Webinar Q&A: “FMCSA May Eliminate the 'DOT Employment Application' Requirement... But Why?”

Did you have a chance to attend our webinar last week, "FMCSA May Eliminate the 'DOT Employment Application' Requirement... But Why?"? We received more questions than we had time to answer in the allotted time frame, so Dave has answered them below. 

Dave Osiecki, President of  Scopelitis Transportation Consulting, LLC and presenter on the webinar, answers each of the questions we received in this Q&A-style blog post. Whether or not you were able to attend, these questions regarding the DOT employment application will help you understand how the decision may impact your company.

Question: Would motor carriers be required to obtain an employment application for any other reasons outside FMCSA, for example, hiring requirements, FCRA requirements, etc.?

Answer: Even if FMCSA were to eliminate the rule requiring an employment application, carriers would still need to gather information in order to conduct required background screening, obtain driver consents, etc.

Question: How would we then do the 3-year drug, alcohol, and accident background checks?

Answer: Even if FMCSA were to eliminate the rule requiring an employment application, carriers could still require driver-applicants, under company policy, to complete an application and provide information needed to conduct the accident checks, the drug and alcohol screening, etc.

Question: How would this impact third-party administrators who assist motor carriers with the completion of their Driver Qualification file?

Answer: On the one hand, it could make the job of TPAs who assist carriers with DQ files a bit easier. That is, they would have one less required document to chase down and retain. And, it would be one less potential violation for FMCSA to find during an audit of a carrier’s DQ files. On the other hand, if the TPA also assists with background checks, it might be tougher to gather the needed information from a driver-applicant which, in turn, could make the background checks more difficult to undertake and complete.

Question: Can you please supply the link to the comment page that you mentioned?

Answer: You can leave your comments here: https://www.regulations.gov/comment?D=FMCSA-2018-0247-0001

Question: I joined the call a little late, how does this impact our current online application? Are we needing to contact our Legal team and provide them this info?

Answer: It is too early to involve your legal team on this issue. At this point in time, FMCSA has not made any firm decisions on this issue. The Agency is simply considering two options: (1) eliminating the rule that requires a driver to complete employment application, or (2) keeping the rule that requires a driver complete an employment application but reducing the amount information required to be provided by the driver on the application. FMCSA is asking for input from the industry (and other interested parties) on these options. If FMCSA decides to move forward on one of these options, the next step would be a Notice of Proposed Rulemaking in which the Agency would propose specific changes.

Question: Why would an employer not want to have a driver application?

Answer: Very tough question to answer, especially since the employer will still be required to conduct background checks on driver-applicants. Even if FMCSA were to eliminate the rule requiring an employment application, carriers would still need to gather information in order to conduct required background screening, obtain driver consents, etc

Question: Currently, we are required to validate the past 3 years of employment. Do you see a reduction in the application from needing 10 years of employment to say 3 or 4?

Answer: No, not currently. The 10 years of employment history is required by the federal CDL law passed by Congress in 1986 (the Commercial Motor Vehicle Safety Act of 1986). If the industry wants to reduce the number of years of employment history for CDL drivers down to 3 or 4 years, the industry will need to successfully lobby Congress to amend the 1986 CDL law. If successful, FMCSA could then amend its regulation.

Question: If FMCSA moves forward with this, can a company still choose to require an application?

Answer: Yes, under company policy.

Question: Does FMCSA have another way to gather applicant information, such as an address, SS#, DOB, etc. that is used to order MVR, PSP, and DAC?

Answer: No, FMCSA did not suggest or provide any alternative ways to gather the applicant information.

Question: What are your personal thoughts on this retaining/changing the Driver App, please?

Answer: DriverReach supports keeping the rule (49 CFR 391.21) requiring drivers to complete an employment application. DriverReach plans to file comments with FMCSA stating its support for the current rule.

Question: How will total elimination benefit anyone? Trucking companies that use an employment application certainly will continue to do so - there will be fewer guidelines.

Answer: Very tough question to answer.  It’s hard to understand how elimination of the employment application would provide a benefit to the motor carrier industry. FMCSA appears to be considering this in order to reduce ‘paperwork burdens’ under the federal Paperwork Reduction Act, and to potentially ‘bank’ the rule and the dollars it saves the industry ($180 million per year according to FMCSA) for future regulatory activity. Under a 2017 Executive Order signed by President Trump, every federal regulatory agency must eliminate 2 current rules for every 1 new rule it publishes.

Question: Since we will need to discuss in house before commenting where do we access the questions on the FMCSA’s website?

