The FMCSA has released an official notice proposing to completely eliminate the requirement that trucking companies obtain a DOT-specific employment application. If implemented as proposed, this will radically affect your hiring practices and make it more difficult for you to hire drivers. We’ve been following the FMCSA’s activities on this proposal since it was first mentioned last year. The FMCSA regulators are now at the point in the rulemaking process where they want to hear how the proposal will affect actual trucking companies. That is, they want to hear from you.
The FMCSA has asked specific questions directed to carriers in the industry on how the proposed changes will affect hiring drivers. Read on for more information and our suggestions of how best to address these questions. This is a valuable opportunity to give your feedback on an issue that will impact you significantly – you can do so at this link.
Why Would the FMCSA Remove the Employment Application Requirements?
Essentially, it boils down to the fact that the rule as it exists today requires a lot of information. The FMCSA views the application requirements as an “administrative” and “paperwork” burden. To a certain extent, we happen to agree. If our applications didn’t pre-populate 80% of the time, they would indeed be a headache and take longer than 15 minutes to complete.
The problem, however, is that the FMCSA makes it clear that none of the other administrative and paperwork burdens that follow the DOT application are being removed. Therefore, the benefits that might accrue from eliminating all the DOT-specific application requirements would be dwarfed by new burdens that will result if the FMCSA implements what it has proposed. Instead of reducing administrative burdens on carriers and helping drivers get hired, these changes will create more roadblocks and increase the risks carriers face in hiring drivers.
Hiring Gets More Difficult
Right now, your hiring process takes for granted the information required by this specific regulation. If this regulation is eliminated, some of this information could no longer be safely requested on an employment application. We’re talking specifically about violation history, Social Security Number, Date of Birth, questions about license revocation/denial of license, etc.
Why would you not be able to ask about a driver’s violation history? Why would a driver’s Social Security Number (SSN) and Date of Birth (DOB) be difficult to obtain? Let’s dive into the details.
Ban-the-box laws would prevent asking for a driver’s violation history. Today, carriers can ignore ban-the-box laws when asking for an applicant’s violation history because federal law supersedes state and local laws. Said another way, if the federal law requiring drivers to list three years of violation history goes away, most ban-the-box laws would prohibit asking for a driver’s violation history (including whether a driver had a DUI or reckless driving violation in the past three years). The requirement to ask for violation history clearly aids carriers in evaluating a driver’s ability to safely operate a CMV and ensures that carriers are able to hire qualified drivers. Drivers who don’t meet a carrier’s requirements don’t have to wait for an MVR or background screen and can apply to another carrier to get a job more quickly.
The background reports you routinely order very early in the recruiting process require information you would probably no longer have on an application. The FMCSA notice incorrectly assumes that employers would still ask for the driver’s DOB and SSN on the application even if the rule did not exist, but it does not say under what mandate carriers would be allowed to ask for this information on an employment application if §391.21 is eliminated. This is the only section of the FMCSRs that mandates the driver provide this information. Most employers outside of the trucking industry no longer collect this information on the application based on EEOC guidance and increased risks of a lawsuit just by virtue of collecting this personal information. Instead, experts advise employers to wait until after a conditional offer of employment is given to request an applicant’s DOB and SSN. Moreover, job sites like Indeed check your applications and won’t even link to it if it contains DOB or SSN unless you have a federal law that mandates it. Trust us, we know.
But you need this information. Many states require DOB to order MVRs. PSP requires DOB. CDLIS requires SSN. HireRight’s DAC Employment History File requires SSN. Most criminal records require DOB. Most previous employers look up verification responses using the SSN. The list goes on.
It’s common in trucking to order the MVR and CDLIS before contact is even made with the driver. Imagine if you had to reach out to a driver post-application to get the DOB or SSN to even be able to run these. That’s a headache.
Obtaining three years of history gets more difficult. The DOT-mandate in 49 CFR §391.23 to verify the previous three years of employment for a driver would not go away, and you could still ask for the driver’s previous employers. But without the mandate to explain the last three years, you would be at a greater risk for discrimination claims by asking for military service start and end dates or school start and end dates.
Further, carriers will still need to obtain the 10 year history of CDL employment. This requirement is statutorily mandated, so the FMCSA cannot do away with this requirement. Even the FMCSA realizes that without this requirement in the application, it may be difficult to obtain this information and they specifically seek input on other alternatives to obtain 10 years of CDL history if not in the employment application.
It boils down to this: by requiring the information up front on an application, carriers can quickly evaluate a driver’s suitability for the job and process their application more quickly. If the DOT application requirements are completely eliminated, you would be prevented from asking for certain information up front, placing an additional burden on both the applicant and the carrier to exchange this information later. This makes filling your trucks more difficult and drags out the time to hire – something neither you nor the driver wants.
In addition to this, none of the downstream work associated with hiring a driver is eliminated (all the other regulations remain the same), but the thing that kicks off such work and provides much of the data for it – the employment application! – would probably no longer have the information needed to accomplish the work.
A Push for Safety
The stated overall goal of the FMCSA regulations is to ensure commercial motor vehicles are operated safely. However, the elimination of these requirements would not help carriers accomplish that goal. The American Trucking Associations (ATA) has specifically stated that completion of an application for employment is fundamental to the process of selecting safe CMV drivers and has further outlined its position that the deletion of the driver qualification standard would prevent motor carriers from gathering information to determine an applicants’ qualifications. We agree.
Questions and Answers
In seeking feedback, the FMCSA asked specific questions of the industry. Below are some of these questions and our short answers that might serve as a guide when you address them in your comments to the FMCSA.
- How would the elimination of 49 CFR 391.21, which includes the requirement to have prospective drivers complete an employment application, impact a motor carrier’s ability to hire safe drivers?
The elimination of §391.21 would make it more difficult to hire safe drivers. It would be more difficult to run MVRs and other background reports because SSN and DOB are no longer required. With ban-the-box laws increasing in states around the country, it would be difficult to obtain violation history from drivers. Further, the time to hire would be increased, negatively affecting both carriers and drivers.
- If the requirement in 49 CFR 391.21 for an employment application is not eliminated in its entirety, what elements should be retained to determine the safety performance history of the driver?
We believe that the mandate for the following elements should be retained, at a minimum:
- Social Security Number
- Date of Birth
- Violation history
- Three years of license information
- Three years of employment history
- The question “Have you ever been denied a license, permit, or privilege to operate a motor vehicle?” (which would get flagged by ban the box laws)
- In the ordinary course of business, would a motor carrier require a prospective driver to prepare an employment application? If so, what (if any) information currently required by § 391.21 would a motor carrier not require a prospective driver to include on the employment application?
We believe that most carriers would still require drivers to submit employment applications (the requirement that the application appear in a Driver Qualification File would still exist).
- Are there any specific impacts of the proposed changes on small motor carriers that the Agency should consider?
When laws change, small motor carriers are disproportionately affected. Often, the person doing the recruiting is the same person handling safety and managing operations. They do not have resources to switch between tasks and handle the additional work required to obtain the information if it isn’t included on the application. Additionally, they will not have the legal team that ensures compliance with changes in the law.
To see the specific notice by the FMCSA and the additional questions they’ve posed, you can read more at their website.
Now is the time for you to provide feedback to the FMCSA. It’s easy – just follow this link. Take some time to comment by May 7, 2019 to avoid major headaches later. Your life will get tougher if the regulation is eliminated or the wrong changes are made!
Learn more about how the changing regulation could harm your business by watching a recording of Tenstreet’s Need for a DOT Application webinar.
If you have any questions or thoughts on the information in this post, we want to hear from you. Contact your advisor or your account managers.