Institute a comprehensive safety plan to help ensure fleet safety – Part 2

Brad Klepper

I’m sure my riveting column about strategically interviewing candidates as part of your comprehensive safety plan is what’s drawn you back for the highly anticipated Part 2. (Thanks to both of you for contributing to my delusions of grandeur.)

But on to business.

Now that you eliminated some of the knuckleheads through the recruiting process discussed in Part 1, let’s talk about safety training. I’ve taken the liberty of anticipating some of the most-asked questions on the topic. If you have additional thoughts or questions, let me know.

When should safety training start?

I don’t pretend to be the most tech-savvy person, but like many people my age, I’ve allowed myself to be dragged along by the younger generation. I’ve been assured the constant change and updates to our technology is an inevitable part of being a successful business.

While I will not give specific recommendations on systems, I’m aware many training platforms now offer the option of assigning videos and training materials before candidates even show up to orientation. Drug testing is more commonly completed in advance now too.

However, training in advance might seem like a heavy, and even wasteful, administrative burden.

“Why would I invest in training up front when 20% of my candidates may not even show up to orientation?” you ask.

That’s a fair point — but let’s debate it for a minute.

Human nature dictates that the more time we invest in something, the more committed we become to seeing it through. In addition, when exposed to the same information multiple times, we’re more apt to like it, to believe it and (this is very important) remember it. We see this in advertising, news, music and popular culture in general.

So, do I believe providing safety training before orientation could improve your show rate with more prepared candidates who better understand and are interested in the work you’ll ask them to do? Absolutely.

“I thought this was a safety article, not a psychology article!” I can hear you saying.

Right! Let’s get back on track. Next question….

What topics make sense for advance safety training?

Training materials showcasing your unique safety protocols for your company’s equipment and freight would be a great introduction.

This shows recruits how you stand out and starts drilling the information they’ll need to have to be successful at your specific company. These are things they very likely did not learn in CDL school or at another company.

For more general training, Smith System training or DOT regulation training can benefit drivers at any company. Providing these training opportunities in advance also reinforces to candidates that you have a core value for safety. Ideally, it also helps further narrow your pool to those who share a value for safety or at least for learning.

If the training is presented by your safety team with photos or videos, you have the added benefit that it will acquaint your future drivers with your team early on, making them more accessible and familiar.

How many times have you had a driver make a costly mistake because they were afraid to call the safety director and admit they didn’t know what to do? The more familiar employees are with your safety team members, the less intimidating it will be to make that call in the future.

On the other hand, I wouldn’t be worth my salt as a lawyer if I didn’t caution you to be VERY thoughtful when choosing what you put into writing or record as you prepare these materials.

While it’s great for your safety team to be personable and approachable, your company should never seem cavalier about safety. Any safety training you provide could be scrutinized in the event of a lawsuit. You should be comfortable with showing any piece of your training (possibly cut down and taken out of context) to a jury. Getting the opinion of an attorney who’s knowledgeable in transportation lawsuits and verdicts could save you from making a well-intentioned mistake when attempting to connect with your drivers.

How will we make sure these materials are even completed?

Well, that depends on your systems and your company culture.

Some training platforms can track a student’s progress and determine whether a video session was played in its entirety or was closed out early. You could also build out quizzes to measure trainees’ comprehension.

As far as incentives go, I’m a “use-a-carrot-instead-of-a-stick” guy.

Perhaps those who complete their videos are first up to be placed in a truck, or get first pick of a truck. Maybe they get a bonus at the beginning or end of orientation, or maybe offer a free shirt or hat or other item that will be useful on the truck.

If you’re more of a “stick” person (with the word stick meaning reprimands, not the drawing) and can build the administration to track it, you might require that training be completed before scheduling orientation or purchasing the applicant’s transportation to orientation.

You’ll certainly want to work out this piece before you get started. There is no sense developing safety training no one will complete.

One last note:

While I’m writing these articles in the order a candidate enters and moves through your company, this is not necessarily a step-by-step chronological guide for implementation. If you enhance your safety-mindedness at any step in the career of an employee at your company, I’m sure you’ll reap benefits.

Institute a comprehensive safety plan to help ensure fleet safety – Part 1

Brad Klepper

We all know how much people love to hate lawyers. Even I can jump right on that bandwagon.

