Ken Levinson to Speak at Connectionology Webinar

November 17, 2021 by Levinson and Stefani Leave a Comment

On Tuesday, November 30th, Levinson and Stefani’s own Ken Levinson will be speaking in a free Connectionology webinar named “Over $400M in Verdicts, Thousands of Focus Groups: Lessons Learned.”

Levinson is thrilled to be part of this event as he believes deeply in attorneys sharing their unique methods and insight into helping their clients, because any lawyer should be willing to expand their own perspectives as often as possible.

“These are lessons about what the best lawyers in the country do to win their cases and their mentality in doing so,” explained Levinson. “One takeaway I’ve discovered from all the lawyers I’ve worked with–which includes some of the best in the country–is that they’re always willing to improve and learn. They never feel like they have all the answers, and they’re always looking to better themselves as trial lawyers and learn the best ways to tweak their cases for the better.”

Also speaking at the virtual conference will be Lauren D. Fraser or Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C., and moderating will be Destiny R. Barbosa of Romano Law Group.

“We’ll also discuss some things lawyers make mistakes about,” Levinson continued. “For instance, they might have a great theme, but the wrong case. They’ve got to match, otherwise they’re going to lose. We’re going to talk for an hour or so and try to help lawyers help their clients.”

Any plaintiff and criminal defense attorneys, as well as paralegals, are invited to attend the webinar, which Levinson notes will be beneficial for anyone looking for an outside perspective into the world of focus groups and successful cases.

“We get lost in our own world and our own silos and how we prepare cases,” he said. “We sometimes get lost in the weeds and in the details of our cases. This event is a nice way to step back and see what other lawyers in the country are doing to best help their clients, get more perspective on what some other trial attorneys do to prepare, and how we can use that insight to help our clients.”

The free webinar event will take place between 3:00 P.M. and 4:30 P.M. EST–plaintiff attorneys, criminal defense attorneys, and paralegals can register here.

Lack of Trucker Candidates Worsens Driver Shortage

November 16, 2021 by Levinson and Stefani Leave a Comment

“I think for a lot of drivers last year, they saw that they couldn’t get home, and once they did get home, they saw the things they were missing in their families’ lives, and it makes you take a look at that,” said vice president of client services for Conversion Interactive Agency, Steve Sichterman, in regards to the growing worries over the truck driver shortage.

The continuing shortage, tough labor market, and increasing number of drivers testing positive for alcohol or drugs are causing relentless obstacles for trucking industry companies and their recruiters–a major concern that was discussed during the annual Recruitment and Retention Conference. This was the first meeting of its kind for recruiting professionals to gather since before the pandemic.

Recruiters explained that they have witnessed more and more truck drivers seeking roles allowing them to drive regionally instead of over-the-read and to be at home much more often than in the past.

“I think all of us have taken a look at our lives and said, ‘This is where I want to be and what I want to do,’” Sichterman continued.

As there aren’t currently sufficient numbers of potential new drivers entering the industry, trucking company recruiters are now competing heavily against one another.

“In this market, unless you’re a top-tiered paying company and your drivers are going home every day, it’s going to be a challenge,” said vice president of driver recruitment at Roehl Transport, Tim Norlin. “There is no silver bullet. We’re all short [on] drivers, and there are not enough coming in.”

To incentivize drivers to sign on with the company, Roehl has boosted wages to over $1,400 a week–an increase to $72,000 a year from 2020’s $59,800 a year.

“All we are doing is chasing each other’s drivers with higher cents per mile, a bigger sign-on bonus, more paid time off,” Norlin said.

Making matters worse, 91,370 truckers were deemed ineligible of operating a commercial motor vehicle after a positive drug or alcohol test; of those, only less than 20,000 have requested reinstatement, according to program chief for FMCSA’s Drug and Alcohol Clearinghouse, Bryan Price. Over half of the disqualifications found were for marijuana or other violations involving THC, and another 13% included drivers who refused to take a test at all.

