s a f e t y   &  o p e r a t i o n s

Driver Screening

Compliance may not be enough, especially since 9-11.

PATRICIA SMITH
SENIOR EDITOR

      It's not just about terrorism. Warnings that trucks could be the next weapons of mass destruction are chilling reminders that we shouldn't put strangers behind the wheel. But thorough driver screening is about a lot of other things: cargo security, highway safety, liability for accidents, even the industry's image. With the promise of a better economy ahead, now is an excellent time to review hiring procedures and policies.
      We're told that "any day now" the U.S. Department of Transportation will unveil proposed new rules for background checks on drivers with hazardous materials endorsements. Congress mandated the added security measure with last year's U.S. Patriot Act and DOT is working with other government agencies to develop a workable plan.
      Meantime, we can't overlook rules that are already in place — and steps carriers might take on their own to close obvious loopholes.

Motor Vehicle Records
      Federal regulations say you must inquire into an applicant's driving record in every state where he or she has held a motor vehicle operator's license or permit during the previous three years.
      The rules give you 30 days to pull MVRs but, without exception, safety experts urge carriers to get records before putting drivers on the road.
      Unless you've got plenty of time and resources, consider using a service such as Tulsa, Okla., based DAC Services. DAC, the industry's largest provider of driver screening services, offers "immediate" turnaround of records from 31 states. Records from other states take from 2 to 24 hours.
      Unfortunately, MVRs don't always tell the full story. There are often delays in posting information, or a state may choose to let a driver keep his license despite serious traffic violations and the violations never appear on the record.
      The Federal Motor Carrier Safety Administration, under orders from Congress, has moved to mend some of those gaps.
      Proposed rules changes, drafted last year, would require states to disqualify CDL drivers convicted of serious violations, including drug and alcohol related convictions, while operating any vehicle, not just a commercial truck or bus.
      States would not be allowed to grant "hardship" CDLs and would be required to maintain better records of convictions. Final rules are expected sometime this year.
      Some states have also made it easier to keep an eye on drivers. Incon Inc., a New York company that provides driver surveillance services, monitors licenses in 10 states through exception reporting systems that alert them when a violation is added to a driver's record. Company founder Gibs Tolsdorf says they're talking to other states but privacy concerns make it an uphill battle.
      "There's a real contradiction," he says. "The government wants employers to know everything about their drivers, but it's not really giving them a cost-effective way to do that."
      The biggest future licensing problem is fraud. A report issued last May by the DOT Inspector General's office noted that, since 1998, suspected testing and licensing fraud has been identified in 16 states. The report also concluded that existing federal standards and state controls are not adequate to defend against fraud, which puts more pressure on employers to do more.

Previous Employment
      Previous employers may have a wealth of information about the applicant sitting across the desk from you, but getting that information is a frustrating challenge.
      This is an industry where turnover is high and companies close their doors at a higher-than-average rate. Screeners also face a wall of silence built on the fear of being sued.
      Joe Steiner of Exelrod, Goodman, Steiner, Bazelon, a Chicago law firm that specializes in transportation law, advises his clients to do no more than verify that the person worked for them. Anything beyond that could put you in line for a lawsuit by someone who was denied employment based on something you said.
      "The consequences of getting sued, even if you win, are absolutely horrific," Steiner notes.
      Moreover, he says the policy must be applied to good employees as well as bad ones. "Maybe you thought the person was a pretty good employee. The next employer hires him on your recommendation, then he has an accident and the new employer finds out he had a problem with drugs. They sue you, claiming you should have known," he explains. "You can't win."
      Federal rules only require a "diligent effort" to contact an applicant's previous employers going back three years. Unlike regulations governing drug and alcohol testing, previous employers are not required to provide employment information. Thus many screeners simply go through the motions — faxing or mailing the request and letting it end there.
      "As an industry, we've almost become satisfied with that because we know it's all we can get," says Michele Sabatini, Safety Support Services, Worth, IL. "It makes the requirement a waste of time."
      Peter Susser, from the Washington D.C. office of Littler Mendelson, a nationwide law firm specializing in employment and labor issues, agrees that the "name, rank and serial number" approach is indeed the safest policy when you're asked for information.
      But if you're doing the asking his advice is to get as much as you can.
      "Try a couple of different ways," he says. "And it's very important to document your efforts."
      That means copies of faxes, letters sent via certified mail, notations of telephone conversations including date, time, the name of the person you talked to and what was said.
      Because the chances are high that an applicants' will list at least one company that's no longer in business, J.J. Keller & Associates safety specialist Brad Penneau counsels driver screeners to ask for names, numbers and addresses of dispatchers, supervisors or even other drivers the applicant worked with.
      "I want to talk to people, not companies," he says.
      Steven Austin of Laborchex, a Jackson, Miss., firm that specializes in driver background investigations, says most companies are reluctant to give information over the phone, but are cooperative if you send or fax the driver's written authorization.
      Laborchex, he adds, also sends a summary of applicant claims: dates he worked for the company, type of equipment he operated, etc. That way the previous employer only needs to confirm that the information is correct.
      There are other sources for employment information, such as consumer credit reports and social security traces. DAC probably has the most extensive driver files, including employment information provided by trucking companies that use their services.

