Pre-employment screening: What are truck companies supposed to do before they hire a new driver?
Truck accident lawyers must look to see if motor carriers follow FMCSRs and screen drivers before putting them on the road
The Federal Motor Carrier Safety Regulations (FMCSRs) create the rules that are supposed to keep us safe. These are the mandatory safety rules that bus companies and trucking companies must follow to put what otherwise are very dangerous and heavy vehicles on the public highways. And motor carriers are responsible for maintaining records, their semi-truck or buses, an effective safety program; and ensuring that all the employees (especially the truck drivers) comply with these mandatory FMCSRs.
One of the most important rules is 49 CFR § 391.23. This rule is absolutely critical in promoting truck safety. According the rule, interstate trucking companies or bus companies have the responsibility to investigate and inquire into the background of each truck driver or bus driver it employs. The company must make an inquiry into each state where an applicant driver previously held, or currently holds, a motor vehicle operator’s license or permit for the last three years and obtain a copy of their driving record.
Tip: Successful truck accident attorneys do the same. Discovery requests should be made not only to the company the driver was currently looking for, but the previous employment as well.
But the rule does not stop there. The carrier must also investigate the driver’s safety performance history with other interstate trucking companies or bus companies he or she has worked for within the preceding three years.
When you have litigated as many truck accident cases as I have, you learn something: More often than not, bad trucking companies or bus companies choose not to investigate an truck driver applicant’s background and character. Good drivers cost more than bad ones.
What truck accident lawyers should investigate regarding pre-employment screening of truckers
As an attorney in this area of law, I suggest that you will want to look at whether the truck or bus company in question completed a compliant § 391.23 investigative review. Such a review may consist of personal interviews, telephone interviews, letters or any other method for investigating that the carrier deems appropriate.
Each motor carrier is required to make a written record with respect to each previous employer contacted, or (at the minimum) some good faith effort 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.
Most importantly, under 49 CFR § 391.53, the safety performance histories received from the previous employers must be retained in the trucker or bus driver’s employee file so long as the driver is employed by that motor carrier. But the rule keeps going. In addition, the driver file must be maintained for an additional three years once the commercial driver’s employment ends.
An experienced commercial motor carrier attorney will tell you that where the company hired a dangerous driver with a long history of driving violations and accidents, the odds are good that the motor carrier or bus company has violated this rule.
Some companies fail to even take the initial steps in performing any investigation at all! But even those bus companies and motor carriers who do take these initial steps sometimes still fail to keep records of this investigation throughout the duration of the driver’s employment with the carrier, or for three years after the employment ends.
Important tip: If you’re a truck accident lawyer handling a serious truck wreck case, make sure that before you step into a deposition with a trucking company or bus company’s safety director, evidence of a pre-employment investigation must be requested in discovery. If the carrier has failed to produce any documentation of a pre-employment investigation, chances are the carrier has violated the federal rules governing pre-employment commercial driver screening — § 391.23 and § 391.53.