“These aren’t tests verified with the results being marijuana or cocaine,” said price. “This is higher than I expected it to be, and a common scenario is: a driver is selected for a random test, and they say, ‘You know, I’m going to quit this company, I’ve got another job lined up, and I’m not taking the test.’”

Still, some aspects of current industry upgrades may help ease the shortage, such as the boosted positive public attention surrounding truck drivers as they stepped up to our nation’s front lines during the pandemic, which Sichterman and Norlin believe helped raise current enrollment numbers at driver training schools.

Veterans in Trucking’s vice president of business development, Matt Roland, also noted that there should be a much stronger focus on recruiting military veterans into the industry–especially as one-quarter of all trucker drivers are already veterans.

“We want trucking companies to identify the military veteran population, and we want to connect the veterans to trucking companies, and we want to ensure those trucking companies have the resources available to hire these veterans,” he said.

There has also been positivity around Biden’s $1 trillion infrastructure bill, which incorporated a pilot program to help younger drivers become qualified to drive interstate and be more easily hired by trucking companies.

“I think this is a step in the right direction,” said Jeremy Reymer, founder and CEO of DriverReach. “If the data proves young people can drive [safely], even [more safely] than their counterparts who are over 21, I think it will lead to a longer-lasting federal rule, but that may be five or 10 years down the road.”

NHTSA Says Roadway Deaths Rose 18.4% In First Half of 2021, Ken Levinson Discusses Need for Safe Driving

November 15, 2021 by Levinson and Stefani Leave a Comment

In the first half of 2021, the United States saw 20,160 deaths in vehicle crashes on its roadways. This number is an 18.4% increase from the same period in 2020 (which had 17,020 deaths) and is the highest number of roadway deaths in this timeframe since 2006.

This fatality number increase, released by the National Highway Traffic Safety Administration, is the largest six-month increase to be recorded within the history of the Fatality Analysis Reporting System–a system that has kept track of roadway death statistics since 1979.

“This is a crisis,” said Pete Buttigieg, Transportation Secretary, when NHTSA published its “early estimates” report. “More than 20,000 people died on U.S. roads in the first six months of 2021, leaving countless loved ones behind. We cannot and should not accept these fatalities as simply a part of everyday life in America.”

Overall vehicle miles traveled during the first half of this year rose by around 173 billion miles (13%), according to preliminary data from the Federal Highway Administration. Because of this, the death rate for that time period also increased by around 1.34 deaths per 100 million vehicle miles traveled.

“After the declaration of the public health emergency in March 2020, driving patterns and behaviors in the United States changed significantly,” said the NHTSA Office of Behavioral Safety Research. “Of the drivers who remained on the roads, some engaged in riskier behavior, including speeding, failure to wear seat belts, and driving under the influence of alcohol or other drugs.”

Speeding in general was a major factor in roadway deaths during that timeframe, and extreme speeding became much more common as well, especially as many people were returning to their commutes following the pandemic’s stay-at-home orders.

“Traffic data cited in those reports showed average speeds increased during the last three quarters of 2020, and extreme speeds, those 20 miles per hour or more higher than the posted speed limit, became more common,” said NHTSA.

These numbers show clearly that many people feel compelled to behave more recklessly behind the wheel than they did pre-pandemic.

“The report is sobering,” said Steven Cliff, Deputy Administrator for NHTSA. “It’s also a reminder of what hundreds of millions of people can do every day, right now, to combat this: slow down, wear seat belts, drive sober, and avoid distractions behind the wheel.”

Levinson and Stefani’s Ken Levinson echoed this plea, noting that although these numbers don’t yet show the statistics for traffic deaths involving commercial motor vehicles, trucking companies need to do their due diligence in combating this safety crisis.

“It seems like it’s much more dangerous on the roadways these days, and that’s due to a lot of pressure due to driver shortages, companies not hiring safe drivers, not screening them or training them properly, and a lack of enforcement over a lot of safety rules,” Levinson said. “So, it’s definitely become more dangerous on the roadways. We all have to be cognizant of that, and we encourage everyone in the trucking industry to be aware of it and act accordingly. Hire safer drivers, enforce safety rules, and be diligent.”

