal mandate in my view is to outlaw criminal convictions, either through inference, adverse public commentary, negative press or outright false positioning.

In essence, the EEOC’s agenda strives to make the employer the receiver of bad hires by constructively eliminating the meaty and most effective components of background checks, namely conviction checks and credit reports .

Why, you ask?   Clearly, screening candidates has worked with swift and accurate results, and in many quarters, the statistics reflect a growing population of what the EEOC likes to infer are “unemployable” prior offenders. They want to get rid of that, and as a result, the employer, employees, vendors, visitors and customers of American private enterprise will bear the vertically increasing burden of exposing its customers, vendors, visitors and workers to the heightened risk posed by hiring criminals.

Now what is unfair to me is the EEOC’s failure to address the issue of American private industry being subjected to higher scrutiny in the conducting of background checks while the government is exempt. Why won’t the EEOC or other government agencies simply suspend the use of background checks for their own positions?

In my opinion the EEOC wants to see the burden of employing undesirables placed on the backs of the American business community, and society, not the government.

Contact your Congressperson, Senator and the appropriate officials in your state government and ask them to oppose ANY legislation at the State, or Federal level that prevents business people from protecting themselves through the use of background checks, or any other method designed to thwart the efforts of honest business people to protect their employees, customers, vendors and visitors.

Here’s how to get hold of your Representatives and Senators:

https://writerep.house.gov/writerep/welcome.shtml

http://www.senate.gov/general/contact_information/senators_cfm.cfm

Oregon Broker’s $5M Verdict for Negligent Hiring of Truck Driver

Yesterday an Oregon jury returned a large verdict against a trucking brokerage company for its negligent hiring of a drug addict. The jury awarded over $5 million, including punitive damages, to the family of a man killed in 2008 because the broker failed to do any due diligence when it hired Washington Transportation to hire drivers to haul goods for bottled water giant Nestle Waters.

The jury was swayed by the fact that the truck driver was coming off a crystal methamphetamine high and fell asleep at the wheel when he crashed his 18 wheeler into the deceased man, who was standing beside his own tractor-trailer inspecting its brakes.

The key evidence was that the trucking broker negligently hired a man who claimed to be operating for Washington Transportation, when it was a company owned by his twin brother. Further, the broker did not carry insurance and had no legal operating authority, statutory violations which had repeatedly occurred in the past. Tje company had no legal authority to transact trucking business due to its repeated and flagrant disregard of the Federal Motor Carrier Safety Administration rules and regulations.

The at fault truck driver served time in prison for negligent homicide and driving under the influence. The trucking broker is no longer in business.

I have handled similar cases where individuals have tragically been killed or seriously injured by commercial truck drivers and have collected damages for the negligent hiring, negligent supervision, and negligent retention against the trucker’s company. However it has been difficult to prove negligence against the trucking broker. Here is a new case I will be able to argue, even though it is from an Oregon federal district court.

School Districts are liable for Negligent Hiring of Employees who Molest Students

The California Supreme Court issued a decision yesterday in C.A. v. William S. Hart Union High School Dist. (May 8, 2012, S188982) __Cal.4th__, ruling that school districts may be held liable if a supervisory or administrative employee is found to have negligently exposed a student to a foreseeable danger of molestation by a school employee.

A high school student, C.A., filed a complaint against his guidance counselor and the school district, alleging that the counselor sexually harassed and abused him while he was a 14 to 15 year old student.  C.A. alleged that supervisory employees of the District knew that the counselor “had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct.”  C.A. alleged that his injuries arose, not only from the molestation, but also from the failure of the District to properly hire, train and supervise the counselor and prevent the counselor from harming him.

Under the doctrine of vicarious liability, employers can be held strictly liable for the negligent acts or omissions of their employees for acts committed in the course of their employment.  In this case, the issue before the Court was not whether the District may be strictly liable for the conduct of the counselor, because the counselor’s conduct was outside the scope of her employment, but rather, whether the District may be held liable for the negligence of supervisory or administrative personnel who allegedly knew, or should have known, of the counselor’s propensities and nevertheless hired, retained and inadequately supervised her.

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Orgeon Jury Awards $5.2M Verdict in Landmark Negligent Hiring Case

Highway safety took a huge step this week when a jury in federal court in Medford, Oregon agreed with us in a negligent hiring case and rendered a $5.2 million verdict.

I am proud to have represented the family of Kelly Linhart, who was killed on Sept. 25, 2008, when Daniel Clarey, a truck driver high on crystal methamphetamines, plowed into him on the side of Interstate 5 near Ashland, Oregon. We argued that Heyl Logistics, the broker that hired Clarey’s employer, Washington Transportation, to haul goods for bottled water giant Nestle Waters North America, failed to do due diligence. The jury agreed and awarded Linhart’s four adult children a verdict of $5.2 million, including punitive damages.

