How to Minimize Risk of Negligent Hiring & Training Claims

Written by: Jeffrey Steven Warren, Esq.

An often-overlooked area of exposure for motor carriers is their hiring, training and retention programs.  A lax approach to this area can cause problems many years down the road — even with drivers who otherwise had a spotless driving record during their employment.

Many carriers think that if they simply comply with Federal Motor Carrier Safety Administration (“FMCSA”) regulations for background checks and other screening procedures, they will be protected from negligent hiring or retention claims.  Unfortunately, that is not the case.

It is important to understand both federal regulations and common law negligence requirements.

Common Law Criteria

Under common law, a Plaintiff must generally show that:

• The employer knew or should have known the employee had a particular unfitness for the position creating a danger of harm to third parties;
• The particular unfitness was or should have been known at the time of the employee’s hiring or retention;
• The unfitness was the proximate cause of the Plaintiff’s injury; and
• The Plaintiff sustained damages

Certain states have easier thresholds for liability than others, including some states which have recognized that failure to abide by FMCSA regulations constitutes negligence per se, or prima facie evidence of negligence.

Conversely, numerous juries have returned verdicts against companies even when FMCSA regulations were met.  In one instance, an employer was found liable for an employee driver who brutally attacked a woman in her apartment.  The jury awarded the Plaintiff $2.5 million in damages on the basis that the employer had not performed adequate due diligence when hiring the employee, who had a history of arrests and convictions for similar behavior.

Deeper Background Checks and Negligent Training

To protect itself, a company should perform more comprehensive and rigorous background checks than those required by FMCSA regulations. Although such steps does not eliminate risk or ensure a favorable verdict, such actions can go a long way with the court and juries to show that the company went above and beyond the standard requirements and exceeded the minimum standards of the FMCSA.

To refute claims of negligent training, FMCSA regulations have an extensive set of training requirements that should be complied with by employers, including:

• Entry-Level driver training (Part 380)
• Longer Combination vehicle training (Part 380)
• Hazardous Materials training (Parts 172 and 177)
• Reasonable Suspicion Training for Supervisors (Part 382)

It is important for companies to remember that ordinary negligence claims can be made, and companies must be able to demonstrate that they exercised “reasonable care” during training.

Employee vs. Independent Contractor

Another way a carrier can protect itself is by admitting that the driver was an employee and then focusing on the driver’s performance at the moment of the accident rather than the company’s hiring and training practices.

In Georgia, Tennessee and some other states, the law bars claims for a company’s corporate negligence that are “merely duplicative” of respondeat superior agency liability for negligence of an employee. Hospital Authority of Valdosta/Lowndes County v. Fender, 342 Ga. App. 13, 802 S.E.2d 346 (2017). This appears to be emerging as a majority rule in the United States, although some states like North Carolina have not yet adopted this law.

What if the driver wasn’t an employee, but an independent contractor or gig worker?

Such distinction was eliminated under FMCSA , 49 C.F.R. § 390.5, and any attempt by a carrier to label a driver in either category is an exercise in futility as all drivers are now legislatively deemed “statutory employees” of motor carriers. Companies can no longer escape liability through the use of linguistic gymnastics, a carrier’s fate is now inextricably intertwined with that of its driver.

In Shell v. Navajo Freight Lines, 693 P.2d 382 (Colo. Ct. App. 1984), the Colorado Court of Appeals noted that “regulations, which have the force and effect of law, eliminate the defense of independent contractor by making the owner/operator of the equipment the ‘statutory employee’ of the carrier.”

Given this federal rule, as more states adopt the Hospital Authority “merely duplicative rule,” we may see a reduction in claims for negligent hiring, training, and retention altogether.

While compliance with all statutory obligations is absolutely necessary, the best defense to minimizing risk is the ability to show that a company acted reasonably, and had sound practices for hiring, background checks, training and retention.