Background Checks: Will New Rules Hurt or Help?
Proposed changes to federal rules requiring background checks for truck drivers are generally regarded as a step in the right direction, but there are some wrinkles to be ironed out.
The proposal is aimed at closing a gap in current regulations that require employers to ask previous employers for background information on drivers they hire but - except for drug and alcohol test information - those previous employers have no regulatory dictate to respond. FMCSA wants to change the rules so that previous employers would be required - by regulation - to provide accident, out-of-service, drug and alcohol test information going back three years (two years is currently required for drug and alcohol test records).
The revised rules would incorporate language in the 1998 Transportation Equity Act, which FMCSA says is sufficient to protect employers from legal action by drivers as long as the employer is acting in good faith within the rules and has not knowingly furnished false information. In return, drivers would have the right to review information provided by previous employers and dispute that information. If a dispute isn't resolved, the driver could have a rebuttal statement attached to the information.
One often repeated concern in responses to the proposal is that the 30 days FMCSA wants to allow for a response to background requests is much too long. The American Trucking Assns., the National Private Truck Council, and the Truckload Carriers Assn. all recommended a mandatory five working days.
The Owner-Operator Independent Drivers Assn. (OOIDA) worried that the proposal doesn't protect truckers from carriers who might manipulate background check information "to retaliate against those who refuse to violate safety rules." They recommended that carriers be required to certify that the information was true and that safety performance should only relate to a driver's history with that carrier. Moreover, OOIDA suggested that a new rule require prospective employers to automatically give drivers a copy of any background information received.
Many carriers, on the other hand, worry that giving review and rebuttal rights to anyone who applies for a driving job would create a paperwork nightmare. As J.B. Hunt Senior Compliance Director David Whiteside noted, the "undesirable drivers who leave their employment involuntarily are the most likely to rebut their records and the most likely to apply to the most carriers."
As for the rebuttal rights for drug and alcohol test records, "anyone who has been involved in motor carrier compliance for long has heard every reason imaginable for why a test result is wrong," Whiteside wrote. "With the mandated safeguards in place, the Medical Review Officer review, the required Substance Abuse Professional evaluation, and the required follow-up, what purpose will the rebuttal serve but to add expense and burden to the motor carrier?"
Dart Transit Special Counsel James Hardman recommended that a driver should have a right to review and challenge information provided by previous employers if he or she is denied employment based on that information. "If a carrier rejects an applicant based on a driving test or an interview concerning his or her attitude and knowledge of safety and his or her perception of implementation, there should be no need or right to examine responses from other carriers," he wrote. "Carte blanche access to the records could cause considerable time and costs to the carrier merely to satisfy an operator's inquisitiveness."
A universal criticism of the proposal is that it has no clear provisions for enforcement. "What penalty or penalties will be imposed and how will enforcement be achieved and by whom," Hardman asked. "What is an inquiring carrier obligated to do if a response is not received?"
The Advocates for Highway and Auto Safety asked for "targeted oversight actions" to make sure the information is being requested and that previous employers are complying. FMCSA is mistaken, the group said, "if it thinks the safety information exchange mandate will be self-regulating and self-enforcing."
-Patricia Smith
Senior Editor
