How motor carriers can prepare for roadside English proficiency assessments

English language proficiency requirements will come in full force later this month: On June 25, CVSA’s Out-of-Service Criteria will formally include ELP.

While many fleets already require ELP for new drivers, all motor carriers will soon face significant pressure to do so. If drivers do not know English well enough to pass roadside inspections, their loads could face major setbacks.

But what will an ELP inspection look like, and how can fleets prepare? Carriers will need to be careful not to run afoul of discrimination laws, warns Steven Moore, a partner at Fox Rothschild LLP and an expert in labor law.

“An employer has to be careful not to go beyond these ELP requirements unnecessarily,” Moore told FleetOwner. “Sometimes, if you go too far with something, you might find yourself in trouble with a different law.”

How enforcers will gauge English language proficiency

The history of drivers’ English requirements

Driver English proficiency has been a long-standing but rarely enforced requirement for drivers and motor carriers. The requirement is nearly 90 years old but was only part of roadside out-of-service criteria for 10 years.

According to Scopelitis, ELP requirements first appeared in 1936 under the Interstate Commerce Commission. ICC specifically stated that the regulation was not intended for roadside enforcement; motor carriers were responsible for their drivers’ English proficiency.

In 1970, the first Federal Motor Carrier Safety Regulations published its version of the ELP requirement. It was not considered an out-of-service violation until 2005, when CVSA added English proficiency to its Out-of-Service Criteria. In 2007, FMCSA issued guidance instructing inspectors to cite drivers and motor carriers for violations of the ELP requirement.

In 2015, CVSA removed English proficiency from its Out-of-Service Criteria; a year later, FMCSA formally canceled its policy of roadside ELP assessments. FMCSA maintained that drivers could be cited for violating ELP requirements but allowed drivers to use various communication tools, including cue cards and smartphone applications.

After 10 years, in late April of this year, Trump signed an executive order for stronger enforcement of ELP requirements. Within a week, CVSA announced it would bring English proficiency back to its Out-of-Service Criteria. U.S. Transportation Secretary Sean Duffy in late May directed FMCSA to resume roadside ELP assessments without the use of communication tools.

Roadside inspectors following FMCSA’s guidance will now always initiate their roadside inspections in English. If the inspector gets the impression that the driver might not be proficient in English, they will conduct the ELP assessment. The assessment has two main stages: a spoken driver interview and a sign recognition test.

If the driver performs well in the spoken interview, the inspector will then pursue the sign recognition test. However, if the driver fails either stage of the assessment, the inspector can cite the driver for a violation and place them out of service.

FMCSA is withholding the exact ELP assessment details for now, but the regulation (49 CFR 391.11) requires that drivers know English well enough to:

Converse with the general public
Understand highway signs and signals
Respond to official inquiries
Make entries on reports and records

Consequences for carriers

Once the CVSA Out-of-Service Criteria officially include English proficiency requirements on June 25, the cost of employing drivers who don’t speak English could be significant.

Citations for violating driver qualification requirements can cost motor carriers several thousand dollars. An out-of-service designation can spoil a load, customer relations, and more.

“It could be very disruptive for some trucking companies if that were to occur,” Moore said. “There could be penalties under contractual requirements if there’s a delay. There could be damage to perishable foods that are being transported, like produce.”

The new standards will likely have an especially high impact on immigrant drivers, Moore said. The consequences of violations will be significantly damaging for smaller, financially vulnerable carriers.

What should fleets do?

Fleets should obviously ensure that all their drivers are proficient in English. Many carriers may already enforce ELP in their hiring process. By June 25, other carriers will need to enforce ELP among their drivers.

In practice, that might include additional steps in the hiring process or tutoring for existing drivers.

“The trucking company has to ensure applicants have sufficient English proficiency,” Moore said. “That might include, for example, an English language assessment as part of the hiring process; I would recommend that be applicable to all applicants … They could provide tutoring classes, if it’s the type of organization that would do that, or at least provide that some way with an outside vendor.”

Be wary of discrimination

English language proficiency is closely related to issues of race and ethnicity. Carriers should be careful that any new ELP requirements comply with civil rights laws.

The Equal Employment Opportunity Commission, for example, may charge discriminating carriers for violation of the Civil Rights Act.

“This is where there could be discrimination claims under federal laws. A company can’t go too far and say ‘this is an English-only enterprise’ or somehow discriminate against someone because they have an accent,” Moore said. “It has to make sure that the ELP requirements are being met, but it cannot go too far beyond that because it could run afoul of discrimination laws.”