Jackson v. JB Hunt Transport, Inc.

384 S.W.3d 177, 33 I.E.R. Cas. (BNA) 540, 2012 Ky. App. LEXIS 6, 2012 WL 95553
CourtCourt of Appeals of Kentucky
DecidedJanuary 13, 2012
DocketNo. 2010-CA-001487-MR
StatusPublished
Cited by10 cases

This text of 384 S.W.3d 177 (Jackson v. JB Hunt Transport, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. JB Hunt Transport, Inc., 384 S.W.3d 177, 33 I.E.R. Cas. (BNA) 540, 2012 Ky. App. LEXIS 6, 2012 WL 95553 (Ky. Ct. App. 2012).

Opinion

OPINION

ACREE, Judge:

Willie Jackson appeals the Jefferson Circuit Court’s grant of summary judgment in favor of J.B. Hunt Transport, Inc., arguing that J.B. Hunt was not entitled to judgment as a matter of law as to any of his claims. We affirm.

Facts and Procedure

In September 2006, Willie Jackson began his employment as an over-the-road truck driver for J.B. Hunt. On the date he was employed, Jackson signed a “Certificate of Understanding and Agreement” that reads:

I certify that I have received a copy of the J.B. Hunt Transport Driver’s Manual published June 1, 2005. I have read and understand the provisions outlined in this manual and agree to follow them. [179]*179I also understand that the provisions in this manual by no means constitute all the rules, policies and benefits, both written and unwritten, as business requires. Neither these rules, policies and benefits, nor any other written or oral statements are contracts of employment and both the employee and the Company understand that employment may be terminated by either at any time for any reason. [Emphasis added].

Jackson was also presented with other employee materials, including J.B. Hunt’s Substance Use/Abuse Policy.

J.B. Hunt’s Substance Use/Abuse Policy included its Voluntary Assistance Program (VAP), which was created in accordance with the guidelines contained in 49 C.F.R.1 § 382.121. As the Federal Motor Carrier Safety Administration (FMCSA) explained when it promulgated the final rule authorizing such programs, “[t]he intent of this section is to allow employers to establish programs that permit employees to self-identify drug use or alcohol abuse without DOT[2] consequences.” Controlled Substances and Alcohol Use and Testing, 66 Fed.Reg. 43,097-01, 43,100, 2001 WL 929537 (August 17, 2001). Without such a program, the employer’s discovery of an employee’s substance abuse would jeopardize that employee’s ability to drive a commercial vehicle. See, e.g., 49 C.F.R. § 382.213(b) (“No employer having actual knowledge that a driver has used a controlled substance shall permit the driver to perform or continue to perform a safety-sensitive function.”).

But the real purpose behind the rule is not to assure the employee’s employment as a commercial driver. Rather, the purpose is “to identify these drivers who are safety risks to themselves and to the public.” 66 Fed.Reg. at 43,098. A voluntary self-reporting program like J.B. Hunt’s, no less than the legislatively mandated drug-testing program applicable to every employee with a commercial driver’s license, accomplishes that purpose. See 49 U.S.C.3 § 31133; 49 U.S.C. § 31306(e), (f) (49 C.F.R. § 382.121 was promulgated under authority of these statutes.).

An employer’s “decision whether to establish such a program is voluntary, and is not mandated by this rule. However, if an employer chooses to implement a self-admission program, the employer must ensure the program complies with the requirements of this part.” 66 Fed.Reg. at 43,100. There is no question that J.B. Hunt’s program complied with the regulation.

Portions of J.B. Hunt’s Substance Use/ Abuse Policy, with highlighting to note particularly relevant language, is as follows:

This policy does not alter or change any other policies, procedures, or provisions previously adopted or incorporated by J.B. Hunt, including “Actions Which Result in Automatic Termination or Automatic Cancellation of Contract” policy in the J.B. Hunt Driver Manual ....
This policy does not create an employment contract between the employee or independent contractor and J.B. Hunt. This policy will not be construed as creating any contractual rights or entitlements. J.B. Hunt reserves the right to revise the content of this policy, in whole or in part, as business necessities arise....
[180]*180IX. Driver Qualification and Results of Drug Testing
A.Any person who tests positive for controlled substances ... or who violates any of the other provisions of this policy will be automatically terminated ....
X. Voluntary Assistance Program
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B.This Section is intended to meet the requirements of 49 CFR Part 382.121 for self reporting drivers. The main provisions of this regulation are:
1. Employees who admit to alcohol misuse or controlled substances use are not subject to the referral, evaluation and treatment requirements of part 382 and part 40[DOT’s requirements when random testing reveals a driver’s substance abuse] so long as:
a. The admission is in accordance with the voluntary self-identification program contained in this section;
b. The driver does not self-identify in order to avoid testing under the requirements of the federal regulations or company policy;
c. The driver makes the admission of alcohol misuse or controlled substances use prior to performing a safety sensitive function (i.e., prior to reporting for duty); and
d. The driver does not perform a safety sensitive function until J.B. Hunt is satisfied that the employee has been evaluated and has successfully completed education or treatment requirements in accordance with the self-identification program guidelines.
2. Under this program, J.B. Hunt will not take adverse action against an employee making a voluntary admission of alcohol misuse or controlled substance use within the parameters of the program or policy and paragraph 1 of this section;
3. J.B. Hunt will allow the driver sufficient opportunity to seek evaluation, education or treatment to establish control over the employee’s drug or alcohol problem within the current leave policies;
4. J.B. Hunt will permit the driver to return to safety sensitive duties only upon successful completion of an educational or treatment program, as determined by a drug and alcohol abuse evaluation expert....
C.Any driver who participates in this program who tests positive or refuses any tests, DOT or otherwise, for the duration of their employment/contract, or future employments/contracts, would be barred from driving for J.B. Hunt again at any time. Furthermore, this program is a one-time offering. A driver who relapses will not be eligible for continued employment or contract. [Emphasis added].

On January 26, 2007, Jackson self-reported to J.B. Hunt that he had been using cocaine. In accordance with the VAP, J.B. Hunt allowed Jackson a personal leave of absence and sufficient opportunity to find treatment and help from a qualified facility.4

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384 S.W.3d 177, 33 I.E.R. Cas. (BNA) 540, 2012 Ky. App. LEXIS 6, 2012 WL 95553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-jb-hunt-transport-inc-kyctapp-2012.