Webinar Replay #95: Getting Ahead of Negligent Hiring and Retention Claims

1
00:00:05.390 –> 00:00:11.940
Steve Kessler: Good morning. Everyone. Welcome to the INFINITI Fast Forward Webinar series.

2
00:00:12.250 –> 00:00:16.390
Steve Kessler: My name’s Steve Kessler, and I’m going to host the program today.

3
00:00:16.640 –> 00:00:24.129
Steve Kessler: We have an important topic. Today, we’re going to talk about the importance of hiring and retention standards

4
00:00:24.290 –> 00:00:30.150
Steve Kessler: and how that can impact your ability to be defendable against a lawsuit against your company.

5
00:00:30.380 –> 00:00:54.709
Steve Kessler: And we’ve got an expert that’s going to talk to us about the importance of those areas. I think you know, we talk a lot about being defendable in lawsuits, and I don’t think there’s as much attention being paid to the hiring and retention process. So, I’m very excited to get some details on how we need to be best buttoned up in that area to be defendable should that lawsuit come.

6
00:00:55.250 –> 00:01:07.919
Steve Kessler: So, a couple of housekeeping items quick. Everyone is muted. That’s joined the program so we can’t hear you. If you would like to communicate with us, you can use the chat box there

7
00:01:08.350 –> 00:01:09.480
Steve Kessler: and

8
00:01:10.020 –> 00:01:24.230
Steve Kessler: pose a question or make a comment there. You could also use the Q&A box if you choose to. We can see those on our side, and we’ll try to answer those questions that you may have probably toward the end of the presentation.

9
00:01:24.400 –> 00:01:33.719
Steve Kessler: In fact, why don’t you all. Just jump on the chat. Tell us who you are, where you are and who you’re with, and that way we have some idea who’s out there.

10
00:01:33.850 –> 00:01:37.499
Steve Kessler: and while you’re doing that, I’m going to introduce our co-host.

11
00:01:37.720 –> 00:01:44.090
Steve Kessler: Mark Rhea. Mark’s joined us on most all our webinars for quite a long time now.

12
00:01:44.200 –> 00:01:55.500
Steve Kessler: and Mark’s a truck transportation executive spent 35 plus years at a high level within trucking. He’s a certified director of safety

13
00:01:55.620 –> 00:02:05.000
Steve Kessler: and does a lot of consulting work and works with various organizations to help improve this industry as best we can.

14
00:02:05.630 –> 00:02:16.660
Steve Kessler: So, having said that, let me introduce our guest today, our guest is Stephen Setliff. He’s a founding partner of Setliff law, which is based out in Virginia.

15
00:02:17.030 –> 00:02:22.549
Steve Kessler: Stephen is consistently recognized as one of America’s best lawyers.

16
00:02:22.760 –> 00:02:31.809
Steve Kessler: Mr. Setliff represents clients in complex litigation at the trial and appellate level in State and Federal courts across the United States.

17
00:02:32.250 –> 00:02:45.970
Steve Kessler: His multifaceted trial practice includes representation of clients across a broad array of industries with a focus on transportation companies, including trucking companies and railroads

18
00:02:46.450 –> 00:02:50.940
Steve Kessler: in claims of traumatic injury by employees and non-employees.

19
00:02:51.140 –> 00:03:06.979
Steve Kessler: Stevens trucking practice includes the representation of trucking companies, their insurers and their drivers in a wide variety of claims, including catastrophic personal injury, property damage, and toxic cleanup

20
00:03:07.560 –> 00:03:16.590
Steve Kessler: Steve also handles. Catastrophic worker’s compensation claims, negotiating drafting and enforcement of commercial agreements

21
00:03:16.790 –> 00:03:30.599
Steve Kessler: which includes brokerage and independent contractor agreements, construction matters, traffic citations, including felony charges, and employment claims under the Surface Transportation Assistance Act.

22
00:03:30.980 –> 00:03:42.139
Steve Kessler: His practice covers the gamut of trucking litigation from 1st seen accident investigation to effectively and efficiently trying cases to verdict.

23
00:03:42.800 –> 00:03:47.049
Steve Kessler: So, Stephen, having said that, I’m going to let you take it away.

24
00:03:48.190 –> 00:03:54.850
Stephen Setliff: Thank you very much, Steve. I appreciate it and appreciate everybody being with us today. I’m going to go ahead and

25
00:03:55.260 –> 00:04:21.220
Stephen Setliff: blank me out from the video, which should be a gift to everybody who is participating in this presentation today. So, you only must hear me. You don’t have to look at me. I did notice in the bio picture that they included with my presentation, which, taken probably now 2 or 3 years ago, I’m wearing the exact same jacket, tie, and shirt. So, there is some consistency in my approach to making sure that we’re doing these things the right way.

26
00:04:23.710 –> 00:04:52.670
Stephen Setliff: What I want to talk to you about today really is one of those things that you really need to get your head around and to make sure that you’re understanding the importance of having your house in order when it comes to dealing with issues with respect to hiring and retention. And it really is one of those things that is focused on helping prevent the type of claims and getting ourselves in the best position possible to defend the kind of claims that we are seeing increasingly, particularly in the trucking

27
00:04:52.670 –> 00:04:58.389
Stephen Setliff: industry. The failure to understand what’s involved with hiring and retention

28
00:04:58.640 –> 00:05:08.399
Stephen Setliff: can oftentimes be catastrophic and positioning yourself to be as well suited to defend these kinds of claims is, in fact, critical.

29
00:05:08.450 –> 00:05:33.060
Stephen Setliff: So, let me talk to you a little bit before I start rolling through the slide deck about the world that we live in. Now as we defend trucking companies, the world that I’ve got cases right now for trucking companies across 33 States in the United States in different stages of investigation or defense or being prepared getting ready to go to trial. And I can tell you that what I see as I defend these cases, what I see is, I try. These cases

30
00:05:33.060 –> 00:05:40.160
Stephen Setliff: are some patterns that are emerging very distinctly, patterns that have emerged distinctly over the last few years.

31
00:05:40.220 –> 00:05:49.480
Stephen Setliff: First, let’s talk just a little bit by way of background about how juries are treating us, trucking companies, commercial trucking companies across the United States.

32
00:05:49.480 –> 00:06:13.089
Stephen Setliff: and the answer to that question, I often tease some of the guys in the office who help me put these presentations together that we should just put a slide up that says it sucks, but the reason that it actually is as unfavorable as it is now really falls into 3 distinct categories. The 1st category is, of course, our friends at the plaintiff’s bar. Our friends at the plaintiff’s bar have gotten

33
00:06:13.090 –> 00:06:37.430
Stephen Setliff: much, much better in identifying the appropriate cases and developing a story that they want to tell relative to the prosecution of those cases, the advertising that those guys can do the limits that have been taken off plaintiff’s lawyers. If you look at advertising for plaintiffs, lawyers across the United States now, it’s ubiquitous. It’s on television. It’s in magazine ads. It’s on billboards.

34
00:06:37.430 –> 00:06:51.840
Stephen Setliff: and it’s not just on billboards. It’s on billboards in a way that is not just meant to get the identity of the plaintiff’s firm out into the public. But it’s also typically conveyed in a way, particularly with respect to trucking companies to convey a message that we’re dangerous.

35
00:06:51.870 –> 00:07:06.270
Stephen Setliff: There are a lot of advertisements out there on billboards, particularly that show trucks running into the side of cars, or just show the front of big trucks out there, all of which are meant to convey to a jury that we are dangerous, that there are things about us

36
00:07:06.540 –> 00:07:31.010
Stephen Setliff: as trucking companies that juries should fear, because from the very beginning plaintiffs, lawyers with their advertising, with the almost limitless type of things they can do now want to start to plant in the mind of the general public, because that’s where our jurors are going to come from that. We are dangerous. There are things about us that are dangerous. We are big. We weigh a lot, and we can cause a lot of damage when we get involved in accidents.

37
00:07:31.140 –> 00:07:59.900
Stephen Setliff: That’s first.st The second thing that I see influencing the environment that we are in right now, candidly, is our jury pool and the people that end up serving on juries. I would say, at the risk of being slightly politically incorrect. What we are seeing in jury pools now is the sum or the result of the last 30, 35 years of public education in the United States. There are a lot of people that serve jury pools now, particularly in some of the areas where I try cases

38
00:07:59.900 –> 00:08:17.949
Stephen Setliff: where it would be a challenge for them, I think, to count to 10, so they are sometimes easily influenced. They’re not as well positioned to critically analyze the evidence, and they bring with them prejudices and biases that have been formed in large part by some of the advertising that we see out there.

39
00:08:18.140 –> 00:08:19.280
Stephen Setliff: Add to that

40
00:08:19.420 –> 00:08:26.880
Stephen Setliff: that a lot of the jurors that we see represent what I think is a general sentiment across the United States right now.