When you pay a lawyer for his/her advice, you’re often actually paying someone to be a killjoy. He/she will listen as you describe what you hope to accomplish — and then not-so-lovingly point out all the risks associated with your dreams.

“But with no risk, there are no rewards, Brad!” I can hear you saying. Well, that’s true, or at least partially true.

Mitigating every risk is impossible, but to avoid losing all those hard-earned rewards, minimizing your risk is a must. This is where your safety plan swoops in to save the day and keep those killjoys off your back.

A comprehensive safety plan starts with these five steps:

1. Recruit driver candidates who value safety;
2. Engage safety training both up-front and ongoing based on industry standards as well as both individual and fleet performance;
3. Evaluate customer locations, freight and routes;
4. Provide consistent communication with your drivers on Steps 1-3; and, if that’s not enough —
5. Have a process in place for reducing the impact of mistakes when they are made.

I’m sure a parley with my friends in safety could drum up more, but most lawsuits could have been minimized or prevented through careful planning in these categories. And no, of course it’s not just about making money and preventing lawsuits (I know, it’s shocking to hear this from a lawyer), but it’s also about saving lives and feeling pride in how we take care of our people and our industry.

Let’s start with Step 1: Recruit driver candidates who value safety.

In addition to getting the driving history of your applicants, how are you evaluating their attitude about safety? If they have had accidents or tickets, are they taking accountability? Did they learn how to prevent it from happening again?

Here’s a good question to ask prospective drivers: “If you were faced with that same situation on the road again, what would you do differently?”

Perhaps they would pull over for bad weather, remove distractions, study their route more closely in advance, get out to look before backing, etc. Perhaps they’ll tell you there’s nothing they would do differently — which may tell you that, if they’re faced with this same situation at your company, they will likely have the same accident.

Discussing drivers’ previous tickets and accidents may also offer insight as to the attitude they would typically display at a traffic stop. The first guidance I give all drivers is this: Remain calm and professional and treat the officer with respect, regardless of whether you feel the stop was warranted or not, or if you feel the officer is reciprocating.

As you ask questions about a prospective driver’s MVR (motor vehicle record), notice their behavior. Are they becoming defensive with you? Angry? Accusatory?

When reviewing the dates of an applicant’s previous infractions, check to see if they have multiple tickets from the same incident/inspection. In my experience, more than one ticket (and especially more than two tickets) during one interaction means the driver put on his/her war uniform before interacting with the officer.

Also notice whether the driver is willing to take responsibility for his/her part in the interaction. For example, are they saying the citation was bumped up from speeding to reckless driving because the officer was “out to get them?”

Perhaps it’s worth asking a simple, direct question: “How was your interaction with the officer during this incident?” The response could be something like, “Oh he was an idiot. I only got those tickets because the cop was out to get me and wouldn’t listen to reason.” This type of attitude is likely to result in the driver putting several tickets on your fleet’s record — or possibly even the driver being arrested during a roadside interaction. (Meanwhile, you’ll be scrambling to recover your truck and deciding the best way to inform your customer you’re just a little behind schedule.)

Depending on the setup of your company, this conversation with a prospective driver might be with your recruiters, your safety team or your orientation supervisors. Whichever team takes on this conversation, make sure the person asking the questions is clear on the perspective you’re trying gain from an applicant’s responses to.

When it comes to screening and interviewing job candidates, it’s best to assign the duty to a small handful of very well-trained individuals. If, for the sake of expediency, you want to train your entire team to help speed the screening/hiring process, I recommend that you have team members conduct practice interviews with each other at least once a month to keep their skills fresh and focused.

You’re not going to mitigate every risk, but if you’re able to identify a hothead before you put him/her behind the wheel of a truck, you’re going to save your team a lot of headaches at the least — and explosive litigation at the worst.

ELD revision proposal expected in 2025

Mark Schremmer

The Federal Motor Carrier Safety Administration plans to revisit its ELD rule in 2025.

According to the U.S. Department of Transportation’s Spring 2024 Unified Regulatory Agenda, FMCSA is targeting June 2025 for a notice of proposed rulemaking regarding electronic logging devices. The notice is expected to propose revisions to the agency’s existing ELD rule.

In September 2022, FMCSA requested feedback from truckers about how it can improve the ELD mandate.

