In mid-July, FMCSA took a giant step forward in issuing a “Driver Safety History” rule by publishing a Supplementary Notice of Proposed Rulemaking (SNPRM). The proposal expands the nature and extent of the background checks required for driver applicants. It also allows applicants to review or dispute safety information provided by former employers. Consequently, the rule would have major implications for previous and prospective driver employers.
This rulemaking has been a long time coming. Its origin dates back to the 1994 Hazardous Materials Transportation Authorization Act, which required FMCSA's predecessor agency to implement a rule requiring carriers to investigate the three-year accident and drug/alcohol history of driver candidates. The NPRM that resulted provoked a lot of dissent since it failed to provide protection for carriers from liability lawsuits resulting from such background investigations.
However, provisions included in the TEA-21 pre-empted any state, local jurisdiction or person from bringing any legal action against employers rightfully fulfilling their requirement to investigate, provide or use safety history information about driver applicants — as long as the information is used only for the hiring decision.
According to FMCSA, the SNPRM fixes many gaps in the current “new-hire background check” process. First and foremost, it proposes a limitation on liability for prospective and previous employers in providing and evaluating the safety performance history of drivers.
Second, the proposal gives carriers the tools they need to do a better job of assessing the potential safety risks of driver applicants. For example, candidates' previous employers must honor prospective employers' requests for the following information about their safety history:
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Involvement in recordable accidents;
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Three-year drug/alcohol history and/or any illegal use of drugs or alcohol;
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Information regarding failure to complete a drug/alcohol rehabilitation program.
In order to comply with “Fair Credit Reporting” and other “Driver Privacy Protection” provisions, however, prospective employers would be required to advise driver applicants that they can review, request correction, or refute what a previous employer provided in the employment history.
The proposal would give prospective employers the right to access and evaluate an applicant's three-year accident and drug and alcohol history, and use it in the hiring decision. But they would not be able to use it during annual reviews. Prospective employers would have to implement broad privacy safeguards, as well as notify applicants that they have the right to review the information obtained from former employers.
For former employers, more record-keeping is in store. While current accident registers must be kept for one year, the proposed rule extends this to three. They would also have to respond to information requests within 30 days, and to “driver right of review” requests within just two business days.
Based on my conversations with ATA, however, the industry would support a much quicker response time. And in the interest of fairness, the response time mandated to honor a request for information should match the amount of time carriers have to respond to driver right-of-review requests.
Given the current regulatory atmosphere, it's likely this SNPRM could become a Final Rule by next spring. So now's the time to take a look at your employment and record-keeping processes:
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Are you ready to conduct — and keep records of — a more extensive background check for each of your driver applicants?
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Can you provide security controls for your accident, drug and alcohol records?
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Are you adequately staffed to respond to and correct errors arising from the predicted onslaught of driver right of review requests?
If any of your answers are “no,” get ready to make some changes.
Jim York is the manager of Zurich North America's Risk Engineering Team, based in Schaumburg, IL.
