Setting up and Maintaining

SETTING UP AND MAINTAINING DRIVER QUALIFICATION FILES

AND PROPERLY QUALIFYING DRIVERS

Matthew Daecher

The Daecher Consulting Group

INTRODUCTION

Commercial vehicle carriers/companies are required to maintain a Driver Qualification File (DQF) for each commercial motor vehicle (CMV) operator by the USDOT. The requirements for a DQF are spelled out in the Federal Motor Carrier Safety Regulations (FMCSRs).

While the FMCSRs only apply to interstate CMV drivers, it is important to note that the vast majority of states adopt the FMCSRs as their state safety regulations for intrastate CMV drivers. While minor changes are often made to the FMCSRs for intrastate regulatory purposes, the driver qualification regulations are most often unchanged.

It is important that companies who operate commercial vehicles comply with the FMCSRs and applicable state regulations to avoid potential issues with non-compliance, including fines and other actions against operating authority.

Another compelling reason to comply with these and other applicable regulations revolves around legal actions, which may arise out of collision claims. In today’s litigious environment, driver qualification files are usually acquired by opposing parties in legal actions related to accidents. Adverse parties will be quick to point out any errors in the driver qualification file and may be able to increase the value of claims, including asking for punitive damages, if they can establish that the motor carrier was negligent in hiring a driver or negligent in their duties to qualify the driver according to regulatory standards. Properly qualifying a driver as opposed to simply going through the motions of gathering required paperwork can mean a world of difference when it comes to lawsuits and claim values.

Changing regulations often result in changes to the way drivers should be qualified, and, consequently, how the DQF should be set up, maintained, and what it should include. This packet is designed to help a company understand the most recent regulatory requirements for a DQF and also to suggest ways to “bulletproof” your driver qualification file/process from any aggressive plaintiff parties after a collision.

I’ve tried to put this together in a self-explanatory way – all it should take to truly understand DQFs and understand a simple way to assemble and maintain them is a little time invested by you. There is a description and background for each form in the narrative and a corresponding example of most in one of the Appendices.

SECTION ONE

INITIAL DRIVER QUALIFICATION FILE DOCUMENTS & PROCESSES

The following forms and processes should be executed/completed at the time a driver is hired. The forms completed and items gathered in relation to this section should be maintained indefinitely in the Driver Qualification File.

THE EMPLOYMENT APPLICATION

The first encounter with a potential driver typically revolves around completion of an Employment Application. This also one of the most common problems observed in DQFs – applications which do not meet regulatory standards or are not completed and reviewed thoroughly. The following steps should be completed in the application/interview process:

1. Use a regulatory compliant Employment Application. The FMCSRs require specific items to be asked in a potential CMV driver application and also specify language to be used for certain areas of the application. Most generic employment applications do not meet these regulatory standards.

2. After the applicant completes the application, review it for completeness. Specifically:

· Ensure that all areas of the application are competed/inquiries are answered. If there is no response for a specific inquiry (such as “CMV Driving Experience”), the applicant should write “N/A” in the response area.

· Ensure that a complete employment history for the previous three years is provided. If there are gaps in employment in the previous three years of employment history provided, the employer should require the applicant to provide an explanation of the gaps (i.e., what they were doing during those periods). Explanations should either be provided by the applicant in writing and attached to the original application, or interview notes documenting the applicant explanations should be written and attached to the application.

A regulatory compliant application is included in Appendix A.

The completed employment application must be maintained indefinitely in the DQF.

APPLICANT MOTOR VEHICLE RECORD (MVR)

Employers are required by the FMCSRs to obtain an applicant’s MVR from each state where the applicant held a driver license within the previous three years from the date of the application. The MVR must include a minimum of 3 years of driving history (every state MVR generally contains at least 3 years of driver record information – some may provide up to ten years of information). There are generally three methods of acquiring a driver MVR:

1. Send an inquiry to the license-issuing state agency responsible for driver records requesting an MVR for the applicant. This generally requires an authorization from the applicant, state-specific forms for requesting the MVR, and payment in the amount of whatever the state charges for the MVR. The process for acquiring them directly from state agencies varies widely, so a more complete description of the process cannot be offered in this general overview.

2. Have the applicant provide you with their MVR(s). If you choose to go this route, be sure that the report date on the MVR provided is no more than one week prior to the application date.

3. Use a third party to obtain the necessary MVR(s). Companies specializing in obtaining employment and personal data (some online) are available to aid in acquiring driver MVRs from various states.

Whichever method is used to obtain the initial MVR, there are several things you should do once you receive the applicant MVR(s):

· Review the MVR to insure that the “report” date reflects when it was ordered/processed and that this date coincides closely with the application for employment

· Review the MVR to ensure that no disqualifying violations have occurred (as specified in the FMCSRs – see “Disqualifying Offenses” in Appendix A).

· Compare violations and/or revocation periods listed on the MVR with those listed on the applicant’s application. If there are differences, these should be explained by the applicant, with the explanation documented and attached to the application. An applicant’s blatant failure to be truthful on the application should be carefully considered by the employer in the hiring decision.

· Ensure the MVR indicates that all necessary endorsements (passenger, air brakes, etc) necessary are valid.

· Note the license issuance date noted on the MVR. If this date is less than three years from the date of the application, the applicant may have had held a previous license issued in another state for which you must obtain another MVR (issued by previous state). On the application, the applicant is required to list any states where a license was held within three years of the date of the application, however, they do not always do so. If the MVR reveals that the license was issued less than three year fro the date of the application, an inquiry should be made to the applicant regarding any previously held licenses, his/her response documented and attached to the MVR, and any actions taken if necessary (do you need to obtain an MVR from another state?)

