business advice for newbies

[DocRushing]

Recently a thread (in another forum) discussed the problems related to those small-fleet owners who seek to cheat their drivers or otherwise to take unfair advantage of them.
In that thread (which started with a problem at a particular carrier) I made several contributions.
It has occurred to me that my posts there may be helpful to the newbies (and prospective newbies) who browse this forum.
The fourth of these essays provides some specific guidance about entering into a relationship with a small-fleet owner.
Here's the first of the four:

There are good owners and bad owners, and there are good drivers and bad drivers -- not only at the Copycats but also at every other carrier.
This thread deals with the owners who, in various ways, fail and refuse to pay some or all of what they owe some or all of their drivers -- for compensation or for reimbursement for expenses (fuel, tolls, or other out-of-pocket expenditures), or both.
This thread started with a driver who had no written memorandum of agreement.
[That document provides the written evidence of the existence of a contract and the terms of it.]
Let's extend this discussion to the cases where owners stiff their drivers even where a memorandum (the written document) exists.
Marda and I have become acutely and painfully aware of several such cases in which the owners have failed and refused to pay the drivers even where the drivers have faithfully and properly carried out their duties for the owners and the carriers.
Several of those cases have involved newbie H+W teams whom we've mentored into this niche of our industry.
One of those cases is open right now; that is, it's happening right now.
The typical pattern in those cases is that a carrier, in its matchmaking process, actively promotes a particular small-fleet owner to the newbie team, using glowing terms to describe the owner and calling the owner's manager "a fantastic manager".
After the team agrees to drive for that owner, the owner and his manager then start giving false, inaccurate, misleading, deceptive information about where the truck is, and when and where the truck will become available to the new team, and the condition of the truck (including the need for repairs and replacements, even replacement of bad tires).
The owner and the manager then drag their feet about the repairs and replacements, and they do much grumbling and quarreling about the costs.
That causes the new team a serious interruption in their revenue stream.
After the new team starts driving (with a written memorandum of agreement), when payday is supposed to come, then the owner and the manager begin to use a variety of false excuses by which to delay the pay to the team.
The owner and the manager falsely claim that the carrier has not yet paid the owner for certain loads, then they falsely claim that their bank (in one case, the BoA) requires "several days" to process an electronic transfer (even though the BoA makes instantaneous real-time transfers, as do other major banks), then they arbitrarily decide to hold the team's pay for one more week after the carrier pays the owner (just because the owner wishes to hold those funds and earn the interest on them one more week).
In the case now open, the owner, in an incredible display of gall, has sought to shake down the team for an additional fee of $10 per week to persuade him to pay in a proper, timely, and lawful manner.
When the team became tired of that treatment, they gave (by fax) the required two-week written notice of intent to cancel the agreement.
At the announced time for the end of the agreement, suddenly the owner and the manager falsely denied having received the written notice, even though the team had gotten a proof of satisfactory transmission (by fax), and even though the owner and the manager had discussed (by telephone) the pending cancellation with the team.
Thus the crooked owner got two more weeks of service from his sucker team.
Every contract, by the operation of a rule of law, imposes on each party a duty to perform in good faith -- in good faith -- in good faith.
Our mentorees have done their part faithfully and conscientiously.
In all the cases in this essay, the owners did not accuse the drivers of any failure, misconduct, or inadequate performance.
The owners seem to dare their mistreated drivers to sue them, assuming that few of them will take up the dare, because of the difficulties and costs involved in making repeated trips to the courtrooms where the owners live.
This involves at least two major problem areas.
The first problem area consists of enforcing the debts of the owners to the drivers.
One good way is for the drivers to turn the debts over to good collection agencies.
Many of those agencies are very persistent, and many of them have their own lawyers who can, if necessary, sue in the courtrooms of the owners.
The second problem area consists of the carriers who not only allow their crooked small-fleet owners to continue their dishonest behavior but also actively promote those crooked owners -- with their known records -- to the unsuspecting applicant drivers -- all while standing by and quietly watching while the owners continue to screw the drivers.
Yes, most owners are honest and ethical, just as most drivers likewise are.
Yes, sometimes bad drivers treat owners poorly or dishonestly.
However, those other wrongs do not excuse the wrongs in this essay.
Unfortunately, it appears to Marda and me that there is a significant number -- perhaps even a disproportionately large number -- of unethical owners who take unfair advantage of their drivers.
She and I find it hugely bad and wrong for the carriers to allow those owners to continue to cheat their drivers -- and for the carriers to continue to promote those owners to applicant drivers.
We suggest that it's entirely proper for a carrier to monitor the honesty of the behavior of its owners and drivers and to correct bad behavior where necessary.
We also suggest that it's inappropriate and unacceptable for a carrier to promote a known dishonest owner -- one with a known record of dishonest treatment of drivers -- to applicant drivers.
Is it too much to ask for all parties to conduct themselves in honest, lawful, and ethical ways?
Best wishes to all,
Doc.
Full disclosure: Doc is a retired professor of business law and other business subjects.

