Bottom Line
Prospecting for Gold - Part 2
Hiring Drivers by the Regs

By Ruth Jones and Jason Cisper

Can you hire a driver with just a handshake? While you may conclude the process with a handshake, the answer is "no." When it's time to add an additional truck to your equipment list, hiring the driver to operate that truck brings on an extensive list of requirements and responsibilities any motor carrier must follow, whether the carrier has one truck or one thousand. These are outlined in Part 391 of the Federal Motor Carrier Safety Regulations (FMCSR) dated July 15, 1997.

If you are an owner-operator with your own authority, it is essential that you, as a motor carrier, have adequate knowledge of these regulations to avoid what can often be costly mistakes. If you are an owner-operator leased to a motor carrier or an employed driver, a good working knowledge of the regulations can clear up misconceptions about your responsibilities, as well as alert you to a motor carrier who is collecting a lot more information than it needs for compliance.

The Application

The motor carrier must furnish the driver with an application form, and the driver must fill out that application, sign it, and return it to you. You do not have to purchase any particular application forms. Forms specific to hiring truckers are for sale, but for the motor carrier with only a few trucks, this may be an unnecessary expense. Using the requirements outlined in the FMCSR, you may create your own application form using a computer or other means.

  • The completed application form must contain the following information:
  • The name and address of the motor carrier.
  • The applicant's name, address, social security number, and date of birth. Note: Asking for a date of birth is allowed since federal regulations mandate a minimum age of 21 years in §391.11 (1).
  • The applicant's addresses for the last three years.
  • The date the application is submitted.
  • The issuing state, number, and expiration date of each unexpired CDL or permit issued to the applicant.
  • The nature and extent of the applicant's experience in the operation of motor vehicles, including the type of equipment operated.
  • All motor vehicle accidents in which the applicant was involved during the preceding three years. Note: the regulation says, "involved" not "at fault."
  • All violations of motor vehicle laws (excluding parking violations) that resulted in the forfeiture of bond or collateral (in other words, a fine was paid) during the preceding three years.
  • A statement detailing the circumstances of any denial, revocation, or suspension of any license to operate a motor vehicle.
  • The names and addresses of each of the applicant's employers (regardless of type of work performed) for the preceding three years, including dates of employment and reason for leaving.
  • The names and addresses of employers for which the driver operated a commercial motor vehicle for up to an additional seven years together with employment dates and reason for leaving. In other words, a driver with only three years of experience in operating a commercial motor vehicle would be required to furnish a complete three-year employment history. If the driver has five years experience in operating a commercial motor vehicle, then the employment history should cover that five years of experience, including periods of employment in other occupations, up to a maximum requirement of ten years of previous employment history. If the driver has ten (or more) consecutive years of experience operating a CMV, then the driver must provide an employment history for the preceding ten years.
  • A certification signed by the driver that all information on the application is true and complete to the best of his/her knowledge. A sample of the required certification is available in the Federal Motor Carrier Safety Regulations Handbook, section 391.21 (12).

Checking Out Your Drivers

According to §391.21(12)(d), before you accept the driver's application, you must inform the driver that the information provided "may be used, and the applicant's prior employers may be contacted, for the purpose

investigating the applicant's background as required by §391.23." The regulations do not state that the driver must be informed in writing. As many of you already know, recent changes to credit reporting laws say a driver may be advised of this investigation orally, but a careful motor carrier will put it in writing and have the driver verify his/her agreement to the investigation with a signature.

Section 391.23 requires that within 30 days of employment, you must request a copy of the driver's driving record from each state where the driver has been licensed during the preceding three years. You must also, within thirty days of employing the driver, investigate his/her employment history for the preceding three years. (Note that while the driver may be required to provide an employment history of up to ten years, the motor carrier is only obligated to investigate the driver's history for the preceding three years.) "The investigation may consist of personal interviews, telephone interviews, letters or any other method of obtaining information that the carrier deems appropriate." Your records of this investigation should include each previous employer's name and address, the date of contact, and "comments with respect to the driver." Keep in mind that few drivers leave a job happy, and use your best judgment when your investigation is complete. A phrase like "violated company policy" coming from a former employer can mean something as simple as a missed check call.

While the regulations do allow you 30 days to obtain this information, unless you know the driver you hire very well, it makes sense to get this taken care of before you send a driver out with your equipment and your reputation at stake.

The Road Test

Section 391.31 requires that a motor carrier (or a person designated by the motor carrier) must give newly hired drivers a road test in a commercial motor vehicle of the type the motor carrier intends to assign to him/her. "The road test must be of sufficient duration to enable the person who gives it to evaluate the skill of the person who takes it at handling the commercial motor vehicle and associated equipment." Elements of the test should include the pre-trip inspection, placing the vehicle in operation, use of controls and emergency equipment, operating the vehicle in traffic and while passing other vehicles, turning, braking, backing, parking, and hooking up and unhooking from trailers.

If you have your own authority, and you are the sole driver in your operation, you must still complete a road test. You must designate someone qualified to give you a road test – you may not administer your own.

