In many walks of life, average is acceptable. When it comes to trucking fleet safety, though, average may not be good enough.
When an incident occurs, plaintiff lawyers often look into the carrier’s history. Did it perform regular vehicle maintenance? How about driver training? Did it meet regulatory minimum standards?
Even carriers that do this, though, sometimes have gaps, and lawyers are well compensated to find those gaps. For a jury, that gap is what makes the difference when deciding if, and how much, damages should be paid for victims and their families.
“Meeting regulatory minimums would earn carriers a grade of C-minus if this was school. That would not impress a jury,” explained Mark Schedler, senior editor of transport management at safety and regulatory compliance specialist J. J. Keller & Associates. “FMCSA and juries expect carriers to have corrective action processes (safety management controls) to eliminate unsafe or noncompliant behavior to avoid crashes and citations.”
Take electronic logging devices and dashcams, for instance. By law, most drivers operate under the Federal Motor Carrier Safety Administration’s ELD rule, and many fleets now take the extra precaution of adding dashcams, either forward-facing or forward- and driver-facing, and in some instances both. ELDs and dashcams are good at picking up behaviors such as whether the driver is adhering to hours-of-service rules or is driving distracted. But if that information is not acted upon by the carrier to mitigate future risk, that same information becomes a liability in front of a jury.
Welcome to the vital role corrective action training plays in a best-in-class fleet safety program.
Why corrective action is a must
J. J. Keller, which offers its Encompass fleet safety management program that includes a dashcam as an option, has produced a five-step approach to building a best-in-class safety program.
“To be defensible, it is imperative to consistently exceed regulations and adhere to company policies. Inconsistent or nonexistent corrective action could be deemed negligent supervision and would likely add zeros to a verdict or settlement,” said Schedler.
The program includes information on developing best practices around securing leadership buy-in, following policies and procedures, exceeding regulatory minimums and sharing of safety data and progress with drivers and insurance companies. But one of the keys to the program is building a strong corrective action training (CAT) component.
To a plaintiff’s lawyer, missteps become an argument for culpability. Having policies/procedures in place but not following them consistently (no one should be exempt), communicating them or providing follow-up is a recipe for disaster.
J. J. Keller identifies several points toward ensuring policies/procedures are followed. Among them are:
- Convey expectations clearly.
- Prioritize risky behavior events and trends for timely coaching.
- Provide a balance of recognition for a job well done as well as correction of unacceptable behavior.
- Outline how and when discipline will happen and audit to ensure the policy is followed.
More of what investigators look for and how to avoid added scrutiny can be found in J. J. Keller’s free ebook, “Corrective Action Training: Five Steps to a Best-in-Class Safety Program.”
Mitigating risk and retaining drivers
An effective CAT program mitigates the chances of being found negligent in an incident, but it also can lead to improved driver retention. According to a 2021 Workhound survey, drivers that made critical comments about training were 50% more likely to quit their jobs.
Carriers should have policies in place to provide consistent training, set out hiring processes to screen out bad drivers and identify when to train, discipline or let go of drivers.
Each of these are part of the process of creating a safe operating culture, but they also reduce the risk of a negligence finding in a court of law. A plaintiff’s attorney is often able to prove negligence if they can show the carrier failed to follow policies or procedures, did not proactively coach drivers to improve behaviors or failed to terminate high-risk and unqualified/noncompliant drivers.
“Timely detection and correction of unsafe behaviors reduce safety-related and operational costs, minimize potential liability, and minimize litigation’s impact if a crash occurs,” J. J. Keller noted in its ebook. “A well-designed corrective action training program driven by timely driver compliance and safety exception data or video can reduce crashes and violations while improving driver retention.”
Further, Schedler suggested basing corrective action training on monthly Compliance, Safety, Accountability (CSA) scores and citations, DOT accidents and insurance loss-run incidents is reactive. Dashcams, ELDs and telematics data can all be used to identify and fix compliance and performance issues before crashes or citations occur, he said.
Within Encompass is a Video Event Management solution that includes a dashcam. This enables carriers to gain added insights into events, allowing safety managers to review, score and assign corrective action training to drivers in near real time. There is also a Video Recall feature.
When conducting corrective action training, Schedler suggested focusing the training on a specific problem, keep it to less than 10 minutes in length and conduct it as soon after the incident as possible. The instruction could include classroom, one-on-one training, trainer ride-along or a corrective action training module.
Schedler advises carriers to utilize Encompass Training to implement and administer a CAT program. The software features corrective action training modules on several topics, including hours of service, ELDs, inspections, distracted driving, hard braking and drug use.
Take safety seriously
“The goal is to convey that you are serious about safety and compliance and that correction is mandatory,” the ebook states. “Once training is completed and documented, continue to monitor the driver to verify that the corrective action training is working. Documenting positive behavior changes is vital if the driver is involved in an accident or incident.”
When conducting corrective action training, Schedler said it needs to align with the company’s discipline policy, which should be progressive in nature. Documentation should be retained according to the company’s document retention policies. Never destroy related documents if an accident occurs as that could create liability for spoliation (destruction of evidence).
Managing a successful safety program that includes a corrective action training component is a large task for many carriers. Third-party providers can assist in this process, taking on part of or all of a safety program’s management and implementation.
“Failure to identify and correct non-compliance and unsafe behavior can be devastating for motor carriers by making them difficult to defend after a major crash,” J. J. Keller noted in its ebook.