Harnessing Risk Management to… “Avoid Legal Claims” Robert C. Moore, NBIS Dave Wittwer, Hays Companies

1. Harnessing Risk Management to… “Avoid Legal Claims” Robert C. Moore, NBIS Dave Wittwer, Hays Companies

2. Data – Knowing What’s Out There • Driver Harassment • Privacy Concerns • Educating Yourself • How to Address using a 4 – Phase Approach • Data - Spoliation & Preservation • United States District Court for the Middle District of Florida • Social Media • How does Social Media affect your business? • Data – For or Against?

3. ELDs Black Box Stability Control Lane Departure GPS Adaptive Cruise Control CSA In-Cab Cameras Collision Avoidance

4. “Driver Harassment” Friday, Aug. 26, 2011 – It took only one of the three arguments raised by the Owner-Operator Independent Drivers Association for the U.S. Court of Appeals for the Seventh Circuit to vacate the electronic on-board recorder regulation. The opinion filed Friday by the court vacated the rule and sent it back to the agency for further proceedings consistent with the ruling. “It’s a fantastic decision,” OOIDA President Jim Johnston said. “The decision dealt with the issue of harassment of drivers, but the court left the room to come back and challenge other aspects if the agency gets overly enthusiastic about how they want to monitor truckers.” OOIDA filed suit against the agency contending that the rule was arbitrary and capricious because it does not “ensure that the devices are not used to harass vehicle operators,” as required by law. The Association’s lawsuit also contended that the cost-benefit analysis failed to demonstrate the benefits of the technology and that the EOBRs violate the Fourth Amendment.

5. “NEWS RELEASE” DOT Proposes Use of Electronic Logbooks to Improve Efficiency, Safety in Commercial Bus & Truck Industries Updated rule would slash highest federal paperwork burden after taxes and prevent fatigued drivers Thursday March 13, 2014 – WASHINGTON - The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced a proposal to require interstate commercial truck and bus companies to use Electronic Logging Devices (ELDs) in their vehicles to improve compliance with the safety rules that govern the number of hours a driver can work. In addition to significantly reducing paperwork… The FMCSA claims that the rule will ultimately reduce hours-of-service violations by making it more difficult for drivers to misrepresent their time on logbooks and avoid detection by FMCSA and law enforcement personnel. Analysis shows it will also help reduce crashes by fatigued drivers and prevent approximately 20 fatalities and 434 injuries each year for an annual safety benefit of $394.8 million.

6. “Privacy Concerns” Discussion Starters: What are employees’ statutory rights with regard to employer monitoring? What should employers include as policies when they are using technology to track driver behavior? Tips: Tell employees in advance that company owned technology (i.e. cell phones, GPS, in-cab cameras, ELDs, etc.) is being used to track driver behavior; in ways that will protect both the company and/or driver if an issue arises. Develop a policy for off-hours monitoring and employee rights in using the technology and keeping the technology turned on during non-work hours. Develop policies when employees use their own technology (i.e. cell phone) for work policies.  Without the monitoring, these employees will be treated differently.  Can allowing apps to be installed on their phones be a requirement for employment? Investigate - Some union contracts already have policies on technology and how it and the data can be utilized.

7. Awareness – Motor Carriers need to be aware of the laws, regulations which deal with employee privacy rights. However, we should all bear in mind that it is one thing to have knowledge or awareness of what should or should not be done, it is another to be sure it is being done properly. Policy – The company should have policies in place which make certain it is in compliance with the laws which protect these rights. These policies should be well thought out and implemented in an attempt to prevent problems and not to react to a crisis. Personnel – The company must have properly trained personnel responsible for carrying out these policies. A large part of their responsibility will be to understand the significance of handling confidential material and the consequences of failing to safeguard such material. Performance – The company must make sure that the policies are actually and consistently being carried out or performed. This is a critical stage because it is in this area that most violations will occur and liability imposed.

8. “Spoliation & Preservation” March 9, 2010 - A 2000-model Kenworth tractor trailer was involved in a collision with a 1995 Dodge pick-up truck in Lee County, Florida, which resulted in the death of the pick-up’s driver. Counsel was retained by the defendant trucking company along with an accident reconstruction expert within hours of the collision. An ECM download was performed by a qualified service center; however, the technician downloading the ECM failed to obtain the Snapshot data from the incident QuickStop (a QuickStop occurs any time the vehicle decelerates quicker than 8 mph/second). The company’s attorney, not being qualified to interpret ECM data, did not recognize the download was incomplete and simply placed the results in his file. Testimony provided that technicians at the engine dealer do not normally download Snapshot information in the normal course. Thus, it would be prudent for counsel to specifically direct that this information is included in any post-accident ECM download.

9. “Video” Foror Against? Per Police Report: Driver 1 stated he was northbound in Keystone, but could not recall what had happened. Driver 2 stated he was northbound on North Keystone when vehicle 1 moved into his lane causing a same-direction sideswipe. Vehicle 1 struck the front driver’s side wheel of vehicle 2. Driver 2 stated he had a video recording of the incident and was advised to save the recording for the insurance companies. Witness 1 stated he was behind vehicle 2 and stated vehicle 2 crossed into the lane of vehicle 1. ISP Sergeant Scudder (5786) arrived on the scene and examined the paperwork for driver 2 stating it was appropriate. Vehicle 2 did not have a trailer.

10. “Social Media” Foror Against? As of April - 2012, Facebook has over 900 million* users worldwide, compared to 500 million just six months prior. As of March - 2012, Twitter had 140 million* users worldwide, sending 340 million* tweets daily, compared to 106 million users and 55 million tweets six months prior. As of February - 2012, LinkedIn, a professional networking site, has 150 million users, compared to 65 million six months ago. Other popular social media platforms include Google+, YouTube, Skype and various blogs.

11. “Social Media” Foror Against? • The business utility of these tools is obvious: they connect people to you and allow you to reach out to them. The marketing possibilities are endless. • However, it is not as simple as opening accounts in platforms of your choice and diving in. You must respect the power of the beast and be cautious about how your company is represented. • Protect your company’s interests by implementing and enforcing a Social Media Policy. • The policy would minimize the likelihood of: • – exposure of sensitive company information • – damage to the company image due to improper postings • – litigation over improper postings • – lost productivity due to media use on company time

12. “Data Snapshot” Foror Against? • The Snapshot device plugs easily into your car's diagnostic port (usually below the steering column) and automatically keeps track of your good driving. • Monitors: • Drivers habits • How much you drive • When you drive • Insurance companies are using this data snapshot to give discounts • CMVs also have a similar device (Event Data Recorder) • The data can be downloaded later using the computer software and cables for the specific engine involved and monitors: • Speed, brake application, clutch application, cruise control status • These software tools often allow monitoring of the driver hours of service, fuel economy, idle time, average travel speeds, and other information related to the maintenance and operation of the vehicle

13. So… We now know there is a bunch of data out there. How do we manage all this? And the question still remains – Will this data be used FOR or AGAINST me in the event of a legal claim? One thing is for sure, whatever course of action is taken by the carrier; we must not lose sight of the MOST important thing at the end of the day… THE SAFETY OF THE DRIVERS AND THE MOTORING PUBLIC – EVERYONE GETS HOME SAFE TO THEIR FAMILIES!! QUESTIONS?