41
00:08:26.900 –> 00:08:50.579
Stephen Setliff: People aren’t happy. They’re not in a good mood. There are a lot of people out there walking around who, again, at the risk of being politically incorrect, are pissed off about things. I often tell people when I do these types of presentations to try this little experiment. If you don’t believe me the next time you’re standing in a wawa or sheets, or a Bucky’s, or a seven-eleven. Wherever you get your morning coffee, or wherever you get your gas.

42
00:08:50.580 –> 00:08:59.319
Stephen Setliff: just look around at the crowd that is in there with you in the morning and see how many of the people that you see there in the morning appear to be in a good mood.

43
00:08:59.360 –> 00:09:03.729
Stephen Setliff: If you see somebody that’s smiling, your 1st reaction is probably going to be

44
00:09:04.030 –> 00:09:14.700
Stephen Setliff: damn. I think this guy’s getting ready to shoot the place up. It’s probably not going to be. Oh, this person is happier in a good mood. The public, the people that serve as jurors

45
00:09:14.700 –> 00:09:39.630
Stephen Setliff: that are just not in a good place right now, and we can debate for hours. Why, that’s necessarily the case. Some people think it’s because of a lack of substantial religion in our lives anymore. Other people think it’s the way we are constantly force-fed bad news by the news media or other people think it’s maybe because of other reasons. But whatever it is, we’re dealing with a prospective jury pool in almost all places

46
00:09:39.630 –> 00:09:48.339
Stephen Setliff: that has already been influenced by substantial number of plaintiffs, advertising calculated to depict us as dangerous, who aren’t in a good mood.

47
00:09:48.710 –> 00:10:12.309
Stephen Setliff: Those are the 2 things that contribute at least the 1st 2 things that contribute to a lot of the results that we’re seeing in the United States today. The results that we see in the United States today, which for commercial trucking companies on cases tried to verdict, dependent upon which statistic you look at and what you include or don’t include cases tried to verdict now, typically are coming in somewhere between 18 and 22 million dollars.

48
00:10:12.390 –> 00:10:29.069
Stephen Setliff: That’s an existential event for everybody not named Walmart and Amazon. So, if we look at those 2 things, we are left to ask, what is any other factor that’s contributing to what we’re seeing in courtrooms across the United States on cases against commercial carriers.

49
00:10:29.070 –> 00:10:48.119
Stephen Setliff: and the answer that most people don’t want to hear. But the answer that I think is probably most true. It’s easy to blame the plaintiff’s lawyers. It’s easy to characterize them as the bloodsuckers that they are. It’s easy to say, oh, how bad jury is! Nothing we can do about it. But the factor that I have found

50
00:10:48.230 –> 00:10:54.250
Stephen Setliff: time after time that carries the most weight. For why we are seeing the results that we see

51
00:10:54.360 –> 00:10:55.420
Stephen Setliff: is us.

52
00:10:55.640 –> 00:11:12.449
Stephen Setliff: It’s the company. It’s the people operating the companies. It’s not understanding exactly what the playing field looks like. It’s not having in place the things that we need to have in place to be able to successfully anticipate and then successfully defend these cases.

53
00:11:12.910 –> 00:11:29.330
Stephen Setliff: I’m not talking specifically about people intentionally doing bad things. I don’t think there’s very much left. There’s some, and those cases are the ones that grab a lot of headlines where a company will intentionally do something that they know they ought not to do.

54
00:11:29.330 –> 00:11:49.179
Stephen Setliff: What really is. More of the cause of it candidly, is the failure to be educated on what the game plan that the plaintiff’s lawyer wants to use against the trucking company? What’s the game plan that they have rolled out, and that they have found to be effective time after time against company after company.

55
00:11:49.180 –> 00:11:55.620
Stephen Setliff: And I’m going to tell you what that game plan is. And I’m going to tell you what that game plan is hopefully with an eye toward you.

56
00:11:55.620 –> 00:12:08.939
Stephen Setliff: critically analyzing how you do things you critically analyze and do. You have in place the systems that you need to have in place to be able to successfully beat back one of these clients, because if you don’t.

57
00:12:08.940 –> 00:12:28.250
Stephen Setliff: then you feed the narrative, the narrative is now, and is going to be for the foreseeable future, that we are a big, bad, dangerous entity, that we are a bad company, that we don’t care about safety that we don’t care about how we do things. All we care about is moving a load of freight from 1 point to another point.

58
00:12:28.260 –> 00:12:43.860
Stephen Setliff: Those are the storylines that the plans attorneys want to embrace. That’s what they want. A jury who’s already probably in a bad mood to hear, to render a verdict. So, what is the playbook that they’re going to use? Well, I’m going to talk specifically about

59
00:12:44.060 –> 00:12:57.599
Stephen Setliff: 2 elements of the playbook today. But the 4 elements that the plaintiffs always want to focus on in no order are hiring retention, training and equipment.

60
00:12:57.730 –> 00:13:22.039
Stephen Setliff: We’re going to talk about the 1st 2 elements in just a moment. I’m going to give you just a little bit of this second 2 elements here at the beginning and maybe mix some of those in as well. They always want to talk about training. They always want to talk about the fact that we haven’t trained our employees appropriately, that our training to the extent that we have. It is plug and play that our training is not dynamic.

61
00:13:22.040 –> 00:13:47.590
Stephen Setliff: that it doesn’t isn’t geared specifically to the equipment our employees are being asked to use the jobs they’re being asked to perform, the places they’re being asked to perform them, that instead, we put in a videotape, or we have queue up a video for somebody to watch, or we have an annual safety meeting where we really don’t focus specifically on how it is that we’re doing things, or we don’t focus on problems that we are having.

62
00:13:47.590 –> 00:14:17.540
Stephen Setliff: So, note to self, while I’m not going to get too deeply into the training topic today, because that’s the subject for an entirely different presentation. Your training should at least be dynamic. It should be geared toward what the job you’re asking your guys to perform where you’re asking to do it, and how you’re asking them to do it. And if and to the extent that there are problems in job performance, then training needs to specifically address that and not hide from it. I would also add that related to training

63
00:14:17.916 –> 00:14:26.570
Stephen Setliff: figuring out a way to shoehorn in as many different training experiences into an employee’s life and job performance is a good idea.

64
00:14:26.690 –> 00:14:39.200
Stephen Setliff: an annual safety meeting that lasts about an hour. That involves a bunch of guys standing around a fire pit drinking sweet tea and eating fried chicken is going to sound just like what it is to a jury who hears that

65
00:14:39.200 –> 00:15:02.500
Stephen Setliff: I would encourage you relative to training, that you think about not only having your annual safety meeting, but that you also have some kind of quarterly events, and that you also try to do something on a monthly basis, even if it’s nothing other than blasting out a rule of the month or something on a weekly basis. A guy like me to defend the company, to be able to controvert the bad company story needs to be able to tell the story

66
00:15:02.500 –> 00:15:24.499
Stephen Setliff: that we devoted substantial time and assets to our training program. It’s 1 thing for me to say. John has worked for me for 18 years, and in those 18 years John has attended 16 annual safety meetings. It’s another thing for me to be able to say that John has worked for me for 18 years, and during those 18 years he has had 427 different training encounters.

67
00:15:24.510 –> 00:15:28.460
Stephen Setliff: The latter sounds a lot better, and conveys to the jury

68
00:15:28.760 –> 00:15:34.950
Stephen Setliff: that we are, in fact, investing in teaching our employees how to do the job correctly. The other thing.

69
00:15:34.950 –> 00:15:41.769
Steve Kessler: Hey, Steven, I hate to interrupt you, but we’re not seeing the slides on our side.

70
00:15:42.250 –> 00:15:45.680
Steve Kessler: Everybody’s just seeing the introductory screen.

71
00:15:45.680 –> 00:15:47.559
Stephen Setliff: That’s the only one. I haven’t moved it yet.

72
00:15:47.560 –> 00:15:54.879
Steve Kessler: Oh, okay, would you move it so we can see if it’s working, because people are chatting in here.

73
00:15:55.270 –> 00:15:56.959
Steve Kessler: Alright. Sorry to interrupt you. Sorry.

74
00:15:56.960 –> 00:15:58.200
Stephen Setliff: That’s okay. No, you’re good.

75
00:16:02.010 –> 00:16:04.670
Stephen Setliff: Okay. Keyboard may have. I may have lost you.

76
00:16:06.150 –> 00:16:25.610
Stephen Setliff: The other thing that I will mention briefly before I get into hiring and retention is equipment and making sure that you have an appropriate equipment program that’s in place, that when there’s a complaint about your equipment, that that complaint is logged, and that that equipment is monitored and not passed back to service until that complaint is dealt with.