 

[DocRushing]

Here's the second of my four essays:

Here's a bit more on this general subject:
There seems to be considerable misunderstanding about what a contract is or is not, or whether a contract does or does not exist.
First note this well:
A contract is not a piece of paper.
A contract is a conceptual notion.
A contract is an agreement.
Most uninformed or poorly informed people use the word "contract" to refer to a document on paper.
That piece of paper -- or handful of sheets of paper -- is not a contract.
Instead that paper -- that "writing", as lawyers often say -- is the written evidence of the existence of a contract and the evidence of the terms of the contract.
Some say, "If you don't have something on paper, then you don't have a contract, and you don't have a chance in court", or other words more or less to that same effect.
That's not true.
If D drives a truck for O, who owns the truck, and if D and O have reached an agreement on the terms for which D drives the truck for O -- including the pay and reimbursement and the method and timing of the payments by O to D -- then D and O have a contract.
Their contract is their agreement, even if it is an oral agreement -- even if there is no written evidence of their agreement.
When D performs as agreed, he discharges his duties under their oral contract.
If and when O pays as agreed, then he too discharges his duties under their oral contract.
If O fails to pay as agreed, then he breaches that oral contract.
Does the law give D a right to enforce the oral contract?
Does D have a lawful right to hire a collection agency?
Does D have "standing to sue", and does he have a valid "cause of action"?
Yes -- absolutely -- all of the above!
Now we reach one extremely good reason for which it's wise to have written evidence -- a document often called a "written memorandum of agreement".
[One other very good reason is to help the parties (D and O) to remember the terms of their agreement well and clearly.]
It's immeasurably better to have written evidence -- bearing the signature of the other party -- while asking a collector or a court to enforce a contract.
What if such a writing does not exist?
Then the proceeding becomes a swearing contest.
When approaching a bill collector, a sworn (notarized) itemized statement helps.
When suing, the same thing (a sworn account), depending on the state involved (the state where the defendant is), may help.
BTW, bill collectors often become very aggressive with the deadbeats in such cases where the bad guys (or girls) have screwed their drivers in such miserable ways.
Judges and juries often do well at figuring out which party presents the more credible oral testimony in open court.
Cross-examination by a skilled trial lawyer tends to expose who has lied.
Again:
It's far better to have a signed writing (written evidence) in the case of a dispute.
Still, though, don't give up under the wrong impression that one either does not have a contract or cannot enforce it.
Best wishes to all,
Doc.

