Brad Klepper

Let’s get this out of the way up front: I am a staunch advocate for road safety. I believe that no policy or regulation aimed at protecting drivers should be exempt from scrutiny or debate. An unexamined rule isn’t worth enforcing. When you combine that with my commitment to transparency and public accountability, it’s clear why I’m a vocal proponent of the Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse. It’s a critical tool for enhancing road safety and maintaining the integrity of our transportation system. This system is not without its critics. Some argue that the Clearinghouse could unfairly penalize drivers for past mistakes or lead to privacy concerns. Moreover, while it provides a path to rehabilitation, the barriers to re-enter and the difficulty involved in finding a company willing to take the risk of rehiring a driver with that documented history causes many drivers to leave the industry. This exacerbates the driver shortage. But let’s be real: The primary goal here is safety. We’re talking about preventing potentially catastrophic accidents caused by impaired driving. The benefits of such a system outweigh the drawbacks. With all that said, I’d like to provide a bit of a crash course on the FMCSA’s Drug and Alcohol Clearinghouse and what new changes will take effect on Nov. 18, 2024. The First Clearinghouse Rule: Establishing the Database The first Clearinghouse rule, which came into effect in January 2020, laid the groundwork for the entire system. This rule mandated the creation of the Drug and Alcohol Clearinghouse, a centralized database designed to track drug and alcohol violations among commercial driver’s license (CDL) holders. Before this rule, there was no single source of information for employers, state agencies or law enforcement to verify a driver’s compliance with drug and alcohol regulations. This lack of centralized data made it easier for drivers with violations to move between employers undetected, potentially endangering everyone on the road. Here’s how the first rule changed the game: Real-Time Data Access: Employers must check the Clearinghouse database before hiring a new driver and annually for current drivers. This ensures that any past violations are flagged and addressed. Mandatory Reporting: Employers, medical review officers, substance abuse professionals and other relevant parties are required to report drug and alcohol violations to the Clearinghouse. This includes positive test results, test refusals, and actual knowledge of violations. Return-to-Duty Process: Drivers with violations must complete a return-to-duty process and follow-up testing plan before they can resume safety-sensitive functions. This is tracked within the Clearinghouse, ensuring no driver skips steps in their rehabilitation. The first rule essentially built the infrastructure for a safer, more transparent commercial driving industry. It closed significant gaps in the system, ensuring that all stakeholders have the information they need to make informed decisions about driver safety and compliance. The Second Clearinghouse Rule: Expanding Scope and Enhancing Safety The second Clearinghouse rule, proposed in 2021, is set to take effect Nov. 18, 2024. While the first rule focused on establishing the database and mandatory reporting, the second rule seeks to broaden who has access to this critical information and under what circumstances. Here’s what the second rule introduces: State Driver Licensing Agencies (SDLAs) Access: Under this rule, SDLAs are required to query the Clearinghouse before issuing, renewing, upgrading or transferring a CDL. This ensures that no driver with outstanding drug or alcohol violations can obtain or renew their CDL without first resolving those issues. Annual Queries for SDLAs: In addition to pre-issuance checks, SDLAs must perform annual queries on all CDL holders licensed in their state. This regular check helps maintain ongoing compliance and catches any new violations promptly. Enhanced Employer Notifications: Employers can now receive real-time electronic notifications when there is an update to a driver’s Clearinghouse record. This immediate feedback loop allows for faster action and response to any new violations. The second rule is about fortifying the safety net established by the first rule. By expanding access to the Clearinghouse and ensuring continuous monitoring, the FMCSA is making sure that drivers with unresolved violations do not slip through the cracks at any point in their careers. So, what does this mean for employers? The second rule mostly adds standards for the states but leaves the legislation and processes they enact to meet these standards up to them. Ideally, this means rather than adding work for employers it will save them time. Employers should see from running the Motor Vehicle Record (MVR) whether a driver has a downgraded license due to a “prohibited” Clearinghouse status — and thus cannot be employed. Since this rule has been in the works for three years, let’s cross our fingers that the states are already prepared to implement this change However, given how long it’s taken some jurisdictions to implement Real ID, let’s not count on immediate time savings immediately come November.