It’s also increasingly important that passenger vehicle drivers are as alert and cautious as possible when on the road around heavy trucks, in addition to potentially reckless passenger drivers.

“We have to be really careful around trucks,” Levinson continued. “They’re large, dangerous, and you never know if a truck driver that’s sharing the road with you has exceeded his hours of service, hasn’t been properly trained, might be tired, or might have a health issue–so be careful to drive defensively near trucks.”

When FARS annual report files for 2020 become available this year and its final file for 2020 and annual report file for 2021 become available next year, we’ll have a clearer idea of the actual death counts between 2020 and 2021 and the percentage increases across the two years.

“These estimates will be further refined when the projections for the first nine months of 2021 are released in late December,” said NHTSA.

Truck Drivers Likely No Longer Exempt From Vaccine Mandate

November 13, 2021 by Levinson and Stefani Leave a Comment

Truck drivers had been exempt from an interim rule requiring all employees in large private companies to be vaccinated against COVID-19, but that may be changing soon.

“These are treacherous times for employers,” said C. Eric Stevens, a shareholder and employment law attorney. “Government mandates are a politically charged issue…[vaccines are] a very important issue for transportation.”

The final ruling that will require employees of companies (including trucking companies) of more than 100 to be vaccinated or undergo regular COVID-19 testing is currently being challenged in court, although the law is set to be implemented on January 4th of 2022.

Still, the 5th United States Circuit Court of Appeals granted an emergency stay of the requirement on November 6th, and the American Trucking Associations–along with various other industry organizations and state trucking associations–filed a lawsuit against the Biden administration regarding the mandate on November 9th.

In the lawsuit, the trucking groups claim that the mandate would be detrimental to the transportation workforce and the American economy itself, and that the Occupational Safety and Health Administration is overstepping its power by implementing such a requirement.

“Given the nationwide shortage of truck drivers, it is vital that our industry has the relief it needs to keep critical goods moving, including food, fuel, medicine, and the vaccine itself,” said ATA President, Chris Spear. “We continue to believe OSHA is using extraordinary authority unwisely, applying it across all industries at an arbitrary threshold of 100 employers that fails to factor in actual risks. We are weighing all options of recourse to ensure every segment of our industry’s workforce is shielded from the unintended consequences of this misguided mandate.”

As of now, the White House is recommending that businesses adhere to this requirement, although there is still confusion regarding how a trucking company would do so if ultimately required.

“How we manage exemption requests, that’s a hot-button issue,” said Stevens. “How do you obtain proof of vaccinations? That becomes tricky based on the size of your company and what state you are operating in–or state you operate in.”

Industry leaders are also being put under quite a bit of pressure with the current confusion at hand, Stevens added.

“What’s left for you is that you have federal guidelines that conflict with state guidelines, and you have state guidelines that say, ‘If you violate our state guidelines, you very well may be sued by individuals that are adversely affected,’ regardless of what the federal government says,” he said.

While the final ruling is determined, motor carriers should begin issuing their own internal requirements that are in the best interest of their employees, Stevens continued.

“When someone says they don’t have a COVID policy, I say, ‘Yes, you do. It may just be the way things are, but yes, you do have a COVID policy. And you might want to have one that’s a little more formalized.’”

Regardless, many state leaders have expressed concerns about the mandate, and have been working to challenge the law itself. Some of these officials include state Legislature members, Attorney General Herbert Slatery, and Governor Bill Lee.

“Many states, including the one that we are currently in, have enacted [their] own laws,” said Stevens during his presentation at the 18th annual Conversion Interactive Agency Recruitment and Retention Conference. “Often, the states feel the need to combat the federal government’s actions, and we have competing state laws and federal laws. OSHA takes the position that OSHA preempts state laws, and those states disagree with that. So, there are some issues to be aware of.”

