The FMCSA requires trucking companies to complete background investigations into each and every single driver that they plan to hire. First, trucking companies are required to request three years worth of driving records from each state in which the driver held a valid motor vehicle operator’s license. Next, companies are required to investigate the driver’s safety performance history. And finally, trucking companies are required to obtain the ten-year employment history for every driver. All of these records are required to be included in the driver’s “driver history investigation file” within the 30-day period after the driver is hired.
In the event of an accident for which a carrier may be held liable, trucking companies may claim that they were unable to locate all of the driver’s historical records. That excuse on its own standing is not enough to absolve the carrier of that responsibility. The carrier is required to document the extent of its “good faith effort” in obtaining the information and certifying that the driver did not have any potential red flags on his or her driving record. If the driver simply had no employment history to speak of, then that information must be documented in the employee’s file as well. The federal regulations permit the carrier to conduct this investigation via phone, mailed correspondence, or in person.
The FMCSA also regulates the collaboration between carriers for the purpose of making the background check process as transparent and efficient as possible. If a carrier attempts to contact another carrier for the sake of obtaining driver’s history records and that carrier fails to cooperate, the prospective carrier is encouraged to report those actions to the FMCSA. Federal regulations require previous carriers to respond to prospective carriers’ investigations into potential new hires within 30 days of the request, either by providing the necessary information or confirming that it does not exist. Previous carriers are also required to take all necessary reasonable precautions to ensure the accuracy of the information, as well as provide their contact information so that a driver may get in touch with the company to amend or dispute the information. Previous carriers are also required to keep records of all requests for information on former drivers for at least one full year.
A summarized list of the information required to be collected during the prospective carrier’s investigation is included below:
- General driver identification information, such as license numbers and personal information;
- Employment verification;
- Data and information regarding any accidents that involved the prospective driver;
- Records concerning the driver’s violations of the alcohol or controlled substance prohibitions;
- Failure to undertake or complete rehabilitation program(s) prescribed by substance abuse professionals;
- If a driver has successfully completed a rehabilitation program(s), any information on whether the driver failed an alcohol or drug test, or refused to be tested.
The FMCSA also actively manages the Pre-Employment Screening Program (PSP), which serves as an online database designed to make trucking companies’ hiring processes more effective and efficient. While it is not explicitly required that carriers use PSP during their hiring process, they could be potentially found negligent if an accident occurs and it is determined that using PSP could have helped prevent the accident from occurring. The FMCSA stores and maintains all of this information in a large online database of driver profiles and updates it on a monthly basis.
Standard operating procedures in the trucking industry – though not federally regulated by the FMCSA or DOT – set the precedent that trucking companies use extreme care and caution while engaging in the hiring process. Some of the more common red flags for the employment screening process that have become more prevalent in the trucking industry include, but are not limited to:
- Substantial gaps in employment history;
- Disciplinary history for traffic citations, accidents, and safety violations;
- Experience with specific types of vehicles and cargo;
- Total years of driving experience.
It is also standard for trucking company hiring managers to ask more intensive “probing” questions during the interview process, as well as implement thorough skills and knowledge examinations. Carriers must also document applicants’ medical history and physical qualifications in order to ensure that the driver is mentally and physically fit for duty.
While drivers certainly can be held individually responsible for causing a commercial vehicle accident, the bottom line is that federal regulations place much of the responsibility – and therefore, legal liability – on the carrier. Ultimately, trucking companies are responsible for their drivers’ actions, and should take the necessary steps to ensure that they are hiring competent drivers who truly value safety and compliance with federal regulations. As we have seen over the years, failure to do this can cost innocent people their lives and have other profound consequences, financial and otherwise.The FMCSA states, “…while a trucking company clearly has a duty to investigate the driving experience and qualifications of a driver, most jurisdictions have held that the company does not have a duty to investigate the driver’s non-vehicular criminal background. Accordingly, a trucking company cannot usually be held responsible under a negligent hiring or retention theory for an intentional assault inflicted by a driver.” However, in Washington State an employer can be held responsible for the intentional criminal acts committed by an employee if it is conducted in furtherance of the employer’s business. This can occur if the employer authorizes or ratifies the criminal conduct during the course of the employee’s employment. The employer can also be held liable if it is aware of facts that would put it on notice that it was foreseeable that the employee would commit intentional criminal acts while on the job. This prior notice may take the form of prior complaints, or similar prior intentional conduct by the employee that gave rise to the foreseeability of another similar act occurring in the future.