By Dave Osiecki & Sean Garney of Scopelitis Transportation Consulting LLC & Regulatory Consultants to DriverReach – May 2021
This is the fifth installment of DriverReach’s blog series aimed at accurately communicating driver and fleet-related requirements, typically governed by Federal Motor Carrier Safety Administration (FMCSA) safety rules. The idea is to dispel some common industry myths or misconceptions. This installment tackles two myths in one.
The Compliance Myth: When handling previous employer inquiries about current or recently separated drivers, motor carriers do not need to respond if the driver consent is more than 30 days old. Moreover, replying at all is optional.
The Facts: Given the struggle carriers have obtained with the previous employer safety investigation information, it’s easy to see how some carriers might believe responding to these inquiries is optional. This is especially true considering conflicting guidance is still on the books, appearing on FMCSA’s website and safety regulations handbooks.
That guidance, specifically Question 1 under 49 CFR 391.23, implies that previous employers don’t necessarily need to reply to previous inquiries. Unfortunately, this is an artifact of previous expired rules. In 2004, FMCSA changed the rules to explicitly require previous employers to respond to these requests and encouraged carriers to report others who failed to comply. Indeed, in the 2004 final rule, FMCSA acknowledged the conflicting guidance and added it to a list of activities FMCSA would undertake “to ensure the effectiveness of this rule.” Sadly, FMCSA must have gotten distracted because 17 years later, this guidance is still tripping people up. Ultimately, regulations always trump guidance, and that’s what carrier’s should be following, but when the two conflict, it creates a lot of confusion.
The notion that carriers don’t need to respond if the consent form was signed more than 30 days ago is unsupported by the rules and unworkable from a practical perspective. Previous employers must respond regardless of when the request was signed. Some may confuse the requirement that carriers complete the previous employer investigation within 30 days of hiring a driver but that 30 days starts at the date of hire, not the date of application, which is often when a driver signs the form allowing a carrier to contact previous employers. Depending on how quickly a prospective motor carrier is processing applications, it's possible, or even likely, that some request would arrive in the previous employer’s inbox more than 30 days after the consent was signed. But carriers are still required to respond.
The rules addressing previous employer requirements are at 40 CFR Part 391.23(g) and state that they must respond within 30 days of when the request was received and keep records of each request and response for one year. If there is no safety performance history to report, the carrier is still obligated to send a response confirming such data does not exist.
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