77
00:16:25.690 –> 00:16:47.410
Stephen Setliff: Those are 2 of the 4 things that folks are going to want to come after you. On. What are we here? Talk about today? We’re here to talk about negligent hiring and retention, and to talk about exactly why the bad guys like to come after negligent hiring attention. So, let’s start with what constitutes a negligent hiring and retention claim, and why the bad guys like to come after.

78
00:16:47.410 –> 00:17:09.310
Stephen Setliff: So, a negligent hiring and retention claim is a claim that is separate from and different from the kind of claim that we think about typically associated with a truck casualty event. If John is driving a truck for me and John goes out and John gets into an accident. He hits somebody arguably, hurts somebody and we get sued for it. Most people typically think about

79
00:17:09.319 –> 00:17:16.290
Stephen Setliff: the critical facts of the case being well, did John do something wrong, or did the person that was involved in the accident do something wrong?

80
00:17:16.329 –> 00:17:29.490
Stephen Setliff: Those facts, indeed, are important, but believe me, the good, competent, and capable and dangerous plaintiff’s lawyers are going to also want to include claims for negligent hiring and negligent retention.

81
00:17:29.600 –> 00:17:56.899
Stephen Setliff: They want to include claims for negligent hiring and negligent retention, because those create independent and separate bases for liability against the company. That means that that creates something beyond just vicarious liability. Again, the vicarious liability is the idea that if John does something for me while John is working for me, and in the scope of his employment with me, that I am liable for it as his employer.

82
00:17:56.900 –> 00:18:06.650
Stephen Setliff: Negligent hiring and retention is a direct, negligent action against the employer, regardless of whether that employee was in the scope of their employment.

83
00:18:07.290 –> 00:18:24.020
Stephen Setliff: Why did the bad guys want to be able to do this? In addition to creating a direct cause of action. It opens tremendous evidentiary considerations that would not otherwise be admissible in the context of a straight, vicarious liability claim, for example.

84
00:18:24.060 –> 00:18:50.100
Stephen Setliff: in a negligent hiring and retention claim what’s in John’s background, his driving record, his criminal record, maybe his military record, his domestic relations, record everything in his employment, record, anything in his background may be something that a plaintiff’s lawyer is able to seize upon, to be able to demonstrate that the company should have been on notice that it should not have hired John. In the 1st place.

85
00:18:50.100 –> 00:19:10.409
Stephen Setliff: it is a very powerful thing, and, as you can imagine, a good claims lawyer will take the information in John’s background, and use that to further the narrative that the company that hired him is, in fact, a bad company, because, remember, that’s the game, that we are a bad company, and that we are dangerous, and that we need to be punished.

86
00:19:10.450 –> 00:19:34.779
Stephen Setliff: So, if you understand that and understand where it’s coming from. Then you understand that the entirety of what they will go after is information that they can use to then argue that the company when it made the decision to hire. John paid no heed to the risk of harm that he may cause for other people based upon the role that he was being asked to perform while at work.

87
00:19:35.650 –> 00:20:03.070
Stephen Setliff: So, what are the key elements? What are the things that the bad guys are going to want to prove? First they’re going to want to try to develop any kind of evidence that the employee exhibited a prior propensity for endangering others, that the employer knew about that, and that, despite the employer knowing about that, or should have known about that, the employer hired that individual nonetheless, and assigned him to a position where he could reasonably create an unreasonable risk of harm to others.

88
00:20:03.230 –> 00:20:28.570
Stephen Setliff: As lawyers speak for meaning that John applied. There were things in John’s background that I should have known rendered him unfit to work as a truck driver, but knowing that, or even if I should have known that through reasonable investigation, I nonetheless hired John and deployed John, and then John, in the course of performance of his job, managed to go out and hurt somebody. That is pretty much the key elements that they look at.

89
00:20:28.700 –> 00:20:34.600
Stephen Setliff: So, what kind of things are going to be under intense scrutiny by the bad guys relative to this?

90
00:20:34.600 –> 00:20:59.149
Stephen Setliff: They are going to scour the record, to try to develop any of the things that you see, that there was some lack of relevant experience that prior to being hired, that the individual wasn’t suitably trained, that there was something in a driving record, including suspensions, revocations, or preventable accidents that should have put a prospective employer on notice of the unsuitability of this particular individual that there were documented poor work, habits or performance issues from previous employment.

91
00:20:59.250 –> 00:21:02.060
Stephen Setliff: or that there is a criminal history that’s relevant.

92
00:21:02.240 –> 00:21:06.170
Stephen Setliff: And, generally speaking, generally speaking.

93
00:21:06.280 –> 00:21:20.050
Stephen Setliff: anything that the bad guys can find they’re going to find, and they’re going to try to toss it against the wall to suggest that this employee was not suited for the job that he was tasked up for

94
00:21:20.260 –> 00:21:47.829
Stephen Setliff: one of the things that comes up quite frequently in the trucking context is, I know a lot of the folks, a lot of folks that we represent a lot of folks in general use, independent contractors, owner operators to perform a lot of the work that they do. There was a time when using an independent contractor or an owner operator would get you further away from a claim of negligent hiring and retention, but increasingly in jurisdictions across the United States

95
00:21:47.880 –> 00:22:15.340
Stephen Setliff: courts are starting to recognize the tort that is a cause of action for the hiring of an independent contractor. It sounds a whole lot like the hiring of an employee, the negligent hiring of an employee. Same kind of thing, where there are things in the independent contractor’s background for either a lack of confidence, a lack of skill that should have put a reasonable employee on notice that this contractor was dangerous, and that

96
00:22:15.370 –> 00:22:27.509
Stephen Setliff: failure to recognize that resulted in harm to a potential plaintiff, and that the employer, the contractor, knew, or should have known, the principal knew or should have known, about the contractor’s unsuitability.

97
00:22:27.780 –> 00:22:28.610
Stephen Setliff: but

98
00:22:29.040 –> 00:22:51.280
Stephen Setliff: simply stated, it’s the same kind of action, and it’s important to know in the places where you are operating motor vehicles, whether or not those States recognize the tort for the negligent hiring of an independent contractor, because if they do then utilizing owner operators as a shield from negligent hiring liability will be utterly ineffective.

99
00:22:52.000 –> 00:23:13.190
Stephen Setliff: So same kind of thing relative to the hiring of independent contractors it would be for an employer. It’s making sure that you have done your due diligence with respect to the hiring of any type of independent contractor and making sure that they are capable of doing the job, that you are going to ask them to do so.

100
00:23:13.870 –> 00:23:32.940
Stephen Setliff: The other thing that people sometimes lose sight of in these cases is that there is a foreseeability nexus here. In other words, there typically is a nexus that says that whatever the individual’s background was had to be that the harm that ultimately was caused had to be foreseeable. As a result of that background.

101
00:23:32.950 –> 00:23:50.719
Stephen Setliff: There are some cases scattered around where you can find a court saying, going out on a limb candidly and saying that things in a driver’s background did not reasonably put an employer on notice of foreseeable harm. There’s a case here in Virginia, interim personnel versus Messer.

102
00:23:50.720 –> 00:24:09.530
Stephen Setliff: where a driver had 2 dui convictions had failed to pay, some fines failed to attend counseling had been declared habitual defender. The court in that case ruled as a matter of law, that that did not reasonably put an employer on notice that an employee would eventually steal a truck, operate it for personal use as a

103
00:24:09.630 –> 00:24:38.020
Stephen Setliff: of business hours and calls an accident. I would suggest to you that that is a bold position for a court to stake out these days. You occasionally might find a federal court that will go that far. But most State courts, and indeed most Federal courts, now will ultimately conclude that the question of foreseeability, that is, whether the things in employees background made it foreseeable that they were going to cause somebody. Harm is ultimately a question for the jury.

104
00:24:38.560 –> 00:24:39.510
Stephen Setliff: So

105
00:24:39.860 –> 00:24:57.809
Stephen Setliff: what kind of things, when I tell you to underscore the danger associated with these kinds of cases. You don’t have to look back very far to see the kinds of verdicts that are coming out on cases where there are bad facts regarding negligent hiring and retention. Here’s a good one.

106
00:24:59.000 –> 00:25:13.869
Stephen Setliff: or a typical one, that comes out of Illinois, where the driver’s history had multiple access to license. Suspension had been terminated by several other companies, and there were substantial discrepancies between the driver qualification file and the employment application.

107
00:25:13.930 –> 00:25:35.299
Stephen Setliff: The driver nonetheless got hired. An individual gets in an accident, then gets hurt substantially hurt, and a jury returns a verdict for 35 million dollars. As a result of that, the company’s failure to do adequate vetting of the driver and make sure that the driver complied with internal safety protocols.

