Take Preventative Measures to Avoid Liability in Trucking Litigation

Take Preventative Measures to Avoid Liability in Trucking Litigation

By Hugh A. McCabe

Proper screening and hiring of qualified drivers is imperative in minimizing liability to Trucking companies. Federal law regulates motor carriers’ hiring practices and imposes strict record-keeping requirements. Understanding federal hiring practice requirements and maintaining complete and current files will help motor carriers limit liability in lawsuits arising from driver error.

When hiring drivers, the Code of Federal Regulations requires motor carriers make certain investigations and inquiries with respect to each prospective candidate. The carrier must make an inquiry into the candidate's driving record to the appropriate agency of every State in which the driver held a motor vehicle operator's license or permit. 49 CFR 391.23(a)(1). Further, the carrier is required to investigate the driver's safety performance history with previous employers registered with the Department of Transportation. 49 CFR 391.23(a)(2).

Each motor carrier must make a written record with respect to each previous employer contacted, or good faith efforts to do so. Proper documentation of hiring practices is vital. Failure to contact a previous employer, and/or a previous employer’s failure to provide the required safety performance history information, must be documented. 49 CFR 391.23(c)(2). Prospective employers should report failures of previous employers to respond to an investigation to the Federal Motor Carrier Safety Administration. 49 CFR 391.23(c)(3).

At a minimum, the motor carrier must investigate the information obtained from all previous employers of the prospective driver for three years preceding the driver’s employment application. 49 CFR 391.23(d). Information obtained from previous employers should include: general driver identification, employment verification, accident reports, violations of alcohol and/or controlled substance prohibitions, and other relevant information from the previous employer’s personnel file. 49 CFR 391.23(e)(1)-(5).

For current employees, motor carriers must make an inquiry into each employee’s driving record at least once every twelve months. The inquiry should be made to the appropriate agency of every State in which the driver held a commercial motor vehicle operator's license or permit during the time period. 49 CFR 391.25(a). The motor carrier must then review each employee’s driving record to determine whether that driver meets minimum requirements for safe driving or has been in any way disqualified to drive a commercial motor vehicle pursuant to § 391.15 of the Code of Federal Regulations. 49 CFR 391.25(b).

Recordkeeping is required by federal law. Motor carriers must keep a Qualification File and a Driver Investigation History File on each employee driver. It is important these files be kept accurate and current. 49 CFR 391.25(c).

Motor carriers should maintain the records and documents required by law at their principal place of business. All records and documents are subject to inspection at any time upon request by a special agent or authorized representative of the Federal Motor Carrier Safety Administration and must be provided within forty-eight hours after a request is made. 49 CFR 391.29.

The qualification file for a driver must include:

  1. The driver's application for employment;
  2. A copy of the response by each State agency concerning a driver's driving record;
  3. The certificate of driver's road test issued to the driver or a copy of the license or certificate which the motor carrier accepted as equivalent to the driver's road test;
  4. The response of each State agency to the annual driver record inquiry;
  5. A note relating to the annual review of the driver's driving record;
  6. A list or certificate relating to violations of motor vehicle laws and ordinances; and
  7. A medical examiner's certificate of the applicant’s physical qualification to drive a commercial motor vehicle or a legible photocopy of the certificate.

Motor carriers must retain each driver's qualification file for as long as a driver is employed and for three years thereafter. 49 CFR 391.51(b)(1)-(7).

Motor carriers must also maintain a Driver Investigation History File, which must include a copy of the driver's written authorization for the motor carrier to seek information about the driver's alcohol and controlled substances history as well as a copy of the response(s) received from investigations from each previous employer, or documentation of good faith efforts to contact them. This record must also include the previous employer's name and address, the date the previous employer was contacted, and the information received about the driver from the previous employer. 49 CFR 391.53(b).

When an accident occurs, the potential exposure to a motor carrier can increase significantly if the driver is found to have been under the influence of an illegal substance. No motor carrier wants to find out for the first time after an accident their driver has a history of substance abuse. By diligently managing employee files and carefully abiding by the screening and hiring guidelines for prospective drivers, motor carriers can go a long way to eliminate both risk and potential exposure. Complying with these guidelines is often thought of as a big pain. However, compliance will also help ensure you have the best drivers for your company - which should result in lowering your risk and exposure. Compliance is not only mandatory, it makes good business sense.


Hugh McCabe is a shareholder at Neil Dymott. He concentrates his practice on employment law, business litigation and trucking and transportation matters. For more detailed information please contact Mr. McCabe at hmccabe@neildymott.com

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