 

[DocRushing]

After a comment by another user, I added this:
The third of my four essays:

In the cases to which I referred, there was absolutely no doubt or other question about whether the teams had done their work properly, or about whether the owners had failed and refused to pay as agreed.
In my comments I discussed certain cases in which not even the owners themselves raised defenses or made counterclaims against the drivers.
That is, I described only cases in which the owners simply dishonestly failed and refused to pay some or all of what they owned their drivers -- or dishonestly dragged their feet while using false excuses -- or, in one case, dishonestly tried to shake down the drivers for a special $10 weekly fee in exchange for timely and proper payments.
Again:
The carriers know well that some of their small-fleet owners cheat their drivers as I've described.
If the Copycats do indeed effectively monitor and police in that area, then I thank and congratulate them for doing so.
However, I find it inappropriate and intolerable for any carrier to allow the dishonest owners to continue cheating their drivers -- and for any carrier to continue to promote those deadbeat owners to unsuspecting applicants.
Doc.

 

[DocRushing]

After more discussion, I made a more detailed essay.
This one includes very specific and practical guidance about starting a relationship with a small-fleet owner.
Here's the last of my four essays:

No, Greg, my license to practice law is no longer active.
Some years ago I placed my name on the retired list -- after a devastating stroke -- which left me with a huge language impairment -- which made it very difficult for me to speak and even more difficult to understand the speech of others.
Eventually I got a nearly complete recovery -- by divine intervention, I'm persuaded -- in response to my fervent prayers -- even though the physicians had said that it would never happen.
Meanwhile, however, and fortunately, I had another marketable skill -- because diesel fuel runs in my blood -- because I grew up at Greyhound.
[If anyone wishes to check out that delightful period in my life, please check out a chapter, entitled "Growing Up at Greyhound", from my autobiography, which I've posted at my website, entitled Bluehounds and Redhounds; here's a link: Growing Up at Greyhound.
In 1970 I started studying the law.
[That was before some of y'all were born.]
For a combination of reasons I preferred not to practice law but rather to get also another advanced degree (one in business) and to teach business law and other business subjects.
In 1977 I started teaching.
In 2004, after Marda and I returned to the US from our time aboard the Mercy Ships (as unpaid volunteer workers), I taught again -- briefly and temporarily -- after many years -- until she and I decided to drive again in expediting one more time.
Although I no longer represent clients or render legal advice to individual clients in particular circumstances -- because I no longer have a lawful right to do so -- I'm still capable of teaching about the law, and I have a lawful right to do that.
No license is required for anyone to teach about the law or to write about it.
Now let's turn to the matter of those few dishonest owners who cheat their drivers.
As before, I limit my comments to the cases in which the drivers have done their duties faithfully and properly -- that is, in the absence of defenses or counterclaims by the owners.
Yes -- absolutely -- beyond any discussion -- it's indispensable for the parties -- the owner and the driver(s) -- to reach an agreement -- that is, to make a contract -- and to express that contract in a written document -- a document which is often called a memorandum of agreement (or other similar name) -- a document bearing the signature of each party -- with as many copies as desired -- to provide proof of the existence of the contract and the terms of it.
That's just basic business.
If one wishes to hire a lawyer to examine the document in advance and to comment on it -- and perhaps to suggest one or more changes to it -- or to draft such a document -- that too is good.
Now here's a crucial point:
What will happen if a crooked owner -- even with a written memorandum of agreement -- cheats the driver(s) in defiance of the law and in defiance of the terms of the written document?
Even if a competent lawyer has drafted a tightly worded document, nothing -- not that writing and nothing else -- can prevent that dishonest owner from stiffing the driver(s).
In all the cases which I've mentioned in my previous comments, signed writings existed (in a variety of degrees of smoothness and tightness), yet the owners still cheated the driver(s).
In some of those cases the drivers eventually got at least part of what the owners owed them.
The enforcement of those contracts is the hard part.
The crooked owners know well that it's difficult, expensive, and time-consuming for the mistreated drivers to seek enforcement through the legal system.
