Qualification considerations for multiple-employer drivers
Updated: Jul 17
In other articles, we've harped on the importance of thoroughly vetting commercial drivers. Missteps in the qualification process regularly contribute to high CSA scores, downgraded safety ratings, and nuclear verdicts. Part 391 of the Federal Motor Carrier Safety Regulations, and related state rules, lay out the steps regulated carriers must follow when qualifying new drivers. Driver applications, previous employer safety performance history requests, motor vehicle reports (MVRs), and road tests are all part of the process.
But what must carriers do to qualify drivers who work for multiple carriers/employers or those who will only be temporarily operating for them? Are the rules different in that context? As it turns out, they are, and that's what we're exploring in this article. Simply stated, Part 391 of the FMCSRs includes a couple "shortcuts" to the standard driver qualification process for temporary drivers and multiple-employer drivers. These shortcuts, assuming they apply, alleviate some of the administrative burden that comes along with the normal driver qualification process.
Understanding the typical qualification process
Before diving right into the regulatory nuances for multi-employer and temporary drivers, it's important we first have a good handle on the typical driver qualification process. We've broken this process down in detail in another article, but generally speaking it involves the following:
Ensuring drivers meet the minimum qualification standards. 49 CFR 391.11 establishes minimum qualification standards for regulated drivers. Among other things, drivers must be at least 21 years of age, properly licensed to operate the types of vehicles you expect them to operate, physically qualified to operate, able to read and speak English sufficiently, and able to safely operate commercial vehicles. If a candidate does not meet these threshold requirements, they are not qualified to operate a commercial motor vehicle (CMV).
Filling out a driver application. All regulated drivers must complete a driver application, providing all information required by 49 CFR 391.21.
Vetting the driver's employment history. Prospective carrier-employers have an obligation to verify the employment of their driver-candidates. More specifically, 49 CFR 391.23 requires carriers to reach out to and ask certain questions of every employer for whom a driver-applicant has driven a commercial motor vehicle within the 3 years preceding their application date. We addressed this requirement in detail in a separate article.
Checking the driver's driving history & license status. Carriers are required to run MVRs on all prospective drivers to ensure they are properly licensed and have no disqualifying offenses on their driving record.
Road testing. As a general rule, carriers are required to road test all driver-applicants to confirm they can safely operate the types of equipment the carrier expects them to operate.
Drug testing. If a carrier is hiring a driver to operate a CMV that requires a CDL, it must administer a pre-employment drug screen and run a query through the Drug & Alcohol Clearinghouse.
There's certainly more that goes into the full driver qualification process, but these are the primary steps. Let's now turn to the question of how these steps are modified for multiple-employer and temporary drivers.
Multiple-Employer Drivers
As many know, it's fairly common in this industry for regulated drivers to work for multiple carriers at a time. This practice is certainly more prevalent in certain segments of the industry (e.g., driveaway-towaway), but it can occur in any. It also regularly arises in situations where a large organization operates through several separate but related subsidiaries and also in the leased driver context. For example, a carrier that has 4 separate but affiliated USDOT registrations may have a need to transfer drivers among those entities.
Imagine this scenario...Driver John Doe currently works for carrier ABC Trucking, Inc. but is looking to also operate for carrier XYZ, Inc. during his downtime. John is already fully qualified by ABC Trucking and is now applying to work for XYZ Trucking. How, if at all, does the qualification process differ in this context from the norm?
As a preliminary matter, it's important to know that it is certainly XYZ Trucking's prerogative to fully qualify John in this context. Many carriers presented with this scenario do just that, and it's usually advisable. With that said, the regulations do offer an alternative, which can shortcut the typical qualification process for multiple-employer drivers, thus saving some time and effort on the part of the second or subsequent employing carrier.
49 CFR 391.63, which is titled Multiple-Employer drivers, says:
(a) If a motor carrier employs a person as a multiple-employer driver (as defined in § 390.5 of this subchapter), the motor carrier shall comply with all requirements of this part, except that the motor carrier need not—
(1) Require the person to furnish an application for employment in accordance with § 391.21;
(2) Make the investigations and inquiries specified in § 391.23 with respect to that person;
(3) Perform the annual driving record inquiry required by § 391.25(a); or
(4) Perform the annual review of the person's driving record required by § 391.25(b).