108
00:25:35.420 –> 00:25:38.200
Stephen Setliff: And then there is the

109
00:25:39.700 –> 00:25:41.790
Stephen Setliff: Excuse me. Think I missed one here?

110
00:25:45.920 –> 00:25:47.130
Stephen Setliff: Okay, no.

111
00:25:47.500 –> 00:26:00.919
Stephen Setliff: So, if you know that that’s kind of the deal that is going to be that negligent hiring retention is going to be one of the things that planets really come after. Let me make some suggestions for you.

112
00:26:01.030 –> 00:26:08.210
Stephen Setliff: and I’m going to make several suggestions during presentation for you to think about. So, 1st before getting to the slide.

113
00:26:08.800 –> 00:26:20.569
Stephen Setliff: Think about the entirety of your hiring process. Think about how, if we must document, if we must lay out exactly what the process is, step by step, for you

114
00:26:20.670 –> 00:26:45.390
Stephen Setliff: in front of a jury. What is that process going to look like? And let’s start at the very beginning. What’s your application look like? When it is the last time you had your application vetted by your lawyer to make sure that your application includes all the things that you are permissibly allowed to ask in the jurisdiction where you’re conducting the hire, that application should ask every single question that you’re allowed to ask.

115
00:26:45.680 –> 00:26:46.620
Stephen Setliff: Second.

116
00:26:47.040 –> 00:26:54.299
Stephen Setliff: yeah, based on the information that’s on your application. What are you doing to follow up on the information that you gather

117
00:26:54.590 –> 00:27:02.579
Stephen Setliff: if you’re going to ask for prior employment, and you’re going to ask for references, if you’re going to ask for criminal history, what are you doing to follow up on it?

118
00:27:02.980 –> 00:27:07.240
Stephen Setliff: And importantly, what are you doing to document the following up of it.

119
00:27:07.510 –> 00:27:20.749
Stephen Setliff: It’s 1 thing to say, hey? We asked about John’s driving record, and then we made some calls to prior employers, and you know the young lady out front. Susie, who handles making the calls, could never get anybody to call us back.

120
00:27:21.020 –> 00:27:34.659
Stephen Setliff: But there’s no piece of paper that references any of that in the file. If your efforts to document exactly what you did to follow up aren’t recorded aren’t on pieces of paper. Juries probably aren’t going to believe them.

121
00:27:34.660 –> 00:27:58.730
Stephen Setliff: So I would encourage you in the strongest terms, not just to make the calls about prior employment, not just to ask all the questions that you are legally permitted to ask, and understanding what you’re entitled to ask, but also documenting what you did, I’d also encourage you in the strongest terms to investigate fully any prior driving incidents or accidents to get all the information about those that you possibly can.

122
00:27:58.730 –> 00:28:21.049
Stephen Setliff: and also, as you were looking at things like employment, one of my favorite stories about this is a good buddy of mine, who runs a company who had an employee who applied for a job that we ultimately hired and got into an accident some years ago, and that Guy had indicated on his employment application that he had worked as a barber at the department of corrections.

123
00:28:21.120 –> 00:28:46.800
Stephen Setliff: and he had worked as a barber at the Department of Corrections as an inmate, and the whole inmate part had seemed to slip by us, and we didn’t get that part. So make sure that we fully vet places of employment when employment started and when employment stopped. If there are gaps in employment, why, and trying to get as much information during the vetting process as we possibly can. The general rule of thumb on this is

124
00:28:46.800 –> 00:28:52.510
Stephen Setliff: once claim happens if an accident occurs, anything that a plaintiff’s lawyer can find.

125
00:28:52.510 –> 00:29:11.049
Stephen Setliff: and they’re pretty good at finding it through Internet searches. Social media searches will be something that a court more times than not will suggest or at least allow a jury to determine whether it was reasonable for us to have found it, and whether that should have put us on notice of an employee that was potentially dangerous.

126
00:29:11.300 –> 00:29:35.750
Stephen Setliff: Other thing I would mention to you, I don’t know who it is that conducts your hiring, or the people in your Hr. Department who does it? But I would encourage you in strongest terms, whoever that person is, to get them some training on an annual basis. Go through and be able to. You want to be in a position when the deposition that will come in these types of cases about whether we, in fact, were negligent about who we hired

127
00:29:35.750 –> 00:29:47.050
Stephen Setliff: one of the questions that John does my hiring. One of the questions that’s going to be asked is, well, what’s John’s training to do hiring? And if the answer is, well, John’s done hiring around here for 10 years.

128
00:29:47.050 –> 00:29:56.040
Stephen Setliff: that that may not necessarily be enough. Certainly, that’s some experience, but it puts us in a much better position if we can go out and speak.

129
00:29:56.040 –> 00:30:24.720
Stephen Setliff: and once a year John attends a Virginia Trucking Association or Texas Trucking Association or Maryland Motor Coach Association Training session on hiring techniques and the things that need to be involved in the entirety of the HR process. I would recommend that a hired pilot is probably the best place to start as you’re thinking about defending these claims being in a position where you can articulate what your standard is.

130
00:30:25.160 –> 00:30:29.580
Stephen Setliff: How do you determine who it is safe and suitable for you to hire.

131
00:30:29.660 –> 00:30:51.680
Stephen Setliff: And because that’s something that in the context of a deposition, I almost always hear and see this question, what’s your standard. How did you derive your standard? Is your standard for? Who did you hire change over the years? If your standard has changed, why has it changed? What input did you get from whom and when on how you derived your standard?

132
00:30:51.680 –> 00:31:05.440
Stephen Setliff: And let me tell you, if your answer to what your standard is well, we sent them to Great West, or Bitco, or Penn National or PMA, or travelers, whoever you’re sure is. And they said they were okay.

133
00:31:05.510 –> 00:31:27.389
Stephen Setliff: That’s not a suitable answer. The company cannot delegate to a 3rd party the responsibility of deciding about whether an employee, particularly a driver, is safe and suitable to hire. The company needs to have its own standard, and the company standard needs to be something that’s carefully thought out and derived based upon multiple sources of input and something that becomes defensible.

134
00:31:27.620 –> 00:31:41.809
Stephen Setliff: So, as you sit and listen to me right now, you should be asking yourself, what is our standard. How did we get to the standard, and has it changed over the years, and what would my answers be to those questions if I were asked those questions as a deposition.

135
00:31:42.080 –> 00:31:54.330
Stephen Setliff: These are other things that you can see, some of which I’ve already talked about. But the interview process is critical and having somebody who not only has done it before but has been trained in interview techniques.

136
00:31:54.700 –> 00:32:04.000
Stephen Setliff: is critical. It’s amazing what somebody who knows all the tricks of the trade with respect to conduct an interview can gather from an employee

137
00:32:04.000 –> 00:32:27.739
Stephen Setliff: you want whoever is conducting your interviews to be that person who, consistent with the legal obligations imposed during the Hr. Process, can gather as much information as they possibly can. It needs to be somebody that does it repeatedly, and somebody who’s trained in how to do it. You need to, in my humble opinion, ask for references, and you need to follow up on those references.

138
00:32:27.740 –> 00:32:39.590
Stephen Setliff: and there needs to be documentation that you followed up on those references again. Not blank pieces of paper that are in the file. I would suggest you conduct robust background investigations.

139
00:32:39.590 –> 00:33:03.610
Stephen Setliff: You can bet a lot of people don’t check social media. I encourage people to do so. I never hire a lawyer around here, or a paralegal or secretary, for that matter, without checking the social media. It’s amazing the kind of things that you see that people put on social media. I don’t know why everybody feels like they must tell me what they had for dinner last night. I don’t really care about that. But what you sometimes will find, particularly with drivers.

140
00:33:03.750 –> 00:33:05.770
Stephen Setliff: It’s able to put up things like

141
00:33:05.930 –> 00:33:24.179
Stephen Setliff: videos of them rolling through Kansas City, shooting out with their cell phone out their window as they roll down the road, which is probably a violation about 42 different dot regulations, as well as every safety regulation that you can think of or put up memes that say things like

142
00:33:24.180 –> 00:33:36.649
Stephen Setliff: if you cut off a truck you’re asking for an 80,000-pound suppository. There are things like that that that people will put on social media sites that will give you a clue about who it is that you’re dealing with.

143
00:33:36.935 –> 00:33:57.230
Stephen Setliff: So, I would encourage you to look at that. Also scrutinize employment gaps, because there’s almost always a reason that there’s a gap in employment for people and they get to the bottom. That will be a question during a deposition that you most assuredly will be asked and be asked what you did to figure that out, and what the answer to those questions are.