Let’s cut to the chase. I make my living out of defending truck drivers — and while speeding tickets can negatively affect a driver’s career, things like DUIs are career-enders. Now, even though I’ve built my career defending truck drivers, it doesn’t mean I don’t want to see drivers who put other motorists in danger held accountable. Just the opposite in fact. However, if we’re going to end someone’s career, we’d better make sure we’re doing so justly and that we’re minimizing human biases and assumptions. Even in cases where the driver is accused of driving under the influence of alcohol, the situation is not necessarily as clear-cut as you’d think. Field sobriety tests, which are designed to measure the level of alcohol influence on a subject, still rely on human observation. And human observation can be affected by bias or inadequate training on interpreting results. Additionally, there are many variables at roadside that can unfairly impact the outcome of the test. Despite all this, alcohol is the drug we feel most confident measuring for driving impairment. The question of cannabis With that in mind, how in the world are we supposed to respond to the sweeping state legalization and decriminalization of cannabis? While the federal government’s stance on cannabis hasn’t changed, many states have legalized cannabis in some form, and the way Americans view cannabis has changed substantially. This is especially for younger people who came of age around people who treat cannabis like my generation would treat alcohol, or even caffeine. When you’ve grown up seeing both coffee shops and cannabis shops on every corner, the social stigma of cannabis use really goes away. And to be honest, folks, the tide isn’t reversing! In conservative states where legislators are not changing the laws, the people are putting it on the ballot. There are only 4 states left in which cannabis in any form is fully illegal. And frankly, even citizens in the states still toeing the federal line commonly visit neighboring states to sample these products. When you add in the fact that truck drivers are naturally in a mobile, often interstate job, it’s basically irrelevant where your drivers call “home.” Drivers can readily pick up lotions and oils with THC (sometimes even by mistake). I know, I know … they were just in the wrong place at the wrong time, with no idea a drug was potentially entering their system. However, some of these excuses are ringing truer than they ever have before. Determining level of impairment So, you ask, how do we as an industry respond to this cultural phenomenon? I often attend conferences or visit clients who have become some of my closest friends over the years. While I go because I enjoy maintaining these relationships, it’s also important to me that I stay connected to the carriers’ perspective on industry challenges. For years now, even though cannabis is still federally illegal, carriers have been expressing how challenging it is to navigate this societal contradiction. There are so many questions. For carriers that perform new hire hair follicle drug testing, do you still test for THC? If an employee used cannabis in some form prior to hire, how do you weigh that in your hiring decision? How much does cannabis influence driving ability, and how do you measure it? Let’s say a driver fails a post-accident drug test for THC, which is certainly bad. How do you know if the driver was actually impaired by cannabis the time of the accident? I am no scientist. However, I am, and have always been, very curious. And when I want to learn about something I don’t really understand, I am not opposed to reaching out to people who are way smarter than me (about 98.2% of the population falls into this category). So, that’s exactly what I did. I became convinced there had to be a better way to determine if a driver is impaired. Because that is the fundamental question. Regardless of the substance or reason, shouldn’t our most basic question be whether a driver is impaired at a particular point in time? “Surely somebody must be looking at it from this perspective,” I thought. So, I began my online research. And lo and behold, just a little to the north of us, the Canadians have been grappling with similar challenges on how to measure cannabis impairment — including how it relates to driving. In looking for new solutions for this growing challenge, I came across a cognitive research-based company focusing on measuring driving impairment: Impirica. Because I have never been shy, I reached out to them, and they were gracious enough to talk to me. Multiple times (a decision I am sure they regret). Through our conversations, I have learned quite a bit about the nuances in cannabis impairment. Simply stated, THC absolutely impairs the cognitive functions critical for safe driving. The time that the body metabolizes the negative influence of THC is between two and six hours post consumption. This is the window where an impairing “high” is experienced. Unlike alcohol, which is water soluble and metabolizes in a linear way in the body, cannabis is fat-soluble, so it attaches to body fat, which means a completely variable metabolism rate. In layman’s terms, this means that body composition can heavily impact how impaired a person becomes. Skinny folks and “husky” folks like me can be impacted differently. Also, impairment varies based on whether you smoke cannabis or eat a gel capsule, because they are absorbed into the body differently. All these variables mean that the amount of cannabis ingested does not necessarily predict impairment. Testing for THC impairment So, how do we presently test for cannabis impairment? The two primary approaches are behavior based (think field sobriety test or test conducted by a “DRE”) and biology based. The biology-based test measures the concentration of THC in a driver’s blood. Three states have laws saying that anything greater than 0ng/ml shows impairment. Four states have limits