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Is it just me or do you think the person who named asteroids and hemorrhoids needed one more cup of coffee that morning?

This past summer, I spoke at the American Trucking Associations Legal Forum and attended the Dallas, Great American Truck Show. Quite a contrast in perspective—one of the groups (or maybe it is me) sometimes seems to need another cup of coffee.

In Dallas, there were about 100 trucking companies exhibiting in the driver recruitment area. The name of the game was to attract driver applicants, promote the company and get applications. Even with freight somewhat slow, the motor carrier industry doesn’t seem to get out of the recruiting business.

At the Legal Forum, the focus was about 180 degrees the other way. It was not on recruiting, but avoiding “Negligent Hiring.”

The negligent hiring doctrine, in a nutshell, states that employers have the obligation to:

• Assess The Nature Of The Employment
• Determine its degree of risk to third parties, and then,
• Perform a reasonable background investigation to insure that the applicant is competent and fit for duty.

When you “assess the nature of the employment” of over the road commercial drivers, you see employees that often go for weeks without having any in-person supervision. Obviously, there is a level of supervision, but there are no factory whistles telling you your coffee break is finished or no supervisors to tell you to turn a smidgen to the left. There is a level of independence not found in many other professions.

The degree of risk to third parties is pretty clear. A person driving a commercial vehicle on the public highways can do a lot of harm.

The “reasonable background investigation” standard is harder to define. It is safe to say that any motor carrier that does not perform all investigations required by the Federal Motor Carrier Safety Regulations e.g., driving and employment inquiries, has not performed a reasonable investigation.  But are the minimum requirements enough? Many motor carriers don’t think it is, so they obtain information on prospective drivers even though it is not required. For example, many companies will obtain a criminal record on applicants. They do this because many companies have been sued when someone they hired committed a criminal act and hurt or killed someone. In looking at the person’s past it was found that the person had committed these crimes before—and the court ruled that the employer should have done more investigation.

There’s also the question of what decisions should be made based on the information that the background investigation uncovers. Should someone with three speeding tickets in the past two years be disqualified and someone with two be approved? What if all three of the first person’s violations were for less that 10 over the limit and the second person’s two tickets were for over 10? You have some of the same questions with criminal records. Should a felony theft disqualify a driver applicant? How about a misdemeanor assault?

Companies must make these decisions daily and the decisions can sometimes be adjusted based on how many trucks are parked out by the fence because of a lack of drivers. Sometimes you look at the amount of time, money and effort spent on recruiting drivers and then at the amount of time, money and effort spent screening them out and it almost seems the companies are working against themselves. I receive hundreds of questions every month that boil down to “Will this _________ prevent me from getting a job?” The answer of course depends on the employer, but in general, the infraction(s) will be evaluated by 4 criteria:

In future columns, these 4 criteria will be explored in greater detail.

Derek Hinton
CEO of TIES, LLC
www.dotjobhistory.com

Derek Hinton is the CEO of TIES, LLC, better known as www.DOTJobHistory.com. DOTJobHistory allows drivers to check and verify their employment, driving and public records. They may then make this information available over the web to employers who can access the information instantly.

Derek has over 20 years experience in employment screening in the trucking industry, the Fair Credit Reporting Act and Motor Carrier Safety regulations. He began his career at DAC Services in 1984 and is the author of The Criminal Records Manual, a book that details criminal records in the hiring process.

Contact information for Derek can be found at www.dotjobhistory.com