FMCSA’s advance notice of proposed rulemaking considers changes to the ELD mandate in five areas:

• Applicability to pre-2000 engines
• Addressing ELD malfunctions
• The process for removing an ELD from FMCSA’s list of certified devices
• Technical specifications
• ELD certification

As part of the notice, FMCSA asked truck drivers for feedback on the original mandate’s decision to exempt trucks with pre-2000 engines.

“Should FMCSA reevaluate or modify the applicability of the current ELD regulation for rebuilt or remanufactured CMV engines or glider kits?” the agency asked.

As part of comments submitted to the agency in November 2022, the Owner-Operator Independent Drivers Association said that there is no justification for removing the exemption.

“The agency lacks data confirming the ELD mandate has improved highway safety and has failed to demonstrate how the expansion of existing requirements to vehicles operating on pre-2000 and rebuilt pre-2000 engines would enhance safety,” the Association wrote in 2022. “OOIDA is unaware of any research that demonstrates vehicles operating under the pre-2000 exemption fail to meet the same level of safety as vehicles with ELDs.”

Individual truck drivers also spoke out against any plans to remove the ELD exemption for older trucks.

“The job of the FMCSA is to advance highway safety,” Dan Roe wrote. “When the FMCSA implemented the ELD rules, it exempted vehicles with pre-2000 engines. To my knowledge, there have not been any problems with these vehicles causing injury-related crashes. Therefore to repeal the exemption for pre-2000 engines will do nothing to advance highway safety.”

Although it remains unclear exactly what FMCSA will propose, the agency appears poised to move forward with a notice of proposed rulemaking next year.

4 Core Metrics Safety Directors Should Be Looking At Each Week

Scott Rea

You know the old saying: “You can’t manage what you don’t measure?”

As a Safety Director tasked with overseeing recruiting, compliance, and safety efforts in your company, you must use metrics to avoid wasting time and money, keep auditors and plaintiff’s attorneys out of your hair, and make sure all your drivers make it home to their families for dinner.

With so much data at your fingertips, it can be difficult to know where to start when it comes to metrics. To keep it simple, we recommend Safety Directors focus on The Core 4.

The Core 4 Metrics for Safety Directors

1: Cost Per Hire

What is it? A hire is someone who made it through the application process, showed up for their first day of work or training, and is actively on payroll. Cost per hire is the amount of money it costs your business to hire one new employee.

The simple way to calculate cost per hire is: Ad Spend / Hires = Advertising Cost Per Hire.

An even more accurate metric is All-In Cost Per Hire, which takes into account the cost of:

All salaries involved in recruiting, screening, and onboarding

MVRs, PSPs, background checks, drug screens, and any other screening tools you use

Advertising

It looks like this: Salaries + Screening Costs + Ad Spend = All-In Cost Per Hire.

Why is it important? This is the ultimate recruiting metric because it tells you how effective and efficient you are at bringing new drivers into your company. It’s a pretty simple concept: Spend the least amount possible to hit your hiring goals. Tracking cost per hire helps you measure your recruitment effectiveness and determine where to spend your dollars.

How do you track it? Advertising Cost Per Hire: Enter your ad spend by source in A-Suite each month, and it will calculate Cost Per Hire for you. It’s so important that A-Suite will email it to you each month.

How can you improve it? The first step is proper messaging. The second step is being efficient with your leads, auto-rejecting unqualified candidates, and speeding up the hiring process — see days to hire, below.

What’s the benchmark? A finger-to-the-wind benchmark for advertising cost per hire is $750, but your mileage may vary depending on the competitiveness of your market. The goal is always to drive it as low as possible. That’s why it’s so important to begin measuring it for yourself.

2: Lead-to-Hire Conversion Rate

What is it? At AvatarFleet, we consider a lead to be a candidate who submitted an initial interest form on your candidate landing page or from an external source like Indeed or Facebook. The lead-to-hire conversion rate is: Number of Hires / Number of Leads, expressed as a percentage.

Why is it important? Drivers are a revenue center for your company. The more folks you have to choose from, the better chances you have of hitting your targets. A healthy lead flow means you’re able to stay staffed up. A good lead-to-hire conversion rate means you’re attracting the right candidates and onboarding them effectively.

How can you improve it? While lead volume is important, we’re all about quality over quantity because your time is money. That’s where the conversion rate comes into play.

What’s the benchmark? Benchmark figures vary depending on your niche, location, and other factors. In terms of lead volume, around 20 leads per seat is a good rule of thumb. A baseline for the lead-to-hire conversion rate is roughly 5%. Compare your lead-to-hire percentage by source so you can monitor which advertising channels perform well for you and allocate your budget accordingly. While important, this metric is secondary to Cost Per Hire.