Immigration Status
      One shortcoming noted in the IG study of CDL fraud was that few states require license applicants to demonstrate that they're citizens or legally in the U.S.
      It's not part of motor carrier safety rules but federal law does require employers to make sure all employees have the proper authorization to work in the U.S., regardless of national origin or citizenship.
      Non U.S. citizens or persons who are not lawful permanent residents need an Employment Authorization Document — more commonly referred to as a work permit.

Social SecurityNumber Trace
      Bogus social security cards are common "breeder documents" for identity theft. They've also become a valuable commodity for workers who are in this country illegally. Another CDL shortcoming, according to the IG report, is that the federal government doesn't currently require states to verify social security numbers before issuing a license. Access to social security information by employers is limited.
      The Social Security Administration's Employee Verification Service is designed only to assure accuracy of W-2 forms by matching Social Security numbers and employee names.
      The IRS and INS are currently conducting an Employment Verification pilot program in California, Florida, Illinois, Nebraska, New York, Texas, that gives participating employers access to the system used by state and local government agencies to verify work authorization and other benefits.
      More extensive traces must be done through consumer credit bureaus and are subject to strict federal and state privacy laws.

Credit Reports
      Consumer credit reports can be used to verify previous employment and past addresses given on the employment application. Many believe they provide other useful information.
      As Penneau notes, a driver with financial problems isn't necessarily a security risk. On the other hand, "desperate times may call for desperate actions."
      Bankruptcies or huge debts may indicate that the person lacks good judgment — or is someone under pressure to break some rules.
      "If a driver is desperate to be hired, if he's anxious to start putting on miles, this may be a person who will push the limits of fatigue or violate hours-of-service rules to get out of a financial hole," he notes.

Criminal Check
      New rules for hazmat drivers will include criminal investigations done by government authorities. Criminal checks done privately can be laborious and expensive.
      As Austin explains, "There isn't one button you can push to check somebody's criminal record nationwide. Law enforcement can do it, but not the general public."
      Private employers are thus left with state-by-state and even county-by-county searches of criminal records. For truckers who travel the country, that's especially tough.
      "There is never a 100% absolute guarantee that you'll know your applicant doesn't have a criminal history," he says. "If your driver lives in Florida you can check Florida records, but you have no way of knowing if he got into a fight at a truckstop in Tennessee or was arrested for shoplifting at a mall in New York."

Drug And Alcohol Tests
      A new driver must pass a controlled substance test before he/she can be assigned to any safety-sensitive function. You sometimes can sidestep this if the driver is coming directly from another program but proof and paperwork requirements usually make it easier and faster to administer the test.
      In addition to pre-employment testing, you must query previous employers to find out if a driver has failed or refused a drug or alcohol test in the previous two years.
      If there was a violation, you must get documentation of the driver's successful completion of DOT return-to-duty requirements. You don't have to have this information in hand before putting the driver on the road, but you must make the request within 14 days of hiring the driver.
      Unfortunately, many drivers are slipping through the cracks. Although these rules do say that a carrier must provide drug and alcohol test information some companies, fearing lawsuits, still refuse to comply. More commonly, drivers who have failed a drug or alcohol test simply omit the employer from applications.
      FMCSA is now studying the feasibility of a federal law which, like an Oregon statute enacted in 2000, would require employers and medical review officers to report verified positive drug tests to the state that issued the CDL.

Driving Test
      Drivers that will operate doubles, triples or vehicles requiring a tank endorsement must be road tested. It's not necessary for others if state testing for the CDL was done in the same type of equipment the driver will use on the job, or if another carrier certified the driver in the previous three years. Still, safety experts urge road tests for every potential new hire.
      As Penneau notes, a good test not only evaluates driving skills, it tells you something about the applicant's driving attitude. Do they follow too closely? Are they aggressive? Do they take risks?
      He recommends at least a half hour test, including city, rural and highway driving.
      A good guide for the technical evaluation is DOT's certification requirements: a pretrip inspection, coupling and uncoupling of combination units if the driver will operate that type of equipment, placing the vehicle in operation, use of emergency equipment and controls, turning, braking, slowing by means other than braking, backing, parking, operating in traffic and passing.