of 5ng/ml, while 10 other states use a positive metabolite test. In other words, there is no standard biology-based test to determine actual impairment resulting from cannabis use. To add another layer of complexity, testing for the presence of THC doesn’t necessarily predict impairment either, for a few reasons. Due to the variables mentioned before, some people may have a higher “tolerance” for cannabis than others (I suspect Willie — that’s Nelson to those of you not “in the know” — may have a higher tolerance than most folks). If you’re looking at body fluid from a traditional drug and alcohol test, the only way you to determine recent use is with a saliva swab (or cannabis breathalyzer) that picks up impairing THC residue in the mouth, so you can infer impairment based on that two- to six-hour window. If you look at blood and/or urine you will detect carboxy or hydroxy-THC, which is a metabolite and has NOT been linked to impairment. Metabolites could be present several weeks after use. This means someone could have smoked a week ago and be well out of a state of impairment, but they would still fail these drug tests. So, we ask again, how DO we test for cannabis impairment? And this is where I think we get stuck and lose sight of the ultimate goal. What are we really trying to prevent — drug use or impaired driving? As I mentioned earlier, I think we’ve gotten so focused on identifying the source of the impairment that we’ve gotten away from the fundamental question determining fitness for duty: Is this person impaired? “Okay Brad,” you say. “So, how do you measure impairment then?” First, let’s define what we are trying to measure. Impairment is when an individual loses their functional ability to operate safely within a given environment. The three key functions to drive safely are: Motor skills (muscular skeletal) Sensory (eyesight/hearing) Cognitive (judgement/reaction time/etc.) This means that if we can measure an individual’s motor skills, sensory abilities and cognitive abilities as it relates to driving, we can determine whether they can safely operate a motor vehicle, regardless of whether the cause is cannabis, alcohol, sleep deprivation, cognitive decline or any other cause. Based on my conversation with the folks at Impirica, it appears they have done just that. They’ve developed impairment testing that’s modeled against the data of more than 200,000 real-world driver assessments and have scientifically validated their solution through collaborative studies with Colorado and Canadian universities. Their research has been heavily peer-reviewed, as they have been researching and developing in this space for over 30 years. As impairment testing pioneers, they have engaged with government task forces in Colorado and Canada who are grappling with the same questions we’ve been discussing. Driver-specific screen With specific reference to transportation, Impirica has a cognitive screen that actively measures a driver’s risk of impairment. The screen has been designed and validated to engage the brain in the same way it would be during driving, and it provides a predictive measurement of driving risk. While this cognitive screen has been scientifically validated to measure impairment risk associated with the use of cannabis, the screen itself is cause-agnostic, meaning it focuses less on the cause of impairment and more on whether the driver is fit for duty. Thus, it has application beyond cannabis use and addresses a multitude of factors that could render a driver impaired. Perhaps most fascinating, at least to me, is that Impirica’s solutions are currently in active use. They have transportation clients actively using their product, in addition to clients in the health care and workplace safety industries. In workplace safety, this type of testing easily becomes a proactive prevention of workman’s compensation claims. Warehouse and maintenance workers can be tested as part of the sign-in process for each shift. Impirica has also worked with law enforcement to enhance the SFST (standardized field sobriety testing) process and support more accurate and complete data at roadside. To further complicate the issue … While the U.S. Department of Justice has announced that the Attorney General has initiated the process to consider moving cannabis from a Schedule I to a Schedule III drug, Pete Buttigieg, U.S. Secretary of Transportation, says cannabis would still be fully prohibited for truck drivers. However, if the proposed schedule change goes through, it’s likely pharmaceutical companies will begin to include THC derived from cannabis in new medications. In this case, drivers could theoretically receive prescriptions containing THC from their doctors that they pick up at Walgreens or CVS. If we’re going to reconcile the differences in how cannabis is regulated for our industry versus how our future driving candidates view cannabis, we’re going to have to provide an innovative solution from the industry. At the end of the day, I am not a scientist or cognitive researcher. Hell, I don’t even play one on TV. However, I have been a “successful” attorney and business owner in the transportation industry for decades. I have been proud of how we adapt to significant changes in regulations and continue to embrace innovations that make our roads safer. However, as recreational/medical cannabis use continues to expand, we as an industry have struggled to adapt how we screen new and current drivers. How can we truly feel confident we are not putting impaired drivers behind the wheel? How can we know if cannabis is actually the cause of an accident when the driver may have smoked over a week ago? How can we know before he or she crashes if our driver picked up a prescription with THC from the pharmacy and is impaired? We need to think outside the box and embrace a test that can accurately determine impairment. To that end, I applaud the folks at Impirica and others who are working to make this happen.