144
00:33:57.230 –> 00:34:22.000
Stephen Setliff: If in your application, when you ask for driving records and criminal records. You need to investigate those. You need to know exactly what was involved and exactly what the disposition is. Lots of States, Virginia included now, as a full recitation of people’s criminal history online, not hard to do. And it’s free. So, I would encourage you to do that. Similarly, people through just running their name through the Internet to see if they show up in any

145
00:34:22.000 –> 00:34:26.049
Stephen Setliff: relevant news articles are also probably a good idea.

146
00:34:26.050 –> 00:34:54.120
Stephen Setliff: There also needs to be some kind of process in place where you can say, all this information was looked at, and this is based on all that information. This is a decision we made. That doesn’t mean 2, 3, 4. People must be involved in the process. It just means that there needs to be a point in time that we can point to and say the information has been assimilated. It had been looked at, and that all the things we looked at led us to make the decision on this individual that we made

147
00:34:56.070 –> 00:35:01.169
Stephen Setliff: you. Really, it’s hard to underscore. You can’t really do enough now, having said all that.

148
00:35:01.910 –> 00:35:10.260
Stephen Setliff: I know that there are probably people on this phone call who do not have limitless resources to devote to that. And I understand that just know

149
00:35:10.380 –> 00:35:28.250
Stephen Setliff: that the more you short sheet this process, the greater the risk is going to be that somebody somewhere. If this individual gets involved in an accident it is going to claim that you didn’t do your due diligence. With respect to the hiring of an employee.

150
00:35:28.380 –> 00:35:54.860
Stephen Setliff: there are things I could tell people that were. There are 800 things. Probably I could say that if you really want to bulletproof your company and make sure that you’re as immune from being sued as you possibly can. I understand that there’s a financial component to all of that. But you’ve got to decide how much risk you’re willing to go on board. The fewer these types of things that you do, the less follow-up you have the more risk that you are on boarding, the more substantial risk that you’re on boarding

151
00:35:57.980 –> 00:36:06.889
Stephen Setliff: a note. You would think in the world that we live in that compliance with the FMCSA. Regulations with respect to hiring, doing the things that we

152
00:36:07.030 –> 00:36:27.500
Stephen Setliff: to do, qualifications make sure you take an application looking for the MVRs. All this stuff that would provide us with a shield that it would allow us to say we did everything that the Federal Government said that we had to do relative to onboarding this employee. Therefore, we can’t be liable for negligent hiring and retention.

153
00:36:27.610 –> 00:36:28.890
Stephen Setliff: That’s not true.

154
00:36:29.080 –> 00:36:38.099
Stephen Setliff: As a matter of fact, the law across the United States is the minimum that you must do is what the FMCSA. Regulations articulate.

155
00:36:38.190 –> 00:36:55.709
Stephen Setliff: Whether you go past. That is often a question of whether it would be reasonable to go past. That is a question that is typically left for the jury. Just know that compliance with the FMCSA. Regulations in and of themselves is not a get out of jail free card when it comes to the defense of a

156
00:36:55.720 –> 00:37:10.090
Stephen Setliff: negligent hiring and retention claim, and to be more put more point on, that the courts will still let plaintiffs, like claimants, pursue those types of claims, even when the regulations have been met.

157
00:37:10.570 –> 00:37:21.730
Stephen Setliff: and I would say, God help us, if, for whatever reason, during the hiring process, we did not meet one of those criteria, because failure to meet those criteria is sounding to death. Now

158
00:37:22.230 –> 00:37:24.649
Stephen Setliff: let’s switch a little bit from hiring.

159
00:37:24.940 –> 00:37:35.070
Stephen Setliff: because, again, hiring is one of those things that you want to think about preemptively hiring is one of those things that you want to have in place before claim ever happens. And let me also mention to you

160
00:37:35.150 –> 00:37:51.550
Stephen Setliff: the hiring process, when done correctly, can become a sword for a guy like me. Our drivers, God knows our drivers are going to make mistakes from time to time, and oftentimes I find myself in a situation where it’s hard to defend the conduct of a driver.

161
00:37:51.550 –> 00:38:12.200
Stephen Setliff: but I want to be able to defend the integrity of the company. I can defend the integrity of the company well to keep a jury from getting mad at the company, but hopefully and giving me a running start on defeating the bad company story. If we pay particular attention to the hiring process. If I could say.

162
00:38:12.210 –> 00:38:33.240
Stephen Setliff: Look, look at everything we did. We had our application vetted. We’d asked for references. We asked for background. We asked for criminal history. We conducted social media searches; we did comprehensive interviews. Our guy who does interviews is the most trained. Interview. Guy, in the Western Hemisphere. We did all of this to try to make sure we had hired the right guy.

163
00:38:33.650 –> 00:39:02.919
Stephen Setliff: That’s pretty good stuff. That’s pretty good indication that we, as a company, care about how it is that we’re doing business, because I’m here to tell you that best defenses to these types of claims are number one. Don’t have an accident or number 2. If you have an accident, run a company where a guy like me can stand up and say that not only are we not a bad company, but we’re also damn good company. We try to do things the right way. Look at the time, attention and resources we pay to the hiring process. So, understand.

164
00:39:02.920 –> 00:39:10.500
Stephen Setliff: this is not just things that you need to do from a defensive posture. This is something that allows us to be aggressive when it is done correctly.

165
00:39:10.910 –> 00:39:17.869
Stephen Setliff: that’s all. Hiring retention is a little bit of a different deal, because retention now means that we have on board this process.

166
00:39:18.500 –> 00:39:25.410
Stephen Setliff: and the claim that will come from the other side is after onboarding this guy. Even if his hiring was appropriate

167
00:39:25.510 –> 00:39:50.300
Stephen Setliff: and the situation they’d like to be in is to say, you never should have hired him, and good God! After you hired him. You knew you should have gotten rid of it. But sometimes we’re in a situation where okay? He passed master in the hiring process. But something occurred after he was employed which nominally put us on notice that we shouldn’t have retained him then that’s the real crux of that type of claim. It’s the idea that the employee.

168
00:39:50.300 –> 00:40:01.200
Stephen Setliff: once he was hired, once we had deployed, this individual did something that made it known to us, or should have made it known to us that this employee was unfit

169
00:40:01.240 –> 00:40:11.899
Stephen Setliff: for continuing in the job to which we had that employee task, and because of that unfitness the plaintiff suffered reasonably foreseeable harm.

170
00:40:12.260 –> 00:40:17.740
Stephen Setliff: So, what kind of things. Are you going to see relative to that? What kind of things are going to get looked at?

171
00:40:18.152 –> 00:40:26.009
Stephen Setliff: And this is where. Now I’m going to start this by saying the same thing to you here, what is your retention? Standard? Do you have one?

172
00:40:26.090 –> 00:40:56.050
Stephen Setliff: If I could? Of the 225 people on this call right now, if I could go right down the line and say, Tell me your retention. Standard, tell me your retention. Standard. What would you say, and how would you handle the follow up questions that again? Most assuredly going to come in any type of deposition about this. How did you derive your retention. Standard. How long has this been your attention? Standard as your retention standard ever changed. If your retention standard has changed, why has it changed? Who had input on the retention standard. And

173
00:40:56.050 –> 00:41:18.299
Stephen Setliff: just like with the hiring, the answer can’t be well. The insurance company continued to say it was okay for us to keep them on the policy, the company you need to be able to articulate what your retention standard is, and you need to be able to articulate how you got to where it is that you are at present. So, what are the things that you need to look at relative to retention and the things that can get you in trouble.

174
00:41:18.350 –> 00:41:36.670
Stephen Setliff: What’s the employees work record look like since the time they have been with you? Are you getting complaints from other employees about this individual. Are you getting complaints from customers about this individual? Is there any incident of improper behavior? Typically, Job related improper behavior? But

175
00:41:36.670 –> 00:41:51.970
Stephen Setliff: if there are instances where there’s substantial, improper, improper behavior off the job. You might get tarred with that as well, so things that could be reasonably brought to your attention about this employee on the job or off the job are things that you need to pay attention to.

176
00:41:51.990 –> 00:42:12.000
Stephen Setliff: And what, if any, has there been any observation, improper behavior by managers and supervisors. So, you can imagine the kind of things that, particularly in the trucking world, that you’re going to need to be on top of monitoring of driver performance, particularly real time monitoring of driver performance driving records and adherence to company policy.

177
00:42:12.800 –> 00:42:38.540
Stephen Setliff: This one gets a little sticky sometimes right, because I know a lot of folks out in the world. John works for me, and John goes, and he, John’s been here for 4 years. He’s never had a problem driving this vehicle on the job or off the job. We pull an MVR. For John, 1st of January. It looks good. The second of January. John is somewhere in West Virginia after a mountaineer game he gets drunk as hell and gets a DUI.

