Mathis Law Group Mathis Law Group 2026-05-19T15:16:08Z https://www.mathislawgroup.com/feed/atom/ WordPress /wp-content/uploads/sites/1604610/2024/04/cropped-Mathis-Site-Icon-c-32x32.png On Behalf of Mathis Law Group <![CDATA[MLG Announcement – 2025 staff]]> https://www.mathislawgroup.com/?p=46621 2026-05-05T07:04:28Z 2025-11-27T03:58:42Z On Behalf of Mathis Law Group <![CDATA[Client Alert – Broker Liability]]> https://www.mathislawgroup.com/?p=46619 2025-11-20T05:03:40Z 2025-11-20T05:03:40Z A defining moment for broker liability Federal appellate courts are presently split on the question of whether a freight broker can be subject to a state law liability claim for the negligent selection of a motor carrier under the “safety exception” to the Federal Aviation Administration Authorization Act (“FAAAA”). Through the matter of Montgomery v. Caribe Transport II, LLC, the United States Supreme Court has agreed to finally decide the aforementioned question and its ruling has the potential to greatly impact and reshape the legal landscape governing broker liability in the commercial trucking industry. The FAAAA preempts state law claims against a broker with respect to the transportation of property. However, the FAAAA’s “safety exception” preserves a state’s regulatory authority over motor vehicle safety from the FAAAA’s broad preemptive scope. Specifically, the safety exception states that the FAAAA’s preemption “shall not restrict the safety regulatory authority of a State with respect to motor vehicles...” 49 U.S.C. § 14501(c)(2)(a). The division between federal courts is on whether this provision preserves claims with a direct relationship to motor vehicles or if a mere indirect relationship will suffice. Presently, the Seventh Circuit (Illinois, Indiana, Wisconsin) and the Eleventh Circuit (Alabama, Florida, Georgia) have held that state law claims against a broker for negligent selection of a motor carrier do not fall under the FAAAA’s safety exception since they lack a direct relationship to motor vehicles and are thus preempted. However, in direct contrast, the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) has held that such claims are preserved from the FAAAA’s preemption because they are at least indirectly connected to motor vehicles. Recently, the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee) aligned itself with the Ninth Circuit and held that a claim against a broker for negligent hiring of a motor carrier with a record of unsafe motor vehicle operation substantively concerned motor vehicles and motor vehicle safety, thereby being preserved under the FAAAA’s safety exception. This ongoing split in the interpretation of the safety exception leaves brokers facing a patchwork of liability rules depending on the state in which a suit for negligent hiring is brought, with the broker being effectively immune from such claims in certain states, while facing liability and losses in others. The Supreme Court’s decision, expected before the end of the Supreme Court’s term in late June or early July 2026, will have a significant impact on everyone in the commercial trucking industry. Should the Supreme Court affirm the Seventh Circuit’s decision that negligent selection claims do not fall under the safety exception, brokers will have near immunity from such state law claims nationwide. However, should the Supreme Court align itself with the Ninth Circuit and hold that the safety exception does preserve a state law claim against a broker for the negligent selection of a motor carrier, brokers could face substantial exposure in forthcoming litigation. Under this new legal landscape, a broker would have to navigate various state law standards to appropriately select and vet a motor carrier under heightened scrutiny. The commercial trucking industry’s best practices continue to evolve, with brokers and carriers implementing a heightened emphasis on safety ratings and records, carrier qualifications, and compliance history to stay competitive while mitigating potential risks. The Supreme Court’s forthcoming decision presents yet another opportunity for brokers and carriers alike to re-evaluate their current policies and procedures and strengthen the language in their contracts in preparation for either outcome. For example, brokers today can begin to benefit from more stringent carrier vetting procedures and a review and revision of their contracts with motor carriers to clarify independent contractor relationships and risk transfer provisions. Similarly, motor carriers can re-evaluate their driver hiring procedures and enforce a stronger safety culture, given that motor carriers with the highest safety ratings will be more appealing to brokers. Here at [nap_names id="FIRM-NAME-1"], we specialize in providing tailored legal services that address each company’s unique and specific concerns so that you can focus on what you do best – getting goods where they need to go. Our commitment to your success means we will be there when you need us most, offering expert advice, proactive risk management, and experienced legal representation. To schedule a consultation to discuss how we can best help you protect your business and keep you on the road to success and out of the courtroom, reach out via phone, email, or our website https://www.mathislawgroup.com/.]]> On Behalf of Mathis Law Group <![CDATA[Important Client Alert – Florida’s New Noncompete Landscape]]> https://www.mathislawgroup.com/?p=46603 2025-06-19T05:46:09Z 2025-06-19T05:45:28Z requires courts to enjoin employees from violating an enforceable noncompete agreement and introduces significant changes to how employers can restrict post-employment competition. For over two decades, Florida law has set out presumptions about the enforceability of noncompete agreements, generally treating restrictions of six months or less as valid, while those exceeding two years are typically viewed as unenforceable. The CHOICE Act will alter Florida’s legal framework for restricting competitive employment by providing a presumption that “Covered Noncompete Agreements” and “Covered Garden Leave Agreements” entered into by and between “Covered Employees” and “Covered Employers” are enforceable, so long as they meet certain technical requirements as described below.