· Note the expiration date of the license. You will need to know this going forward should you hire the applicant so that you can insure that the license is renewed in a timely fashion while the driver is employed by you.

The MVR obtained in connection with an applicant’s application for employment should be retained indefinitely in the DQF.

PHYSICAL QUALIFICATION & MEDICAL

EXAMINATION/CERTIFICATE OF PHYSICAL EXAMINATION

CMV drivers are required to meet certain physical qualification criteria as defined in the FMCSRs to operate CMVs. Documentation of drivers meeting the qualification criteria is required to be kept in the DQF. Additionally, drivers are required to keep, on their person, evidence of being medically qualified to operate a CMV.

Determination of whether an individual meets the established physical qualification criteria is made by a licensed medical examiner via a medical examination. Specific forms to be used in conducting physical examinations are specified in the FMCSRs.

Once a person passes a DOT-specific medical exam and is physically qualified to operate a CMV, he/she is issued a medical examiners certificate which indicates that the person on the certificate meets DOT-specified physical qualification criteria and is medically certified to operate a CMV until the date of the expiration listed on the medical examiners certificate. The medical examiner’s certificate, or a photocopy thereof, is required to be retained in the DQF and on the person of the driver while operating a CMV.

The length of physical qualification once a person successfully passes the medical examination depends on the results of the exam and may also be limited by state regulations. While the minimum qualification period varies, the maximum medical qualification period is two years.

Employers may accept a currently valid medical examiners certificate presented by an applicant as proof of physical qualification to drive CMVs. However, we strongly suggest that employers require applicants to undergo and pass a medical examination performed by a company-designated, licensed medical examiner, regardless of the current status of the applicant with regard to physical qualification, as evidenced by a medical examiner certificate. Qualification/certification by a company-designated physician (whom the company is confident understands the criteria/regulations and the operations of the company) insures that the applicant is thoroughly and properly qualified according to regulatory standards/criteria. A required step in insuring that any certifying practitioner is familiar with DOT regulations is to use only practitioners who have been certified and listed on the National Registry of Certified Medical Examiners (https://nationalregistry.fmcsa.dot.gov). Verification of certification should be noted on the medical certificate or (we suggest) printed and attached to the certificate.

A sample of the medical examiner certificate is included in Appendix A.

For ease of recordkeeping, the original medical examiner certificate (time of hire) should be maintained indefinitely in the DQF.

PRE-EMPLOYMENT CONTROLLED SUBSTANCE TEST

CERTIFICATION OF PRIOR PRE-EMPLOYMENT CONTROLLED SUBSTANCE TEST RESULTS

Pre-Employment Controlled Substance Test

Prior to the first time a driver performs safety-sensitive functions for an employer, the driver must undergo testing for controlled substances as a condition prior to being used.

No employer shall allow a driver, who the employer intends to hire or use, to perform safety-sensitive functions unless the employer has received a controlled substances test result from the MRO or C/TPA indicating a verified negative test result for that driver.

There are exceptions where a prospective employer could forgo this requirement, however, it simply makes more sense and is more practical to have the applicant pre-employment tested in all cases.

The notification of a verified negative test result for the applicant should be maintained indefinitely in the DQF.

Certification of Prior Pre-employment Controlled Substance Test Results

In addition to conducting your own pre-employment controlled substance test, a prospective employer must ask each applicant information regarding their performance on previous pre-employment tests for other potential employers in the previous two years. Specifically, you must ask the applicant to certify that they have not (or have) tested positive in these situations.

Compliance with this regulation (40.25j) is sometimes accomplished via an additional sign-off/acknowledgment included in the hiring process paperwork. However, it can also be included in the Application for Employment itself. In this guide, we have included this question on the Application for Employment, and, if using the Application in the Appendix, any other documentation is unnecessary. However, if you have a current Application for Employment you would like to continue using, you simply need to add the following wording to that current Application or use an entirely separate document to accomplish this inquiry:

“Have you tested positive or refused to test in any pre-employment controlled substance or alcohol tests in situations where you did not obtain employment within the previous two years?”
Yes / No

RECORD/CERTIFICATE OF ROAD TEST OR EQUIVALENT

CMV driver applicants are required to pass a road test conducted by the prospective employer before the employer can permit the applicant to operate CMVs. After successful completion of the road test, the carrier/employer who gave it must issue a certificate of road test in accordance with 391.31(e).

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 that the motor carrier intends the applicant to operate. At a minimum, the applicant must be tested on his/her skill at performing each of the following operations:

· The pre-trip inspection;

· Coupling and uncoupling of combination units, if the equipment he/she may drive includes combination units;

· Placing the commercial motor vehicle in operation;

· Use of the commercial motor vehicle's controls and emergency equipment;

· Operating the commercial motor vehicle in traffic and while passing other motor vehicles;

· Turning the commercial motor vehicle;

· Braking, and slowing the commercial motor vehicle by means other than braking; and

· Backing and parking the commercial vehicle.

The carrier shall provide a road test form on which the person who gives the test shall rate the performance of the person who takes it at each operation or activity which is a part of the test. After he/she completes the form, the person who gave the test shall sign it. Most generic road test forms on the market meet the requirements in both subject matter and documentation. If you conduct a road test to meet the requirements of this section, a certificate of road test must be issued. These documents must be maintained indefinitely on the DQF.

As an alternative to conducting and documenting a road test exam and completing a certificate of road test as noted above, you may accept a currently valid CDL with the proper endorsements necessary for operating the specific type of CMV you intend the applicant to operate. If you accept a currently valid and properly endorsed CDL in lieu of conducting and documenting the road test, a legible copy of the driver license must be permanently maintained in the DQF.