Hospitality Law, April 1, 2007, Vol. 22, No. 4
Copyright 2007 LRP Publications
All Rights Reserved
Hospitality Law
April 1, 2007
SECTION: Vol. 22 No. 4
HEADLINE: Jack in the Box not negligent in employee injury claim
BODY:
A restaurant chain with procedures to prevent workplace injury proved in court that it was not negligent for failing to warn a driver of the obvious danger posed by jumping into a trailer. Jack in the Box Inc. v. Skiles, No. 05-0911 (Texas 02/09/07).
Wade Skiles was a tractor-trailer driver employed by Jack in the Box for 24 years. His job duties included the transport and delivery of food products to various Jack in the Box restaurants. The company's trailers are equipped with automatic lift gates that assist drivers in loading and unloading food product, and the drivers are instructed that if they encounter any problems with the lift gate, they must call the company's independent service center and report the malfunction. The driver is expected to wait for a maintenance person to arrive and make the necessary repairs.
When Skiles arrived for a delivery at a Jack in the Box restaurant in Seguin, Texas, and attempted to lower the lift gate, the gate would not operate. He told the restaurant manager about the problem, but the manager responded that the restaurant was out of hamburger meat and that it was the "lunch rush." Skiles reported the problem to a supervisor at the Jack in the Box distribution center. He told the supervisor he was going to use a ladder to climb over the non-functioning lift gate so he could get to the food supplies needed by the restaurant. According to Skiles, the supervisor's response was, "good," although the supervisor said he does not have a clear recollection of that conversation. Skiles obtained the ladder from the restaurant and used it to climb over the lift gate and jump into the back of the trailer. When he landed, he said both of his knees "popped" and were injured. Upon completing his other scheduled deliveries, Skiles returned to the company distribution center and filed an employee injury claim form.
Because Jack in the Box is not a workers' compensation subscriber, Skiles brought a negligence action against the company. Jack in the Box moved for summary judgment, which the trial court granted without stating the grounds for its decision. Skiles appealed the judgment to the 5th U.S. Circuit Court of Appeals.
The appeals court reversed the prior court's decision and remanded the case for trial in the Supreme Court of Texas. Jack in the Box argued that there was no evidence it owed and breached a duty to warn Skiles of an obviously dangerous condition. The supreme court agreed with the company, reversed the case, and rendered a take-nothing judgment in favor of Jack in the Box.
Listen carefully, evaluate processes when handling complaints
Workplace harassment happens every day. Although management cannot always prevent harassment, a thorough and prompt investigation by an HR manager in response to a complaint can help mitigate the damage done by unprofessional behavior.
Susan Brecher, the director for curriculum and training design at Cornell University's School of Industrial and Labor Relations, said it's crucial that HR directors listen carefully to all employee complaints.
"As a complaint handler, you always have to tell yourself, 'I'm not the talker; I'm the listener,'" she said.
Brecher recommended using these four steps for handling complaints:
* Intake. Brecher said three-quarters of handling complaints is intake - ensuring that probing questions are asked and the proper information is gathered.
* Review the concern. Investigate the issues and look to policies for guidelines.
* Resolve it. Try to find a solution that satisfies the complaining party and is also in the best interest of the company.
* Evaluate. "It's useless if you're not constantly evaluating the process to see if it's working ... and be prepared to do something about it if it's not," Brecher said.
Make sure arbitration agreement is fair
To create a mandatory arbitration agreement for your nonunion hotel or restaurant, employers should:
* Hire a good lawyer. Ensure that your attorney has experience putting together a mandatory arbitration agreement that will hold up if challenged.
* Check to see if you qualify. As long as your primary business is not related to the transportation industry, you can qualify.
* Make sure the agreement is fair. Employees and employers should have the same opportunity for discovery as they would be granted in a court of law.
* See that it is voluntary. The courts have generally held that employers can require an employee to sign an arbitration agreement as a condition of employment because an employee can always find other employment.
* Provide a choice of arbitrator.
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