In Part 4 of this series, I am finally getting to the team no one thinks of when it comes to building a comprehensive safety plan: the safety team (insert tongue in cheek here — and yes, this is why they pay me the big bucks!) I am also going to address the importance of a mentorship program that works in conjunction with the safety team. The First Year While not all carriers hire fresh Class-A CDL graduates, many carriers DO hire drivers with less than one year of experience. Many companies have adjusted down their experience requirement in the past decade — but how much have their safety programs changed in response to the needs of less-experienced drivers and heightened regulations? Studies show that, regardless of age, drivers with less than one year of driving experience pose the greatest safety risk in terms of violations and crashes. Providing these inexperienced drivers with mentorship from experienced drivers during the first year — on top of additional coaching or training from your safety team — is highly recommended. So, what does that look like? My favorite answer to give (and the one all lawyers are trained to provide) is, “It depends.” It depends on your company’s safety challenges, company culture and the resources you have available in manpower, technology and training development skills. Any of this can be outsourced, but maintaining your company values and unique policies in these programs will still take some manpower from your safety team in guiding the external team and reviewing their work. Mentorship Programs that Actually Work For a mentorship program to work, your mentors must be engaged and shining examples of your company’s culture. Just as with your road trainers, it’s vital to regularly connect with your mentors and give them a voice in program development and a voice in changes they would like to see in the company. You certainly want mentors who are passionate about developing others, but in order for this to be viewed as a professional part of their job, you should provide some type of compensation for their time and efforts — and specify goals to which you can hold them accountable in order to receive their compensation. Mentors having a minimum of one year of experience driving and a fantastic safety record is an obvious must, but they should also have a positive view of your safety team. Mentors further establish your company’s values and when/how the mentees should engage with office employees. The same can be said for the safety technology on the trucks. Mentees are likely to adopt a similar perspective to their mentors have regarding the tech your safety team has carefully chosen. Ideally, your mentors share the same convictions your safety team has. After all, they are acting as your safety team in the field! When pairing mentors to mentees, carefully consider each person’s background, personality and hobbies. Those with similar interests will be most likely to result in a productive and happy match. Depending on the nature of how your freight moves, you may want to develop a mentorship “hotline” that gives newer drivers an opportunity to reach another mentor if their assigned mentor is unavailable. Another option would be to have a 24/7 on-call safety member who can either answer the question or look up another mentor who may be available. Effective Safety Teams For your safety team to be most effective in your fleet, developing relationships and trust is key. Sometimes having the right title and/or experience can garner enough respect to get someone to truly listen to you and help change their life, but this is rare. Most often, the people we trust have our individual best interest at heart are the ones who change our lives. For example, even with my impressive J.D. degree and decades in trucking (placing tongue firmly in cheek here while pausing for dramatic effect), I still expect those of you who have met me are far more likely to consider my advice in these articles. For your drivers to believe you genuinely care about them, they need to feel they know you and that you understand and appreciate the challenges of their job. The first year, when less-experienced drivers are your highest risk, is the most impactful time for you to be calling, listening to what they’re facing and coaching them weekly (or monthly, depending on the size of your fleet). Important advice: Listen first, coach second. This is coming from someone who loves to talk, but I also love to learn — and learning comes from listening. This is likely to positively affect your retention as well. Another option is to assign regular training goals using a system that lets you monitor completion rates. Incompletion must have consequences! Why is this important? First, it shows you believe your program is important and makes a difference. If you don’t, why should the drivers believe in it? Second, if a driver gets into an accident and you must turn over records showing that the driver has not completed any assigned safety training for months, it paints a poor picture of both the driver’s and the company’s commitment to safety. For the most effective training, you’ll need to measure the causes of accidents and violations at your company. I encourage you to share in your training some metrics to show how serious these mistakes are for the company and for other drivers. How much are these accidents/violations costing the company? How much downtime does a driver experience following this type of accident? How are these safety issues impacting the company’s and drivers’ CSA scores? What does it mean for the company and drivers if you hit intervention levels in that category? If you can reduce it by X%, what do you estimate the savings will be? These topics are really great for your entire fleet. Also, if you love a good debate like me — and can take the time to reinforce you’re all on the same team — share the experience level of the drivers having these accidents. Most often, experienced drivers are certain it’s always the new “whippersnappers” having all the accidents. While we do see drivers in their first year have the most accidents, they are far from the only ones having accidents. In fact, share the most common accident in each band of experience. Everyone can be part of