Washington Transportation was without insurance and without operating authority. Its owners, brothers Eric and Forrest Rangeloff, who share a checkered past as owners of 15 different trucking carriers, had their license revoked for, among other violations, failing to perform drug testing on their drivers. The jury agreed with us that Heyl Logistics should have known about Washington Transportation’s safety violations before hiring it to haul goods of Nestle.

The decision should serve as a stark reminder to trucking brokers nationwide that, while federal regulations on brokers may be few, the courts remain as watchdogs against the practice of negligent hiring.

This was not about winning a huge monetary verdict.  This was about safety – safety on our roads – and about reminding brokers that safety standards compromised in the name of saving a few bucks will not be tolerated.

The Ultimate Guide to Locating Lost Benefit Plan Participants

Benefit plan administrators in-house or third-party administrators, often need to locate people who terminate employment without leaving a forwarding address and have benefits due from a qualified plan.  By law, these companies must perform due diligence in attempting to locate a lost plan participant in order to meet ERISA, GATT, IRS requirements. Unfortunately, the IRS does not publish specific guidelines as to what constitutes a diligent search. However, there are several options available to you for locating lost participants that are described below:

Internet-Based Locator Services

This method is probably the easiest, fastest and most effective way to locate missing participants and doesn’t require you to have a working knowledge of the internet. It saves you time and money, and by far the best provider for this service is EmployeeLocator.com. You can get results within one day for $10 a name. It doesn’t get any simpler!

If you are determined to spend your own time hunting down a current address for your person, here are some of the options available:

1. Surf the internet: Try websites like www.four11.com, www.bigfoot.com, www.anywho.com, www.whowhere.com, and www.infospace.com

2. Check your plan or employer records for updated addresses:

-Mail a letter to the last known address that you have and see if they contact you.  You might get lucky and the letter gets forwarded to the right person.

-If you know the area they moved to, try directory assistance there.

-Check personnel files to see if they have contacted you for a missing W-2.

-Ask current employees to help you locate the missing person. Post the names on the employee bulletin board.

-Look at the person’s work application and contact the emergency or business references.

-Check the participant’s beneficiary designation form and contact the beneficiary.

-If they were married, contact the spouse or if possible, friends and relatives.

3. Check with other companies in the loop where privacy concerns are not an issue:

-You can contact the subsequent employer to see if they are still working there.

-If the missing person is a member of a professional association; try contacting them through the association.

-If they filed a claim for health benefits, the spouse’s employer maybe been listed on the insurance claim forms.

4. Use of the IRS & SSA’s letter-forwarding services:

IRS Lost Participant Locator Program

The IRS administers a letter-forwarding program that helps you locate missing retirement plan participants. You must submit a request to the IRS via mail and provide the following information:

-A brief explanation why you need to use the program (for example, to locate a missing plan participant is sufficient);

-The name(s) of the missing individual(s);

-The social security number(s) (SSN) of the missing individuals. The SSN is the key element used to access the right tax account and get a mailing address.  The request cannot be processed if a SSN is not furnished; and

-The actual letter that is being forwarded.

A separate letter should be addressed to each participant involved and it should include a statement asking the participant to contact the plan administrator directly.

Once the IRS gets your request, and if an address is found in their databases for this individual, they will then forward your request to the lost plan participant. The IRS lets the individual know that they do not divulge the recipient’s address or any other tax information and that the decision to respond is entirely up to the recipient.

If an address cannot be found, or the letter is returned undeliverable by USPS, the letter is destroyed. Due to disclosure laws, the IRS cannot provide the requester with the results of the request. The law does NOT allow the IRS to provide the sender of this letter with the result of its efforts and response time is based on overall workload of the Officer. The IRS estimates that in 2001 alone, there were requests for nearly 800,000 letters to be forwarded.  Because of the volume of requests, the response time is based on the overall workload of the Disclosure Officer.  Based upon anecdotal information, it is possible that your request for forwarding could take up to a year.

Each request should be sent to the attention of the Disclosure Officer at the Service’s district office nearest the requester (it does not matter where the recipient last resided).  To find the office nearest you, go to www.irs.gov and click on “About the IRS” and then “Contact My Local Office.”

Requests involving 50 or more potential recipients, including multiple requests from a single entity that can be expected to total at least 50 recipients, are processed separate from the free program.  If you need to locate more than 50 people, the fee is $1,750.  Plan sponsors who want to use this program should call the Disclosure Office in Washington, D.C. at (202) 622-3324 for additional information.

Social Security Administration (SSA) Letter Forwarding Program

About 25,000 people ask the SSA for help in locating a missing person each year.  Social Security regulations and federal law protect the privacy of all social security number holders. Social Security will forward a letter only if there is a compelling humanitarian or financial reason and it is reasonable to assume that the missing person would want to be notified. If the missing person receives monthly benefits, Social Security will mail the letter directly.  If the missing person is not receiving benefits, the letter is sent in-care-of the last employer on the missing person’s Social Security earnings record.

