After a driver has been injured in a crash with a tractor-trailer, they want and need to know what caused the wreck to happen. Was it the fault of the driver? Did his vehicle have a mechanical problem? Was the road or another driver to blame? Sometimes, the answer is that the company never should have employed the driver in the first place. This article takes a look at this important issue of negligent hiring and how it can be used to substantially boost settlement and jury verdict value.
This is an important topic if we are going to make our roads safer. There were almost 40,000 commercial vehicle crashes in Texas last year. Over 6,200 happened here in Tarrant and Dallas Counties.
Federal and state safety laws require tractor-trailer companies to follow strict rules when they hire employees. That is because these giant vehicles can weigh over 80,000 pounds, are difficult to drive, and cause far greater fatalities and injuries than other vehicles.
To get hired, drivers must prove that they are safe drivers. That is where a thorough investigation into what caused the 18-wheeler crash must begin, since some companies cut expenses and hire unqualified drivers in the first place.
We see companies failing to meet the requirements, conducting the required background checks. There is always a paper trail that will show that the company either checked off all of the required boxes or failed to do so.
WHAT IS NEGLIGENT HIRING OF TRUCK DRIVERS?
What exactly qualifies as the negligent hiring of commercial vehicle drivers? When can a truck company be found liable as opposed to being allowed that it made an honest mistake?
MINIMUM REQUIREMENTS FOR A TRUCK DRIVER
____ of the FMCSR requires that an 18-wheeler driver job applicant must
- be at least 21 years old;
- hold a commercial driver’s license;
- have passed all driving and written tests that are required by law;
- read and write English sufficiently to fill out reports, understand traffic signs ,and converse with the public;
- hold a medical examiner’s certificate showing they have the physical qualifications to drive a commercial vehicle;
- disclose all prior vehicle crashes and moving violations; and
- pass a drug test.
COMPANY’S DUTY TO VERIFY QUALIFICATIONS
As you may know, actions can tell a thousand words. In addition to sitting and talking about a potential driver’s prior experience and knowledge, a trucking company is required to check the applicant’s basic skills during a second job interview.
Operating a truck is no joke. In order to operate the vehicle safely, a truck driver must know:
- when and how to back up;
- how to accelerate smoothly through the gears;
- how to maintain and inspect a truck before embarking on the trip;
- how to hook and unhook a trailer;
- how to load and unload cargo, among many other essential things.
CONDUCTING BACKGROUND CHECKS WHEN HIRING A TRUCK DRIVER
Failure to conduct a proper background check when hiring truck drivers is one of the most common reasons why trucking companies in California are sued after truck accidents.
A non-negligent trucking company is expected to run the applicant’s Compliance, Safety, and Accountability (CSA) profile before offering him or her a job contract. In addition to that, it is paramount that a trucking company runs a motor vehicle report on its potential drivers. Trucking companies should think twice before hiring drivers who have had prior accidents, tickets, citations, convictions, and other safety-related incidents.
391.23 Investigation and inquiries.
(a) Except as provided in subpart G of this part, each motor carrier shall make the following investigations and inquiries with respect to each driver it employs, other than a person who has been a regularly employed driver of the motor carrier for a continuous period which began before January 1, 1971:
(1) An inquiry, within 30 days of the date the driver’s employment begins, to each State where the driver held or holds a motor vehicle operator’s license or permit during the preceding 3 years to obtain that driver’s motor vehicle record.
(2) An investigation of the driver’s safety performance history with Department of Transportation regulated employers during the preceding three years.
(b) A copy of the motor vehicle record(s) obtained in response to the inquiry or inquiries to each State required by paragraph (a)(1) of this section must be placed in the driver qualification file within 30 days of the date the driver’s employment begins and be retained in compliance with §391.51. If no motor vehicle record is received from the State or States required to submit this response, the motor carrier must document a good faith effort to obtain such information, and certify that no record exists for that driver in that State or States. The inquiry to the State driver licensing agency or agencies must be made in the form and manner each agency prescribes.
(c)(1) Replies to the investigations of the driver’s safety performance history required by paragraph (a)(2) of this section, or documentation of good faith efforts to obtain the investigation data, must be placed in the driver investigation history file, after October 29, 2004, within 30 days of the date the driver’s employment begins. Any period of time required to exercise the driver’s due process rights to review the information received, request a previous employer to correct or include a rebuttal, is separate and apart from this 30-day requirement to document investigation of the driver safety performance history data.