reducing accidents, and no one is immune from having one. If you can share metrics that apply to each driver and can convince them that each individual action matters, you are more likely to get their attention. It can also be a good tactic to recruit for mentors. Speaking of metrics … Part 5 in this series is focused entirely on building powerful assessments and metrics to bolster your safety program and direct ongoing changes for the better. This applies at every step in your program. You cannot build a safety program that works if you are not unbiased in measuring its impact and continuing to adjust as the demographics, technology and needs in your fleet evolve. Part 1 Part 2 Part 3 Disclaimer: The contents of this article are intended to convey general information only and not to provide legal advice or opinions. The contents of this article should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented here may not reflect the most current legal developments. No action should be taken in reliance on the information contained in this article, and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. An attorney should be contacted for advice on specific legal issues.

In the third installation of this series, we’re going to talk about bad habits. Whether we want to admit it or not, most of us have picked up some bad driving habits between the age of 16 and whatever age we are now. (No, I’m not going to say how many years that is for me, and I won’t ask you to tell me either.) Maybe you have a quick bite or drink while you’re driving, or you send a quick text. Maybe you start programming in the route to your destination after you’ve already taken off — or maybe you reach for something in the back seat to hand to your kid. Maybe you speed up as the light turns yellow, or you drive just 4-9 miles an hour over the speed limit everywhere you go. Or, perhaps you’re a perfect driver who makes no mistakes, and you just throw rude gestures to the needlessly careless drivers around you. Now … imagine engaging in all these seemingly minor distractions and habits while behind the wheel of an 80,000-pound truck, which requires 50% or more stopping distance than an ordinary passenger vehicle. Consider this: Most Class A truck drivers have five years or to develop personal driving habits, both good and bad, before they ever start CDL training and testing. We’d like to think the people who decide to be truck drivers quickly gave up those pesky, reckless habits — and maybe they did. But let me ask you this: How many of your New Year’s resolutions have been successful simply because you knew they were better for you? Again, I won’t tell or make you tell, but I’m guessing most of us are not feeling a rousing sense of achievement at the thought. So how do we re-train safe driving habits in orientation? In recruiting, you assess a candidate’s attitude around safety, their accountability for their mistakes and their ability to learn from those mistakes. IIn orientation, you assess those same items, plus the person’s ability to learn or retrain themselves based on your guidance. If you assigned videos and quizzed them ahead of orientation, now you are seeing if they can apply the information in the real world. Orientation should consist of hands-on driving and training that cannot be completed online. Some things to cover with drivers during orientation include: Share examples of common scenarios that have led up to a violation or accident at your company. Ask the recruits what risks they would face in that situation and how they would mitigate them. Provide recruits with examples of publicized lawsuits in the industry over the last several years and how they have played out for the driver. Introduce them new drivers your safety team and offer a Q&A session to build trust. Orientation is your chance to more deeply connect new hires with your value for safety and teach them how to think about and to take safety personally. If new drivers simply sit silently through dull lectures and take quizzes, you’re teaching them to memorize, regurgitate and discard information. Changing habits necessitates creating new neural pathways through action, interaction and problem-solving. What about road training? Road training is equally, if not more crucial than orientation in re-training habits. Road training allows the new employee to cement their new safe habits with the oversight of a respected, mindful advisor. Your company’s road trainers should be some of the most deeply scrutinized, well-paid and highly engaged employees in your company. When considering the length of your orientation versus your road training process, I tend to believe investment in road training pays more dividends because it gives a more realistic opportunity to retrain habits. What’s next? I’ll bet you wouldn’t have guessed we’d be three parts into a series about a “comprehensive safety plan” before addressing your company’s safety program as it relates to candidates. But each step in the recruiting, hiring and training process is vital to overall safety. Recruiting, orientation and road training are the gatekeepers of your organization’s value for safety. If your organization’s culture is built on people, these teams are pouring the foundation for your company growth. You cannot build a strong safety culture on top of a weak safety foundation. Don’t take that statement lightly. So, what’s next? It’s time to talk about the work your company’s safety team does to build your safety culture. However, we’ve run out of the 2024 attention span length. I will close this column before I start sounding like Charlie Brown’s teacher. Tune in next month! If you missed the first installments in this series, you can catch up through these links: Part 1 Part 2 Disclaimer: The contents of this article are intended to convey general information only and not to provide legal advice or opinions. The contents of this article should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented here may not reflect the most current legal developments. No action should be taken in reliance on the information contained in this article, and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. An attorney should be contacted for advice on specific legal issues.