For those in strong opposition to this mandate, it’s clear that avoiding supply chain disruption is much more of a priority than driver health and safety. Executive Vice President of Advocacy for ATA, Bill Sullivan, explained his concern that requiring truck drivers to become vaccinated will likely cause many of those truckers to either leave the industry, join a smaller company, or retire early. When ATA released a survey among its member fleets, it found that over one-third of drivers who responded noted that they would either leave their companies or quit their jobs altogether if their current companies chose to, or were made to, require a vaccine.

“Even if only 4% [of drivers] quit, that would be a catastrophe,” said Sullivan. “We agree with the president’s goal. We aren’t anti-vax. We are encouraging employees to be voluntarily vaccinated.”

Boosted Infrastructure Funding is Crucial for the Sake of Roadway Safety

November 12, 2021 by Levinson and Stefani Leave a Comment

It’s clear that much of America’s infrastructure needs a lot of work, and President Joe Biden recently visited New Jersey as part of his campaign to garner support for legislation undergoing debate by Democrats in regards to the investment of trillions of dollars into projects to boost social welfare, climate change, and road safety across the country.

Biden, along with New Jersey Governor Phil Murphy, discussed a state bridge that often cannot be closed without the use of sledgehammers. The two leaders cited this issue as evidence of major issues within infrastructure and the vast amount of reconstruction and repairs that are needed right now in many states.

The Portal Bridge is currently “a chokepoint, a bottleneck, an Achilles’ heel on the Northeast Corridor,” Biden said–a stark outlook for the most highly-used train bridge in the Western Hemisphere. The swing bridge owned by Amtrak Corp. and located over the Hackensack River is 110 years old, and “something goes wrong” about 15% of the time it’s opened, Biden said.

When the bridge needs to be closed, “literally, a sledgehammer [is needed to] knock it back into place–in the year 2021,” said Biden at the event for the bridge’s replacement groundbreaking. “Aging infrastructure like this is more than inconvenience or a nuisance–it’s an impediment.”

Biden has been working to collaborate with Senate moderates who have been concerned about social spending legislation costs, which were initially proposed to be $3.5 trillion for usage over ten years. In late October, Biden met with Senator Joe Manchin of West Virginia, along with Senate Majority Leader Chuck Schumer, to reach a potential agreement regarding a smaller spending budget.

“This initiative is about betting on America, about believing in America,” said Biden. “Let’s get this done–let’s move.”

The bridge replacement project is the first initiative of the overall Gateway project, which will serve as a bridge-and-tunnel renovation and expansion initiative to boost train capacity across the Hudson River. Previously, around 820,000 rail passengers commuted between New York City and another Northeast city each day; because of this, bridge replacement project sponsors have expressed concern that any potential track failures could significantly hinder the economy of this area–a region that is vital to one-fifth of the gross domestic product within the United States.

Still, boosting the accessibility and safety of infrastructure is imperative. The more updated our infrastructure is, the safer our roadways are, and the fewer accidents and deaths we’ll see as a result.

“We see a lot of crashes occurring on roadways in disrepair and in dangerous construction locations, so it’s important to keep roads safe,” said Levinson and Stefani’s Ken Levinson. “When there’s not enough room on the shoulder and you break down, or there’s not an easy path to exit the tollway, or there’s an emergency medical situation, or inclement weather, it creates a lot of danger.”

When there is an obstacle or disruption on any given roadway, many people aren’t sure how to handle it in the safest way–and the possibility of a traffic incident skyrockets, Levinson explained.

“We’ve seen many cases where, in these danger zones, major crashes occur,” he said. “We’ve had cases where–because of mechanical problems–a vehicle has to pull over, and shortly thereafter, there is a major crash. We’ve had professional truck drivers that we represent that while they’re in the process of putting out safety cones, there’s a collision. This is partly because there’s not enough room on the shoulder, and partly because of the inattention of another trucker who has not been properly trained, so that goes directly to having safe roadways.”

