Understanding FMCSA verifications of employment
Vetting commercial drivers to ensure they are properly qualified is one of the foundational regulatory obligations placed on motor carriers by federal and state safety regulations. As we've discussed in other articles, there's a lot that goes into qualifying drivers. But there's one aspect of driver qualification in particular that seems to cause quite a bit of confusion, and that's the so-called "verification of employment" or "safety performance history request" process. In this article, we break that process down and dispel some common myths.
What do the regulations require in terms of verifying employment?
The Federal Motor Carrier Safety Regulations (FMCSRs) and related state rules generally require motor carriers to conduct two kinds of background investigations on driver-applicants during the onboarding and qualification process. The first, which applies to all applicants, involves obtaining a Motor Vehicle Record (MVR) from every state in which the applicant has held a driver’s license or CDL within the three years’ preceding the application date.
The second--and the subject of this article, specifically--involves making safety performance history inquiries with the applicant’s previous DOT-regulated employers. Importantly, this requirement applies only to driver-applicants who have previous CMV driving experience within the three years preceding their application date. Drivers who have no CMV driving experience in the three years preceding their application date require NO verification of employment under DOT regulations.
Here's the pertinent regulatory text: "each motor carrier shall make the following investigations and inquiries with respect to each driver it employs...An investigation of the driver's safety performance history with Department of Transportation regulated employers during the preceding three years." 49 CFR 391.23(b).
Both the MVRs and safety performance history inquiries must be made within 30 days of the driver’s hire date; however, many carriers choose to complete them prior to allowing drivers to operate CMVs.
With respect to the previous employer safety history inquiries, prospective carrier employers must obtain written consent from the driver-applicants to make these requests, and the consents must accompany the requests sent to previous employers.
What information must be verified?
Assuming a driver-applicant indicates on his application that he worked for DOT-regulated employers in the past 3 years, what exactly must his prospective new employer verify with those employers? There are essentially two categories of information that must be verified: (1) employment dates; and (2) accident information.
Specifically, Section 391.23(e) of the FMCSRs provides that prospective employers must investigate: (1) "General driver identification and employment verification information" and (2) accident data for any accidents in which the driver was involved in the past 3 years.
The pertinent regulation goes on to require carriers to verify certain information about the driver-applicant's drug/alcohol testing history. Importantly, however, these additional verifications apply only to drivers who are applying to operate vehicles that do NOT require a CDL. Why? Because for drivers who will be operating vehicles requiring a CDL, the prospective employer is, as of January 2020, required to obtain this information through the federal Drug & Alcohol Clearinghouse rather than from previous employers.
For applicants of non-CDL positions, carriers must make the following additional verifications of previous DOT employers for whom the applicant worked in 3 years preceding the application date:
Whether, within the previous three years, the driver had violated the alcohol and controlled substances prohibitions .
Whether the driver failed to undertake or complete a rehabilitation program prescribed by a substance abuse professional (SAP). If the previous employer does not know this information (e.g., an employer that terminated an employee who tested positive on a drug test), the prospective motor carrier must obtain documentation of the driver's successful completion of the SAP's referral directly from the driver.
For a driver who had successfully completed a SAP's rehabilitation referral, and remained in the employ of the referring employer, information on whether the driver had the following testing violations subsequent to completion of an SAP referral:
Alcohol tests with a result of 0.04 or higher alcohol concentration;
Verified positive drug tests;
Refusals to be tested (including verified adulterated or substituted drug test results).
How far back must carriers go when verifying employment?
The regulations require prospective motor carriers to send safety performance history requests to any DOT employer for whom a driver-applicant worked in the 3 years preceding the application date. It is a common misconception that carriers must verify employment going back 10 years. This is a clear conflation of a different rule that dictates how much employment history a CDL applicant must list on his DOT application. That rule does NOT require prospective carriers to send safety performance history requests to previous employers beyond 3 years. We broke down this myth in greater detail in another article.
How many attempts must carriers make to verify employment?
Another common misunderstanding is that motor carriers have to make a certain number of attempts to reach a driver-applicant's previous employers to conduct the required investigations. That's not accurate. The regulations merely require carriers make a "reasonable effort" to reach previous employers; they do not prescribe a particular number of attempts.
Indeed, the FMCSA's guidance on the topic says:
Question 1: What is to be done if a previous employer does not make the records available in spite of the employer’s request along with the driver’s written consent?
Guidance: Employers must make a reasonable, good faith effort to obtain the information. If a previous employer refuses, in violation of §382.405, to release the information pursuant to the new employer’s and driver’s request, the new employer should note the attempt to obtain the information and place the note with the driver’s other testing information (59 FR 7501, February 14, 1994).
As stated in the agency guidance, prospective employers should document their efforts to reach previous employers and keep copies of those records in the driver qualification files. Even though the regulations do not require a specific number of attempts, it is industry best practice to make at least 2 good faith attempts.
Are carriers required to respond to safety performance history requests?
If you receive a safety performance history request concerning a previous employee, are you required to respond? Yes, the regulations say, "previous employers must...Respond to each request for the DOT defined information...within 30 days after the request is received. If there is no safety performance history information to report for that driver, previous motor carrier employers are nonetheless required to send a response confirming the non-existence of any such data, including the driver identification information and dates of employment." Carriers that fail to provide the requested information are subject to enforcement.
Conclusion
Safety performance history requests are a key component of the driver qualification process. Information gleaned from these requests should be used by prospective employers to ensure driver-applicants are qualified to operate. Failing to adhere to this process can lead to regulatory violations and heightened exposure in highway accident litigation. If you have questions about this process, feel free to contact us.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a livestream podcast on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who've assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube. Or subscribe to Trucksafe's newsletter for the latest highway transportation news & analysis.