We all know how much people love to hate lawyers. Even I can jump right on that bandwagon. When you pay a lawyer for his/her advice, you’re often actually paying someone to be a killjoy. He/she will listen as you describe what you hope to accomplish — and then not-so-lovingly point out all the risks associated with your dreams. “But with no risk, there are no rewards, Brad!” I can hear you saying. Well, that’s true, or at least partially true. Mitigating every risk is impossible, but to avoid losing all those hard-earned rewards, minimizing your risk is a must. This is where your safety plan swoops in to save the day and keep those killjoys off your back. A comprehensive safety plan starts with these five steps: Recruit driver candidates who value safety; Engage safety training both up-front and ongoing based on industry standards as well as both individual and fleet performance; Evaluate customer locations, freight and routes; Provide consistent communication with your drivers on Steps 1-3; and, if that’s not enough — Have a process in place for reducing the impact of mistakes when they are made. I’m sure a parley with my friends in safety could drum up more, but most lawsuits could have been minimized or prevented through careful planning in these categories. And no, of course it’s not just about making money and preventing lawsuits (I know, it’s shocking to hear this from a lawyer), but it’s also about saving lives and feeling pride in how we take care of our people and our industry. Let’s start with Step 1: Recruit driver candidates who value safety. In addition to getting the driving history of your applicants, how are you evaluating their attitude about safety? If they have had accidents or tickets, are they taking accountability? Did they learn how to prevent it from happening again? Here’s a good question to ask prospective drivers: “If you were faced with that same situation on the road again, what would you do differently?” Perhaps they would pull over for bad weather, remove distractions, study their route more closely in advance, get out to look before backing, etc. Perhaps they’ll tell you there’s nothing they would do differently — which may tell you that, if they’re faced with this same situation at your company, they will likely have the same accident. Discussing drivers’ previous tickets and accidents may also offer insight as to the attitude they would typically display at a traffic stop. The first guidance I give all drivers is this: Remain calm and professional and treat the officer with respect, regardless of whether you feel the stop was warranted or not, or if you feel the officer is reciprocating. As you ask questions about a prospective driver’s MVR (motor vehicle record), notice their behavior. Are they becoming defensive with you? Angry? Accusatory? When reviewing the dates of an applicant’s previous infractions, check to see if they have multiple tickets from the same incident/inspection. In my experience, more than one ticket (and especially more than two tickets) during one interaction means the driver put on his/her war uniform before interacting with the officer. Also notice whether the driver is willing to take responsibility for his/her part in the interaction. For example, are they saying the citation was bumped up from speeding to reckless driving because the officer was “out to get them?” Perhaps it’s worth asking a simple, direct question: “How was your interaction with the officer during this incident?” The response could be something like, “Oh he was an idiot. I only got those tickets because the cop was out to get me and wouldn’t listen to reason.” This type of attitude is likely to result in the driver putting several tickets on your fleet’s record — or possibly even the driver being arrested during a roadside interaction. (Meanwhile, you’ll be scrambling to recover your truck and deciding the best way to inform your customer you’re just a little behind schedule.) Depending on the setup of your company, this conversation with a prospective driver might be with your recruiters, your safety team or your orientation supervisors. Whichever team takes on this conversation, make sure the person asking the questions is clear on the perspective you’re trying gain from an applicant’s responses to. When it comes to screening and interviewing job candidates, it’s best to assign the duty to a small handful of very well-trained individuals. If, for the sake of expediency, you want to train your entire team to help speed the screening/hiring process, I recommend that you have team members conduct practice interviews with each other at least once a month to keep their skills fresh and focused. You’re not going to mitigate every risk, but if you’re able to identify a hothead before you put him/her behind the wheel of a truck, you’re going to save your team a lot of headaches at the least — and explosive litigation at the worst. Watch for Step 2 in the next Ask the Attorney column.

