An Ounce of Prevention: Best Practices for Hiring Drivers

Transportation companies are required to take all reasonable steps to ensure they are hiring only safe, competent drivers. Having a robust pre-employment program to screen applicants and to document the process helps avoid potential liability associated with negligent hiring of drivers.

For carriers, negligent hiring liability generally turns on whether the employer knew or should have known of a driver's unfitness. A trucking company has a duty to hire and retain drivers who are competent and fit to perform the hazardous job of driving tractor-trailers. Proper hiring starts with completing the necessary background checks, tests, and inquiries to assess the qualifications and fitness of a potential driver. Companies have a duty to investigate any red flags that arise during this screening process, and documentation is key.

Though not always conclusive in cases involving claims of negligent hiring of drivers, documented compliance with Federal Motor Carrier Safety Administration (FMCSA) hiring-related requirements is frequently treated by courts as strong evidence of due care.

Transportation companies should recognize that FMCSA compliance establishes a regulatory baseline, not necessarily the ceiling of what may be required under the circumstances. While compliance with federal hiring regulations is often persuasive evidence that a carrier exercised reasonable care, courts frequently evaluate negligent hiring claims under broader common-law principles that focus on foreseeability and reasonableness. In other words, a carrier may satisfy the technical requirements of the regulations yet still face scrutiny if available information suggested that an applicant posed an unreasonable safety risk.

For this reason, hiring decisions should not be viewed as a checklist exercise. The objective is to determine whether the applicant can safely operate a commercial motor vehicle and whether the carrier has exercised reasonable judgment in making that determination. Information obtained through motor vehicle record reviews, prior employer inquiries, Drug and Alcohol Clearinghouse searches, employment history verification, road tests, medical qualification reviews, and criminal background investigations should be evaluated collectively rather than in isolation. A pattern of concerning information that may not independently disqualify an applicant could nevertheless warrant additional investigation before a hiring decision is made.

Particular attention should be paid to red flags that may indicate a heightened safety risk. Multiple preventable accidents, repeated moving violations, unexplained employment gaps, inconsistencies in application materials, prior safety-related disciplinary actions, substance abuse concerns, falsified credentials, or a history of regulatory violations may require further inquiry. When such issues arise, carriers should document both the investigation undertaken and the rationale supporting the ultimate hiring decision. In litigation, the existence of a documented investigative process is often as important as the information uncovered during the investigation itself.

Likewise, a carrier's exposure does not end once the driver is hired. Plaintiffs frequently attempt to link negligent hiring, negligent retention, negligent supervision, and negligent entrustment theories together. As a result, carriers should maintain systems to monitor driver qualification files, medical certifications, motor vehicle records, hours-of-service compliance, accident history, and post-hire safety performance. Evidence that a company consistently evaluates driver performance and addresses safety concerns as they arise can significantly strengthen the defense against claims that the carrier ignored warning signs or retained an unfit driver.

For a trucking company, maintaining compliance also includes tracking changes to the administrative rules. In the past year, for example, the U.S. Department of Transportation has focused on CDL standards and making sure that all truck drivers are properly vetted before being allowed to operate. Notably, recent federal enforcement efforts specifically affect qualifications for non-domiciled CDL holders.

The Federal Motor Carrier Safety Administration issued a final rule regarding non-domiciled CDLs that took effect in March. Under the rule, an Employment Authorization Document is no longer enough to obtain a non-domiciled CDL. FMCSA estimated that there were about 200,000 non-domiciled CDL holders and that the final rule would force about 194,000 to “exit the freight market.”

To avoid negligent hiring exposure in trucking or common carrier litigation, carriers should (1) rigorously follow and document FMCSA hiring-related practices, (2) treat driver fitness and competence as the central hiring/retention inquiry, (3) implement a red-flag escalation and investigation process, and (4) integrate hiring with training, supervision, and retention controls.

Taking the time to properly assess and document the fitness and competence of your drivers is crucial to avoid liability associated with negligent hiring practices. If you are unsure about whether your transportation company is implementing best practices to avoid liability in the hiring process, contact David Robinson (drobinson@setlifflaw.com) at (804) 377-1268 or contact Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261 for a comprehensive review of your hiring and retention programs.