Moonlighting Driver

Kent

We have a delivery driver that has purchased his own truck and is contracting hauls after hours. Our concern is that he is burning the candle at both ends and will be involved in an accident in our vehicle due to fatigue. He was advised by his supervisor (verbally) when he bought the truck that he would not be allowed to work all night on his own and for us during the day too. We now know of at least 2 times where this is exactly what has happened. Options?

TN HR

Can him. He is an accident waiting to happen. He is keeping two sets of logs, which will "show" that he is legal in terms of Hours of Service, however, he really is not. He is violating DOT rules. Either he cans the side job or he becomes an owner-operator and you contract your loads to him. Get this monkey off your back ASAP!

LivindonSouth

The first one that comes to mind is fire him. He must not be DOT regulated or he would be violating service hours regulations. I think this is a case of 'safety first'. It is not safe to do what he is doing. In the interest of safety I would replace him with someone else. Tell him good luck in his private hauling business.

Kent

He isn't required to log his hours for us due to an exemption granted due to his radius of travel and the nature of the business. I'm not sure of his logging requirements for his after hours hauls. That was my initial thought but it doesn't appear as though he has violated any DOT reg's.

LivindonSouth

Then I would tell him that the company is not willing to have the potential safety risks associated with him driving a truck more than eight hours a day. He will eventually nod off on one job or the other. Don't let it be yours. If he's a delivery driver who doesn't leave the state or overnight or have OTR runs, he isn't subject to logging. I'm assuming he drives a van or a 10 wheeler.




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TN HR

Sure, he is granted an exception in terms of hours of service based on his radius for YOUR routes. When you factor in the added mileage and on-duty hours at night the dynamics change. You are putting yourself and your company in an indefensible position. If he wants to be an owner-operator so bad, why not separate him and contract your outbound freight to him. Could be a win-win. You absolve yourself of liability and the EE goes away happy.

Kent

He drives a different kind of truck on his own than he does for us so contracting with him isn't an option. I agree with you guys that he is an accident waiting to happen. I'm just trying to uncover if there are reasons I shouldn't terminate.

TN HR

[font size="1" color="#FF0000"]LAST EDITED ON 07-22-05 AT 03:08PM (CST)[/font][br][br]Aside from the fact that you are terminating him for a legitimate, non-discriminatory reason, I cannot think of any. As an aside, I am willing to bet that there is language in your insurance contract that renders this person uninsurable. Call your broker/agent and ask them.

LivindonSouth

Can you post what kind of truck he drives for you and what kind he bought for his moonlighting driving? That will make a difference in whether or not he is violating regulations. I hope this guy's name is not Bobby Owens.




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globex

Can him. He cannot give you 100% and his "moonlight" job. We do not allow 'ees to work two jobs...either us or the highway.

E Wart

I guess I am of a different mind. First I need to know if either vehicle is DOT regulated and if any OSHA requirements could be broken/enforced. If they aren't DOT, then I don't think you have a leg to stand on.

We do ask employees to let us know if they do have a second job, so we are aware if there is any conflict of interest. I have worked with many companies that have people that "moonlight". As long as their 2nd job doesn't affect their job with us (they are available for times we ask them to work) or cause any conflict of interest, they can moonlight. Now, if their performance decreases due to no sleep or errors made, then you can address performance.
If either are DOT jobs, then you have a different ball game.

E Wart

LivindonSouth

[font size="1" color="#FF0000"]LAST EDITED ON 07-25-05 AT 09:04AM (CST)[/font][br][br]You seem to have answered the question in your post by saying 'as long as the second job does not conflict'. Two driving jobs crammed into one day DO conflict. They conflict with each other and with safety. As far as 'having a leg to stand on', there is no reason this individual cannot be terminated because the employer reasonably concludes that working two jobs creates a significant accident potential. You don't need a DOT regulation in order to safely manage your business.




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System

We have a secondary employment policy. Any secondary jobs have to be approved. However you don't need a policy to give him his choice. If he won't let the other job go, 'let him have it.'

crawfod

The idea of a tired truck driver is enough to scare all of us, but what do you do if a driver comes in to work and says, "How about that ball game last night that lasted till 1:00 am? I didn't get to sleep until 3, I was so excited." Do you fire him because you think he can't possibly perform safely today? Or do you send him home without pay for the same fear? What about the person who was "up all night" with their sick kid? I also bet some of you in manufacturing have had your own employees work 12 or more hours and then come back 12 hours later and do it again. You know they're tired.

Your original post said he's already done this twice, and you haven't indicated any negative performance from those incidents. Some people can get by with less sleep, although the odds don't favor this arrangement.

I believe I would sit him down, explain that you are concerned for him and your own company, have him tell you what he is doing to ensure he is ready and able to safely give you the 100% effort you deserve, and then give him written expectations including the possibility of being terminated. Your expectation does not necessarily mean having an accident. It could be as simple as "If your supervisor (and a witness) feels you have shown up for work unable to perform safely, we're going to discipline you." I would then do the same thing for any other employee whose off duty lifestyle could pose a safety risk.

