Is Complying with FMCSA Regulations Enough to Protect You From Litigation Risk?

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Motor carriers operating in the United States are required to comply with the Federal Motor Carrier Safety Regulations (FMCSR) when they are hiring a new driver. These regulations mandate specific types of background checks that must be performed on each driver-applicant.

But are these FMSCR mandated checks doing enough to help insulate you from the possibility of expensive and time-consuming negligent hiring and retention litigation?

Right now, negligent hiring and negligent retention claims are recognized in almost every state – what’s more, they’re on the rise. Motor carriers should definitely take notice of this trend, because when employers are sued for negligent hiring or negligent retention, they tend to lose often and to lose big.

Many motor carriers may feel like simply complying with the FMSCR is sufficient to protect themselves from these types of claims, but there is a wealth of evidence to the contrary. In one example, a jury awarded a woman brutally attacked by a delivery driver in her apartment $2.5 million in damages when it was proven that the employer had not performed adequate due diligence on the applicant and had missed a history of arrests and convictions for similar behavior.

Current Employment Screening Requirements
One way motor carriers can potentially reduce their exposure on negligent hiring and negligent retention claims is by conducting background checks that are more extensive than those checks currently required by the FMCSR.

In states where a more comprehensive search is available, additional criminal history searches, more comprehensive employment verifications, and motor vehicle histories can prove to be invaluable when making hiring decisions.

Moreover, this additional layer of research into an applicant’s background can be done very cost-effectively – costs that are well-balanced by the potential expenses of defending against negligent hiring and retention claims.

Currently, the FMCSR require motor carriers to obtain the following information, among other things, from each truck driver applicant:

  • The issuing state, number, and expiration date of each unexpired commercial motor vehicle operator’s license
  • A list of all motor vehicle accidents during the prior three years
  • A list of all motor vehicle law violations resulting in conviction or forfeiture of bond or collateral during the prior three years
  • A list of the names and addresses of employers during the prior three years (This list must include an additional seven years of employment history if the driver is applying to operate a commercial motor vehicle and has such operating experience.)

The motor carrier then must take the following steps, among other things, to investigate the truck driver applicant’s background:

  • Obtain the motor vehicle record from each state where the applicant held a motor vehicle operator’s license during the prior three years
  • Investigate the applicant’s safety performance history with DOT regulated employers during the prior three years by inquiring about the following from each such employer
    • General driver identification and employment verification information
    • Details regarding accidents
    • Information regarding violations of the DOT drug and alcohol testing regulations
  • Obtain the medical examiner’s certificate and any medical variance
  • Conduct a pre-employment drug test

Are the Minimum Screening Requirements Enough?
Is this enough to protect the motor carrier from negligent hiring or retention litigation? After all, there’s been no search for a history of criminal behavior by the applicant, and no motor vehicle or employment details beyond three years are required.

Considering that the driver will be representing the motor carrier and will be expected to perform his or her job duties in a safe, responsible, and trustworthy manner, many motor carriers may not be comfortable with this limited level of pre-employment screening.

It’s important to remember that the FMCSR specifically allow motor carriers to require that their driver applicants provide more information than that which they mandate.

So, what are some additional background search elements that motor carriers could require of their driver applicants to further reduce their exposure to negligent hiring and negligent retention litigation? Specifically, motor carriers can perform the following:

  • Check the American Association of Motor Vehicle Administrators’ Commercial Driver’s License Information System (CDLIS) to verify that a driver has, on his or her employment application, listed all of the states where a CDL is held
  • Verify a driver’s identity
  • Check a driver’s criminal background
  • Conduct a crash and roadside inspection check using the Federal Motor Carrier Safety Administration’s (FMCSA) Pre-Employment Screening Program (PSP)
  • Conduct a motor vehicle record check that is more comprehensive than that required by the FMCSR (The number of years available for motor vehicle record information varies by state. Additionally, if the motor carrier obtains the motor vehicle record through a background screening company, the information may be limited in accordance with the Fair Credit Reporting Act and applicable state law.)
  • Conduct an employment history check that is more thorough than that required by the FMCSR
Free Report: How Can Motor Carriers Reduce Their Potential Liability?
Free background screening report
Discover ways to exceed the minimum requirements of the FMCSR and help reduce liability by downloading:

How Can Motor Carriers Reduce Their Potential Liability?

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HireRight is a leading provider of on-demand employment background checks, drug and health screening, and electronic Form I-9 and E-Verify solutions that help employers automate, manage and control background screening and related programs.

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