3: Days to Hire

What is it? Days to hire is the number of days it takes your company to hire someone after they’ve applied for the position.

Why is it important? Days to hire is important to track because speed is a major predictor of your recruiting success. A lengthy hiring process has several downsides. Drivers are judging you during the recruiting process; a long and archaic process represents what their experience will be when they join you. A slow and clunky process increases the number of candidates that ghost you. Then there are the hard costs of taking more than 30 days. You will have to run additional background checks and Motor Vehicle Records requests, and you’ll have one more month of employment verification.

How can you improve it?  See where the log jam is in the hiring process, figure out what is slowing down that section of the hiring process and address the cause.

What’s the benchmark? Less than two weeks to go from lead to behind-the-wheel. Your goal should be to hire drivers as quickly as possible. There’s no reason days to hire can’t be 14 days or fewer. While candidates’ schedules don’t always align with road test schedules, if you’re measuring this in months, you’re doing something wrong.

4: Drivers in Compliance

What is it? Drivers in compliance look at whether drivers who have compliance rules assigned to them have any violations.

Why is it important? You just have to be 100% compliant. Period. As a Safety Director, you should think about how this will look if you have to go to deposition. Do you really want to stare down an attorney named “The Hammer” and tell him that you’re a safe operator even though you don’t follow federal regulations or your own safety policy?

How can you improve it? Compliance is a perfect task to automate because it’s repetitive and well-defined.

What’s the benchmark? When it comes to compliance, you must be at 100%.

Metrics Recap

We know you didn’t get into the transportation industry to crunch numbers. But as we said at the start of this article, you can’t manage what you can’t measure. Staying focused on The Core 4 will simplify your job because you’ll know what to put on the top of your to-do list. Everyone needs a number!

Future of federal regulations in wake of Supreme Court’s decisions

Tyson Fisher

While most people are talking about the U.S. Supreme Court’s presidential immunity decision, the high court’s latest term included two decisions that have stripped a significant amount of power from federal agencies, dramatically reshaping the regulatory landscape.

Those two decisions were the Loper Bright Enterprises v. Raimondo and Corner Post v. Board of Governors of the Federal Reserve System cases. Loper Bright reversed 40 years of precedent – established by something called the Chevron doctrine – that gave federal agencies the power to interpret laws. Corner Post redefined a narrow six-year window to challenge federal regulations.

Individually and taken together, the Supreme Court’s rulings on the two cases have the potential to open the floodgates to new challenges to regulations that have already gone through the judicial wringer and came out victorious.

Before going into the implications of the Supreme Court’s decisions, let’s take a look at each case.

Loper Bright and the Chevron doctrine

Perhaps one of the most consequential Supreme Court decisions during the latest term came from the Loper Bright case, which erased how certain laws have been interpreted for decades.

At the center of the Loper Bright case was the Chevron doctrine. Since 1984, that precedent gave federal agencies the power to interpret ambiguous laws granting them the authority to enact regulations.

Not all regulations are the result of a detailed directive from Congress. In some cases, federal agencies enact regulations based on their interpretation of the controlling law that gives them the authority to do so. The Chevron doctrine established a two-step guide for federal courts to follow in these cases:

1. Determine if Congress directly addressed the issue at hand, and if so, whether the statute was ambiguous. If the intent is clear, the matter is resolved accordingly. If the intent is ambiguous, then go to Step 2.
2. Determine if the agency’s interpretation is permissible, i.e. rational or reasonable. If so, the court must defer to the agency’s interpretation.

In 2014, the Supreme Court upheld the Environmental Protection Agency’s regulation dealing with air pollution that crosses state lines. Although Congress never explicitly directed the EPA to address such pollution, the agency interpreted broad language within the Clean Air Act to include it. Relying on the Chevron doctrine, the high court agreed and deferred to the EPA’s interpretation of the law. Consequently, the merits of the arguments against the regulation were never heard.

Now that the Chevron doctrine has been erased, challenges to federal regulations that center on vague statutes will be decided by judges, not agencies.

A district court judge can now determine if an ambiguous law gives an agency the authority to enact a regulation.