Following is the procedure outlined by the SSA to locate a lost participant:

1. Write a letter to the missing individual (be sure to explain whom to contact and where or how to contact you for more information) and place in an unsealed, unstamped envelope bearing the individual’s name and social security number.

2. Prepare a letter to the SSA explaining the circumstances that require you to locate the missing person.  There is a $25.00 charge per letter to cover the cost of a record search and it is payable by cashier’s check or money order.

3. Place both letters and the unsealed, unstamped envelope in a second envelope and take it to your local Social Security Office or mail it to:

Social Security Administration, Wilkes-Barre Data Operations Center
1150 East Mountain Drive
P.O. Box 3150
Wilkes-Barre, PA 18767-3150

Lawson comments on the EEOC’s declared war on background checks

In the latest barrage of attacks against the Human Resources Management side of American business, the EEOC just levied a $3+ million fine against PepsiCo targeting discrimination in the background check process.  Here is yet another example of the EEOC singling out major companies to put forth its agenda of constructively terminating American business’s inalienable right to protect itself through the use of background checks.  They have done it this time by using trickery in asserting racial bias in yet another legitimate Human Resources Management practice.

Big players like Pepsi are fair game and make a big splash when pushed overboard, so they are on the EEOC’s radar screen, and Lord help them.

The EEOC has declared war on the background screening industry through this front and several other fronts and the reason is because background checks are a highly effective tool in the eradication of potentially dangerous situations arising in the workplace.  Unfortunately the natural by-product of the use of this successful tool, undesirable people who would otherwise get through the doors of America’s workplaces are being stifled, and rightfully so.

In many cases that means they are not immediately employable in their chosen or desired areas of expertise, and are often being forced to settle for lesser employment, if any is offered to them at all. I guess that means the concept of background checks as a protective tool for American business has been deadly and swiftly proven correct, and the absence of the use of them undeniably has resulted in some pretty heinous crimes against persons, but that doesn’t seem to matter to the EEOC.

What the EEOC fails to see is the value in the background check as a dialog creator between employer and candidate, opting instead to vilify background checks as the highest and best crime prevention tool available to businesses of all sizes, because it gets rid of a problem before it becomes a problem.  Any HR professional worth their salt will tell you that they do not deny candidacy based on a person’s criminal past, they deny it based on their gut feeling that the person is not yet finished with criminal behavior, and pose a significant risk.  The background check is the tool that creates the dialog, and now, the EEOC wants take that tool away.

If background checks are so bad for the private sector, why does every policeman, nurse, fireman, military service person and government worker (read: EEOC Employees) go through one?  Simple, the government doesn’t want to hire the riff-raff, they want the private sector to deal with it turning off the spotlight, so the rats can invade the pantry.

What the success of a background screening regimen SHOULD spell out to potential job applicants that would be stymied by a prior criminal conviction is the same deterrent that would stifle a criminal under the direct threat of going to jail for committing a crime – if you want to be a producing member of society get a job and join the race, keep your nose clean, follow the rules and respect your fellow citizens.

Sadly, as with the vertically increasing leniency of the courts over the last 30 years, and the skill of and latitude afforded criminal defense attorneys and their clients, that societal element which will always try to get away with crimes are emboldened.

Where these folks once would shy away from a life of crime because of the deterrent effect of things like competent background checks exposing their criminal pasts and guaranteed prison time if you violate society’s rules, they now seek asylum in the liberal concept of forgiveness.

The EEOC wants to canonize this fact by ignoring the adverse effect of a morally deteriorating society, using “turn the other cheek” as its mantra.  Like gun control, where only cops and criminals end up with guns, the ones who want you to turn the other cheek by no longer being able to conduct background checks want that so you are looking in another direction when they do their dirty deeds, and they can now be employed under the EEOC’s model, while doing it.

Of course, what do we expect?  No one enforces the borders, so our country is overrun by illegal aliens who run free and rape and pillage our economy without fear of reprisal all because some politician needed to beat the opposing party to the voting bloc represented by legalizing these most basic of criminals.  Is the microcosm of prison culture so rampant in the halls of those who govern us not so clear that it is no wonder we are fighting a losing battle of the simple concept of doing the right thing?

The EEOC has done exactly the opposite for society in what it purports to assert is making more people hirable by making background checks the villain, and the true effect of their attack is that honest, decent business people will have one less tool in their tool box to protect their customers and their employees from the whims of people of lesser morals, and from those who would create mayhem. The EEOC started their constructive elimination of background checks several years ago by going after employment credit reports, and now criminal conviction histories are in directly in their crosshairs.

When criminal history reports are outlawed, the American workplace will become a very dangerous place to be.

Sound familiar?  These are the same liberals also want to take away your guns, and leave you with no way to protect yourself, your family and your property from robbers, burglars, rapists and murderers who decide when it is time to violate the sanctity of your home, or attack you in the parking lot of your business, school or shopping mall.

Now the EEOC wants to strip American Business of the very best and most proven way to protect its customers and employees, and keep the wolves away from the front door, namely, a solid background check.

Guess again, EEOC.