How should freight brokers approach English Language Proficiency with their carriers?

On May 20, 2025, the Federal Motor Carrier Safety Administration (FMCSA) issued its much anticipated Enforcement Policy on English language proficiency (ELP) requirements for commercial motor vehicle (CMV) drivers. Although ELP has long been part of the FMCSA’s regulations (49 C.F.R. 391.11(b)(2)), the Commercial Vehicle Safety Alliance (CVSA) has voted to reintegrate ELP violations into its out-of-service (OOS) criteria, effective June 25, 2025.

Once implemented, drivers cited for ELP violations will be placed out-of-service immediately, halting operations until the issue is resolved. However, there are a few exceptions, including: drivers in U.S.-Mexico border commercial zones will face citations but not OOS orders or disqualification, and hearing-impaired drivers with exemptions under 49 CFR § 391.41(b)(11) are deemed compliant if they can read and write English, pursuant to FMCSA guidance.

Potential Effect on Freight Brokers

Like any other driver OOS violation, an ELP violation is likely to cause delay in delivery of a shipment. By the FMCSA’s estimates, there are approximately 4% of CDL drivers that do not speak fluent English. Due to the yet-to-be answered questions about how law enforcement will evaluate ELP during a roadside inspection, unexpected delays due to ELP violations should be expected – and anticipated – by freight brokers.

Of course, delays may cost a freight broker late delivery penalties or pay reductions, as well as a potential loss of a customer due to a critical failure to deliver freight. However, unlike some other OOS violations, a driver’s ELP is something carriers should be able to assess – and ensure – before accepting a shipment.

What Freight Brokers Should Consider

While many motor carriers are currently grappling with how to assess ELP among their drivers, brokers should consider implementing the following towards ensuring ELP compliance among their carriers and avoiding costly delays and customer dissatisfaction:

• Revise Your Broker/Carrier Agreement – Although well-drafted Broker/Carrier Agreements rarely call out legal or regulatory compliance with respect to specific violations (hours-of-service being a prominent exception), brokers should consider adding ELP requirements to provisions in their carrier agreements. Such provisions could be included a section addressing the carrier’s drivers/personnel. By adding this specific requirement: (1) carriers are put on notice that ELP is an important consideration in their business relationship with the broker; (2) the broker may be entitled to indemnity due to carrier’s failure to provide drivers that meet ELP requirements; and (3) the broker can terminate the agreement for breach of the agreement due the carrier’s failure to provide ELP-compliant drivers. Further – although case law (especially Sperl v. C.H. Robinson Worldwide, Inc. (Ill. App. 2011)) demonstrates that penalizing carriers for delay is a really, really bad idea – liquidated damages associated with ELP proficiency could potentially be dictated by brokers to help dissuade the use of drivers that may not meet ELP requirements.

• Push Out a Notice, and an Addendum. In addition to revising your form Broker/Carrier Agreement, you may want to consider: (1) pushing out a notice to your existing carriers advising them of the importance of ELP compliance going forward (including the date ELP violations result in an OOS order); and (2) requiring your existing carriers to execute an addendum to the Broker/Carrier Agreement addressing ELP requirements for the carrier’s drivers/personnel.

• Prompt Carriers to Assess Driver ELP. Helping your carriers ensure compliance with ELP compliance can help avoid ELP OOS violations and corresponding shipment delays (and customer frustrations). Brokers may suggest (or require) their carriers to assess their driver’s ELP as part of the onboarding process, or before any shipments are tendered.

The best ELP assessment product on the market is the English Language Proficiency Assessment Pack made available by our colleagues at Trucksafe Consulting. Designed by FMCSA-regulatory experts, this assessment product can be used to help avoid OOS violations.

For more information on this topic or assitance with drafting carrier-facing ELP communications or contract provisions, contact Tyler Biddle.

Childress Law, is dedicated to serving the unique needs of the transportation industry. Co-owned by attorneys Jerad Childress and Brandon Wiseman, the firm provides specialized legal services in areas such as DOT safety and compliance, corporate structuring, transportation due diligence, and commercial agreements. With a client-centered approach, Childress Law delivers practical, high-quality legal solutions tailored to the dynamic transportation landscape. Childress Law prides itself on being a trusted partner for sophisticated transportation companies across the United States. Our mission is to help clients navigate the complexities of transportation law, ensuring compliance, minimizing risk, and supporting growth.