The Federal Motor Carrier Safety Administration has moved to close what many see as a huge loophole in driver screening rules.

That includes the absence of details regarding the type of information they are to obtain from current or previous employers and the lack of any regulatory requirement that those employers respond to employment history requests.
Current rules require new and prospective employers to investigate a driver’s employment history going back three years. The investigation must be completed within 30 days of hiring. This proposal, which stems from a similar proposal made in 1996, would require past and current employers to provide the following information within the mandated 30 days:
- Information verifying the driver worked for that employer and the dates of employment.
- The driver’s three-year alcohol and controlled substances history. Only a two-year history is currently required although carriers must keep records going back three years.
- Information indicating whether the driver failed to undertake or complete a rehabilitation referral prescribed by a substance abuse professional within the previous three years, but only if that information is recorded with the responding previous employer. Previous employers would not be required to seek alcohol and controlled substance data they are not already required to retain.
- Information indicating whether the driver illegally used alcohol or controlled substances after having completed a rehabilitation referral, but only if recorded with the responding previous employer.
- Information indicating whether the driver was involved in any accidents as defined by federal regulations.
FMCSA noted that the 1998 Transportation Equity Act of the 21st Century (TEA-21) preempts state and local liability laws and regulations, thus limiting employer liability for investigating, furnishing and using previous employer driver safety performance records as part of the hiring decision. This proposal incorporates that into the regulations, prohibiting legal action or proceeding for defamation, invasion of privacy, or interference with a contract against carriers, agents or insurers of a person as long as they are acting within the rules and have not knowingly furnished false information.
The proposals also add protections for drivers, including the right to review information provided by previous employers, the right to have errors in the information corrected by the employer who provided the information, and the right to have a rebuttal statement attached to the alleged erroneous information if the submitting information disputes the driver’s claim that information is incorrect.
The complete proposal can be found in the July 17 Federal Register, which can be accessed on the Internet at www.gpoaccess.gov. Comments are due Sept. 2, 2003 and can be submitted electronically via http://dms.dot.gov. Reference Docket number FMCSA-97-2277.