The U.S. Department of Transportation’s effort to restrict non-domiciled commercial driver’s licenses is increasing risk for motor carriers, especially in the area of employment law. 

“It’s one of the least obvious consequences of this expanded CDL oversight by the federal government,” said Josue Aparicio, a partner at Hanson Bridgett LLP. “The more control you exercise over drivers, the more you are opening yourself up to a driver later contending that they are an employee and we’re improperly classified as an independent contractor.” 

In September, the U.S. Department of Transportation issued an interim final rule tightening non-domiciled CDL rules. At the time, Secretary Sean Duffy said it could result in the removal of up to 194,000 drivers from U.S. highways. A federal appeals court stayed the rule in December.

Aparicio and other partners at Hanson Bridgett hosted a webinar to advise trucking fleets on how to reduce liability and maintain compliance amid increased scrutiny of CDL qualifications.

They said verifying CDL validity is essential, but doing so improperly can expose fleets to employment liability and worker classification concerns, especially in an employee-friendly state like California. 

Aparicio’s advice was to narrow CDL compliance to regulatory requirements. It can appear to be an employment relationship or performance management when a fleet instructs a driver on how to avoid a license suspension or helps them complete paperwork.

Fleets can verify whether the individual holds a valid CDL and is authorized to work in the United States, but should avoid asking about country of citizenship or any question that expressly or implicitly reveals immigration status.

“The common thread is that these inquiries go to license status,” Aparicio said. “They don’t go to immigration status — they don’t go to personal background.”

Greg Reed, another partner at Hanson Bridgett, emphasized that a potential issue with a CDL does not automatically indicate an immigration problem. It is “perfectly lawful and perfectly valid” to use an individual with a non-domiciled CDL, Reed said. 

However, the spotlight on the legitimacy of non-domiciled CDLs can raise liability risks. Even with the federal rule paused, the Federal Motor Carrier Safety Administration has notified 18 states of a “preliminary determination of substantial noncompliance” for their issuance of non-domiciled CDLs. 

Reed said he expects plaintiff’s attorneys to “accuse transportation providers of not exercising the proper due duty of care in continuing to use drivers whose status could be in limbo in the future, and certainly whose licenses have been questioned by the Secretary of Transportation.”

Injury attorney says there’s a safety gap

FMCSA’s non-domiciled CDL rule was “a meaningful regulatory marker,” said Jerry Bowman, managing attorney of Bowman Law. 

“It signals federal regulators believe there is a safety gap in how some non-domiciled CDL holders obtained credentials and how states manage them. For victims of truck accidents, this rule provides another arrow in the quiver of arguments about liability, especially around driver qualification, carrier due diligence, and credentialing systems,” Bowman said. 

Juries may not be all that concerned with a driver’s immigration status or believe a driver was completely reckless if there is an accident. Instead, it is about a truck that should not have been permitted on the highway.

Even if defense attorneys attempt to shift blame to a state licensing agency, the motor carrier remains primarily responsible for ensuring its drivers are properly credentialed, he said.