Who are Covered Employees and Covered Employers?

Covered Employees are employees or contractors who earn, or are expected to earn, a salary greater than twice the mean wage of the Florida county where either 1) the employer’s principal place of business is or 2) where the employee resides, if the employer’s principal place of business is not in the state of Florida. A Covered Employer is an employer who engages with or employs a Covered Employee.

What is a Covered Noncompete Agreement?

A noncompete agreement is an agreement entered into between an employer and an employee that restricts an employee’s post-employment work activities. The noncompete agreement must protect a legitimate business interest (e.g., trade secrets, customer relationships, specialized training). The employee is restricted from obtaining a similar role at a competing company, which protects the previous employer’s business interests. This agreement outlines a period of time (typically one to four years) and a geographic area in which the employee is prohibited from working in a similar capacity for another company. Under the CHOICE Act, a noncompete agreement is an enforceable Covered Noncompete Agreement if it meets the criteria below and is between a Covered Employee and a Covered Employer. To be presumed enforceable, a Covered Noncompete Agreement must:
  1. Be in writing and advise the Covered Employee of their right to seek counsel prior to signing the agreement and permit the Covered Employee at least seven (7) days to review the agreement prior to signing.
  2. Include a written acknowledgment from the Covered Employee confirming that they have received or will receive confidential information or customer relationships during the term of their employment with the Covered Employer.
  3. Limit the noncompete period to a maximum of four (4) years.
  4. Specify that the noncompete period would be reduced day-for-day by any nonworking portion of a garden leave notice period, if applicable.

What is a Covered Garden Leave Agreement?

A garden leave agreement requires the employer to continue paying the employee’s salary and benefits for a period of time, even if the employee is not working, in exchange for the employee not taking new employment. A Covered Garden Leave Agreement is a written agreement, or provision within an agreement, in which the Covered Employee and Covered Employer agree to require up to, but no more than, four (4) years of advanced, express notice before terminating the employment or contractor relationship. During such notice period, the Covered Employer must agree to continue paying the same salary and benefits the Covered Employee was receiving in the last month before the notice period began (excluding any discretionary incentive compensation or benefits). To be presumed enforceable, a Covered Garden Leave Agreement must:
  1. Be in writing and advise the Covered Employee of their right to seek counsel prior to signing the agreement and permit the Covered Employee at least seven (7) days to review the agreement prior to signing.
  2. Include a written acknowledgment from the Covered Employee confirming that they have received or will receive confidential information or customer relationships during the term of their employment with the Covered Employer.
  3. Provide that:
    1. After the first ninety (90) days of the notice period, the Covered Employee will not be obligated to continue providing services to the Covered Employer.
    2. The Covered Employee may engage in nonwork activities during the remainder of the notice period.
    3. The Covered Employee may, with the permission of the Covered Employer, work for another employer while still employed by the Covered Employer during the remainder of the notice period.
    4. The Covered Employer may shorten the term of the required notice period, during the notice period, by providing at least thirty (30) days' advanced written notice to the Covered Employee.
It is important to note that the CHOICE Act allows a Covered Employee to reduce the salary or benefits to be provided to a Covered Employee during the notice period if the Covered Employee engages in gross misconduct against the Covered Employer.

