Safety performance history: Due process

Scope

The safety performance history records request is sent to the past three years’ worth of former Department of Transportation (DOT)-regulated employers to learn of unsafe driving patterns, and general employment history.

Regulatory citations

• 49 CFR 391.21(d) — Application for employment
• 49 CFR 391.23 — Investigation and inquiries
• 49 CFR 391.53 — Driver investigation history file

Key definitions

• Commercial motor vehicle (CVM) (390.5): 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 any commercial motor vehicle.
• Employee: Any individual, other than an employer, who is employed by an employer and who in the course of their 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.
• Previous employer: Any FMCSA-regulated person who employed the driver in the preceding three years, including any possible current employer.

Summary of requirements

Before making any hiring decision, prospective employers must notify drivers (those with DOT-regulated employment during the preceding three years) of their rights in regard to their safety performance history information, in writing.

The driver/applicant must be notified of:

• The right to review information provided by previous employers (391.23(i)(2));
• The right to have errors in the information corrected by the previous employer, and for that previous employer to re-send the corrected information to the prospective employer (391.23)(j)(1); and
• The right to have a rebuttal statement attached to the alleged erroneous information, if the previous employer and the driver cannot agree on the accuracy of the information (391.23(j)(3)).