Aptitude Tests
      "Honesty" or "psychological" testing is restricted in many states, but there are still legal ways to gauge an applicant's ability and willingness to do a good job.
      MindData Systems, Dallas, Texas, has a 180 question index that measures 20 behavior tendencies such as aggressiveness, adaptability, compliance, ethics, stamina and trust.
      Jim Tyler, director of agency relations, says a key feature of the index is that users can establish their own benchmark standards based on evaluations of current "best and worst" drivers.
      Fitability Systems, Atlanta, uses an evaluation based on what psychologists call the five personality factors: emotional stability, extraversion, openness, agreeableness and conscientiousness.
      If your fleet is large enough — 100 drivers or more — Fitability can establish standards based on your own employees. But through assessments of over 200,000 people the company has developed "norms" for many types of professions, including both P&D and longhaul drivers.
      "We know what the ideal truck driver should look like," says Research Director Randall Lucius.
      Scheig Associates, Bar Harbor, Wash., has a system aimed at identifying top performers. Part one of the test gauges ability and inclination to do the job. Part two evaluates potential performance.
      Scheig's system can help choose the best drivers but may be especially beneficial to companies that are screening candidates for driver training.
      In a 1998 demonstration project conducted by the American Trucking Assn's, some 330 displaced workers took the Scheig assessment to see if they could be successfully retrained as truck drivers. Based on that analysis, 186 were enrolled in driving school. Of those, 182 graduated and 95% were placed in truck driving jobs.
      Atlanta based Waypoint Research has a relatively simple four minute test that gauges driving skills.
      The test, developed by human factors psychologist Michael Cantor, measures two channel capacity (i.e. how fast someone can process information) and situational awareness (i.e. the ability to see the "big picture.")
      Cantor says good over-the-road drivers typically have high channel capacity. Good P&D drivers, who must negotiate city traffic, score high on situational awareness.
      When measuring the accuracy of his test, Cantor looks at how often he correctly identifies high risk drivers and how often he incorrectly identifies good drivers as high risk — i.e. his "false alarm" rate. In trials with carriers, he correctly tagged 43-75% of the risky drivers. The false alarm rate was 6-12%.
      The good news about these and similar evaluations is that they're fast and convenient — just about all can now be taken over the Internet.
      The biggest drawback: cost. Although high volume users can get pricing as low as $10 to $15 per test, prices for occasional users can run as high as $60 per evaluation.
      Even companies who sell the systems say they should be used sparingly — after you've checked a candidate's MVR and done some preliminary past-employer verification, but before you spend money on drug testing and more extensive investigations.
      They also stress that finding good drivers, no matter what screening procedures you use, is no guarantee that you'll keep them.
      "A lot of times people come to us looking to reduce turnover and I can appreciate that," says Mark Tinney, president of Scheig Associates.
      Top performers tend to have lower turnover rates, so finding those people is only half the battle. However, "companies that benefit most are those that have already created an environment that will be conducive to retaining top performers," he adds.

Legal Trouble
      If there's a failsafe plan for weeding out problem drivers, it's probably also a plan that's fraught with legal landmines.
      Privacy has become a huge issue in employee screening. Federal and state laws generally require an applicant's written authorization before you can obtain consumer credit reports or do criminal background checks. The laws also restrict access to information and prescribe steps that must be taken if you take any adverse action, such as denying employment, on the basis of a report.
      In 1998 Congress changed the Fair Credit Reporting Act so that trucking employers could get a driver's permission for mandated background checks electronically or over the phone. But the stricter rules still apply when you step beyond federal requirements.
      Federal law prohibits discrimination on the basis of race, color, national origin, disability, religion, gender or age (over 40). Many states have added marital and parental status to that list. Some states and cities have made it illegal to discriminate against workers on the basis of sexual preference.
      Care should be taken to make sure screening procedures and hiring standards are uniformly applied. For instance, road tests must be the same for all drivers — no matter their gender or national origin.
      Federal regulations don't prohibit carriers from hiring drivers who have tested positive for alcohol or drugs, as long as you can follow mandated back-to-work procedures. While most attorneys agree that you're safe to deny employment on the basis of a failed drug or alcohol test, the Americans With Disabilities Act adds a few fuzzy areas.
      "Alcoholics considers themselves to be alcoholics whether they're drinking or not — and admitting it is part of the program," says Steiner. "But you can't refuse to hire an alcoholic."
      DOT testing covers certain illegal drugs but federal regulations also say a driver may not be qualified to operate a commercial vehicle if he or she is using amphetamines or many other controlled substances — unless the drug is prescribed by a doctor and the doctor says it's okay to drive.
      That gets especially sticky when the driver is taking medication for a protected disability and there isn't a clearly established safety relationship, Susser says. If the medication or underlying condition doesn't pose a safety threat, you could violate federal or state disability statutes by refusing to hire him.
      The safest course: draft screening policies and procedures with the help of an attorney who knows trucking and employment law, and make sure everyone who is recruiting, screening and supervising drivers is singing off the same sheet.

Sidebar
For More Information