I am, and always have been, a big fan of surprises. The good surprises, I mean — things liking finding an extra $20 in your jeans pocket, or having a friend say, “Drinks are on me.” These always bring a smile to my face (even though the latter sometimes leads to regrettable life choices on my part). But I digress. However, what I don’t like are the “surprises” I normally encounter the first few months of each new year. Now, to be honest, I can’t really call these things surprises, as most are regulatory, and notice has been given that the new regulation or requirement will be going into effect. I know, I know — they told me these things were coming, but it’s the federal government. After a lifetime of dealing with them, why on earth would I take their timeline seriously? (Yes, you are correct; this position makes me both cynical and lazy. To this I say … well, nothing, because I am too lazy to disagree.) The most recent surprise/but-not-really-a-surprise that’s going to have a big impact on the trucking industry is a little thing called the Corporate Transparency Act. The Corporate Transparency Act (CTA) was enacted in 2021 and went into effect Jan. 1, 2024. The goal of the CTA is to catch things like tax fraud, money laundering and financing of terrorism by gathering additional ownership information on certain U.S. businesses that are operating in or access the country’s market. According to Congress, the CTA will prevent folks from hiding or benefiting from ownership of U.S. businesses to conduct illegal operations. Per Congress, this is a widely used tactic by bad actors that impacts national security and economic integrity. I gotta say, I am very much on the anti-terrorism side of the equation, and all this sounds like a good idea. However, how does it work? Well, I’m glad you asked! As of Jan. 1, 2024, damn near all small businesses are required to file a Beneficial Owner Information (BOI) report with the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) identifying individuals associated with the reporting company. “Well, great,” you say. “But is this going to impact me?” Unfortunately, the answer is most likely a big fat yes! As we all know, many owner-operators and small carriers operate as single-member LLCs or other types of business entities. Ding-ding-ding! If you operate such an entity in the U.S., the CTA says, “You’re a winner!” You will need to file a BOI. Lucky you. “OK, so I need to file. What information is required?” you ask. Let’s keep it simple. If your business was created during 2024 you will need to include just the basics (place tongue in cheek here). Those “basics” include beneficial owners (those owning over 25% interest in the entity) and applicant’s names, addresses, birthdays, identification numbers (such as driver’s license or passport number) and the jurisdiction of the documents. In addition, all reporting companies must provide their legal name and trademarks, the current U.S. address of its main business site (or if it’s a foreign company, the operational U.S. location), the taxpayer identification number and the jurisdiction where the entity was formed or registered. In a show of kindness, companies formed before Jan. 1, 2024, can omit the requirement of identifying company applicants. Wheeeeee. “Good grief, that’s a lot of info to report! But OK. When and how do I report it?” you ask. Trucking entities created before Jan. 1, 2024, must file the report before Jan. 1, 2025. That seems easy enough. However, entities created AFTER Jan. 1, 2024, must file a BOI report within 90 DAYS OF THE CREATION OF THE ENTITY. This is a good reason to keep your calendar updated. Now to play the devil’s advocate, let’s say you get busy and forget to file a BOI. What will happen? The answer is nothing good. Failure to comply with the filing deadline can result in both civil and criminal penalties. Civil penalties include a fine of up to $500 for each day the violation continues. Criminal penalties can include up to two years of imprisonment and a fine up to $10,000. As you can see, the penalties are substantial. In addition, running a small business is hard work and time-consuming. With the importance of complying with this new law, you may want to work with a qualified third party, such as a law firm or accounting firm, to make sure the required information submitted is both correct and that it’s submitted in a timely manner. Of course, there are a few exemptions to the CTA, and this article does NOT contain all the details (remember my earlier comment about being lazy?) so I suggest you review the CTA yourself or consult with a professional.