Those who supported the Chevron doctrine claimed that agencies are the experts best equipped to decide what Congress intended. For example, the EPA hires and consults with people and entities who have expert knowledge of environmental issues. Therefore, the EPA, not some random judge, can better determine why a regulation aligns with Congress’ intent.

Additionally, the pro-Chevron voices argued that Congress sometimes writes laws that are intentionally vague. It is impossible to predict the future. Consequently, agencies are given broad authority to address certain issues and to fill in the blanks as new information develops.

On the other hand, opponents argued that federal agencies are politically motivated – i.e. the interpretations of a Democrat-led EPA will vary greatly from those of a Republican-led EPA. To mitigate this problem, impartial judges should settle regulatory disputes that are a matter of law interpretation.

Corner Post and statute of limitations

Previously, anyone harmed by a regulation had six years from when the regulation was published to challenge it. Not anymore.

According to federal law, certain challenges to federal regulations had to be “filed within six years after the right of action first accrues.” For decades, courts have interpreted this to mean the clock starts when a regulation is enacted. Plaintiffs in the Corner Post case argued it should start when a business first suffers harm from the regulation, regardless of when that occurs.

The case stemmed from a challenge to a 2011 federal regulation governing debit card swipe fees charged to merchants. Based on the statute of limitations, any challenge to that regulation had to occur before 2017. However, Corner Post, a truck stop, did not open for business until 2018. The company challenged the debit card fee regulation in 2021, arguing that the six-year clock started when it was first harmed by the rule, not when it was published.

Advocates supporting the clock starting at the time of enactment argued this gives businesses, industries and society as a whole a level of finality and certainty. By having a clear endpoint, affected parties of a regulation will know to adjust accordingly. Without a clear deadline, the certainty required for businesses to plan for the future goes out the window.

Opponents argued that the narrow time limit deprives new entities of their day in court. Furthermore, someone may not realize harm from a regulation until long after it was enacted.

The Supreme Court sided with Corner Post. Consequently, certain challenges to federal regulations now can be filed virtually whenever.

Effects of Supreme Court decisions

The above Supreme Court rulings sent shockwaves through the legal and regulatory communities, setting the stage for a “tsunami of lawsuits against agencies.”

Here is what the rulings will not do: automatically undo any regulations.

During a House Oversight Committee hearing on Wednesday, July 10, Rep. Lauren Boebert, R-Colo., grilled EPA Administrator Michael Regan about regulations passed under the Chevron doctrine. She erroneously claimed the recent Supreme Court ruling deemed those rules unconstitutional and that they therefore should be repealed.

Wrong.

However, the Supreme Court has opened the door for challenges of regulations to be resurrected. When those challenges are filed, the court will no longer automatically defer to the agency’s interpretation. Rather, a federal judge will decide if a law authorizes the regulation in question based on a litany of factors, which may include an agency’s interpretation.

Simply put: Regulations that have successfully passed the Chevron hurdle can be challenged again. This may or may not result in a different outcome. Results likely will vary. In the meantime, all existing Chevron-approved regulations are considered constitutional until a federal judge rules otherwise. Chief Justice John Roberts explicitly stated that in the majority opinion.

Due to the Corner Post decision, there could be a rush of challenges to regulations that previously were off-limits due to the six-year statute of limitations. In theory, anyone could start a business with the sole intent to start the clock on a challenge of an old rule. Again, this doesn’t guarantee a reversal, as courts may end up reaching the same conclusion – just through a different avenue.

The two Supreme Court decisions combined likely will overwhelm the federal district court dockets with fresh challenges to old rules.

Justice Ketanji Brown Jackson warned just that in her Corner Post dissent.

“At the end of a momentous term, this much is clear: The tsunami of lawsuits against agencies that the court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the federal government,” Jackson wrote.

In the meantime, the Loper Bright decision may force Congress to write clearer laws. At the very least, federal agencies will need to be more careful in how they justify regulations.

In the short term, new challenges will arise. What the long-term implications will be is up in the air. Some rules may be overturned. Others may be affirmed.

The wheels of justice turn ever so slowly. It likely will be several years before the effects of the new regulatory landscape are realized.

Click on link below to see video.

https://youtu.be/_D5ZSV13U-E

(This is interesting, FMCSA stated when the ELD regulation was put into effect that CMV accidents would be reduced.  This statement was not true, but FMCSA would like to include pre-2000 engines into the ELD requirements.)

ATRI: Value of Risk and Safety Per Annual Operating Expense