178
00:42:38.600 –> 00:42:43.350
Stephen Setliff: and John never tells me, and John never does anything to bring that to my attention

179
00:42:43.400 –> 00:43:03.649
Stephen Setliff: that that creates a dangerous situation. So, to the extent that you can be, a lot of folks have access to a lot of folks. Use real time monitoring. I would encourage you to use as much real time monitoring as you possibly can, saying that you had something in your handbook or your policy manual obligating John to tell me that he got a DUI sounds nice.

180
00:43:03.690 –> 00:43:30.749
Stephen Setliff: but it won’t make that much of a difference when we get blistered because of that. So, what is the foundation for dealing with negligent retention risk? Well, it starts with trying to hire the right people, right? That’s where the 2 of these kinds of interlocks are hiring the right people and making sure you’ve done your good interviews and your reference checks and your background investigation that you’re set for that. What are the other things that you want to do?

181
00:43:31.670 –> 00:43:55.580
Stephen Setliff: We want to have systems that allow us to make sure that our drivers comply with the FMCSA. Regulations, that we are monitoring them, that we are set up to get any kind of reports of any violations, that they are told that they’re to bring those things to our attention, and hopefully that we have some kind of real time monitoring. I would encourage you to make sure that relative to retention, you are having proactive training

182
00:43:55.660 –> 00:44:03.080
Stephen Setliff: training. That is, dynamic training that deals with the job they’re being asked to do in the place they’re being asked to do it. The equipment they’re asked to be

183
00:44:03.080 –> 00:44:26.440
Stephen Setliff: do it with. I would encourage you to have consistent and documented performance reviews, where, if there is a problem with respect to a performance that it’s not swept under the rug that instead, any type of problem is put up on the table and it’s dealt with, and that if and to the extent, there’s remedial training, necessary coaching or counseling that’s necessary that that happens, and that the company can show.

184
00:44:26.440 –> 00:44:40.820
Stephen Setliff: Not only was it aware of the problem, but it dealt with until whatever point that the recurrence of those problems violates your standard for attention. Then you get the guy, get rid of the guy. But making sure that you’re doing reviews and that you’re dealing with issues is important.

185
00:44:40.820 –> 00:44:56.620
Stephen Setliff: A vigorous drug and alcohol testing program obviously is a cornerstone defense of this and making sure that you are consistently enforcing policies, including disciplinary policies relative to all your employees. All of that is critical.

186
00:44:56.620 –> 00:45:13.869
Stephen Setliff: Just like with hiring. You would think that complying with the standards on an annual basis that drivers have to comply with. Pull. An annual driver record getting medical and physical qualifications, having DQ files all of that would inoculate the company. It will not.

187
00:45:13.880 –> 00:45:26.340
Stephen Setliff: What that will do is provide the baseline that a company needs to comply with relative to retention, but a court will still let a negligent retention claim go forward. So bottom line

188
00:45:26.510 –> 00:45:42.540
Stephen Setliff: be on top of what your employees are doing. However, you need to do that for folks who have cameras and trucks, and to the extent that they’re not observational. Some of the States have had some observational headaches for us now that we’re having to deal with it.

189
00:45:42.790 –> 00:46:08.450
Stephen Setliff: I like random monitoring and driver performance. I like any time if their camera and truck and a driver has an issue that we deal with it. Whatever telemetric that you’re using, using those to monitor driver performance and to be on top of what it is that your drivers are doing. Knowing in the world that we live in the only thing worse than not having some type of sophisticated technology to monitor driver performance is having it and not using it.

190
00:46:08.490 –> 00:46:28.420
Stephen Setliff: So, if you have it, use it. When you get an over speed alert, or you get an unsafe turn alert, or you get any type of unsafe operational, alert. Do something about that. Don’t just bury it in a file somewhere for some plaintiff’s lawyer to find 3 or 4 years down the road and claim that you knew this guy was doing things like that, and you didn’t do anything to

191
00:46:28.420 –> 00:46:44.310
Stephen Setliff: to try to deal with it again. We’ve talked about training for me at every presentation I give, whether it’s on hiring, retention, equipment, or whatever training is one of those things that I believe you just can’t do enough of. So, making sure that you’re continuously

192
00:46:44.310 –> 00:46:50.740
Stephen Setliff: having dynamic training for your guys will go a long way toward helping us deal with retention, things

193
00:46:50.890 –> 00:47:07.479
Stephen Setliff: or retention issues other things. I want you to think about, man. Stay on top of your driving records, particularly in the hiring processes, and certainly once you have got somebody on board and make sure your standards kind of contemplate the kind of statistics that we see

194
00:47:07.480 –> 00:47:29.250
Stephen Setliff: which is. Drivers with clear records, amazingly enough, have a lower crash rate, it is not hard to figure out the link there, but having those kinds of things baked into your standards is a wonderful thing to do. So just go beyond basic checks, thoroughly investigate driving records. I also encourage people to have extended probationary periods.

195
00:47:29.250 –> 00:47:43.880
Stephen Setliff: My blood always runs a little cold when some of the folks that I represent when I when I talk to him that you know John showed up on Monday. Well, we walked through, we interviewed him that morning. He filled out an application.

196
00:47:44.040 –> 00:47:48.549
Stephen Setliff: We walked around the truck, and Monday afternoon he was on the job site with the truck.

197
00:47:49.120 –> 00:48:03.809
Stephen Setliff: That just sounds bad. It sounds bad. John might have 25 years of driving experience, but it just sounds bad to people in this day and age. And again, think about your probationary periods and your initial training periods for what it’s going to sound like to a jury.

198
00:48:03.810 –> 00:48:28.170
Stephen Setliff: I want to be able to tell the story that John showed up. He came in. He filled out an application. We did our background check. We did our references. We checked his prior employment history. We checked the Internet. We checked social media. We decided we’re going to make John an offer. John comes back in. He does whatever drug and alcohol testing he needs to do. And then we spent some time walking around. We showed John. This is the truck that you’re going to be using.

199
00:48:28.360 –> 00:48:52.280
Stephen Setliff: and walked him around and showed him all the operating characteristics of that truck. Let John get in the truck, and John rides with somebody for a day or 2, or maybe even a week or 2, and then John drives the truck and has somebody ride with him for a day or 2, or a week or 2. Then John has the truck himself, and we have an opportunity to observe John operating the truck from various locations and using either our telemetric

200
00:48:52.360 –> 00:49:11.719
Stephen Setliff: or using our in-cab video. That’s the kind of story that I want to be able to tell. And that’s why I think extended probationary periods are good. That’s why I think comprehensive road tests are good to really see what a driver can do in a variety of different circumstances, and again train.

201
00:49:11.780 –> 00:49:34.510
Stephen Setliff: and to really help get ahead of the retention claims. Make sure that anytime there is some type of event that has gotten your attention, that you’re training specifically to that event, some type of coaching or counseling to deal with it. If you do all these things, then you ought to not only see further inoculation with respect to hiring and retention claims, but you also

202
00:49:34.510 –> 00:49:52.970
Stephen Setliff: should see some improvement in your CSA. Scores other things to think about again relative to the hiring and retention process is making sure your maintenance program is good. You’re mandating pre-trip inspections, and you’re doing all you can do to cultivate an appropriate safety culture.

203
00:49:53.120 –> 00:49:57.240
Stephen Setliff: And speaking of safety cultures, let me mention to you one of the things

204
00:49:57.660 –> 00:50:09.970
Stephen Setliff: that I would encourage folks to do, especially with respect to hiring and retention. Call your lawyer whoever does your work, your legal work, whoever that is, call them, and get them to come. Talk to your drivers.

205
00:50:09.970 –> 00:50:33.980
Stephen Setliff: drivers as much sophistication. That’s on this phone call right now. And people who have been in and through the claims process, the lawsuit process have dealt with things like this. I promise you. Your drivers are largely ignorant of the way this works. They have no idea. All they know is what they see on TV. All they know about a courtroom is probably what they’ve seen watching Perry Mason.

206
00:50:34.330 –> 00:50:37.730
Stephen Setliff: or whatever the new lawyer shows are. Maybe I’m dating myself.

207
00:50:37.860 –> 00:50:54.949
Stephen Setliff: Have somebody come, talk to your drivers and train up your drivers about the kind of things that they could expect to encounter, and how that’s going to play out in a courtroom, and whoever’s doing your legal work doesn’t want to do that. You might want to think about getting somebody else who wants to do your legal work.

208
00:50:55.000 –> 00:51:09.439
Stephen Setliff: Part of this process also specific to hiring and retention, is your handbook. Your handbook is going to be a feature of any negligent hiring and retention claim. So how’s your handbook look like? When’s the last time you updated your handbook?

209
00:51:09.440 –> 00:51:27.699
Stephen Setliff: I would tell folks on this call if you don’t have a handbook bad on you, you should. It’s 2026, if you need a template of a handbook for, and to get an idea of what it looks like. There’ll be a code on this slide at the end. Send me an email. Just ask. I’ll send you a template

210
00:51:27.840 –> 00:51:28.830
Stephen Setliff: for free.