That's in part because so very few lawyers are interested in representing the aggrieved drivers in that predicament -- because the greed motive so thoroughly pervades the law business in the US -- because a typical case involves only a few thousand dollars, so a contingency fee would not satisfy a lawyer, and a retainer fee would require a huge part of a recovery -- and in part because the defendant and his mouthpiece can wear down the plaintiff by requiring repeated expensive revenue-losing trips to the courthouse (by repeatedly requesting continuances).
Those dishonest owners know well that most of the time they can get by with their dishonest, unethical, and antisocial behavior.
Bear in mind that all of that can happen even in the presence of a professionally drafted, tightly crafted memorandum of agreement (written evidence of a contract).
Now here's another crucial point:
If a particular owner has begun to cheat his driver(s), then the carrier(s) involved soon learn about his dishonesty, sometimes in detail.
A few carriers, I think, make some attempt to monitor such activity and to advise and counsel the crooked owners.
To those few carriers I give my hearty thanks, admiration, and encouragement.
Most carriers, I think, are too chicken to take such action against the dishonest owners, not even in cases where the circumstances are clear and undisputed.
That, I believe, is because the carriers are too fearful of losing the use of the trucks of the owners in question.
That places the carriers squarely in the position of knowingly and intentionally participating in taking unfair advantage of the drivers.
That process becomes even more odious and detestable when the carriers and their recruiters, even while knowing about the dishonest behavior of those owners against their drivers, promote the crooked owners to unsuspecting applicant drivers (during the matchmaking process), many of whom are newbies to trucking or to expediting.
Especially in the cases in which the carriers promote the crooked owners to applicant drivers, I suggest that the carriers have become, in a very real sense, accessories to the dishonest, unlawful, and unethical behavior of the owners in question -- that is, that the carriers aid and abet the crooked behavior of those owners.
Nobody in this thread has "blamed" any carrier for that dishonesty.
However, clearly and undeniably, the carriers (or most of them) allow the crooked owners to continue their mischief, while the carriers stand by, watch, and do nothing about it.
Sooo --
What's to be done about that?
First, applicants, even if a recruiter promotes an owner in glowing terms, talk directly with the owner and ask for the names and cellphone numbers of several drivers for that owner.
If the owner provides them, call the drivers, then use your best judgment (and ask about the owner's record for prompt and honest payment).
If the owner declines to provide those references, he has waved a huge red flag at you (whatever excuse he may offer), so ask the recruiter for another owner instead.
Second, applicants, if you feel pleased with a particular owner, and if you decide to deal with him, then ask him for an advance copy of his written agreement.
If the owner provides one, and if you feel pleased with it, you may wish to take it to a lawyer and get his advice.
If the owner declines to provide an advance copy, he has waved a huge red flag at you (whatever excuse he may offer), so ask the recruiter for another owner instead.
[This is not a birthday party, so surprises are not good -- not after you arrive, possibly in a distant or remote location, to pick up a truck and start driving it.]
Third, applicants, when you arrive to pick up a truck, inspect it thoroughly -- do a pretrip inspection -- including the tires, every single lamp, all damage, the inside (of the cab, the sleeper, and the cargo box), the appliances inside the sleeper, the fuel level, and anything else which attracts your attention -- and make notes (on the written agreement) about the exceptions and the fuel level.
Check everything -- the heater, the defroster, the air conditioner, the locks, the doors, the windows, the appliances -- everything.
[The owner may be a cheapskate or tightwad, and he may quibble about making repairs, even to the refrigerator or the air conditioner.]
If you find any dead lamp or any tire with inadequate tread (or nearly so), politely decline to proceed further until the owner corrects the problem(s).
It's far better to lose time then than to lose not only time but also money at a scalehouse later down the road.
Then sit down with the owner and read the paper which you're about to sign.
Make sure that it says what the advance copy said.
If the owner shows impatience or irritation about your reading it, ignore him, and read it anyway.
[He may have snuck in a term not previously disclosed.]
Make doubly sure that you understand your duties and your rights under that agreement, including the pay plan.
If in doubt, ask.
