Driver Risk: Managing Can Be a Delicate Balance

Though it isn't yet universal, assessing the risk of assigning a company vehicle to a new hire, or leaving it with an existing employee, is a process in which more and more companies are engaging.

A veritable minefield of potential liability exists for the company when it gives a 2-ton piece of equipment to an employee to conduct his or her job. Drivers, at some regular frequency, have accidents, other parties are involved, and some of these accidents are the fault of those company drivers.

Part of the fleet manager's job, either directly or indirectly via the risk manager, is assessing this risk. The most common starting point is the motor vehicle report (MVR), which reveals past violations. But other factors, such as the driver's age or sex, can be equally useful. However, there are also laws regarding discrimination and privacy issues that could well render knowledge of those factors unusable.

Basic Risk Assessment Begins with MVR Review

The touchstone of assessing driver risk is the MVR. These reports reveal two primary risk elements:

■ Whether the driver has a valid driver's license.

■ Whether the driver has violated motor vehicle laws during the period assessed.

The process is a combination of obtaining the driver's permission to review the record, having a process in place to obtain and review the record on some regular basis, and a fleet policy that contains specific consequences for the driver when violations exist.

Obtaining an MVR should be part of the hiring process. When a candidate is offered a job that includes a company vehicle assignment, human resources should have the fleet manager obtain the record for review.

Fleet policy should also spell out what actions will be taken should the report reveal violations, i.e., a probationary period during which the new hire's MVR is reviewed monthly, or if more serious violations are listed, the requirement to use a personal vehicle for some period before assignment of a company vehicle.

[PAGEBREAK]

Going forward, the policy must also require MVR reviews for all existing drivers on a regular schedule (at least once each year), with the consequences for violations outlined in the policy document applied as necessary.

The essence of this risk assessment is simple. Drivers who have shown a proclivity to violate traffic laws are a greater risk to continue to do so than those who have not, particularly those whose violations are serious, such as speeding, failing to obey traffic signals, or even DUI/DWI. Past behavior may not necessarily predict future behavior; however, it very much increases the risk that it will recur.

Beyond MVR review, chargeable accidents, when they occur, are always a red flag. Drivers who have had multiple chargeable accidents within a review period (usually one or two years) are at far greater risk of having more of them than those with a clear record. When a driver is involved in a chargeable accident (the definition of "chargeable" can vary from company to company: fault, failure to drive defensively, etc), an MVR should be immediately obtained and reviewed, and the driver notified of the consequences of any future violations or accidents.

Other Risk Factors Also Pose Legal Issues

It is certainly true that past driving behavior, as manifested in violations, chargeable accidents, or both, is a fairly reliable predictor of future risk, and a company should take the process of assessing such risk very seriously.

However, a number of other risk factors are equally or more predictive. Some of these risk factors — not all — can expose the company to charges of discrimination if they are even reviewed.

• Familiarity with territory. Many fleet drivers drive within a specific geographical area. It may be as small as a metropolitan area or as large as several states. In any case, a candidate for hire who has only recently moved to the territory, or who hasn't lived there as long as another candidate, can pose a risk in the short term. Not knowing where a customer is, what roads to take, or how to get from point A to point B can all create hazards that can lead to accidents and violations.
• Age. It is a fact. Drivers at either end of the age curve pose greater risk than those in the middle. Very young drivers and elderly drivers are involved in accidents at greater rates than others. (Elderly drivers, however, are at extreme risk when most are retired). Drivers aged 16-24 carry the highest risk.
• Gender. Men are involved in accidents at much higher rates than women, although women pose a slightly higher risk of injury.
• Alcohol. Alcohol is by far the greatest contributing factor in accidents, more so when a serious injury or fatality occurs.

These and other risk factors having nothing to do with the employee's or candidate's past driving record can be predictive of future driving behavior. But the question that jumps out is obvious: can the company legally make employment and/or vehicle assignment judgments based upon these factors?

[PAGEBREAK]

Americans with Disabilities Act Presents Restrictions

The answers are, in some ways, obvious, in other cases, not so evident. The first of the four listed factors — familiarity with territory — is simple. A company has every right to insist the driver know the area in which he or she will be driving. Such a requirement is not uncommon in delivery fleets, taxi and other transport fleets, and to a lesser extent in sales, service, and marketing fleets.

Not only does a driver who is unfamiliar with the area run a greater risk of accident, but also a greater possibility of getting lost, which can impact productivity and cause customer dissatisfaction (waiting for delivery or service).