What Does Enforcement Look Like?

 This new legislation creates a presumption that a Covered Noncompete Agreement or a Covered Garden Leave Agreement (each a “Covered Agreement”) is enforceable and does not violate public policy if it meets the statutory criteria described above, placing the burden on the employee to show that a Covered Agreement should not be enforced. Upon application, a court is required to issue a preliminary injunction, which prevents the Covered Employee and/or the new employer from violating a Covered Agreement. The preliminary injunction acts as a “pause” to prevent the Covered Employee from breaching a Covered Agreement. Moreover, this new legislation seeks to eliminate any conflict of law in favor of the CHOICE Act. This means that if a dispute regarding a Covered Agreement were to arise between a Florida employer and an employee in a different state, the CHOICE Act should govern. In an action to enforce a Covered Agreement, the prevailing party is entitled to reasonable attorneys’ fees and costs. A court may modify or dissolve a Covered Agreement only if the Covered Employee and/or the new employer can prove, by clear and convincing evidence, using only nonconfidential information, that:
  1. The Covered Employee will not perform services for the new employer that are similar to the services provided to the Covered Employer, nor will they use confidential information from the Covered Employer.
  2. The new employer is not engaged in (or planning to engage in) competing business activities.
  3. The Covered Employer failed to provide the salary or benefits required by a Covered Agreement.

What should Employers do Now?

 The CHOICE Act marks a major shift in Florida’s law on restrictive employment covenants, providing employers with expanded options to protect their business interests through enforceable noncompete and garden leave agreements. Employers who wish to benefit from these legislative changes should promptly evaluate and update their current agreements or consider preparing new ones as needed.

Key Takeaways

  1. The CHOICE Act creates a presumption that Covered Agreements are enforceable.
  2. Courts are required to issue a preliminary injunction to prevent an employee from violating a Covered Agreement.
  3. A court is only required to modify or dissolve the preliminary injunction if the Covered Employee proves, by clear and convincing evidence, either that i) the Covered Employee will not perform services for the new employer that are similar, nor will they use the Covered Employer’s confidential information; ii) the new employer is not engaged (or planning to engage in) competing business activities; or iii) the Covered Employer did not provide the salary or benefits required under the Covered Agreement.
  4. The CHOICE Act purports to override conflicting out-of-state laws, applying Florida law even if the employee works elsewhere.
  5. In an action to enforce a Covered Agreement, the prevailing party is entitled to reasonable attorneys’ fees and costs.
  6. The CHOICE Act does not apply to existing noncompete agreements, and there are some professions that are exempted (like certain health care professions).
  7. Employers looking to utilize these new restrictive covenants to protect their business interests should ensure compliance with all notice, wage, and contract language requirements.
Please contact our office if you are interested in reviewing your business’s noncompete agreements and their enforceability or if you’re interested in implementing new tools to restrict post-employment competition. Please note that the information in this article is current as of June 17, 2025. The content of this article is for informational purposes and does not constitute legal advice, nor is it intended to be a substitute for legal counsel on any subject matter. You should not act or refrain from acting on the basis of any information in, or accessible through, this article without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue. ]]> On Behalf of Mathis Law Group <![CDATA[Important Client Alert – English Language Proficiency Inspections For CMV Drivers]]> https://www.mathislawgroup.com/?p=46601 2025-06-19T05:32:22Z 2025-06-13T05:17:24Z Two-step ELP assessment process Step 1: Driver Interview – to determine a driver’s ability to respond sufficiently to official inquiries.
  • All roadside inspections will begin in English.
  • Drivers must be prepared to answer questions in English about the following topics:
    • Origin and destination of a recent or planned trip
    • Amount of time spent on duty, including driving time and record of duty status (logbook)
    • Information contained in the driver’s license
    • Information contained in shipping papers (actual or sample, including hazardous materials if applicable)
    • Vehicle equipment subject to inspection
  • Interpreters, cue cards, translation apps or other aids are not permitted during this assessment.
  • If the driver fails the driver interview, the driver will be cited for a violation of the ELP requirements and will not be permitted to proceed to Step 2 of the assessment. If the driver passes the driver interview, the inspector can then commence Step 2 of the assessment of the driver’s understanding of highway signs.
Step 2: Highway Traffic Sign Recognition Assessment – to determine a driver’s ability to sufficiently understand U.S. highway traffic signs.
  • Drivers must correctly identify and explain the meaning of common U.S. highway traffic signs that they may encounter while operating a CMV, including dynamic (changeable) message signs.

