Failing to communicate policy changes can undo harassment lawsuit defense

Employers often make policy changes to address potentially discriminatory conditions. If you hope to use the changes as a defense to future bias claims based on the former policy, however, you must communicate them to your employees. A ruling from the U.S. 8th Circuit Court of Appeals (which covers Arkansas employers) recently reinforced the lesson.

Facts

CRST is a long-haul trucking firm whose drivers begin and end trips at designated company terminals around the country. The drivers also stay at the terminals between loads as needed. The company’s employment policies applied at the terminals as well as on the trucks.

CRST's drivers work in pairs so that one can sleep in the truck's bunks while the other continues to drive. They earn an individualized rate per mile depending on their experience (split-mileage rate).

CRST's standard pay policy provided for two types of driver pay: (1) an individualized split-mileage rate earned only while driving the truck and (2) set rates earned in other situations, such as layovers longer than 48 hours and time spent waiting for a road to become passable. If management removes a driver from a truck, the company will pay for a hotel room and/or transportation to another terminal or new load as needed.