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American Towman Magazine Presents the Week in TowingApril 24 - April 30, 2019
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Social Media Posting

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By Brian J. Riker

As social media is here to stay, I have noticed an upward trend in questionable posts on pages, posts that can result in unintended legal trouble. As towers we love what we do and like to show off our creative abilities; it is the nature of the personality types attracted to this industry.

No matter how private or secret a group is, we all must remember once information is posted it never goes away. In addition, not everyone in the group is your friend; some are there to collect evidence to be used at a later time—the most inopportune time. Even our personal pages on sites like Facebook offer no true control over how our posts will be used, or who is really viewing them. Everyone that reads this column knows by now that I promote fairness, professionalism and safety above all else. It is also no big secret that I am occasionally called upon to testify as a subject-matter expert during legal proceedings. This has given me an inside view of the legal system and the lengths that attorneys and insurance investigators will go to while attempting to prove negligence.

The types of posts I am addressing here are not the blatantly obvious "off-limits" posts such as fatal accidents, repossessed vehicles with identifying information or high-profile customer vehicles in less-than-favorable situations. Most of us already know better than to post these things.

I am addressing things such as drivers bragging about how many consecutive hours they have worked without sleep, how many miles they have driven in a month or how overloaded their equipment was.

These somewhat macho or bragging posts, "I bet you can't keep up with me," expose you—and possibly your employer—to great legal liability for gross negligence, should something happen as a result of these or similar actions. Even months or years later, these posts will come back to bite you since they can be used to establish a pattern of misconduct.

Just because a piece of equipment didn't fail at the exact moment you overloaded it, or you got away with exceeding legal axle weights this time, doesn't mean the equipment wasn't stressed and fatigued. When you later have a failure well within working load limits and someone gets hurt, you can bet your arse their lawyers will dig up the post of you or your employees abusing your equipment to establish negligence.

The same applies to posting about crazy driving schedules, ones that are in no way possible legal. Not only does the FMCSA have up to six months to find and cite hours of service violations, but personal injury lawyers routinely dig up this information to use against you. They will use your postings to establish a pattern of ignoring laws and safety regulations, which greatly increases your share of liability—even when the other person truly was at fault.

Employers and general contractors please note: the sub-contractor relationship does not relieve you of this liability either. This is why many motor clubs and other call providers require special background checks and routinely audit your operations. They are actively managing their exposure to risk.

Employers take note: you must do the same to protect your own interests. If you don't, you won't be able to defend against these claims; nor will you be able to continue to provide for your loyal employees.

There are two legal concepts that place ultimate responsibility on the general contractor, or in transportation the shipper and broker jointly (motor clubs/dispatch services/auctions). They are negligent hiring and multi-employer liability.

Simply put, you are responsible for the contractors that you hire. You have a duty to ensure they are safe and professional. Having your sub-contractors or their employees posting crazy actions to Internet forums and other social media sites will lead back to you when something happens.

Bottom line, the Internet is not private—even in private or secret groups. Screen shots are easy to capture and share, often with the wrong people. Think twice before you make that "macho" post; it may cost you much more than you gain in "likes."

Brian J. Riker is a third generation towman and President of Fleet Compliance Solutions, LLC. He specializes in helping non-traditional fleets such as towing, repossession, and construction companies navigate the complex world of Federal and State transportation regulatory compliance. With 25 years of experience in the ditch as a tow operator Brian truly understands the unique needs and challenges faced by towing companies today. He can be reached at brian.riker@fleetcompliancesolutions.net
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