(2) The investigation may consist of personal interviews, telephone interviews, letters, or any other method for investigating that the carrier deems appropriate. Each motor carrier must make a written record with respect to each previous employer contacted, or good faith efforts to do so. The record must include the previous employer’s name and address, the date the previous employer was contacted, or the attempts made, and the information received about the driver from the previous employer. Failures to contact a previous employer, or of them to provide the required safety performance history information, must be documented. The record must be maintained pursuant to §391.53.
(3) Prospective employers should report failures of previous employers to respond to an investigation to the FMCSA and use the complaint procedures specified at §386.12 of this subchapter. Keep a copy of the reports in the driver investigation history file as part of documenting a good faith effort to obtain the required information.
(4) Exception. For drivers with no previous employment experience working for a DOT-regulated employer during the preceding three years, documentation that no investigation was possible must be placed in the driver investigation history file, after October 29, 2004, within the required 30 days of the date the driver’s employment begins.
(d) The prospective motor carrier must investigate, at a minimum, the information listed in this paragraph from all previous employers of the applicant that employed the driver to operate a CMV within the previous three years. The investigation request must contain specific contact information on where the previous motor carrier employers should send the information requested.
(1) General driver identification and employment verification information.
(2) The data elements as specified in §390.15(b)(1) of this chapter for accidents involving the driver that occurred in the three-year period preceding the date of the employment application.
(i) Any accidents as defined by §390.5 of this chapter.
(ii) Any accidents the previous employer may wish to provide that are retained pursuant to §390.15(b)(2), or pursuant to the employer’s internal policies for retaining more detailed minor accident information.
(e) In addition to the investigations required by paragraph (d) of this section, the prospective motor carrier employers must investigate the information listed below in this paragraph from all previous DOT regulated employers that employed the driver within the previous three years from the date of the employment application, in a safety-sensitive function that required alcohol and controlled substance testing specified by 49 CFR part 40.
(1) Whether, within the previous three years, the driver had violated the alcohol and controlled substances prohibitions under subpart B of part 382 of this chapter, or 49 CFR part 40.
(2) Whether the driver failed to undertake or complete a rehabilitation program prescribed by a substance abuse professional (SAP) pursuant to §382.605 of this chapter, or 49 CFR part 40, subpart O. If the previous employer does not know this information (e.g., an employer that terminated an employee who tested positive on a drug test), the prospective motor carrier must obtain documentation of the driver’s successful completion of the SAP’s referral directly from the driver.
(3) For a driver who had successfully completed a SAP’s rehabilitation referral, and remained in the employ of the referring employer, information on whether the driver had the following testing violations subsequent to completion of a §382.605 or 49 CFR part 40, subpart O referral:
(i) Alcohol tests with a result of 0.04 or higher alcohol concentration;
(ii) Verified positive drug tests;
(iii) Refusals to be tested (including verified adulterated or substituted drug test results).
(4) As of January 6, 2023, employers subject to §382.701(a) of this chapter must use the Drug and Alcohol Clearinghouse to comply with the requirements of this section with respect to FMCSA-regulated employers.
(i) Exceptions. (A) If an applicant who is subject to follow-up testing has not successfully completed all follow-up tests, the employer must request the applicant’s follow-up testing plan directly from the previous employer in accordance with §40.25(b)(5) of this title.
(B) If an applicant was subject to an alcohol and controlled substance testing program under the requirements of a DOT mode other than FMCSA, the employer must request alcohol and controlled substances information required under this section directly from those employers regulated by a DOT mode other than FMCSA.
(f)(1) A prospective motor carrier employer must provide to the previous employer the driver’s consent meeting the requirements of §40.321(b) of this title for the release of the information in paragraph (e) of this section. If the driver refuses to provide this consent, the prospective motor carrier employer must not permit the driver to operate a commercial motor vehicle for that motor carrier.
(2) If a driver refuses to grant consent for the prospective motor carrier employer to query the Drug and Alcohol Clearinghouse in accordance with paragraph (e)(4) of this section, the prospective motor carrier employer must not permit the driver to operate a commercial motor vehicle.