211
00:51:29.430 –> 00:51:35.639
Stephen Setliff: I hate that word, but I will do it in the context of this presentation to help people get a run and start on it.

212
00:51:35.690 –> 00:51:56.449
Stephen Setliff: Your handbook can be a big shield on hiring and retention claims, because again, it’s a way for me to take articulation of what the company’s values are and use it as a sword to say that we are trying to do things the right way. We hired these guys, and after they were hired, they got a handbook. This is what the Handbook said.

213
00:51:56.450 –> 00:52:08.310
Stephen Setliff: Even if the employee violated or did something wrong, or broke some law, or did something to cause an accident, the Handbook provides a way for me to say we are a good company. We are trying to do things the right way.

214
00:52:08.920 –> 00:52:14.050
Stephen Setliff: I would encourage you relative to the handbook to pick a date once a year. This is the way I do it.

215
00:52:14.630 –> 00:52:26.750
Stephen Setliff: I pick a date once a year where at lunch I sit down and have the very invigorating experience of reading my handbook, because I want to make sure that my handbook still reflects the way that we do things around here what our policies are.

216
00:52:26.920 –> 00:52:35.190
Stephen Setliff: Excuse me, and what our procedures are. The only thing worse than not having a handbook is having a handbook that says you do things a certain way, and then you don’t do it that way.

217
00:52:35.320 –> 00:53:03.909
Stephen Setliff: So, a well-crafted handbook should be a compilation of your legal, your operating, and your safety folks so that legal can tell you what you can do. Operating can tell you how you are doing it, and your safety folks can tell you how you ought to be doing it, and that’s what the Handbook should reflect. You should look at it at least annually, and make sure that it’s up to date, and that it’s good again, it serves as a very powerful sword for us in the defense of these kinds of cases, particularly retention cases.

218
00:53:05.090 –> 00:53:06.690
Stephen Setliff: other

219
00:53:06.840 –> 00:53:14.479
Stephen Setliff: management practices for you to think about again. You want to constantly be operating or analyzing your operational measures.

220
00:53:14.480 –> 00:53:38.949
Stephen Setliff: The metrics, I should say your crash rates, fuel mileage off-road, miles overall operating costs, making all on road observations, to have a way to see how you guys are doing things using your telematics and again using them, really digesting the information that you’re getting to effectively. Monitor driver training, having automated triggers is a good idea, and you might even want to consider speed management. Those things can help

221
00:53:38.950 –> 00:53:43.350
Stephen Setliff: are all helpful relative to retention in the defense of retention claims.

222
00:53:43.940 –> 00:53:47.470
Stephen Setliff: Let me also suggest to you along the same lines.

223
00:53:47.580 –> 00:54:14.039
Stephen Setliff: One of the things that can be immensely helpful relative to the defense of hiring and retention claims is having a 3rd party come in and just look at how you do things, and a lot of people will use their insurance. For this. I’m more wed to the idea of who your lawyer is. Whoever is going to defend you on these kinds of claims, or whoever you’ve got a relationship with, comes in and sits down and walks through with you.

224
00:54:14.050 –> 00:54:36.740
Stephen Setliff: How are you doing your hiring process? What does your retention process look like? What does your training program look like? What do your equipment, repair maintenance and inspection program look like. And this is based on how you’re currently doing it. This is how it’s going to play out in court. This is what it’s going to look like. These are things that you need to understand what the risk is with the way you’re doing things, whether that’s astronomical or de minimis.

225
00:54:36.790 –> 00:54:41.629
Stephen Setliff: And these are things that you may want to consider changing relative to any of that

226
00:54:41.730 –> 00:54:52.450
Stephen Setliff: doing. That once every year or 2 is a very cheap insurance policy to make sure that you are again as inoculated as you can be for these types of cases.

227
00:54:53.200 –> 00:55:14.879
Stephen Setliff: I’ve talked some about the internal review process. But make sure you monitor your drivers. Having an appropriate disciplinary framework for retention is all very critical. That’s tied up in the idea of having an articulable standard of how it is that you’re going to retain folks and have in place an appropriate penalty structure. However, whatever that penalty is going to be

228
00:55:15.253 –> 00:55:23.480
Stephen Setliff: again. I’m a coaching and counseling Guy when somebody steps out of line, so I like to coach and counsel right up to the time that we discharge somebody.

229
00:55:26.540 –> 00:55:51.410
Stephen Setliff: I’m sure it comes as no mystery to anybody that just like with hiring cases, retention cases can be catastrophic for failing to pay attention to some of the details that I’ve mentioned to you. There are 2 cases that I would point out to you, so you can kind of get a flavor, for that one is the Denton case. This is a company that really didn’t do much onboarding with respect to once the

230
00:55:51.500 –> 00:56:08.530
Stephen Setliff: once a driver was hired no real training upfront. And then, within just a few years of application, multiple accidents, multiple moving violations, a whole bunch of issues that had happened. And the company there got hit for 54 million dollars.

231
00:56:08.970 –> 00:56:19.809
Stephen Setliff: Probably the mother of all negligent retention cases is the Adjd case that came out of the great Police Free State of Florida.

232
00:56:19.960 –> 00:56:27.150
Stephen Setliff: That involved the driver and caused a 2-vehicle accident that ultimately resulted in the death of an 18-year-old college student.

233
00:56:27.360 –> 00:56:30.890
Stephen Setliff: and the facts in this case are just awful.

234
00:56:31.010 –> 00:56:38.520
Stephen Setliff: The kind of things that the driver had been doing, that lack of background investigation, including inability to read English.

235
00:56:39.000 –> 00:56:46.029
Stephen Setliff: and just the multitude of moving violations and instance, that this driver had been involved. With

236
00:56:46.180 –> 00:56:52.850
Stephen Setliff: long story short, the jury in that case returned a verdict for a billion dollars a billion with a B,

237
00:56:53.250 –> 00:56:59.250
Stephen Setliff: that’s the kind of thing that can happen if you don’t pay attention to the details here.

238
00:56:59.750 –> 00:57:15.459
Stephen Setliff: You heard me say at the beginning that the real reason that the bad guys want to pursue these kind of claims is because it opens up a much broader evidentiary scope, and in English, what that means is, if there are things in John’s background that don’t sound particularly good.

239
00:57:15.670 –> 00:57:23.170
Stephen Setliff: They want the jury to hear all of it. They want the jury to hear about all the prior moving violations, all the accidents, all the problems with prior employment

240
00:57:23.270 –> 00:57:51.729
Stephen Setliff: maybe being dishonorably discharged. Who knows whatever it is in somebody’s background that could help paint John, my driver, in a bad light. They want to get that in front of the jury, so that the jury thinks that John’s a bad guy to help them ultimately further their narrative. Their tail end narrative, which is the company is a bad company, because you know who hires bad guys, bad companies. And that’s exactly the story that they want to tell. And that’s why they want to go after.

241
00:57:52.779 –> 00:57:59.799
Stephen Setliff: Other thing to mention is negligent hiring and retention claims because they are independent basis for liability.

242
00:57:59.950 –> 00:58:27.369
Stephen Setliff: can trigger punitive damages. They can provide a separate and independent basis for punitive damages. So even if the underlying facts of the accident itself were not necessarily reckless or wanton. If, during the hiring process the plaintiff’s attorney can demonstrate that there was sufficient recklessness or lack of attention to detail in the hiring process that could trigger an independent basis for punitive damages in and of itself.

243
00:58:28.529 –> 00:58:33.689
Stephen Setliff: It is a lot to take in. And it is something that

244
00:58:34.220 –> 00:58:47.029
Stephen Setliff: John. Now you guys must go back to the camera. But it’s something that has become part of the new game plan, or at least the game plan has been utilized, at least for the last 10 years, by plaintiffs, lawyers, and the handling of these cases.

245
00:58:47.330 –> 00:58:58.769
Stephen Setliff: I will say again what I said at the beginning to get yourself as well, and what I usually the image I try to lead folks with this particularly the hiring or the retention claim is this.

246
00:58:58.890 –> 00:59:16.299
Stephen Setliff: whoever your HR person is, they’re sitting, and whatever the process is, as a decision is getting made, as whether we’re going to hire John to be a driver for us. I want you to think about putting that decision on a piece of paper and standing up in front of a jury wherever it is that you operate commercial vehicles

247
00:59:16.300 –> 00:59:33.950
Stephen Setliff: and ask yourself whether you’re comfortable with what that decision is. If you’re getting clinch factor associated with that decision. It probably tells you about all you need to know. Similarly with retention, as you make retention decisions, putting that retention decision up on a piece of paper and standing up in front of a jury.