Assessment determination and consequences

If the inspector determines that the driver is compliant with the ELP requirements of responding to official inquiries in English and understanding highway traffic signs and signals, the inspector may elect to conduct the remainder of the inspection using the communication methods and techniques best suited to facilitate the safe and effective completion of the inspection. However, if the inspector determines the driver is not in compliance, the inspector will take follow-up action, including: 1) placing the driver immediately out of service; and 2) when warranted, initiating an action to disqualify the driver from operating commercial motor vehicles in interstate commerce.

Remediation and reassessment

Neither the FMCSA nor the Commercial Vehicle Safety Alliance (CVSA) has provided guidance to clarify whether remediation is possible by demonstrating compliance with the ELP requirement or whether an appeal process will be available. Similarly, there is no official FMCSA or CVSA guidance specifying how or when a driver may be reassessed after an out-of-service violation.

Action items: preparing for ELP compliance

As highlighted in our previous client alert, it is critical for motor carriers and drivers to take proactive steps to ensure compliance with the new ELP enforcement policy. In preparation for navigating this new regulatory environment, consider the following action items:
  1. Conduct internal ELP assessments for current drivers
  • Evaluate all current drivers’ ELP using the criteria specified in Steps 1 and 2.
  • Identify drivers who may need additional language support or training.
  • Prepare and provide resources for drivers who require additional language support or training.
  1. Provide targeted training
  • Offer English language training focused on:
    • Responding to official inquiries about trip details, logbook, and shipping documents
    • Understanding and explaining common U.S. highway signs, including dynamic message signs
  • Consider engaging in mock interviews or practice assessments to simulate the roadside inspection process.
  1. Perform a comprehensive risk assessment to update company policies and procedures
    • Document your company’s ELP compliance plan.
    • Review and update HR and internal policies, driver onboarding material, and safety training content to align with the changing regulatory requirements. Ensure that these new requirements and expectations are communicated to all drivers and relevant company staff.
    • Revamp the driver hiring process by conducting ELP interviews, mirroring the Secretary of Transportation’s new guidelines, during the recruitment process.
    • Develop a plan to recover equipment and cargo in the event that a driver faces an out-of-service violation.
  1. Monitor regulatory updates
    • Stay informed about any new FMCSA or CVSA guidance regarding remediation, appeals or reassessment procedures.
    • Regularly review updates from legal counsel and industry associations.

