When hiring a commercial driver to operate a commercial motor vehicle (“CMV”), employers are required by law to conduct a driving record background check and an employment history background check. In order to comply with applicable U.S. Department of Transportation (“DOT”) regulations and minimize the risk of liability for negligent hiring, Minnesota motor carriers must develop effective background screening policies and procedures.
Driving Record Background Checks
DOT regulations require motor carriers to make an inquiry into the applicant’s driving record during the preceding 3 years to the appropriate agency of every state in which the driver held a motor vehicle operator’s license or permit during those three years. 49 C.F.R. § 391.23(a)(1).
The inquiry must be made within 30 days of the date the driver’s employment begins and must be made in the form and manner those agencies prescribe. 49 C.F.R. § 391.23(b). A copy of the response by each state agency, showing the driver’s driving record or certifying that no driving record exists for that driver, must be placed in the driver’s qualification file within 30 days of the date the driver’s employment begins. 49 C.F.R. § 391.23(b).
These requirements apply to drivers applying to operate either class of CMV:
- The first class of commercial motor vehicles is defined by 49 C.F.R. § 390.5 and means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight in excess of 10,000 lbs., or is designed or used to transport more than 8 passengers (including the driver) for compensation, or is designed or used to transport more than 15 passengers (including the driver) and is not used to transport passengers for compensation, or is used in transporting hazardous materials in a quantity requiring placarding under the FMCSA regulations. 49 C.F.R. § 390.5.
- The second class of commercial motor vehicles is defined by 49 C.F.R. § 383.5 and means any motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle as a gross combination weight rating or gross combination weight in excess of 26,000 lbs., inclusive of towed units with a gross vehicle weight rating or gross vehicle weight in excess of 10,000 lbs., or has a gross vehicle weight rating or gross vehicle weight in excess of 26,000 lbs., or is designed to transport 16 or more passengers (including the driver), or is any size and is used to transport hazardous materials requiring placarding under the FMCSA regulations. 49 C.F.R. § 383.5.
Employment History Background Checks
Motor carriers are also required to investigate applicants’ employment history. 49 C.F.R. § 391.23(a)(2). The inquiry must be made within 30 days of the date the driver’s employment begins. 49 C.F.R. § 391.23(b). The investigation may consist of personal interviews, letters, or any other method of obtaining information that the carrier deems appropriate. Each motor carrier must make a written record with respect to each past employer who was contacted. The record must include the past employer’s name and address, the date he/she was contacted, and his/her comments with respect to the driver. 49 C.F.R. § 391.23(c). The record must be retained as part of the driver’s qualification file. 49 C.F.R. § 391.23(c).
Avoiding Negligent Hiring Claims Under Minnesota Law
In addition to the DOT regulations, the doctrine of negligent hiring requires that employers conduct adequate background checks on every applicant. What is “adequate” depends on a number of factors, but usually would include contacting previous employers or references, identifying and evaluating gaps in the applicant’s resume, and, for certain positions, requesting a criminal background check or consumer report. Pre-employment investigations are important to ensure that the applicant is the best-qualified individual and to provide an extra measure to test the veracity of the information provided by the applicant.
Motor carriers have a number of different tools available to conduct pre-employment investigations. When conducting background checks, however, the proverbial double-edged sword exists for human resources personnel. Certain inquiries may be unlawful, and excluding applicants based on personality traits or criminal histories may lead to potential liability for the employer. Further, when using a third party to conduct background checks, the employer must comply with the Fair Credit Reporting Act and Minnesota Fair Credit Reporting Act. For these reasons, motor carriers should develop effective and lawful policies for screening commercial driver job applicants with the assistance of legal counsel.
If your company needs help developing a DOT commercial driver background check policy, contact one of the transportation law attorneys of Trepanier MacGillis Battina P.A.
About the Author:
Minnesota transportation lawyer Bryan R. Battina advises clients, drafts contracts, and litigates disputes in the transportation industry for motor carriers and household goods moving companies. Bryan may be reached at 612.455.0505 or firstname.lastname@example.org. Trepanier MacGillis Battina P.A. is a Minnesota transportation law firm located in Minneapolis, Minnesota.