For Biden’s economic plans–although specific details still need more clarity–Manchin is confident that Democrats will be able to reach a deal sooner than later. Progressive Democrats in the House have said in the past that they do not plan to vote for an additional infrastructure bill of $1 trillion that was already passed in the Senate until a larger social spending measure plan can be agreed upon.

Yearly Rear Underride Guard Inspections Now Required After FMCSA Announces Final Rule

November 11, 2021 by Levinson and Stefani Leave a Comment

The list of annual inspections for motor carriers and roadside inspectors will now include rear underride impact guards, as added by the Federal Motor Carrier Safety Administration in a final rule to amend specific safety regulations.

This rule was scheduled to be posted this week in the Federal Register and serves as a method of addressing comments from Congress, Government Accountability Office recommendations, and Commercial Vehicle Safety Alliance rulemaking petitions. It also adds that RCC trailers do not need a rear impact guard, and specifies the definition of horizontal discharge trailers controlled by road construction.

“The impacts of this final rule are de minimis, and therefore, the final rule does not have a significant economic impact on a substantial number of small entities,” said FMCSA.

In fact, the final rule explains that it should not significantly impact a majority of motor carriers which have needed to have rear guards installed on their trucks since 1952; however, the mandate does follow up on December 2020’s proposed rule regarding the same issue.

“The best underride guard is the one that’s never put to the test,” said American Trucking Associations in a Tweet. “Education and safe, responsible driving are the best way to prevent crashes.”

According to FMCSA, passenger compartment intrusion occurrences during an incident involving a passenger vehicle colliding with the back of a commercial motor vehicle are highly reduced by rear-end protection and rear impact guards installed on heavy commercial trucks.

Still, trailers have often been in violation of such regulations for the past 23 years–specifically when their rear impact guards were either not sufficiently attached to the trailer or were missing completely. These violations could include guards that were missing fasteners, had cracked parent metal, or were otherwise damaged or broken in a way that prevented proper attachment.

Efforts to require side guards have been opposed by industry trade groups, although the new inspection requirement has been largely supported. However, CVSA lamented that most commercial motor vehicles are not inspected each year, even though rear-end/rear impact guard protection is indeed part of the North American Standard Inspection Program’s roadside inspection process.

“According to data available through FMCSA’s Analysis and Information Online webpage, in fiscal-year 2017, inspectors documented more than 2,300 violations related to rear impact guards and rear-end protection–more than half of which are for components that are missing, damaged, or improperly constructed,” said FMCSA.

This rule will bring necessary focus to this kind of truck safety, the agency added.

“Including rear impact guards and rear-end protection in the periodic inspection requirements will call additional attention to this critical safety component and help ensure that each vehicle is checked at least once a year, improving compliance and helping to prevent fatalities and injuries when rear-end collisions occur,” FMCSA continued.

The rule will also help continent-wide inspection efforts, as the United States, Mexico, and Canada will now all have the same rear-end protection requirements.

“Including rear impact guards and rear-end protection in the periodic annual inspection standards will harmonize U.S. regulations with those in Canada and Mexico, which include rear impact guards and rear-end protection as part of their annual inspection programs,” said the agency.

Congressional investigation office, GAO, has received requests from senators to further review truck underride crash data and information following GAO’s performance audit between January of 2018 and March 2019. This audit included stakeholder interviews and literature analysis regarding underride guards and crashes; these interviews included members of safety groups, state officials, and Department of Transportation members.

“Although reported underride crash fatalities represent a small percentage of total traffic fatalities, they present a greater risk of fatalities or serious injuries,” said GAO in its 2019 report.

When the rule proposal was first announced, Collin Mooney, Executive Director of CVSA, noted that rear underride guard checks would become part of the regular truck inspection process, as CVSA inspectors had not been citing truckers for violations when a loose or damaged rear guard was found.

Now, “we obviously will inspect [underride guards] as well,” Mooney said. “We’ll be taking a closer look at underride guards.”