Editor’s note: This story is broken into two parts. Next issue, read the conclusion.
Funnyman and philosopher George Carlin once said that he could get rid of illegal drug trafficking in the United States in a month’s time. The solution, according to him, was not to go after the users or the dealers. Instead, he said, we should give the death penalty to the bankers and business men and women who launder their money or sell them goods. Without these services, the drug dealers would become frustrated and give up the trade.
The obvious downside to making this plan successful, Carlin said, was that a substantial number of the bankers/business people would actually have to be executed to send the appropriate message. After that, others would fall in line. Needless to say the plan he put forth was not a viable solution and was simply offered to get a laugh. However, the reasoning behind his plan seems to have been adopted by the Federal Motor Carrier Safety Administration.
In the coming weeks the FMCSA will release its “CSA Safety Management Cycle for Unsafe Driving.” In reality, this document identifies six areas “which a safety investigator systematically explores to discover what Safety Management Processes are broken or not in place.” In other words, when conducting an audit, an inspector will look to see if the carrier has the policies and procedures specified by the FMCSA in place. Failure to do so will likely be viewed as a Safety Management Process breakdown by the carrier and dealt with accordingly.
As previously mentioned, the CSA Safety Management Cycle for Unsafe Driving identifies six categories to be reviewed. The categories are:
• Policies and Procedures
• Roles and Responsibilities
• Qualification and Hiring
• Training and Communication
• Monitoring Trucking, and
• Meaningful Action.
Of course, there are several items listed under each category that are to be considered; however, for the purpose of this article we will just discuss a few. However, it should be noted that the guidelines for the other Basics follow the same pattern or logic as the Unsafe Driving Cycle.
Under the “Policies and Procedures” section, each carrier is to “develop a written, progressive disciplinary policy comprising warning letters, suspensions and fines, and ultimately leading to termination, focused on taking corrective action to ensure that drivers comply with unsafe-driving-related regulations and company policies. This policy should also specify consequences for any carrier official who knowingly and willfully allows unsafe-driving violations.”
This is alarming. What the FMCSA is saying is that carrier officials (president, CEO, CFO, vice president of safety, or anyone considered an “officer” of the carrier), could be punished for allowing unsafe driving violations.
Of course, the language says “knowingly and willfully” allows unsafe driving. My question is how this will be determined (other than by a jury of course). Will the president or CEO be assumed to have knowledge of everything that happens on the road simply by his position? Will a bad driver that is allowed to continue to drive satisfy this requirement? I do not know.
I know some of you out there think this will not happen. However, it already has with respect to publicly traded companies. In 2002, Congress passed the Sarbanes-Oxley Act, which requires that CEOs and CFOs certify each financial report. By signing the financial report, the officer is certifying, among other things, that he/she has reviewed the report, it contains no material omissions and that it fairly represents the financial position of the business. Any officer who willfully certifies an untrue report faces fines up to $5 million and 20 years in prison. Now let me ask you: how many of you think that every CEO is so involved with all financial aspects of the business as to be able to honestly make the representations required by the Sarbanes-Oxley Act?
I would venture to say the number is quite small. Rather than spend the day with their head in the books — the CFO’s job — the CEO is making business decisions and developing strategies to deal with the current business environment. In most cases, I believe the CEO is relying on the work performed by the CFO or work performed by an outside auditor when signing financial reports. Thus the CEO likely does not have actual knowledge of the items he is certifying. Regardless, the Securities and Exchange Commission has made him/her potentially liable. This is not much different than what the FMCSA is requiring for the trucking industry. How many CEOs of large carriers actually know the driving record/history of each of the company’s drivers? Again, I would venture to say that the number is relatively small. Instead, CEOs and other high-level executives are concerned with making sure there is freight to haul and that the company will be paid an amount sufficient to allow it to continue to operate.
Regardless, like the SEC, the FMCSA will start to impute this knowledge to the business officers. In my opinion, this is not fair. How do you think a plaintiff’s lawyer would use this information in a civil trial? If you could show that a corporate officer was fined or punished for allowing unsafe driving to occur while presenting your case against the carrier, wouldn’t you do it? Again, I think the FMCSA is off the mark. We should all strive to eliminate unsafe driving, but punishing officers of the company where it occurs is not the way to do it.
Under the “Qualification and Hiring” section, the FMCSA states that a carrier should “ensure that prospective drivers will drive safely by querying applicants, checking with previous employers and references, and obtaining necessary documents regarding drivers’ safety performance going back three years. Create a detailed written record of each inquiry.” I do not know about you, but it seems to me that even if a carrier does everything asked of them this will not “ensure that prospective drivers will drive safely.” A carrier can only do so much. While carriers are responsible for the actions of their drivers a carrier cannot always control the decisions made by its drivers on the road and no amount of pre-employment screening will change this fact.
Jim C. Klepper is president of Interstate Trucker Ltd., a law firm dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the 48 states on both moving and nonmoving violations. He is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at discounted rates. A former prosecutor, he is a lawyer who has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License.
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