Key takeaways

  • Evaluate and prepare drivers: Ensure drivers are ready for ELP assessments during any roadside inspection.
  • No exemptions: Passing previous inspections does not exempt drivers from future ELP assessments.
  • Remediation and reassessment process unspecified: Currently, there is no official guidance on how or when a reassessment can be carried out after an out-of-service violation for failure to meet ELP standards.
By pursuing the described action items now, motor carriers can minimize the risk of violations, out-of-service orders and potential disqualification of drivers. For further guidance or assistance in implementing these action items, please contact our office. Please note that the information in this article is current as of June 9, 2025. The content of this article is for informational purposes and does not constitute legal advice, nor is it intended to be a substitute for legal counsel on any subject matter. You should not act or refrain from acting on the basis of any information in, or accessible through, this article without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue. ]]> On Behalf of Mathis Law Group <![CDATA[Navigating the Trump Administration’s New Executive Order titled “Enforcing Commonsense Rules of the Road for America’s Truck Drivers” as a Transportation Based Entity]]> https://www.mathislawgroup.com/?p=46586 2025-05-05T15:18:38Z 2025-05-05T15:18:38Z History of English Proficiency Requirements in the Commercial Trucking Industry
  1. C.F.R. 391.11(b)(2) requires that a person qualified to drive a motor vehicle be able to “read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”
While this has been the law of the land for quite some time, in 2016 the Federal Motor Carrier Safety Administration issued Memorandum MC-ECE-2016-006 regarding “English Language Proficiency Testing and Enforcement Policy” (the “Memorandum”). The Memorandum laid out much more lenient enforcement policies relating to English language proficiency. Specifically, the Memorandum stated that:
  • English language proficiency interviews would not be conducted during roadside inspections.
  • A driver would not be cited for violations of 391.11(b)(2) if the driver could communicate sufficiently to complete an inspection or investigation.
  • A driver would not be cited for a violation of 391.11(b)(2) even if the driver could not read, write, or speak English but could communicate sufficiently with the inspector/investigator.
  • The use of tools to facilitate communication such as interpreters, I-Speak cards, cue cards, smart phone applications, and On-Call Telephone Interpretation Service was permitted to be used when an inspector/investigator was interacting with drivers.

How will the Executive Order Change this Landscape?

President Trump’s Executive Order directs the Secretary of Transportation to rescind the guidance of the Memorandum and issue new guidance to better comply with 391.11(b)(2), revising inspection procedures necessary to ensure a driver’s English language proficiency. Importantly, the Executive Order highlights that violations of the English language proficiency requirements should result in the driver being placed out-of-service. The language of the Executive Order is admittingly very broad and will require continued monitoring as we await the Secretary of Transportation’s response and new policy to (1) enforce the English language proficiency requirements; (2) determine how examinations will take place; and (3) define what “proficient” means with regards to 391.11(b)(2). While there is little certainty as to the extent and significance of the changes we will see from the Secretary of Transportation under the Executive Order, the expectation is that enforcement of the English language proficiency requirements will be more stringent than we have seen in the past. The current expectation is a removal or limitation on the use of tools to aid in translation, and heightened scrutiny of driver proficiency in the English language to be able to read, write, or speak English sufficiently to converse with the general public or to understand highway traffic signs and signals. State governments have also begun to follow suit and implement their own regulations on English language proficiency for commercial truck drivers and with the recent Executive Order, we anticipate this trend to continue in additional states.

How can you Prepare?

Proactive preparation is key to navigating quickly approaching stricter regulatory enforcement.

Driver Roster Evaluation

A brief review of your company’s current driver roster to evaluate how these changes will affect you is the best place to start. Are all your current drivers comfortable enough in English to discuss general highway signs and engage in simple discussions? Are your drivers currently utilizing tools to aid in translation?

