Better Driver Screening?
FMCSA's move to close loopholes raises some serious concerns.
Deborah Whistler
Editor
The Federal Motor Carrier Safety Administration's move to close a huge loophole in driver screening rules is a step in the right direction. But some provisions might muddy the issue.
The new rule at least adds some teeth to the background check rules (see story page 37). And it might ease some worries carriers have had about releasing important safety information, such as drug/alcohol test results and accident records.
We realize FMCSA can only go so far to solve the problem of bad drivers slipping through the cracks, but it is a serious issue that many truckers have tried to resolve through the states. To date, Oregon is the only state to successfully introduce legislation that attaches drivers' drug and alcohol violations to their permanent DMV records. The new federal rules do nothing to close this particularly dangerous loophole.
FMCSA's new rules pose other questions:
• What will a fleet do if a carrier doesn't respond to its request for information? Right now many just send the request, put a copy of the request in the file, and forget about it. Will they will be expected to do more follow-up?
• What's the cost of non-compliance? Penalties for violations of record-keeping rules range from $550 to $2,750 per day, assuming this would be a record-keeping violation. We're also assuming this will be another thing they'll look at on a compliance review. If a fleet is otherwise in compliance, will a recordkeeping fine (especially on the low end) outweigh lingering liability concerns?
• How will the reporting rule be enforced? Will safety inspectors make note of unanswered requests for past-employer information? Many fleets do not release negative information on drivers on the advice of their attorneys. And it may well be that the fear of a lawsuit could prove more compelling than a potential slap on the wrist by FMCSA.
• Does the proposed rule offer adequate protections? FMCSA seems pretty confident that it does — and we hope they're right. But attorneys seem to have a knack for finding ways to sue, which brings us back to the bigger issue of tort reform.
One provision could cause nightmares for fleets. It says that a driver would have the right to review information provided by previous employers if the driver requests it (in writing) from the prospective employer. If the driver feels something is incorrect and wants it corrected, he/she must send proof of error and request that the previous employer correct it. If the previous employer and the driver agree that the information is wrong, the previous employer must send corrected information to the prospective employer. If the previous employer doesn't agree, the driver can submit a rebuttal, which must be sent to prospective employers.
This is similar to procedures required of credit bureaus, including the policy DAC follows when drivers question its records.
Something similar was proposed in 1996. One carrier responded back then: "Until the Department of Labor makes this suggestion generally applicable to all employers, you are unreasonably forcing companies to become clearinghouses for minutiae."
Having read many diatribes from drivers protesting information in their DAC file (or information they think is in the file), we think minutiae is an understatement.
A better solution might allow drivers to request the information only if they're turned down for employment — or that they be allowed to only review safety-related items.
If, for instance, you happen to mention during a phone conversation that a former driver abandoned a load or punched out a dispatcher, will that be included in the information provided to the driver? If so, watch out.
While the new rules may be a step in the right direction, they still seem to leave carriers vulnerable to lawsuits. The protection they provide might not justify the paperwork and confusion they cause.