248
00:59:34.020 –> 00:59:37.470
Stephen Setliff: Are you good with it? Are you comfortable with it? Can we defend it.

249
00:59:38.040 –> 00:59:57.640
Stephen Setliff: or is it one of those things as a trial lawyer. I will tell you almost any time I go into a situation where I know I must start explaining things. I know I’m starting behind the 8 ball. So, if either of those decisions are going to put you in a position where you’ve got to start immediately from the outside of the case explaining things. Then you may want to rethink it.

250
00:59:58.760 –> 01:00:01.789
Stephen Setliff: That’s what I’ve got for you. If you have any questions, I’ll be happy to answer.

251
01:00:02.650 –> 01:00:28.030
Steve Kessler: Great, Steve. Thank you all very much. There, there are a lot of requests for the handbook template that you mentioned, so we’ll have. We’ve tracked. Who’s asked for that, and we’ll make sure you get that list, Steve, so you can send those out. One thing I want to say is one of you. At the very beginning you talked about the 4 big things, the core things, and one of those is training.

252
01:00:28.270 –> 01:00:40.440
Steve Kessler: and I’m going to pop up a little poll question. Here we have with Steve put together what we call the ultimate Defense video Series.

253
01:00:40.690 –> 01:01:09.070
Steve Kessler: This is some premium content that you can use. There are, I think, 25 videos. Altogether. There’s 1 general introductory video. There are 14 that are designed for company employees, and 10 that go out to the drivers. And this is all about accident procedures, evidence, things that the drivers need to do and not do at the scene of an accident

254
01:01:09.070 –> 01:01:23.259
Steve Kessler: and, for the company employees. It’s all about making sure you’ve done those 4 big things and done them correctly, talking about the handbook, drug and alcohol testing, training and accident checklist.

255
01:01:23.420 –> 01:01:29.809
Steve Kessler: And this product also comes with access to a digital checklist.

256
01:01:30.030 –> 01:01:44.480
Steve Kessler: one that the company can use to make sure that they’re doing all the right steps before, during and after a crash. And the same thing, one for a driver to go through the steps necessary at the scene of a crash.

257
01:01:44.670 –> 01:01:55.619
Steve Kessler: So, I’m asking any of you out there if you’d like a demo of this video series to answer yes to the poll, and we’ll make sure we get back with you and give you all the details.

258
01:01:55.910 –> 01:02:11.909
Steve Kessler: Also, I see several of you have noticed that if you’re a certified director of safety under the NATME program, we can send you out the certificate to make sure that you can get your recertification points from having attended the webinar.

259
01:02:12.510 –> 01:02:16.750
Steve Kessler: and before everybody else gets off. I have one question myself.

260
01:02:16.860 –> 01:02:41.399
Steve Kessler: You talked about performance reviews as being important with the drivers. Is it? Is there any danger in some of the information that you might put there that would be discoverable by a plaintiff lawyer? In other words, don’t say things like, well, you almost killed somebody today, or something like that. Is that dangerous? How should things like that be worded.

261
01:02:41.700 –> 01:02:50.570
Stephen Setliff: Yes, that’s dangerous training. When we talk about it, we talk about training.

262
01:02:50.800 –> 01:03:14.570
Stephen Setliff: It’s not just. I always talk about training in multitude of context training that occurs before the time an accident happens. That’s for a second. It’s training at the time that an accident happens, and 3rd training after that an accident happens that is, knowing what to do, what to say and how to say it. So, all employees, all supervisory employees, should probably have some kind of training

263
01:03:14.770 –> 01:03:16.780
Stephen Setliff: not to do things like a

264
01:03:16.930 –> 01:03:38.900
Stephen Setliff: write stuff like that and performance reviews it should be. It should be specific enough to indicate that we had addressed a particular problem, but not specific enough to suggest that there was some horrific or overriding danger associated with it, just like people should be trained. I’ve had a couple of very good clients I’ve had to work with to correct things like

265
01:03:39.631 –> 01:03:44.948
Stephen Setliff: John goes out, and I’m just picking on John today because he wouldn’t. But John goes out and gets in an accident, and

266
01:03:45.818 –> 01:03:53.560
Stephen Setliff: the 1st thing I write to one of my partners is, I knew John was a dumbass. It was only a matter of time before he was hurt somebody.

267
01:03:53.560 –> 01:03:53.960
Steve Kessler: Yeah.

268
01:03:53.990 –> 01:03:59.329
Stephen Setliff: So, understand just it’s 1 of the things I really try to underscore in the world we live in

269
01:03:59.630 –> 01:04:24.940
Stephen Setliff: having a relationship with your lawyer having a relationship with your lawyer, who can help you with what needs to happen, with how your training is supposed to look like with respect to things like coaching and counseling employees. What are you supposed to do at the time of an accident, and what are you supposed to do after the time an accident happens. Those things are not intuitive. They’re not. And understanding how all that can play out in the context of a lawsuit is critically important.

270
01:04:26.760 –> 01:04:38.689
Steve Kessler: Great one last question, and we’re a little over our time. But there’s a question here from Dominic. He’s asked. He’s saying I wanted to ask about something I recently observed.

271
01:04:38.850 –> 01:05:02.650
Steve Kessler: Shortly after an accident occurred, several attorneys began reaching out, offering their legal services to the individuals involved. Almost immediately after that incident this happened so quickly that it raised some questions. How is it that attorneys can get the contact information of parties involved so quickly after an accident.

272
01:05:02.900 –> 01:05:06.579
Stephen Setliff: Are they also contacting the other party? In the case.

273
01:05:06.820 –> 01:05:13.640
Steve Kessler: I’m trying to understand how the process works, and whether this kind of outreach is standard or regulated in any way.

274
01:05:13.830 –> 01:05:19.059
Stephen Setliff: So, I’m assuming the outreach was to the nominally injured potential climate type.

275
01:05:19.290 –> 01:05:20.810
Steve Kessler: That’d be my guess. Yeah.

276
01:05:20.810 –> 01:05:22.060
Stephen Setliff: Yeah. Well, one of the

277
01:05:25.770 –> 01:05:28.919
Stephen Setliff: good plaintiffs, law firms, monitor police scanners.

278
01:05:29.250 –> 01:05:32.630
Stephen Setliff: They monitor police scanners for the occurrence. That happened in an accident.

279
01:05:33.200 –> 01:05:46.069
Stephen Setliff: Some perhaps less than reputable law firms have relationships of some sort with folks who provide emergency services, either law enforcement or EMTs where they’ll get.

280
01:05:46.210 –> 01:05:57.130
Stephen Setliff: They’ll just get a call, hey? Heads up. There’s been an accident so and so, and they can get the names of it. I will tell you that it. I will probably investigate myself. And my guys probably investigate.

281
01:05:57.920 –> 01:06:03.910
Stephen Setliff: I don’t know. 70, 80 crashes a year, and I would bet you full.

282
01:06:04.090 –> 01:06:09.070
Stephen Setliff: a full 2030% of those bad guys know about them before I do

283
01:06:09.230 –> 01:06:16.950
Stephen Setliff: before I can. But by the time it takes my company to call either me or to call the insurer, who then calls me

284
01:06:17.100 –> 01:06:19.170
Stephen Setliff: the bad guys already know about it.

285
01:06:19.170 –> 01:06:20.259
Steve Kessler: They already know.

286
01:06:20.260 –> 01:06:25.439
Stephen Setliff: Knowing what to do and how to deal with this stuff is critically important.

287
01:06:27.410 –> 01:06:42.099
Steve Kessler: Very good, Steve. If there are any more questions popped up that we didn’t get to, I’ll make sure I forward those on to you, so you can reply if necessary, or you can send these to me. Everybody should have my email was on all the invites.

288
01:06:42.180 –> 01:06:59.529
Steve Kessler: But, Steve, thank you, sir. This was great information. There have been a lot of requests for the recording of this webinar, so it can be passed on to other folks. I hope you all took the time to scan the QR. Codes there, so you can get more information about Steve and his firm.

289
01:07:00.920 –> 01:07:04.899
Steve Kessler: Great information! I think it’s

290
01:07:05.210 –> 01:07:18.029
Steve Kessler: it’s going to be an eye opener to a lot of companies out there that you really, there’s a lot of detail here. I think a lot of companies think they have all kinds of buttoned up, but it must be granular, doesn’t it?

291
01:07:18.030 –> 01:07:19.589
Stephen Setliff: It does extraordinarily so.

292
01:07:20.000 –> 01:07:42.720
Steve Kessler: Absolutely, very good. We’ll send a recording link out to everybody that registered or attended, so you can share it with others. Steve, once again. Thank you, sir. Great information, thanks to everybody that joined us today, Mark. Thank you, and we hope to see you all at our next webinar once again. Thank you, sir, thank you, Steve.