Safety performance history: Recordkeeping

Scope

All carriers that have hired or are hiring a driver to operate a commercial motor vehicle as defined in 390.5 are required perform a background investigation with a driver’s DOT-regulated employers in the past three years. Both the prospective and current or former employers are required to document the requests for employment history verification on the driver applicant.

Regulatory citations

• 49 CFR 391.23 — Investigation and inquiries
• 49 CFR 391.53 — Driver investigation history file

Key definitions

• 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 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 DOT-regulated person who employed the driver in the preceding three years, including any possible current employer.

Summary of requirements

Previous employers who receive requests for safety performance history information must keep records of those requests and their responses. In particular, employers must keep for one year a record of each request received from prospective employers, and a record of any response that was sent, including the date, the party to whom it was released, and a summary identifying what was provided. In addition, employers must keep requests for correction of erroneous information and rebuttals received from former employees.

Prospective employers must keep a confidential Driver Investigation History (DIH) file containing all records related to the investigation into the safety performance history of a new or prospective driver. At a minimum, this includes:

• A copy of the response(s) received from each previous DOT-regulated employer, or documentation of “good faith efforts” to contact them. This must be in writing, and the record must include the previous employer’s name and address, the date the previous employer was contacted, and the information received about the driver from the previous employer.
• Documentation of failures to contact a previous employer, or of them to provide the required safety performance history information.

The FMCSA does not require that safety performance history records be kept for drivers who are not hired. However, as with any vetting tool, employers must follow state and federal employment laws on retention of documents on applicants that were not hired.

To protect drivers’ privacy and security, the driver investigative history (DIH) file must be maintained in “a secure location with controlled access.” Employers must take “all precautions reasonably necessary to protect the driver safety performance history records from disclosure” to unauthorized persons. Access to the data must be limited to those who are directly involved in the hiring decision or who otherwise control access to the information. Information in the DIH file must only be used in the hiring decision.

Safety performance histories must be retained for as long as the driver is employed by the company and for three years after that.