Meeting New Guidelines and Mitigating Costs

In the likely event that you determine that you currently have drivers on your roster that aren’t fully comfortable, you can begin to take steps to bring these drivers into compliance and mitigate the costs of doing so. Specifically, seeking out resources to aid in English language learning, specifically courses focused on occurrences a commercial driver may encounter in their employment, may be enough to bring drivers into compliance. Similarly, if you’re interviewing new applicants, you can consider implementing an English proficiency assessment, mirroring the Secretary of Transportation’s new guidelines during the recruitment process, which again focuses on occurrences a commercial driver may encounter in their employment. Finally, your company will want to consider a comprehensive risk-assessment which includes reviewing and updating HR and internal policies, driver onboarding material, and safety training content to align with the changing regulatory requirements. Here at [nap_names id="FIRM-NAME-1"], we specialize in providing tailored legal services that address each company’s unique and specific concerns so that you can focus on what you do best – getting goods where they need to go. Our commitment to your success means we’ll be there when you need us most, offering expert advice, proactive risk management, and experienced legal representation. To schedule a consultation to discuss how we can best help you protect your business and keep you and your drivers on the road to success, click here.]]> On Behalf of Mathis Law Group <![CDATA[5 Keys To Broker Protection From Carmack Amendment Claims]]> https://www.mathislawgroup.com/?p=46577 2025-03-12T05:45:42Z 2025-03-12T05:45:42Z offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing or arranging for transportation by the motor carrier for compensation.”[1] On the other hand, a “motor carrier” is defined as “a person providing motor vehicle transportation for compensation.”[2] While it is evident that the difference between a broker and motor carrier under the law hinges on the gray area between whether a party provides transportation of a shipment, or whether it has sold, negotiated or held itself out as providing transportation of a shipment, the critical inquiry in the evaluation of a Carmack Amendment claim is in what capacity the entity acted during the particular transaction in question. In determining whether a company functioned as a broker or motor carrier and, ultimately, whether that company is subject to strict liability under the Carmack Amendment for damage to a shipment, courts look to case-specific factors. Specifically, a court considers how an entity held itself out to the world in addition to the entity’s relationship to the shipper, analyzing the following:
  • Whether the entity promised to personally perform the transport and therefore legally bound itself to transport
  • The type of services the entity offers
  • Whether the entity held itself out to the public as the actual transporter of goods
  • Whether the entity's only role was to secure a third party to ship the goods
  • Whether the entity exerted some measure of control over the drivers, among other things
In recent trends, the courts have focused on the level of control a broker exercises over a third party transporting a shipment to call into question whether the broker should be deemed a motor carrier under the Carmack Amendment. In fact, the following can weigh in favor of the court finding a “broker” to have acted in a motor carrier capacity:
  1. Advertising that your company provides actual transportation or that it can handle specific types of logistical transportation needs
  2. Arranging for price and other specificities of a shipment without alluding to a third-party transporting company
  3. Erroneously including the broker’s name as the carrier on bills of lading
  4. Exercising control over drivers such as:
    1. Setting the route a driver should take
    2. Specifying equipment to be used and the number of drivers needed
    3. Imposing penalties for late delivery
    4. Conducting accident inspections and/or post-accident drug testing
    5. Providing precise day/time instructions
As the old proverb goes, an ounce of prevention is worth a pound of cure. This is especially the case if your company is acting as a broker and wants to avoid being brought into unexpected litigation should something occur to a shipment while being transported. The following five keys to broker protection from Carmack Amendment claims are crucial to keep in mind to best position any broker when inevitably faced with Carmack Amendment claims:
  1. Cautious marketing: Advertising a one-stop shop may help the business grow but can also call into question whether you held yourself out as being responsible for shipment.
  2. Hold yourself out clearly as a broker: This includes making the identity of any third-party motor carriers that will be taking the shipment and making your role as a broker clear in any and all contracts, communications or documentation for the transaction.
  3. Avoid excessive carrier and/or driver control: Avoid excessive control over the drivers, including deciding which routes are taken, specifying the number of drivers needed, imposing penalties, etc. It is important to distinguish the motor carrier as the entity with control over its drivers. Avoiding post-accident drug testing, on-site accident inspections and drivers dedicated to a sole broker are good practices to ensure consistency with your role as a broker.
  4. Maintain consistent records: If you are acting as a broker for a particular transaction or with a particular shipper, but the bill of lading lists you as the carrier before the shipment is picked up, be sure to correct that. This one document can be detrimental to your case.
  5. Consult experienced commercial and transportation and logistics attorneys: A close review of your ongoing practices as well as a risk evaluation is a small preventive cost that could pay off exponentially for prospective claims.
Here at [nap_names id="FIRM-NAME-1"], we specialize in providing tailored legal services that address each company’s unique and specific concerns so that you can focus on what you do best – getting goods where they need to go. Our commitment to your success means we’ll be there when you need us most, offering expert advice, proactive risk management and experienced legal representation. To schedule a consultation to discuss how we can best help you protect your business and keep you on the road to success and out of the courtroom, click here. [1] 49 U.S.C. § 13102(2). [2] 49 U.S.C. § 13102(14).]]>