The trucking industry lobbied for eight years to get the DOT to open its databases and let trucking companies take a peek at the roadside inspection histories of prospective drivers. But now that it's here, you'd better figure out the best way to make use of that data. Otherwise, a clever plaintiff's attorney could make a case that you should have been.
That was the message Sunday of Rob Moseley, a partner specializing in trucking with Smith Moore Leatherwood LLP, during an educational session at the American Trucking Associations' annual management conference in Phoenix.
"If you choose not to use the PSP, you're making a huge mistake," Moseley said. "Because the PSP is available to you, and everything that's available to you today will eventually be available to the lawyer who sues you."
Under the PSP, carriers can get a report on a prospective driver much like a motor vehicle report. Only instead of telling you how many speeding tickets and other moving violations the driver has had, it will tell you about roadside inspection data, such as hours of service violations, overweight violations, equipment violations.
DIGGING INTO THE DATA
One challenge with the data, however, is you can't look at the report and tell whether a violation is the driver's fault or whether it's his prior employer's fault. "Is the overweight ticket because the company gave him a load that was too heavy, or because the driver was too lazy to move the axle," Moseley asks. "Is the equipment violation because the company didn't maintain its equipment, or did the driver not tell the company he's been driving for six weeks with a light out?"
Another challenge is that your company must come up with new standards for hiring that take into account this data -- just like you might have a standard that you won't hire a driver who has more than X tickets in X years on his MVR.
"You're going to have the wrestle with the PSP and figure out what it means to your company," Moseley said. In fact, it's likely that access to the PSP will mean more work, not less, as you order more reports to try to uncover the truth behind the violations.
FAIR CREDIT REPORTING
Another PSP issue is that it is covered by the Fair Credit Reporting Act. Not only do you have to get consent on the front end from the potential employee to check their PSP (must as you do now for MVRs), but you also are required to take another step on the back end if your use of that data causes you to not hire the driver, or to hire him on some sort of provisional basis, require him to have remedial training, that kind of thing.
It's called an adverse determination notice, and it needs to tell the applicant about the adverse action, give him information about the PSP and how he can get that information and if he desires contest the data. Carriers already are supposed to be doing this for MVRs, Moseley said, but it's often overlooked. He believes with PSPs it could be more of a land mine.
"This could be a cottage industry for suing trucking companies for not complying with the Fair Credit Reporting Act."
THE BAD APPLES
Moseley believes the PSP will do even more to weed out the "bad apple" drivers in the industry than CSA 2010, the Federal Motor Carrier Safety Administration's new enforcement regime.
There also will be implications for a carrier's insurance policies, although not immediately. "Underwriters are not looking at PSP right now," he said. "They will, but underwriters are generally slow to pick up on what's happening in the current market. They're just now starting to understand SafeStat," the analysis system being replaced under the CSA 2010 initiative.
For more on the PSP, see "FMCSA Opens Pre-Employment Screening Program," 5/12/2010, or go to the FMCSA's PSP page at www.psp.fmcsa.dot.gov.