(g) After October 29, 2004, previous employers must:
(1) Respond to each request for the DOT defined information in paragraphs (d) and (e) of this section within 30 days after the request is received. If there is no safety performance history information to report for that driver, previous motor carrier employers are nonetheless required to send a response confirming the non-existence of any such data, including the driver identification information and dates of employment.
(2) Take all precautions reasonably necessary to ensure the accuracy of the records.
(3) Provide specific contact information in case a driver chooses to contact the previous employer regarding correction or rebuttal of the data.
(4) Keep a record of each request and the response for one year, including the date, the party to whom it was released, and a summary identifying what was provided.
(5) Exception. Until May 1, 2006, carriers need only provide information for accidents that occurred after April 29, 2003.
(h) The release of information under this section may take any form that reasonably ensures confidentiality, including letter, facsimile, or e-mail. The previous employer and its agents and insurers must take all precautions reasonably necessary to protect the driver safety performance history records from disclosure to any person not directly involved in forwarding the records, except the previous employer’s insurer, except that the previous employer may not provide any alcohol or controlled substances information to the previous employer’s insurer.
(i)(1) The prospective employer must expressly notify drivers with Department of Transportation regulated employment during the preceding three years—via the application form or other written document prior to any hiring decision—that he or she has the following rights regarding the investigative information that will be provided to the prospective employer pursuant to paragraphs (d) and (e) of this section:
(i) The right to review information provided by previous employers;
(ii) The right to have errors in the information corrected by the previous employer and for that previous employer to re-send the corrected information to the prospective employer;
(iii) The right to have a rebuttal statement attached to the alleged erroneous information, if the previous employer and the driver cannot agree on the accuracy of the information.
(2) Drivers who have previous Department of Transportation regulated employment history in the preceding three years, and wish to review previous employer-provided investigative information must submit a written request to the prospective employer, which may be done at any time, including when applying, or as late as 30 days after being employed or being notified of denial of employment. The prospective employer must provide this information to the applicant within five (5) business days of receiving the written request. If the prospective employer has not yet received the requested information from the previous employer(s), then the five-business days deadline will begin when the prospective employer receives the requested safety performance history information. If the driver has not arranged to pick up or receive the requested records within thirty (30) days of the prospective employer making them available, the prospective motor carrier may consider the driver to have waived his/her request to review the records.
(j)(1) Drivers wishing to request correction of erroneous information in records received pursuant to paragraph (i) of this section must send the request for the correction to the previous employer that provided the records to the prospective employer.
(2) After October 29, 2004, the previous employer must either correct and forward the information to the prospective motor carrier employer, or notify the driver within 15 days of receiving a driver’s request to correct the data that it does not agree to correct the data. If the previous employer corrects and forwards the data as requested, that employer must also retain the corrected information as part of the driver’s safety performance history record and provide it to subsequent prospective employers when requests for this information are received. If the previous employer corrects the data and forwards it to the prospective motor carrier employer, there is no need to notify the driver.
(3) Drivers wishing to rebut information in records received pursuant to paragraph (i) of this section must send the rebuttal to the previous employer with instructions to include the rebuttal in that driver’s safety performance history.
(4) After October 29, 2004, within five business days of receiving a rebuttal from a driver, the previous employer must:
(i) Forward a copy of the rebuttal to the prospective motor carrier employer;
(ii) Append the rebuttal to the driver’s information in the carrier’s appropriate file, to be included as part of the response for any subsequent investigating prospective employers for the duration of the three-year data retention requirement.
(5) The driver may submit a rebuttal initially without a request for correction, or subsequent to a request for correction.
(6) The driver may report failures of previous employers to correct information or include the driver’s rebuttal as part of the safety performance information, to the FMCSA following procedures specified at §386.12.
(k)(1) The prospective motor carrier employer must use the information described in paragraphs (d) and (e) of this section only as part of deciding whether to hire the driver.
(2) The prospective motor carrier employer, its agents and insurers must take all precautions reasonably necessary to protect the records from disclosure to any person not directly involved in deciding whether to hire the driver. The prospective motor carrier employer may not provide any alcohol or controlled substances information to the prospective motor carrier employer’s insurer.
(l)(1) No action or proceeding for defamation, invasion of privacy, or interference with a contract that is based on the furnishing or use of information in accordance with this section may be brought against—
(i) A motor carrier investigating the information, described in paragraphs (d) and (e) of this section, of an individual under consideration for employment as a commercial motor vehicle driver,
(ii) A person who has provided such information; or
(iii) The agents or insurers of a person described in paragraph (l)(1)(i) or (ii) of this section, except insurers are not granted a limitation on liability for any alcohol and controlled substance information.