Once the road test is completed successfully, the driver should be given a "Certification of Road Test." The person administering the test must fill this out. A sample form is available in the FMCSR, §391.31(f) that you may photocopy or re-create on your computer.

In lieu of a road test, you may, under Section 391.33, accept a valid CDL. Or you may accept a "Certification of Road Test" less than three years old issued by another motor carrier. If you choose this option, you must keep a copy of the license or other certification in the driver's qualification file.

Questions, Questions

Suppose you have a small fleet, or want to hire only one or two drivers. Is there really a risk that the Equal Employment Opportunity Commission will come after you for asking discriminatory interview questions?

Not likely. According to their website, the EEOC enforces job discrimination under the Americans with Disabilities Act against employers, "with 25 or more employees after July 26, 1992, and all employers... with 15 or more employees after July 26, 1994."

But while you may be safe from the wrath of the EEOC, you are still subject to litigation from individuals who feel they have been discriminated against.

Follow the rules anyway. During the interview process, don't ask about the following: Sex, race, creed, color, religion, national origin, disabilities, dates and types of military discharge, or marital status.

Granted, there are some questions that you simply would like to know about a person prior to hiring them. But unless he or she gives up the information voluntarily, you should remember that those questions are not relevant to an individual's ability to perform a certain job or task. After you make the initial job offer, you can legally ask more detailed questions.

Here are a few questions that are off limits during the employment interview:

  • Have you ever been treated for drug addiction or alcoholism?
  • Have you ever been arrested?
  • How many children do you have, and who will care for them while you're at work?
  • What year did you graduate from high school?
  • What is your spouse's occupation?

There are, however, some questions that are general enough to be used without being considered discriminatory. Here's a few.

  • What languages do you speak or write fluently?  (You can ask this, but you CANNOT ask about their native language.)
  • What is your vocational or professional education?
  • Are you a U.S. citizen? (You can ask this, but you CANNOT ask if he/she is a naturalized citizen.)

Finding qualified help can be a tedious task. Remember that there are more important things to find out about an applicant than their marital status or religious background.

The Physical Examination

Section 391.41 outlines the physical qualifications for drivers operating CMVs. Truckers know that they are required to have a "DOT physical" every two years. However, there seems to be a lot of confusion about what physical conditions will or will not cause drivers to be disqualified from driving or for which they may obtain waivers. All drivers should familiarize themselves with these requirements to avoid misunderstandings. For instance, many drivers believe that anyone who has diabetes cannot be qualified to operate a CMV. Section 391.41(b)(3) says "A person is physically qualified to operate a commercial motor vehicle if that person has not established medical history or clinical diagnosis of diabetes mellitus requiring insulin for control." In other words, if your diabetes is controlled with diet or a combination of diet and oral medication, you are not disqualified from driving.

Physical examinations may be done by any person, who (according to Section 390.5) "is licensed, certified, and/or registered, in accordance with applicable state laws and regulations, to perform physical examinations." Instructions to the medical examiner, as well as a sample long form and certificate are available in Section 391.43.

Note that the regulations state that this version of the long form should only be used until March 31, 1997. However, regulators are still in the process of revising the form, so this one may still be used. For important information about the revision of the form and proposed changes to the medical examination process itself, see Issues and Positions, and Washington Insider.

Record of Violations

Once a year, each driver you employ must compile a list of all violations of traffic laws and ordinances (other than parking violations) for which he/she has been convicted or paid a fine for the preceding 12 months. If there are no violations to report, the driver must certify that this is the case. You must keep a copy of this annual certification in the driver's file. A sample "Driver's Certification" form is available in Section 391.27(c) of the FMCSR.

Note that while the regulations require the driver to report his/her violations to the motor carrier, the regulations do not require the motor carrier to verify this information with the state that issued the driver's CDL. Still, a motor carrier's policy may be to annually check their drivers' MVRs. In addition, most insurance companies check MVRs for drivers employed by the motor carriers they insure on a regular basis.

The annual review
At least once every 12 months, the motor carrier must review the driving record of every driver it employs "to determine whether that driver meets minimum requirements for safe driving or is disqualified to drive a commercial motor vehicle pursuant to §391.15." Things like traffic violations, accidents and violations of FMCSR should be covered. The date the review was performed and the name of the reviewer should be noted in the driver's file.

From a professional trucker's perspective, a periodic, personal review of your MVR may be a good idea. It can uncover a violation code that has been incorrectly recorded or misinterpreted. And often, drivers who have been under the impression that certain tickets were not going to show up on their MVRs have found their information to be inaccurate. Checking your MVR on a regular basis gives you the opportunity to correct little problems before they blossom into a suspension.

The Driver's Qualification File

Now that you've generated all this paperwork, you have to keep track of it. Each driver's file must contain the driver's application, responses from state agencies and past employers, a copy of the medical examiner's certificate, certificate of road test (or allowable alternative), any waivers the driver may have, notations relating to annual reviews, the annual list of violations prepared by the driver, and any other information relating to the driver's qualifications to drive a CMV. Care should be taken to assure that all required elements are contained in each driver's qualification file. In the event of a DOT audit, incomplete driver files raise red flags and often generate attention-getting fines. LL