Negligent Retention

Negligent retention is a common cornerstone of numerous lawsuits. Yet it is a topic rarely discussed within the industry (outside of the world of insurance carriers) as a common cause of incidents, often serious ones. In contrast, its cause and institutional counterpart – perpetual and increasing driver shortages – are a constant and common theme in the difficulty of keeping modern public transportation systems financially afloat, despite a recent burst in ridership. Particularly following 9-1-1, many fleet shrank and, particularly small companies, disappeared altogether – resulting in a glut of used motorcoaches that stifled the sale of new ones – often because operating companies could simply not find and retain enough qualified drivers.

The term “qualified driver” has increasingly become a slippery term in recent years, as qualifications have been diluted – often to mere compliance with minimal regulatory requirements. In paratransit operations 25 years ago, my company’s starting salary was $7.50/hour – a figure that would equate to $30 to $40 in Today’s economy (at least until most recently). In contrast, I am continually involved in lawsuits where drivers are being paid less than $10/hour – in many cases, less than $7.50/hour. Few have educations beyond high school, despite the complexities of operating either large modern vehicles or driving paratransit vehicles, under increasingly tight schedules generated by software problems, and whose passengers are seriously disabled and challenging for the grossly-underpaid and often poorly-trained drivers. Regardless, the physical and mental rigors and challenges of these jobs is spiraling while driver compensation is dwindling in rear dollar terms in both sectors.

Incidents and Incompetence

Some of the drivers whose professional driving histories I have encountered in too many lawsuits are troubling. A few examples are illustrative:

  • A 72-year-old schoolbus driver (fortunately with no passengers on board) blacked out, struck a guardrail, bounced off it to veer across the roadway, and ran head-on into an oncoming car. A heavy smoker who regularly consumed six ounces of rye daily (presumably not during work hours), she had, among other problems: Glaucoma and blurred vision, diabetes, hyperglycemia, kidney disease, Hyperlipoidemia (raised cholesterol levels), emphysema, chronic obstructive pulmonary disease (COPD), osteoporosis, shortness of breath, auditory meatus (an opening of the ear), fascicular eruptions, and regularly took Phenergen for nausea and Augmentin (an oral penicillin derivative to treat bacterial infections, occasional fainting and dizzy spells, a sleep disorder, and lower back pain. A 1992 medical exam found that she “wet herself” when coughing or sneezing. During the two-month period prior to the incident-in-question, she had been involved in two at-fault accident – preceded by several others including T-boning a passenger car and backing into another. Her employer characterized her as “spry.” In 2006, when the incident-in-question occurred, she was earning $11.00/hour. Needless to say, she passed her medical exam from an independent physician, largely by lying about most of her conditions which her doctor took at face value and performed minimal testing.
  • Several years ago, I was involved in three lawsuits involving NEMT drivers on various Indian reservations. Most of these involved driers failing to assist disabled dialysis patients or dropping them. The highest paid of these drivers earned $7.00/hour.
  • I am currently working on my 20th passenger molestation case (mostly by the drivers) – most occurring in complementary paratransit service or special education pupil transportation service. In one recent case, burdened with extensive digital paraphernalia, a dispatcher ignored the red “dot” on a screen right in front of him that showed the vehicle, off-route, in a stationary position, for 20 minutes. The driver’s past transgressions included a traffic citation for traveling 75 mph in a 50 mph zone were ignored. This driver earned $11.00/hour. The case settled recently for $1.1M.

This list could go on for pages. The point (I have argued this in the past: See “The Wages of Negligence in the January, 2003 issue of NBT) is that not only are repressed wages haunting the motorcoach and other public transportation sectors within the industry, but their true operating costs are at risk of becoming exponentially inflated when unqualified (and almost always grossly underpaid) drivers, their increasingly thin management, and/or their employers become involved in an incident or accident. Factoring in the occasional catastrophic accident, it would be hard to know what the actual “wages” of our drivers genuinely cost.

Problems and Paralysis

I am hardly writing about a new problem. The gap between the Rich and Poor has been spiraling since the mid-Seventies, only now coming to the attention of a large percentage of our population to whom it was either oblivious or who were simply not concerned about the consequences until very recently. But just as these problems ate their way into our housing and financial markets, they are gorging the public transportation sector. Some creative tools to combat these problems – Jack Burkert’s excellent document with 60 recruitment tips and Steve Hirano’s new website, are two recent example – have emerged. But they can only provide occasional stopgap measures to a serious and growing industry-wide problem.

Another recent troubling revelation was that pilots of small corporate aircraft sometimes earn as little as $10/hour! Ironically, the collapse of employment may actually provide some relief, as periods of high unemployment generally create pools of overqualified workers willing to keep food on their table at almost any cost. So that at least the short-run, a spate of qualified driver may be available. Otherwise, our industry seems impotent at solving this problem in the long run.

Innovation, Hope and Leadership

Beyond the increasingly availability of desperate out-of-work professionals, and the rising cost of fuel (until the recent-yet-likely temporary collapse of high fuel prices), there have been a few small rays of hope. One has been the recently expanded deployment of double-decker buses on intercity routes. Another has been the explosion of lower-cost, largely body-on-chassis “motorcoaches” on the market, and competition from new countries’ mostly integral products (most notably from China, Turkey and Brazil).

I have often spoken and written about the fact that much of we perceive as problems are really symptoms. This is often true at the liability level, where the seeming causes of many common accident scenarios (wheelchair securement failures, on-board slips and falls, boarding and alighting accidents, among others) are more genuinely the consequence of schedules that are too tight, and the frantic operating environments they create. Solutions to such safety issues largely involve dramatic increases in fleet size, in order to handle the capacity while providing drivers with ample recovery time. But such fleet expansions, particularly in the transit sector, are unlikely, and even more unrealistic in the paratransit sector whose schedules are increasingly governed by software developers with little experience in, or much of a “feel” for, what I term “operational reality.”

What is needed in the motorcoach sector is not merely a broad expansion of the collective fleet. What is needed is an explosion in the appreciation of its value to our society – a value recently underscored by the increasing importance of motorcoaches to large-scale evacuation efforts. Let us hope that these forces, and a new Administration far less committed to enriching the energy industry and shifting wealth to a few thousand individuals will recognize this value, and emphasize it as one of many solutions to a group of highly-interrelated problems (poverty, mobility limitations, fuel shortages, reducing our carbon footprint, expanding a “green” economy, etc.). But we will have little chance of realizing these gains as mere observers. If we fail to become advocates, the solutions to our problems will simply circle around, and we can expect to chase our tails for years.

Publications: National Bus Trader.