The use of alcoholic beverages presents somewhat more tricky issues. The applicable law, the Americans with Disabilities Act (ADA), has fairly strict guidelines pertaining to the use of alcohol, in particular whether the candidate or employee is under treatment, or has been treated, for alcoholism. Alcoholism is considered a disability for purposes of the statute, and according to George Washington University resources, employers may not ask a candidate questions such as:

■ Have you ever been treated for drug addiction or alcoholism?

■ Have you ever been addicted to drugs or undergone treatment

for an addiction?

■ How much alcohol do you drink?

■ Are you an alcoholic?

■ Have you ever been in an alcohol rehabilitation program?

[PAGEBREAK]

Nor can a potential employer ask such questions about a candidate when surveying references. This restriction makes the hiring process more difficult, as alcohol use is unquestionably the single greatest risk factor in the operation of a motor vehicle. A company vehicle driver who uses alcohol on the job can expose the company to enormous risk, both physical damage and personal injury, not only to the employee and the vehicle, but also other parties.

That said, it is important to have a strictly applied and enforced prohibition on alcohol use when operating a company vehicle. If a driver is caught drinking while on the job, severe consequences are permitted. In such a case, it is not the use of alcohol, per se, that leads to the consequences, but the violation of company fleet policy, in this case, policy against alcohol use.

Thus, the company cannot even inquire as to a driver's use of alcohol nor refuse to hire a candidate (or assign a vehicle) if they admit to using alcohol. However, a company can institute policy against its use on the job and apply whatever consequences violation of the policy considers appropriate.

Other Legal Considerations Include Title VII & ADEA

As for the remaining two factors, age and gender, the law is clear in both cases. Employers may not discriminate in hiring on the basis of age (workers over 40) or gender. Again, there are factors that can move the decision into somewhat gray areas, but the laws themselves are clear. The applicable federal statutes are:

■ Title VII of the Civil Rights Act of 1964.

■ The Age Discrimination in Employment Act of 1967 (ADEA).

Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Put simply, an employer may not refuse to hire, or if hired, refuse to assign a company vehicle to, a person based on these factors. The ADEA prohibits such discrimination in hiring individuals over the age of 40.

No existing federal statute prohibits discrimination in hiring for individuals under the age of 40. A company can require drivers be over a certain age — 25 years old, for example — before they are either hired or permitted to operate a company vehicle. This policy allows the company to avoid the age group that poses the highest risk. A company may not, however, discriminate against those over 40. As people age, critical driving skills such as reaction time, hearing, and sight, deteriorate, sometimes to the point where the risk may be unacceptable.

The difficulty here, however, is that even beyond the ADEA, an employee may also counter with the argument that the existence of a valid driver's license proves that he or she is qualified to operate a motor vehicle.

[PAGEBREAK]

Assessing risk in assigning company vehicles on the basis of gender is prohibited as well. Men would be on the receiving end of such discrimination, as they pose a higher risk than do women. In short, the risk of hiring males to operate company vehicles is one that most companies must accept.

It is possible the job function itself might pose difficulties in risk assessment. Certain women, for example, may not be capable of performing required tasks in a fleet in which the mission is to deliver heavy appliances or lifting and moving heavy items is required. In these cases, however, the inability to properly perform the job, rather than gender, is the determinant.

Seeking Legal Advice Important in Establishing Policy

Overall, there is risk in assessing risk, and fleet managers and their companies are wise to research the legal issues involved before establishing policy.

■ Past driving behavior, as revealed by the review of motor vehicle reports, is a critical factor in assessing risk. It should be part of the hiring process and an ongoing task regarding existing drivers.

■ A company can require the driver be familiar with the territory in which he or she will be operating. Drivers looking at maps, written directions, or GPS devices while operating the vehicle are far more likely to become distracted, causing accidents (not to mention the drag on productivity).

■ The Americans with Disabilities Act does not permit the company to inquire (directly of the employee/candidate or of references they provide) about alcohol or drug use. Alcoholism and drug addiction are protected disabilities under the ADA and may not be a factor in hiring or assignment of company vehicles. The company may, however, prohibit the use of alcohol while operating a company-provided vehicle and establish penalties for doing so.

■ The ADEA of 1967 prohibits discriminatory hiring on the basis of age for individuals over the age of 40. No similar federal prohibition applies to those under 40. The company may avoid the youngest driving age group, 16-24, when assigning company vehicles.

■ Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring on the basis of gender, without exception.

Fleet policy, specifically the assessment of risk in hiring and assignment of vehicles, should be carefully researched before it is implemented. An important practice: any criteria, risk assessment, or hiring decisions should always be reviewed by legal counsel to make certain the company is fully compliant with all federal and state laws regarding discrimination and privacy issues.