An attorney probably doesn't need to be involved in security planning, but it's a good idea to get a legal review before implementing the program. And it's a very good idea to have an employment law expert check screening and other security measures against federal and state rules regarding discrimination and worker privacy.
Unfortunately, there isn't a "one size fits all" legal guide for employer/employee relationships. Federal laws apply in some cases, state laws in others. There may even be some local regulations that come into play. But transportation attorney Timothy Wiseman, of Scopelitis, Garvin, Light & Hanson, was willing to discuss some general areas of concern.
It's OK to go beyond federally mandated background investigations for drivers or other employees in security-sensitive positions, but employers must be mindful of discrimination prohibitions. Federal law makes it illegal for employers to discriminate against employees on the basis of race, color, national origin, disability, religion, gender or age (40 and older). State or even local laws sometimes broaden that to include marital and parental status and sexual orientation.
To avoid even the appearance of discrimination, screening procedures and employment standards must be well established and consistently applied. For instance, the company may decide that it will not hire truck drivers who have been convicted of a felony in the past 10 years. The policy should be in writing and should be followed without exception.
"If you don't have anything in writing and the rules are applied differently for different people, you haven't insulated yourself from someone in one of the protected classes who might claim discrimination," Wiseman explains.
Some companies do criminal background checks only when the initial background check raises a red flag. Wiseman says that might be permissible if written policy clearly establishes what will trigger the criminal investigation, but it's still risky.
"If the only people going through that extra step happen to be minorities, it's going to raise some suspicions that you're discriminating," he notes. The safer course: If the company decides to do criminal background checks, it should do them for everyone in the specified job classification.
Employers may establish different screening procedures and hiring standards for different types of jobs. "We recommend that they prepare a job description for each type of position," he says. "The job descriptions should include minimum qualification standards such as licenses required, experience and no criminal convictions for certain types of offenses. Those standards can vary depending on the safety- or security-sensitivity of the position."
CRIMINAL AND CREDIT CHECKS
The federal Fair Credit Reporting Act sets national standards for employment screening. While it generally applies only to outside companies or "consumer reporting agencies," some states may have broader laws or further restrictions. For instance, Wiseman says a handful of states have employment laws that limit an employer's right to screen out applicants based solely on criminal records. Although that's relatively rare, it's something employers need to be aware of.
Whether or not written permission is legally required, Wiseman urges employers to get a signed release from the applicant or employee before launching any kind of background investigation. It's OK to incorporate a release into the application form for performing general reference checks. However, if an employer is going to do more sophisticated background checks using a consumer reporting agency, the Fair Credit Reporting Act requires that the authorization to conduct such background checks be on a separate document and include certain necessary disclosures and a release.
A common concern among drivers is the possibility of mistaken identity in a criminal background check, or incorrect information in databases maintained by outside companies such as USIS (formerly DAC). Wiseman says it shouldn't be a legal issue for companies using those services as long as they can show they acted in good faith – in other words, that they reasonably believed that the information was accurate and true.
Again, though, he recommends an extra step. The Fair Credit Reporting Act includes provisions allowing individuals to challenge information contained in their reports. Database companies such as USIS are subject to those rules. DOT regulations governing driver background checks contain similar procedures for handling disputed information provided by former employers.
To be safe and fair, carriers should apply those procedures to their entire screening process, giving drivers and other employees a chance to tell their side of the story before adverse action is taken.
Along with clear screening policies and procedures, companies need to establish rules as to what information they will give other carriers and third-party screening services.
Wiseman's advice: Get a signed release from the former employee before releasing any information, then stick to the facts. DOT rules require previous employers to verify employment and to provide information regarding accidents or violations of drug and alcohol prohibitions. A company may add specifics, such as the type of equipment operated, but should steer clear of subjective information such as performance evaluations.
"The truth," he says, "is the ultimate defense in defamation and slander cases."
DOT makes carriers legally responsible for the safety compliance of their independent contractors and drivers employed by those contractors. Thus most trucking companies prefer to handle mandated background checks for those drivers. They can broaden the investigations to include security-related background checks, but procedures and qualification standards should be written into the lease agreement.
Carriers also should consider the fine line between independent contractor and employee. In most cases, the boundary is determined by the amount of control the carrier exercises over the contractor.
For that reason, some companies do the DOT screening but additional driver screening is the contractor's responsibility. In those cases, the lease contract should set forth screening requirements and qualification standards. It should also contain language allowing the carrier to audit records of those investigations. If the audit requires inspection of individual driver information, the carrier should get signed releases from those drivers.
Some state laws may restrict employer monitoring of personal calls, but companies generally have a right to monitor communications using company phones, satellites or other technology. They also have the right to search company-owned trucks, lockers or other company property. The fact that the company may monitor communications, or may search property, should be stated in personnel manuals or driver handbooks so the drivers have no expectation of privacy in those items.
If a company suspects illegal activity by an employee, the first step should be to contact an attorney or private investigator for guidelines on conducting an internal investigation. Although employers are often reluctant to get the police involved, doing so minimizes liability exposure.
Shippers and consignees have a right to know something about the people picking up and delivering freight at their facilities, especially if they deal in hazardous materials or high-value goods. But those that require drivers to show CDLs or disclose other personal information raise some privacy and identity theft concerns.
The Drivers Privacy Protection Act restricts the use of personal information by state licensing agencies. It also limits the disclosure of a driver's motor vehicle record and the sharing of motor vehicle records once that information is obtained. State laws may be even more restrictive.
Therefore carriers need to make sure they're not violating any federal or state privacy rules before sharing license information with shippers or consignees – and the information should never be released without the drivers' knowledge and written consent.
Even if the practice is legal, CDL information in the wrong hands exposes drivers to potential identity theft. Says Wiseman, "I wouldn't give the information to just anyone who asks, and I'd want them to sign a confidentiality agreement."
An even safer course is to issue company identification that can be presented to shippers and consignees. Badges or cards may have special identifiers or may have numbers that can be matched with names, photos or other information on a secure area of the carrier's web site. As Wiseman notes, "no personal information is exchanged."