Leslie

[font size="1" color="#FF0000"]LAST EDITED ON 07-25-05 AT 05:05PM (CST)[/font][br][br]One ball game is just that...once. A sick child is the same...a night or two here and there. This guy is trying to run a profitable business. That's going to take a lot of time, more than a night or two here or there. I'd give him the option to stay employed or keep his business. Someone else suggested perhaps you could subcontract to him if he chooses the business. After all, you can't blame a guy for trying to go out on his own. Could turn out to be cheaper in the long run if you're obligated to this guy for benefits.

LivindonSouth

Crawfod, you're living in a dream world. You don't reason with people who are burning the candle at both ends, trying to make ends meet, disregarding their personal safety to make a buck. It just does not work that way. Surely you know that. You expect him to say, suddenly, "Oh, you're right, I've gotta figure another way to pay these bills and get these creditors off my butt; I can't continue to run two jobs, I've gotta sell this truck, I agree that being safe is my priority." Right.




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E Wart

I don't know how you found out about this, but what if you hadn't. You wouldn't have done anything would you unless their performance began decreasing or their attendance was unacceptable?
Are you trying to find a way to get rid of this person and using this as an excuse? This is what it sounds like to me.
If so, address it as a performance issue or an attendance issue, but I wouldn't terminate someone because they have a second job, whatever it might be unless it is conflicting with his job(which is normally performance) or a conflict of interest.
E Wart

LivindonSouth

I'm really surprised at your approach to what is obviously a safety concern. This is not at all about performance. And to dismiss it by saying 'well, if you wouldn't have known about this you wouldn't have done anything about it,' is further concerning. I consider him lucky to have found out about it. This way the company can be proactive and head off what may be around the corner. Safety is number one, or should be. A safe workplace for all employees, including this one, is paramount. He is endangering himself and potentially, his employer. Those of us charged with responsibility for safety are trained to 'recognize hazards' and potential hazards and correct them before they result in injury and financial loss.




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TN HR

"Are you trying to find a way to get rid of this person and using this as an excuse? This is what it sounds like to me."

So, the driver suffering fatigue at the wheel of the "small, docile, non-DOT regulated" local delivery truck runs over and kills a pedestrian. You're on the witness stand as the pedestrian family's attorney is BBQ'ing you to medium-well finish. He asks you for the compelling reason, being fully aware of his after-hours activities, behind your decision to put him behind the wheel of one of your vehicles. You answer:

A) It is our policy not to meddle in the after-hours affairs of our employees.

I did not want to give the impression that I was out to get rid of him.

C) What he does on his own time matters not, besides, his position with us is DOT-exempt and as such, I was not interested in hours-of-service.

I think you get the picture...........

Gene

LivindonSouth

or:
(D) As a best practice, It was our decision to view this from the standpoint of performance. We knew he was working both jobs, burning the old candle at both ends, had bills to pay and other financial stuff going on, new rims to pay for, diamond studs for his tooth caps, rings and stuff. We decided to look beyond the safety angle and let our progressive discipline system deal with him if performance suffered. That safety angle is so nebulous anyway - what a stretch. Well, he had two write ups; one for dozing off at the plant gate and rolling through the dumpster; and, a second one for delivering OUR product to one of HIS night-time customers. Actually he forgot which route he was on. We were anticipating he would get a third step writeup and that would have probably meant suspension or termination. We had no idea he would kill somebody before we got to step three. These progressive discipline things usually work, you know.




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crawfod

Don's post "Those of us charged with responsibility for safety are trained to 'recognize hazards' and potential hazards and correct them before they result in injury and financial loss" matches my point of view. That is, everyone who shows up for work must be able to safely do their job, and their supervisor is being paid to make those observations and send people home, or fire them, if appropriate. But I don't think the first reaction should be to fire someone simply on the basis that they have a second job or stay up late every night.

The reality is you have no idea what all your employees did last night. Your action starts when they walk through your door. Then your supervisors judge their fitness for duty and take appropriate action. And that's what I would say on the witness stand, that my supervisor was properly trained and made the decision to allow the employee to work. If my supervisor allowed a driver to work knowing he/she had been up all night and was exhausted and not fit for duty, then my supervisor made a bad decision, and my company must suffer the consequences.

LivindonSouth

I have to disagree once more and then I'll shut up. Fatigue is sorta like high blood pressure. You (nor the sharpest of supervisors) cannot spot it usually and often the person who has it isn't even aware of it. The point is not that I don't know what everybody else did last night. The point is that I DO know what this particular guy did last night. And every night. And I would be obligated to protect the company. To do otherwise is rolling the dice and rolling dice is always a poor safety strategy.




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Crout

Isn't this what "due diligence" is all about? Once you have prior knowledge of an event or condition you are then liable for the consequences of that condition.