Safety Cannot be Delegated
Personal Injury Lawyers in Tractor Trailer Accident Cases often seek documents that motor carriers are required to maintain by the Federal Motor Carrier Safety Administration. Many times, Tractor Trailer Companies delegate the hiring and supervision of drivers to third-party staffing companies. When litigation commences, motor carriers often attempt to avoid responsibility by claiming they delegated safety compliance over the drivers to their staffing agency. This technical brief will address these arguments pursuant to applicable Federal Regulations and Georgia Law.
The Federal Motor Carrier Safety Regulations Promote Safety of the Motoring Public
The Federal Motor Carrier Safety Regulations (“FMCSR”) were adopted to promote safety and to protect the motoring public. See 49 CFR 350.103, 49 CFR 383(1)(a). The FMCSR’s require motor carriers (Trucking Companies or Tractor Trailer Carriers) to implement safety protocols including, but not limited to, the following areas: (1) Driver Testing 49 CFR 40.1; (2) Driver Licensing 49 CFR 383.1; (3) Driver Training 49 CFR 390.3(e)(2); (4) Driver Qualification 49 CFR 391.51, which includes (a) Driver Employment Application 49 CFR 383.35, 49 CFR 391.21; (b) Driver Background Investigation 49 CFR 391.23, 49 CFR 391.25; (c) Driver physical fitness (as evidence by Medical Examination) 49 CFR 391.43; (d) Driver Road Testing 49 CFR 391.31; and (e) Driver Hours of Service 49 CFR 395. In turn, a tractor trailer company’s actions in implementing these safety regulations generate documents. Documents establish compliance. Compliance demonstrates safe operation. Documentation is therefore evidence of safe operation. Safety is always a relevant issue in any tractor trailer case. Accordingly, safety, training and driver testing and qualification materials are relevant in this tractor trailer case and will lead to the discovery of admissible evidence. As will be demonstrated immediately below, this is true regardless of whether the documents are maintained by a Trucking Company or its Staffing Company- since A Trucking Company is ultimately responsible for compliance.
A Trucking Company May Delegate Functions but May Not Delegate Responsibility
Generally, a motor carrier may delegate certain employment functions to third parties, such as temporary staffing agencies. 49 CFR 40.15. However, a motor carrier or trucking company is deemed to be an “employer” regardless of whether a third party hires the driver. 49 CFR 390 et. seq. establishes general definitions and applicability for the FMCSR’s. 49 CFR 390.1. Part 390 statutorily designates a motor carrier as an employer regardless of whether the motor carrier leased the truck or hired a third party to hire the driver. Part 390 defines “Employer” as,
“[A]ny person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business or assigns employees to operate it…” [emphasis added] 49 CFR 390.5.
Similarly, Part 383 defines “Employer” as,
Any person… who owns or leases a commercial motor vehicle or assigns employees to operate such a vehicle. [emphasis added] 49 CFR 383.5
Furthermore, the motor carrier (as the statutorily designated employer) remains responsible for driver operations,
Observance of Driver Regulations: Whenever in Part A of this subchapter a duty is prescribed for a driver or a prohibition is imposed on a driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound. [emphasis added] CFR Sect. 390.11.
The FMCSR’s specifically contemplate the use of leasing companies and staffing agencies and nonetheless require that motor carriers ultimately remain responsible for driver compliance,
“Question 4: May a motor carrier be exempt from driver qualification requirements by hiring a driver leasing company or temporary help service? Guidance: No. The FMCSR’s apply to, and impose responsibilities on, motor carriers and their drivers. The FHWA does not regulate driver leasing companies or temporary help service companies.” [emphasis added] 49 CFR 391.11 DOT Interpretations, Question 4.
Accordingly, the motor carrier remains responsible for FMCSR compliance. 49 CFR 40.11(a) & (b), 49 CFR 383.3, 49 CFR 390.11, 49 CFR 391.11 (Question 4 Guidance), 49 CFR 395.1, 49 CFR 395.8(a). A motor carrier may delegate the “functions” of driver compliance but cannot delegate responsibility, 49 CFR 40.15(c), because the FHWA has no ability to regulate leasing companies or staffing companies. 49 CFR 491.11, DOT Interpretations, Question 4. Therefore, a motor carrier is ultimately responsible for compliance regardless of whether it hired or assigned a third party to perform these functions. 49 CFR 40.15(c).
A Trucking Company Must Maintain Documents Evidencing Compliance Even if it Delegated the Function to Its Staffing Company
A Trucking Company has a responsibility to obtain from the Staffing Agency documents demonstrating compliance. A Trucking Company cannot delegate its ultimate responsibility for the safety, training and driver testing and qualification materials outlined above. The FMCSR’s require a motor carrier to maintain and preserve all documents and there is no exception for documents generated or maintained by non regulated leasing companies or staffing agencies,
“All records and documents required to be maintained under this subchapter must be preserved in their original form for the period specified[.]” 49 CFR 390.31(a).
To illustrate, the FMCSA provides that the [motor carrier] must take the affirmative step of obtaining pre employment drug tests before permitting drivers to operate. They cannot simply assign this duty and assume no news is good news. They must follow the result and actively obtain the documentation.
“[A]s an employer, you are responsible for obtaining information required by this part from your service agents… you must not assume that no news is good news and permit applicant to perform safety-sensitive duties before receiving the result.” 49 CFR 40.17.
Therefore, a Trucking Company must actively maintain the required documents evidencing compliance. It cannot simply delegate the function to its Staffing Company and ignore its responsibility to maintain the documents under 49 CFR 390.31(a). A Tractor Trailer Carrier cannot escape responsibility for compliance simply because it delegated the actual function to a Staffing Agency. The Trucking Company must maintain these documents as they demonstrate safety compliance. Safety and documentation are always the first priority in a tractor trailer case.