Answer: The 11 questions posed by FMCSA can be found at the end of the Agency’s Notice at this link: https://www.regulations.gov/document?D=FMCSA-2018-0247-0001

Question: Are there any States that do not require an employer not to have an application?

Answer: DriverReach cannot currently answer this question.

Question: If they want to eliminate portions of the application that we use, can we still utilize the data for our own information?

Answer:  Yes.

Question: Would not getting an employment application on a driver to be considered negligent hiring when the Hammer got involved?

Answer: Possibly under the right circumstances. If information normally found on a app would establish that the applicant was not qualified or had safety issues in the past (e.g. accidents, traffic tickets, etc.) which would have caused the applicant to not be hired under the company’s driver hiring standards, then the absence of a completed application might support a negligent hiring claim in connection with a highway accident.

Question: Do you think the lack of comments today is a reflection of experienced commenters waiting to see and respond to comments by others with an opposing position?

Answer: Yes, the lack of comments is probably, in part, a result of the approach that experienced commenters take (as described in the question). Also, using history as a guide, many commenters simply wait until the end of the comment period to file (even if they are not responding to others with an opposing position).

Question: If FMCSA goes through with this, will this not create lawsuits in the event that detrimental information is collected?

Answer: Currently, the DOT app regulations require information to be provided by the applicant to the prospective employer that might otherwise be protected under other federal or state laws (e.g. DOB and SSN info). Thus, if the FMCSA removes the app requirement and carriers still ask for such information, they might be subject to potential lawsuits under such other state/federal privacy laws.

Question: This proposal does nothing to speed up the process or reduce paperwork on any level. There is absolutely no benefit to the employer or applicant in any way.

Answer: DriverReach does not support this FMCSA proposal, and plans to file comments with FMCSA stating its support for the current rule requiring an employment application.

Question: My fear with this is plaintiff attorneys and accident litigation with "Should have known"

Answer: DriverReach agrees with this fear/concern.

Question: No SSN? Absolutely NO ability to collect background info. How can they justify eliminating any background requirements?

Answer: It’s hard to understand how elimination of the employment application would provide a benefit to the motor carrier industry. FMCSA appears to be considering this in order to reduce ‘paperwork burdens’ under the federal Paperwork Reduction Act, and to potentially ‘bank’ the rule and the dollars it saves the industry ($180 million per year according to FMCSA) for future regulatory activity. Under a 2017 Executive Order signed by President Trump, every federal regulatory agency must eliminate 2 current rules for every 1 new rule it publishes.

Question: Companies - as well as the public - are now PROTECTED by these requirements. How can they justify expanding public exposure by shoddy background observations?

Answer: It’s hard to understand how elimination of the employment application would provide a benefit to the motor carrier industry. FMCSA appears to be considering this in order to reduce ‘paperwork burdens’ under the federal Paperwork Reduction Act, and to potentially ‘bank’ the rule and the dollars it saves the industry ($180 million per year according to FMCSA) for future regulatory activity. Under a 2017 Executive Order signed by President Trump, every federal regulatory agency must eliminate 2 current rules for every 1 new rule it publishes.

Question: What about a 7 or 8-year history?

Answer: The 10 years of employment history is required by the federal CDL law passed by Congress in 1986 (the Commercial Motor Vehicle Safety Act of 1986). If the industry wants to reduce the number of years of employment history for CDL drivers down to 3 or 4 years, the industry will need to successfully lobby Congress to amend the 1986 CDL law.  If successful, FMCSA could then amend its regulation.

Question: Isn't the 10-year history important, considering DUI?

Answer: Congress believed so in 1986 when it passed the CDL law requiring 10 years of employment history. See answer immediately above.

Question: I think there is a need to eliminate some data collection such as listing all suspensions. The motor carrier will find that information on the MVR's and follow the internal hiring requirements. Ten years may be moved to 5 to 6 years.

Answer: DriverReach agrees that the data collection of a driver’s past violations, suspensions, etc may not be necessary given the requirement for a prospective employer to obtain the driver’s MVR .

Question: What is the intended purpose of the 10-year history?

Answer: To provide a lengthy commercial driving history to a prospective employer.

Question: Five years may be most logical - accidents and drug/alc issues required for prior 5 years. A realistic change?

Answer: No, it is not realistic as part of this FMCSA rulemaking process. The 10 years of employment history is required by the federal CDL law passed by Congress in 1986 (the Commercial Motor Vehicle Safety Act of 1986). If the industry wants to reduce the number of years of employment history for CDL drivers down to 5 years, the industry will need to successfully lobby Congress to amend the 1986 CDL law. If successful, FMCSA could then amend its regulation.

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