Driver Background Investigations – What’s Really Required?

Hiring commercial drivers is a significant responsibility that requires diligence to avoid bad hires. An improperly vetted driver could lead to a nuclear verdict if involved in a crash.

Motor vehicle records (MVRs):  MVRs from agencies that issued the driver a license in the prior three years must be scrutinized for violations, suspensions, a CDL driver’s medical certification status, endorsements, restrictions, and more.

Safety Performance History Records Requests (SPHRRs): Carriers must also investigate the driver’s DOT-regulated employment in the prior three years. The Federal Motor Carrier Safety Administration (FMCSA) regulations outline these often-misunderstood responsibilities in sections 391.23 (verification process) and 391.53 (Driver Investigation History (DIH) file content and retention).

When conducting a driver background investigation, prospective employers must:

1. Notify applicants: Inform applicants that they have the right to review and challenge information provided by previous employers. This is known as the driver’s rebuttal rights.

2. Obtain required information: Request from each DOT-regulated employer during the preceding three years:

• General employment data, such as the starting and ending dates of employment. (If applicants were not employed by a DOT-regulated employer during the preceding three years, documentation must be in the file stating that no investigation was possible. Determine the reason for employment gaps of greater than 30 days, when possible, without violating driver privacy.)
• DOT accident information required by 390.15, if applicable to the driver.

3. Maintain records: Keep a record of each employer contact, including the name and address, date of contact, and the information received. File the completed SPHRRs or show “good-faith” efforts to obtain the information within 30 days after the hire date per 391.53.

4. Information security: Maintain the DIH file in a secure location with controlled access limited to people involved in the hiring process. Retain this file for three years after the driver’s employment ends.

DOT drug and alcohol information:

For CDL-vehicle drivers only, do the following:

• Before operating a CDL CMV or engaging in any other safety sensitive function, query the Clearinghouse for DOT drug and alcohol violations while at FMCSA-regulated employers. (Contact these employers only if the driver has not completed the return-to-duty process or follow-up testing process after a violation.)
• For employers regulated by a DOT agency other than FMCSA (rail, air, transit bus, marine), request DOT drug and alcohol violation, return-to-duty, or follow-up testing information.

Frequently asked questions regarding SPHRRs

1. How many years of CMV driving employment must be verified for CDL drivers?

A prospective employer only needs to request SPH information from DOT-regulated employers for the past three years for Commercial Driver's License (CDL) and non-CDL drivers. However, applicants being hired to operate a vehicle requiring a CDL must provide seven additional years of CMV driving employment history on the application.

2. What accident information is required from prior employers?

For all DOT accidents during the prior three years, per 390.15, carriers must obtain the:

• Date of accident,
• Location of the accident,
• Driver name,
• Number of injuries,
• Number of fatalities, and
• Whether hazardous materials were released.

Prior employers may provide information about any other driver accidents or incidents if they wish.

3. How can an applicant challenge SPHRR information that they feel is in error?

Within 30 days after the hiring decision or hire date, applicants can request to review and contest information provided by previous employers. Drivers must receive the information within five business days of the request. The driver must contact the previous employer and can directly request the correction of or submit a rebuttal to any errors. The correction or rebuttal becomes part of the driver’s record at their prior employer.

4. What is a “Good Faith Effort?”

A “good faith effort” means employers must show that they made at least two attempts via phone, email, written communication, or other means, but were unable to obtain the information. The carrier can use the driver if they document the “good-faith” attempts, even if an employer doesn’t respond.

5. Can employers charge for providing required information?

FMCSA does not prohibit employers from charging for providing the required information.

Conclusion

With proper investigations, carriers can significantly reduce the risk of negligent hiring lawsuits and ensure they have qualified and safe drivers. Don’t let unresponsive prior employers or lack of time be a reason that investigations are not properly conducted. Consider using a third-party expert to avoid missing critical safety information.  Let J. J. Keller’s team of experts keep your drivers qualified!