For this month’s column, I want to discuss something that I’m sure nobody in the industry has ever addressed (place tongue firmly in cheek here). We’re going to talk about marijuana and the trucking industry. (Yes, I know others have talked about the subject at great length — hence, the tongue-in-cheek reference.) Now, before you all start jumping to conclusions about me, there are a few things you need to understand. First, I went to college in the ’80s (read into that whatever you want). Second, I want our roads to be safe at all times and our industry’s drivers to be the safest on the road. With that in mind, I have no tolerance for drunk drivers, stoned drivers, distracted drivers or drivers who do not act or drive like a professional. Honestly, I just don’t. So, with that said, how do we reconcile the current state of the world in regard to recreational/medical marijuana usage and trucking? Quite simply, I am not sure we can, at least not right now. As background, and according to a recent ATRI report, 49.8% of the general population — and 41.4% percent of truck drivers — live in a state where recreational marijuana use is legal. These figures are up from 24.5% and 18.5% from 2019. In addition, according to ATRI, 59% of Americans support both medical and recreational marijuana legalization, while only 10% are opposed to any form of marijuana legalization. However, marijuana is classified as a Schedule I drug. This classification includes heroin, ecstasy and LSD. This means that, regardless of any state’s position, marijuana use is prohibited by federal law. And, since trucking is a heavily regulated industry, this means marijuana use is expressly prohibited, regardless of the state’s position. This creates a problem with the enforcement of federal laws and presents numerous employment issues for carriers. So where does this put us? I really am not sure. I think the growth of medical/recreational marijuana is going to continue, and it will continue to permeate our industry. The question becomes: How can we determine if a driver is operating while under the influence of marijuana? As you know, every state has laws dealing with alcohol- and drug-impaired driving. But unlike laws for drunk driving, laws addressing driving while stoned vary substantially. The two primary approaches are behavior based (think field sobriety test or a test conducted by a DRE) and biology based. The biology-based test measures the concentration of THC in a driver’s blood. Three states have laws where anything greater than 0ng/ml shows impairment. Four states have limits of 5ng/ml, while 10 other states use a positive metabolite test. However, in this test, metabolites could be present several weeks after using marijuana. In addition, some people may have a higher tolerance for marijuana than others. So, as you can see, there is no standard test to determine actual impairment resulting from marijuana use. However, many researchers believe the behavioral approach to documenting impairment is the most promising solution. With that in mind, at a recent conference, I had a very interesting conversation with PJ Barclay, a native of South Africa who now lives in Edmonton, Alberta, Canada. Apart from being a South African in the great white north, PJ leads the team at Impirica that has developed and commercialized a series of solutions that help the transportation, medical and law enforcement communities with validated solutions that actively measure the risk of impairment. With specific reference to transportation, PJ’s solutions have a cognitive screen, called Vitals, that actively measures a driver’s risk of impairment. This measurement of risk empowers decision makers to proactively respond to the identified risk. The Vitals screen was designed and validated to engage the brain in the same way it would be while driving — which provides a predictive metric of driving risk. While the Vitals cognitive screen is designed to measure impairment associated with the use of cannabis, the screen itself is agnostic to cause, meaning it focuses less on the cause of impairment and more on whether the driver is fit for duty. With performance as the focus instead of the cause, Vitals has applications beyond cannabis use and addresses a multitude of factors that could render a driver impaired. What I found most fascinating about the conversation is that Impirica’s solutions have already been validated and are currently in active use. At the end of the day, I am not a scientist or cognitive researcher. Hell, I don’t even play one on TV. With that in mind, I don’t know if Imperica’s device is the answer to determining impairment. I just think that, as recreational/medical marijuana use continues to expand, we need to think outside the box and develop a roadside test that can accurately determine impairment. To that end, I applaud PJ and others who are working to make this happen. In closing, I acknowledge that I have glossed over many facts related to marijuana use, testing, impairment and a million other things. There is simply not enough space to cover every issue in the space allowed! Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com  and driverslegalplan.com.