If you're not sure about whether you're in doubt, then ask, because you're in doubt.
Fourth, applicant, after you and the owner become ready, sign the document and keep a copy for yourself -- and make absolutely sure that the owner has signed your copy -- then keep your copy in a safe place.
If the owner refuses to sign your copy, then ask for his copy back, tear it up, walk away, and don't look back.
If he does not sign your copy, then you have no proof of his having committed to that agreement.
Fifth, driver, check in with your carrier, pick up your first load, and start a rewarding and enjoyable career, doing your job in a lawful and proper way.
Sixth, driver, turn in all your paperwork to the carrier, stay in touch with the owner, and make your reports to the owner as he may require.
Seventh, driver, when your first payday arrives, and when every subsequent payday arrives, monitor your bank account and make sure that the owner has paid you properly.
If you notice any discrepancy, or if you have any question about your pay, promptly call the owner and ask for clarification.
If the answer is credible, accept it, then watch for that item at the next payday.
Communication is an important key here too.
If it ever appears to you that the owner has begun shorting you or otherwise cheating you, ask him about it.
If the owner's answers are squirrelly, suspicious, or downright ridiculous, call an appropriate person at the headquarters and ask for help in resolving the problem.
Most of the time the carrier's workers will decline to help -- because most of them simply do not care about your getting screwed.
Maybe then you'll want to ask a lawyer to help, especially if you already have a relationship with one.
Maybe your lawyer can encourage the owner to square away.
If your efforts do not succeed with the owner, decide how long you're willing to allow that to fester and accumulate -- and decide how much money you're willing to lose.
If you find yourself in an incurable predicament, and when you become ready to cut loose (and to minimize your losses), check your written agreement about a requirement for advance notice before you cancel your agreement.
Give whatever notice the agreement may require.
Then get evidence of your having given it.
If you send it by mail, use certified mail with a return receipt, and keep the signed green card.
If you send it by fax, get and keep a proof of satisfactory transmission.
In any event -- and especially if you send it by fax -- ask the owner to send you an acknowledgment -- by e-mail or otherwise -- of his having received it.
At the end of the required notice, then follow the owner's instructions about when and where to park the truck -- and how much fuel to leave in it -- and what to do with the keys.
Use your conscience and good judgment about the cleanliness of the truck when you turn it back over to the owner.
Finally, driver, make a decision about whether to seek to collect the balance which the owner owes you -- and how to do so.
First try to jawbone with the owner, then, if necessary, check out one or more collection agencies, and, if you wish, try to find out whether a lawyer will talk with you about that.
Now, carriers, please find and use the moral courage to recognize the unacceptable behavior of some of your owners, then counsel them and use your influence -- do whatever may be necessary -- to make clear to them that you will not tolerate that behavior -- then make it stick.
If you're not willing to allow those owners to cheat you or your company, then you also should not allow them to cheat their (and your) drivers either.
What's so hard about conducting our business in a lawful, honest, ethical, and proper manner?
As always, best wishes to all,
Doc.

 

[NightDriver]

YOU, my man,

ARE

AWESOME!

Thanks for a very helpful post.

 

[greg334]

Doc,
Thanks, it is another 'print it for the archives' thread.

If you ever have time, please in another thread tell us about the mercy ships.

 

[ATeam]

You should talk to Lawrence. I think he'd like to have you as a writer for Expedite NOW.

 

[jasjen]

why doesn't anyone mention the owners names on these forums when they have trouble. me and my husband r starting with panther at the end of oct. and it would be nice to know which owners to not go with.

 

[61glide]

Thanks Doc.
Good solid,honest advice.That is what we are looking for. .

 

[davekc]

why doesn't anyone mention the owners names on these forums when they have trouble. me and my husband r starting with panther at the end of oct. and it would be nice to know which owners to not go with.

When past issues like this come up, it is sometimes hard to determine who is at fault. Those types of threads go all over the place with "he said, she said".
At the end of the day you will find some very good fleet owners, and some that are a total waste of time. Reputation is usually the single most important factor in finding a decent one.
Same with drivers. Some are true professionals of the industry while others are just your basic steering wheel holders.