Vetting commercial drivers to ensure they are properly qualified is one of the foundational regulatory obligations placed on motor carriers by federal and state safety regulations. As we've discussed in other articles, there's a lot that goes into qualifying drivers. But there's one aspect of driver qualification in particular that seems to cause quite a bit of confusion, and that's the so-called "verification of employment" or "safety performance history request" process. In this article, we break that process down and dispel some common myths.
What do the regulations require in terms of verifying employment?
The Federal Motor Carrier Safety Regulations (FMCSRs) and related state rules generally require motor carriers to conduct two kinds of background investigations on driver-applicants during the onboarding and qualification process. The first, which applies to all applicants, involves obtaining a Motor Vehicle Record (MVR) from every state in which the applicant has held a driver’s license or CDL within the three years’ preceding the application date.
The second--and the subject of this article, specifically--involves making safety performance history inquiries with the applicant’s previous DOT-regulated employers. Importantly, this requirement applies only to driver-applicants who have previous CMV driving experience within the three years preceding their application date. Drivers who have no CMV driving experience in the three years preceding their application date require NO verification of employment under DOT regulations.
Here's the pertinent regulatory text: "each motor carrier shall make the following investigations and inquiries with respect to each driver it employs...An investigation of the driver's safety performance history with Department of Transportation regulated employers during the preceding three years." 49 CFR 391.23(b).
Both the MVRs and safety performance history inquiries must be made within 30 days of the driver’s hire date; however, many carriers choose to complete them prior to allowing drivers to operate CMVs.
With respect to the previous employer safety history inquiries, prospective carrier employers must obtain written consent from the driver-applicants to make these requests, and the consents must accompany the requests sent to previous employers.
What information must be verified?
Assuming a driver-applicant indicates on his application that he worked for DOT-regulated employers in the past 3 years, what exactly must his prospective new employer verify with those employers? There are essentially two categories of information that must be verified: (1) employment dates; and (2) accident information.
Specifically, Section 391.23(e) of the FMCSRs provides that prospective employers must investigate: (1) "General driver identification and employment verification information" and (2) accident data for any accidents in which the driver was involved in the past 3 years.
The pertinent regulation goes on to require carriers to verify certain information about the driver-applicant's drug/alcohol testing history. Importantly, however, these additional verifications apply only to drivers who are applying to operate vehicles that do NOT require a CDL. Why? Because for drivers who will be operating vehicles requiring a CDL, the prospective employer is, as of January 2020, required to obtain this information through the federal Drug & Alcohol Clearinghouse rather than from previous employers.
For applicants of non-CDL positions, carriers must make the following additional verifications of previous DOT employers for whom the applicant worked in 3 years preceding the application date:
- Whether, within the previous three years, the driver had violated the alcohol and controlled substances prohibitions .
- Whether the driver failed to undertake or complete a rehabilitation program prescribed by a substance abuse professional (SAP). If the previous employer does not know this information (e.g., an employer that terminated an employee who tested positive on a drug test), the prospective motor carrier must obtain documentation of the driver's successful completion of the SAP's referral directly from the driver.
- For a driver who had successfully completed a SAP's rehabilitation referral, and remained in the employ of the referring employer, information on whether the driver had the following testing violations subsequent to completion of an SAP referral: Alcohol tests with a result of 0.04 or higher alcohol concentration; Verified positive drug tests; Refusals to be tested (including verified adulterated or substituted drug test results).
- Alcohol tests with a result of 0.04 or higher alcohol concentration;
- Verified positive drug tests;
- Refusals to be tested (including verified adulterated or substituted drug test results).
For a driver who had successfully completed a SAP's rehabilitation referral, and remained in the employ of the referring employer, information on whether the driver had the following testing violations subsequent to completion of an SAP referral:
- Alcohol tests with a result of 0.04 or higher alcohol concentration;
- Verified positive drug tests;
- Refusals to be tested (including verified adulterated or substituted drug test results).