(2) The protections in paragraph (l)(1) of this section do not apply to persons who knowingly furnish false information, or who are not in compliance with the procedures specified for these investigations.
(m)(1) The motor carrier must obtain an original or copy of the medical examiner’s certificate issued in accordance with §391.43, and any medical variance on which the certification is based, and, beginning on or after May 21, 2014, verify the driver was certified by a medical examiner listed on the National Registry of Certified Medical Examiners as of the date of issuance of the medical examiner’s certificate, and place the records in the driver qualification file, before allowing the driver to operate a CMV.
(2) Exception. For drivers required to have a commercial driver’s license under part 383 of this chapter:
(i) Beginning January 30, 2015, using the CDLIS motor vehicle record obtained from the current licensing State, the motor carrier must verify and document in the driver qualification file the following information before allowing the driver to operate a CMV:
(A) The type of operation the driver self-certified that he or she will perform in accordance with §383.71(b)(1) of this chapter.
(B)(1) Beginning on May 21, 2014, and through June 21, 2021, that the driver was certified by a medical examiner listed on the National Registry of Certified Medical Examiners as of the date of medical examiner’s certificate issuance.
(2) If the driver has certified under paragraph (m)(2)(i)(A) of this section that he or she expects to operate in interstate commerce, that the driver has a valid medical examiner’s certificate and any required medical variances.
ON-THE-JOB EVALUATIONS AFTER HIRING
Just because a truck driver seems like the right choice during the hiring process in no way does it mean that he or she does not require on-the-job evaluations to ensure that the trucking company has hired the right person. On-the-job evaluations are required within the first two weeks after the truck driver completed training.
How to Prove the Trucker’s Negligence
To hold a truck driver and/or its employer liable for your injuries, you must establish the driver’s negligence. A lawyer understands the ways to prove truck driver negligence, so consult an attorney if you’re pursuing a case. Further, be wary of providing insurers a recorded statement without first consulting a lawyer.
Some of the evidence you might need:
- accident reconstruction experts;
- interviewing witnesses to help reconstruct the period prior to the accident, as well as the scene;
- photos of the scene;
- evidence of the driver’s training and driving record (such as in the driver’s personnel and qualification files); and
- driver’s logbook, which details hours spent behind the wheel and more.
HOW TO PROVE NEGLIGENT HIRING?
During hiring, companies must conduct thorough background checks on new commercial drivers and ensure they have valid commercial driver’s licenses (CDLs). These background checks can help identify applicants with histories of substance abuse, prior serious crashes or disqualifying medical conditions. Preemployment screenings should pull records from applicants, such as:
- DQ files: Driver qualification files (DQ files) could contain information on a driver’s prior work experience, license suspensions, crashes and moving violations. In addition, DQ files contain regularly updated Department of Transportation (DOT) medical examination certificates. Regulations also require companies to maintain current DQ files of drivers they employ.
- Substance abuse records: Trucking companies must conduct preemployment drug screening tests on applicants. In addition, companies may also pull drug test records from previous employers going back three years.
- Medical exam records: Trucking companies must hire medically qualified drivers. Certain health conditions pose a significant crash risk. For example, workers with untreated sleep apnea may be more likely to cause accidents due to drowsy driving. In other cases, medical conditions may disqualify drivers from holding a commercial driver’s license (CDL).
After a truck crash, an attorney can obtain these records and any other documentation concerning the driver and the trucking company. If there is evidence that a company employed drivers with histories of failed drug tests, disqualifying medical conditions or prior crashes, then this may constitute negligent hiring.
Additionally, trucking companies must keep detailed documentation on commercial drivers, such as DQ files or drug testing records. Missing documentation could also be a sign that the company did not practice due diligence during the hiring process. A qualified truck injury lawyer can work to secure this documentation or gather evidence that demonstrates it is missing. Your attorney can use this information to prove liability in your insurance claim and/or personal injury lawsuit.
Clay Dugas and associates is committed to fighting against negligent hiring practices within the trucking industry. If you or a loved one have been involved in a tragic, trucking-related accident please contact us so that we can help you achieve justice and prevent others from suffering the same fate due to reckless, negligent behavior.