Motor Carriers are held accountable for what they should have known and done. In post-crash litigation, if a plaintiff’s attorney can instill anger in a jury, this becomes the accelerant to trigger what is called a “nuclear” verdict – a very big settlement. You don’t want to be painted as negligent – a person that disregards regulations, doesn’t follow policies, or fails to correct unsafe behavior. To help carriers remain defendable and avoid triggering a nuclear verdict, you need to always exceed FMCSA regulations, follow company policies, avoid crashes through ongoing detection and correction of unsafe behavior, and join an association for compliance assistance. The four most scrutinized areas in post-crash litigation are driver qualification files, drug and alcohol testing, driver supervision, and regulation education. Let’s review these four areas for foundational requirements, common infractions, and best practices that exceed minimum standards.
DRIVER QUALIFICATION. Each person who operates a commercial motor vehicle, non-CDL or CDL vehicle driver, must have a driver qualification (DQ) file that you must retain for the length of employment plus three years. A DQ file is required for your full-time drivers, occasional drivers, staffing service drivers, and leased owner operators working under your DOT number. The following documents need to be in the DQ file or a secure location with limited access by people central to the hiring process at your principle place of business: 1) DOT driver application; 2) Motor vehicle records (MVRs) from each driver’s licensing authority in the past three years; 3) Certificate of driver’s road test or a copy of their CDL; 4) Medical examiner’s certificate or proof of medical certification; 5) Medical Variance/Skills Performance Evaluation (SPE); 6) Verification that the examiner was on the National Registry of Certified Medical Examiners; and 7) Safety performance history inquiries for driving jobs in the past three years.
You must also have processes that keep your drivers qualified. FMCSA minimum requirements leave you open to licensing changes between the annual checks. Per 391.25, obtain at least annually the following records and place them in the driver’s DQ file: 1) Driving records – run MVRs for each state where the driver held a license no later than the driver’s first anniversary. Check that their license is still valid and has the required endorsements; and 2) Note of annual review – a carrier representative must scrutinize the MVR(s) and should include company performance issues.
The most common violations include a missing or only partially completed DOT application, the safety performance history (SPH) is not properly completed within 30 days, the initial MVR was not run or annual MVR and annual review not completed or late, the MVR reveals the driver did not hold a valid license, or the driver was used while not medically qualified. For best practices, always run a pre-employment screening program or PSP report with three years of violations and five years of DOT crashes, continuously monitor MVRs, and perform annual mock audits of compliance with regulations and company policies and procedures.
DRUG AND ALCOHOL TESTING. Anyone who can operate a CDL vehicle for you is subject to the DOT and FMCSA drug and alcohol testing regulations, including leased owner operators, fill-in or temporary drivers, or mechanics who road test vehicles. Six tests must be properly administered at the required time: pre-employment, post-accident, random, reasonable suspicion, return-to-duty, and follow-up. A carrier must also run a full Clearinghouse query before a CDL driver operates for the first time. A limited query each subsequent year is required to verify the driver is not prohibited from driving due to a drug or alcohol violation. Carriers must also have a drug and alcohol testing program policy containing all 12 elements in 382.601(b) with a signed receipt that the drivers received these materials.
Common violations include failing to implement a drug and alcohol testing program, failing to randomly test for alcohol or drugs, using a driver that tested positive for alcohol or drugs, using a driver who has not completed the return-to-duty process, and utilizing a driver before receiving a pre-employment result. Best practices include running a full query for the annual query to avoid backtracking if something turns up on a limited query, hiring a third-party administrator to manage your drug and alcohol testing program, conducting regular training sessions on regulations and company policies and procedures, and doing mock audits of personnel administering tests and driver notifications.
DRIVER SUPERVISION. One of the most challenging driver supervision issues is hours of service compliance. If your driver made a poor driving decision and was over hours or operating with a false log, this can give the plaintiff’s attorney a detonator for a nuclear verdict. What stops a driver from falsifying their log or running over hours is a culture of compliance or fear of getting caught due to frequent audits. Otherwise, a driver will not change their behavior.
ELDs, paper logs, and time records can be falsified in several ways, so you must have procedures to detect and eliminate falsification supported by a zero-tolerance policy. Driving behavior data from the engine control module or a video-event recorder should also be acted on because the data, better known as evidence, is being collected. The firehose of data is challenging to manage without a dashboard system. Dashboard systems with event alerts help regularly monitor harsh cornering, hard braking, lane departures, following too close, hand-held cell phone use, and other unsafe driving behaviors.
A key to driver supervision is proactive detection and correction of unsafe or non-compliant behavior before crashes occur. Auditing your progressive discipline program for consistent enforcement is another crucial element to avoid triggering a nuclear verdict. Best practices should include running regular ELD back-office system reports to detect falsification or contract with a third party for help in this area, processing unassigned driving events daily, continuously auditing your program, and employing a well-enforced zero-tolerance policy prohibiting falsification. Use of a video event monitoring system with timely coaching, training, and progressive discipline will reduce unsafe driving behavior drastically.
REGULATION EDUCATION. It is practically impossible to retain all the knowledge you need in regard to the FMCSA regulations to stay in compliance, so the best way to get help is from a recognized trade association. NTA is a nationwide association that offers all the services that are mandatory to be in compliance at a very affordable price. Most state associations base their membership on your total revenue or miles driven. NTA does not care how much your company makes nor how many miles you travel. We believe it is the driver who will make or break your company, so membership is based on the number of drivers shown on your MCS-150. NTA offers free safety consulting, which is included in your membership, and is also an official distributor of JJ Keller products and services. If NTA cannot meet your needs, they have the best backup money can buy.
Failure to identify and correct non-compliance and unsafe behavior can be devastating for motor carriers by making them difficult to defend after a major crash. There is almost too much compliance and driving behavior data to manage yourself. Don’t hesitate to engage an expert such as NTA to help protect your business. We are here to help! Call (800) 805-0040 or visit www.ntassoc.com today.
