Can Criminal History Questions be asked in a 'Ban the Box' World?

With the proliferation of ‘ban-the-box’ laws around the country, some of which apply to motor carriers, there is a fair amount of uncertainty in trucking on what criminal history information can be sought from a driver-applicant, and when.  

The purpose of this article is to try to clear up some of this uncertainty and confusion by providing specific information on what criminal conviction information can be sought early in the applicant screening process. 

By early, we mean prior to a conditional offer being extended to an applicant.  This is important for motor carriers since most state ban-the-box laws contain exceptions that permit an employer to ask questions early in the screening process about criminal convictions that would exclude them from a job under state or federal law.  

As a highly regulated industry, professional truck drivers are excluded under federal law from operating a large truck (typically for a set period of time) if they have been been convicted of certain types of offenses.

In fact, the CDL regulations in 49 CFR Section 383.51 contain 27 different driver ‘disqualifying offenses’ listed in four separate categories:

1. major offenses (9 offenses);
2. serious traffic offenses (10);
3. railroad-highway grade crossing offenses (6); and,
4. violating out-of-service orders (2).

In categories 1 and 2 listed above (major and serious traffic offenses), the violation -and subsequent conviction - could occur in either a commercial motor vehicle (CMV), or a personal vehicle during a driver’s off-duty time.  For convictions in categories 3 and 4 above, the driver must be operating a CMV.

The nine major offenses in category 1 are criminal offenses and, if convicted, a commercial driver is disqualified for at least one year from the date of conviction.  

The disqualifying period could also be longer if he/she was hauling hazmat at the time of the offense, or if it was a second conviction for the same offense.  The 18 offenses in combined categories 2-4 above may or may not be considered criminal acts depending upon the jurisdiction in which they occurred.  

As a result of the criminal offense certainty for the nine “major offenses” in category 1, conviction information can be sought from a driver-applicant early on in the hiring process (i.e., before extending a condition offer of employment).  These nine “major offenses”, extracted verbatim from Table 1 in Section 383,51, are as follows:

“If a driver operates a motor vehicle and is convicted of:

• Being under the influence of alcohol as prescribed by State law.

• Being under the influence of a controlled substance.

• Having an alcohol concentration of 0.04 or greater while operating a CMV.

• Refusing to take an alcohol test as required by a State or jurisdiction under its implied consent laws or regulations as defined in §383.72 of this part.

• Leaving the scene of an accident.

• Using the vehicle to commit a felony, other than a felony described in paragraph (b)(9) of this table.

• Driving a CMV when, as a result of prior violations committed operating a CMV, the driver's CLP or CDL is revoked, suspended, or canceled, or the driver is disqualified from operating a CMV.

• Causing a fatality through the negligent operation of a CMV, including but not limited to the crimes of motor vehicle manslaughter, homicide by motor vehicle and negligent homicide.

1. Using the vehicle in the commission of a felony involving manufacturing, distributing, or dispensing a controlled substance.”

For the sake of brevity, to see the various disqualifying periods for these offenses, click on this link to Table 1 in Section 383.51:  https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&ty=HTML&h=L&mc=true&=PART&n=pt49.5.383#se49.5.383_151

Since the other 18 driver disqualifying offenses in categories 2, 3 and 4 above may or may not be considered criminal offenses (depending on the State or locality in which it occurred), it’s best for carriers to seek this additional information after a conditional offer of employment has been made to the applicant. Doing so will ensure compliance with the various ‘ban-the-box’ laws throughout the country.

Note:  If you’d like to read more about how ‘ban-the-box’ laws affect hiring in the trucking industry, read the following recent blogs on DriverReach’s website:

Insights: Compliance: The Criminal History Question and a Conditional Job Offer Part 1

Insights: Compliance: The Criminal History Question and a Conditional Job Offer Part 2

If you have questions about information in this article, contact DriverReach’s regulatory expert, Dave Osiecki, at: dosiecki@scopelitisconsulting.com