['Recruiting and hiring', 'Driver qualifications']
['Driver qualification and hiring', 'Previous employer check - Motor Carrier']
08/27/2024
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
Motor carriers are required to obtain and review the “safety performance history” of each job applicant seeking employment as a commercial motor vehicle driver. A driver’s safety performance history includes three years’ worth of information about previous DOT-regulated employers, the commercial motor vehicle accidents the driver was involved in, and the driver’s DOT drug/alcohol testing history if the driver’s violations occurred at an employer regulated by a DOT agency other than FMCSA. Effective January 6, 2023, the Clearinghouse is the only way to learn of FMCSA drug and alcohol violations. By obtaining applicants’ safety performance histories, a motor carrier should be able to make better hiring decisions and help remove unsafe drivers from the road.
Scope
The safety performance history applies to drivers hired since October 30, 2004.
Regulatory citations
- 49 CFR Part 382 — Controlled substances and alcohol use and testing
- 49 CFR 390.15 — Assistance in investigations and special studies
- 49 CFR 390.5 — Definitions
- 49 CFR 391.21 — Application for employment
- 49 CFR 391.23 — Investigation and inquiries
- 49 CFR 391.53 — Driver investigation history file
- 49 CFR Part 40 — Procedures for transportation workplace drug and alcohol testing programs
Key definitions
- Accident: (1) Except as provided in paragraph (2) of this definition, an occurrence involving a commercial motor vehicle operating on a highway in interstate or intrastate commerce which results in:
- A fatality;
- Bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
- One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle(s) to be transported away from the scene by a tow truck or other motor vehicle.
- An occurrence involving only boarding and alighting from a stationary motor vehicle; or
- An occurrence involving only the loading or unloading of cargo.
- Commercial motor vehicle (CMV): Any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle:
- Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or
- Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or - Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding.
- Driver: Any person who operates a commercial motor vehicle. This includes, but is not limited to: Full time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner-operator contractors.
- Employee: Any individual, other than an employer, who is employed by an employer and who in the course of employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler. Such term does not include an employee of the United States, any State, any political subdivision of a State, or any agency established under a compact between States and approved by the Congress of the United States who is acting within the course of such employment.
- Employer: A person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance with Part 382. The term, as used in this part, means the entity responsible for overall implementation of DOT drug and alcohol program requirements, including individuals employed by the entity who take personnel actions resulting from violations of this part and any applicable DOT agency regulations. Service agents are not employers for the purposes of this part.
- Previous employer: Any DOT-regulated person who employed the driver in the preceding three years, including any possible current employer.
Summary of requirements
Driver application. To determine which of an applicant’s previous employers to send inquiries to, prospective employers must ask the following questions on the application for employment described in 391.21, for each previous employer listed on the application:
- Whether the applicant was subject to the Federal Motor Carrier Safety Regulations while employed by that previous employer, and
- Whether the job was designated as a “safety sensitive function” in any DOT-regulated mode subject to alcohol and drug testing requirements as required by 49 CFR Part 40.
In addition, before an application is submitted, the prospective motor carrier must:
- Inform applicants that the information provided on the application concerning previous employers may be used, and the applicants’ previous employers will be contacted, for the purpose of investigating the applicant’s safety performance history; and
- Notify the drivers in writing of their due process rights (refer to Due Process Rights below).
Previous employers. Prospective employers must request their applicants’ safety performance history information from all previous DOT-regulated employers. This would include positions in which the applicant:
- Operated a commercial motor vehicle within the previous three years. In this case, “commercial motor vehicle” is defined in 390.5, and includes (in part) vehicles used in interstate commerce that weigh 10,001 pounds or more; and/or
- Was in a safety-sensitive function (for any mode, e.g., highway, rail, pipeline, rail, air, maritime, transit) and subject to DOT testing.
The investigation may consist of personal interviews, telephone interviews, letters, faxes, emails, or any other method for investigating that the employer deems appropriate. Safety performance history information received from previous employers, or the prospective employer’s good faith efforts to obtain the information, must be placed in a Driver Investigation History file within 30 days of the start of the driver’s employment.
Content of inquiry. The information that has to be requested from previous DOT-regulated employers includes general identification and employment information, accident information, and DOT drug/alcohol testing information while at DOT-regulated employers other than FMCSA, as outlined below. Previous employers have to respond to each request within 30 days after receipt. Failures to respond should be reported to the FMCSA.
ID/Employment information. The prospective employer must provide basic identifying data about the driver, such as name, date of birth, and Social Security number, so the previous employer can identify who the driver is, and must request basic employment information about that driver, including starting and ending dates and job responsibilities.
Accidents. For all accidents involving the driver that occurred in the three-year period preceding the date of the employment application, the following information must be obtained (NOTE: This is the same information that has to be maintained in the employer’s accident register, as required by 390.15(b)):
- Date of accident;
- City or town (or most near) and state where the accident occurred;
- Driver name;
- Number of injuries;
- Number of fatalities; and
- Whether hazardous materials were released (other than fuel spilled from the fuel tanks of motor vehicles involved in the accident).
Prospective employers must also request information about any other accidents the previous employer may wish to provide, although previous employers are not required to provide this additional information.
DOT Drug/Alcohol Testing. The prospective employer must obtain information concerning the applicant’s drug/alcohol testing history only if the employer was regulated by a DOT agency other than FMCSA. All CDL-vehicle drivers with a violation, must have verified failures to undertake or complete a rehabilitation program prescribed by a substance abuse professional (SAP), and violations occurring after completion of a referral program per 382.413.
- The prospective employer must obtain the driver’s written consent for the release of this information and provide that release to previous non-FMCSA -regulated DOT employers.
- NOTE: As of January 6, 2023, the DOT drug or alcohol violation information was removed from the safety performance history inquiry. The CDL Drug and Alcohol Clearinghouse will be the sole means of learning of any FMCSA testing violations.)
Recordkeeping. The rules in 391.53 state that employers must maintain records related to the background check in “a secure location with controlled access.” In addition, the records must only be accessed by people directly involved in the hiring process (this can include insurers, except for drug- or alcohol-related information). The records may be kept with other secured documents (such as a drug/alcohol file) or in a separate “Driver Investigation History File,” and they must be kept for the length of employment plus three years.
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['Recruiting and hiring', 'Driver qualifications']
['Driver qualification and hiring', 'Previous employer check - Motor Carrier']
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.