Section 390.5 defines a "multiple-employer" driver as "a driver, who in any period of 7 consecutive days, is employed or used as a driver by more than one motor carrier."
Let's break this down. In simple terms, Section 391.63 allows a motor carrier to short-circuit some of the typical qualification-related administrative tasks (e.g., application, previous employer checks, annual driving record inquiry) for driver-applicants who qualify as "multiple-employer drivers," meaning those who work for 2 or more regulated carriers simultaneously in a 7-day period.
What does it mean to work for 2 or more carriers in a 7-day period? It means a driver only qualifies as a multiple-employer driver if they physically work for more than one carrier in a given week. If, on the other hand, they perform work for only a single carrier in a given week, then they become a "single-employer driver" of that carrier and the multiple-employer driver exemption no longer applies. So, in short, this exemption is limited to drivers who physically perform services for more than one carrier in a given week. If, instead, they work only for one carrier in a given week, then that carrier is responsible for fully qualifying the driver.
Assuming a particular driver qualifies as a "multiple-employer driver," the section 390.63 goes on to say:
Before a motor carrier permits a multiple-employer driver to drive a commercial motor vehicle, the motor carrier must obtain the driver's name, the driver's social security number, and the identification number, type, and issuing driver's licensing authority of the driver's commercial motor vehicle operator's license. The motor carrier must maintain this information for three years after employment of the multiple-employer driver ceases.
Returning to our example, assuming John will be working for both ABC Trucking and XYZ Trucking each week, then XYZ Trucking, as the subsequently-employing carrier, is entitled (but not required to) take advantage of the Section 391.63 exemption. Rather than going through the motions of the full qualification process, it could simply obtain basic identifying information from John (e.g., name, SSN, license), obtain a med card, and road test him. It would need to keep these basic records for the length of John's employment plus three years thereafter. And it would behoove XYZ Trucking to keep some type of record explaining that John meets the multiple-employer driver exception.
Temporary Drivers
The regulations contain a similar exemption for drivers who only temporarily work for a particular carrier. For example, if a driver is transferred from Carrier A to Carrier B to fill in for just a few days, Carrier B may be able to take advantage of a separate regulatory exemption, which appears at 49 CFR 391.65. That regulation, titled Drivers Furnished By Other Motor Carriers says:
(a) A motor carrier may employ a driver who is not a single-employer driver, as defined in § 390.5, of that motor carrier without complying with the generally applicable driver qualification file requirements in this part, if—
(1) The driver is a single-employer driver for another motor carrier; and
(2) That other motor carrier certifies that the driver is fully qualified to drive a commercial motor vehicle in a written statement which—
(i) Is signed and dated by an officer or authorized employee of the motor carrier that employs the single-employer driver;
(ii) Contains the driver's name and signature;
(iii) Certifies that the driver has been employed as a single-employer driver;
(iv) Certifies that the driver is fully qualified to drive a commercial motor vehicle under the rules in part 391 of the Federal Motor Carrier Safety Regulations;,(v) States the expiration date of the driver's medical examiner's certificate;
(vi) Specifies an expiration date for the certificate, which shall be not longer than 2 years or, if earlier, the expiration date of the driver's current medical examiner's certificate; and
(vii) Is substantially in accordance with the following form:
____________________(Name of driver)
____________________(SS No.)
____________________(Signature of driver)
I certify that the above named driver, as defined in § 390.5, is a single-employer driver driving a commercial motor vehicle operated by the below named carrier and is fully qualified under part 391, Federal Motor Carrier Safety Regulations. His/her current medical examiner's certificate expires on ______(Date).
This certificate expires:
Issued on______(date)
Issued by__________
To qualify for this exemption, a driver must not by a "single-employer driver" of the carrier for whom they intend to work. The regulations define a "single-employer driver" as "a driver who, in any period of 7 consecutive days, is employed or used as a driver solely by a single motor carrier. This term includes a driver who operates a commercial motor vehicle on an intermittent, casual, or occasional basis."
