During a recent CLM Casualty & Risk Management Community town hall meeting, a discussion took place regarding the number of new employees being hired in restaurant, retail, hospitality, and transportation—and the importance of training to prevent an increase in claims.
Caryn Siebert: The U.S. Federal Motor Carrier Safety Administration (FMCSA) launched the Safe Driver Apprenticeship Program (SDAP) on Jan. 14, 2022. The SDAP allows young drivers between ages 18 to 20 and with commercial driver licenses (CDLs) to undergo extensive training that will let them operate commercial motor vehicles (CMVs) across interstate lines as 21-year-old truck drivers. The program was implemented to address the shortage of truck drivers, where one of its causes is an aging working population.
The American Trucking Associations reports that the U.S. has a shortage of more than 80,000 truck drivers. This gap could increase to 160,000 in 2030. The shortage is already causing supply chain disruptions, but does it have the potential to result in more accidents on the roadways, with implications for those handling casualty claims for insurance carriers and entities with large self-insureds?
Dirk Smith: It’s an interesting situation: To take part in the SDAP, in addition to being a qualified CDL driver apprentice, the young drivers cannot participate in the program if, for example, their license has been revoked, suspended, canceled, or disqualified for a variety of violations. Additionally, they cannot participate if they have been convicted for violations such as being under the influence of alcohol or a controlled substance; refused to take an alcohol test; left the scene of a crash; drove a CMV with the CDL revoked, canceled, or suspended; have caused a fatality; or have had more than one conviction for violations like driving recklessly or violating a texting-while-driving/using a hand-held phone while driving law or ordinance. So, it boils down to good screening in the hiring process, training the driver once on-boarded, and then periodically evaluating the driver’s performance.
Chad Fuss: Regardless of the age of those driving trucks, being in Oregon what I often see are drivers who have traversed the I-5 freeway up and down the West Coast, or I-80 and I-90 across the country, and need training as to the various state laws and regulations. Also, because it rains a lot in the Pacific Northwest, leading to wet slippery roads, I think the extensive training offered will help companies potentially avoid larger exposure claims. In the event that a younger driver gets into an accident, the company will be able to show that the driver went through SDAP provided by the federal government. I think this will be a strong rebuttal to the expected argument from plaintiffs that the driver was young and did not have enough experience to drive a truck, so the company should not have allowed the driver to drive.
Restaurants, Retail, and a Renewed Focus on Risk Management
Debbie Champion: The aftermath of the pandemic and the subsequent lockdown affected industries across the globe, especially the restaurant business. The National Restaurant Association (NRA) estimates 90,000 restaurants were shuttered either temporarily or permanently because of COVID-19. While Quick Service Restaurants (QSRs) were better positioned to weather the storm by offering takeout, drive-thru, and delivery, sit-down and fine dining establishments in particular struggled with staffing. And now, the hiring crunch continues to linger post-COVID-19, and the number of first-time servers, hosts/hostesses, chefs and other workers is extraordinarily high.
Caryn Siebert: That’s a great point, Debbie. My colleague, Jay Gates, provided his clients with some great pointers around that topic. He mentioned the importance of not cutting corners. While hiring younger workers and right-sizing expectations for experience may be tempting given how hard it is to attract staff, lower expectations risk lower standards and affect the customer experience, and can lead to more slips, falls, improper behavior when interacting with customers, and more claims.
Vetting staff is still absolutely essential, including background checks. Bad hires and weak training practices can derail your brand. Jay cautioned: Don’t rush the onboarding process—train staff thoroughly as, ultimately, it protects the staff, the customers, and the brand. And he said general liability and workers’ comp claims have escalated due to under-trained or inexperienced staff. Improper and negligent hiring creates an uptick in casualty claims as does losing a staff member to injury putting a strain on an already taxed workforce. It’s important to ensure retailers, restaurants, and trucking companies have the right insurance products in place to cover risks.
Peter Townsend: That’s a good point, and something as simple as making sure an employee knows how to clean the floor or sign a sweep sheet is critical. Most surfaces are not slippery when dry, and slips occur on a wet or contaminated surface. It is important to know whether, for example, the patron slipped on a wet floor, a freshly waxed floor, or a spill on the floor. Each of these results in different liability for the establishment and responsibility for the incident. So, training as to placement of safety cones, temporarily blocking areas being cleaned, and caution signage is important.
Debbie Champion: Preservation of videotape, closed circuit TV video, and gathering of smartphone pictures at the scene are also important in determining causation and potential negligence. Employees need to be trained on the importance of complying with the establishment’s policy on record retention and preservation of evidence. In some states, lack of preservation can create problems; and in other states, lack of preservation can result in devastating losses.
Chad Fuss: Along with keeping cleaning records, videos, and pictures, companies should also train their employees to gather witness statements, including contact information. To make it easy, the company could have a form for witnesses to fill out. These independent witness statements ultimately help in determining liability and potential exposure because, to a jury, they are more important than the parties involved. These independent witnesses have no skin in the game, so I think their statements carry more weight than the injured party or employees for the company, who all have their own interests to protect.
The Panel:
Caryn Siebert, vice president, carrier engagement, Gallagher Bassett. carynsiebert@gmail.com
Debbie Champion, partner, Rynearson Suess Schnurbusch & Champion. dchampion@rssclaw.com
Dirk Smith, senior vice president, transportation practice area, Rimkus. des@rimkus.com
Chad Fuss, senior associate attorney, Gordon & Polscer. cfuss@gordon-polscer.com
Peter Townsend, senior vice president, technical services, Rimkus. patownse@rimkus.com