So, this particular exemption is available only for drivers who will drive for the prospective motor carrier 6 or fewer consecutive days at a time. If, instead, they will work for that carrier for 7 or more days, they become a "single-employer driver" of that carrier and must be fully qualified. In other words, this exemption is limited to very short-term arrangements.
Assuming the exemption applies, the employing motor carrier can short circuit many of the standard qualification steps by accepting a certificate of qualification from the driver's typical employing carrier. The content of that certificate is set out in the regulation above, and it must be kept by the subsequent employing carrier for the length of the driver's employment plus three years.
Importantly, the regulation goes on to require the carrier who chooses to take advantage of this exemption to make contact with the driver's typical employing carrier to confirm the accuracy of the certificate. The regulation also makes clear that "A motor carrier which certifies a driver's qualifications under this section shall be responsible for the accuracy of the certificate. The certificate is no longer valid if the driver leaves the employment of the motor carrier which issued the certificate or is no longer qualified under the rules in this part."
Other Considerations
A few other things to keep in mind when it comes to qualifying drivers who work for multiple carriers:
Per FMCSA guidance, the qualification certificate that's contemplated by the temporary driver regulations (391.63) can only be generated and issued by a regulated motor carrier. In other words, if a driver is employed by a non-regulated carrier (i.e., a staffing agency), then the first regulated motor carrier that engages that driver to operate a CMV on its behalf must fully qualify the driver.
Similarly, the FMCSA has issued guidance on the multiple-employer driver regulation (391.65) concerning employee leasing companies, which states:
QUESTION: How does §391.63 apply when motor carriers obtain, from a driver leasing service, intermittent, casual, or occasional drivers who are on temporary assignments to multiple motor carriers? ANSWER: If an intermittent, casual, or occasional driver has only been fully qualified by a driver leasing service or similar non–motor carrier entity, and has never been fully qualified by a motor carrier, the first motor carrier employing such a driver must ensure that the driver is fully qualified, and must keep a complete driver qualification file for that driver. It was the intention of §§391.63 and 391.65 to require that a driver, before entering the status of an “intermittent, casual, or occasional” driver, be fully qualified by a motor carrier. In a contractual relationship between a motor carrier and a driver leasing service, this may be accomplished by a motor carrier designating a driver leasing service as its agent to perform the qualification procedures in accordance with parts 383 and 391. However, in such a case, the motor carrier will be held liable for any violations of the FMCSRs committed by its agent.
A slightly adjacent issue for consideration is hours-of-service compliance. Drivers who work for multiple carriers at a time are responsible for accurately recording their duty status and tracking their hours across all such carriers. Each carrier that engages the driver must ensure it has a full picture of the driver's available hours, meaning they must either obtain copies of the driver's logs from their other carrier or have the driver manually input time from the other carrier on their log.
Conclusion
In sum, Sections 391.63 and .65 of the FMCSRs offer some limited relief from the typical driver qualification process for carriers that hire multiple-employer and/or temporary drivers. Those exemptions are fairly limited in scope, so carriers must take care to ensure drivers actually qualify for them. Additionally, the exemptions are not wholesale exemptions, meaning carriers who take advantage of them must still take some basic steps to ensure the drivers are qualified, as outlined in the respective regulatory text.
One last caveat here...because these exemptions short circuit some of the standard qualification procedures, there's some level of risk involved to carriers that choose to take advantage of them. In other words, it leaves them blind to some of the things they might have otherwise discovered had they chosen to completely qualify the drivers (e.g., information gleaned from the application or previous employer inquiries). For this reason, it's important carriers carefully weigh the costs and benefits before deciding whether or not to take advantage of these exemptions.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a livestream podcast on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who've assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube. Or subscribe to Trucksafe's newsletter for the latest highway transportation news & analysis. Also, be sure to check out eRegs, the first app-based digital version of the federal safety regulations aimed at helping carriers and drivers better understand and comply with the regulations.