As anyone who has worked as a motor carrier for a while will tell you, the trucking industry is not without its complications. One area where we at Foley Services get a lot of questions is on the subject of what happens after a driver has been fired or has stopped working for you for some other reason. This column will, hopefully answer any questions you might have about the post-employment requirements of a motor carrier. If I missed something you wanted to know, or if you have any other questions shoot them to me in the comments section, I’m always happy to answer questions.
High Turnover Rate
The high turnover rates for drivers is well documented. The American Trucking Associations tracks driver turnover on a quarterly basis, and the statistics can be quite alarming. According to a recent report, the turnover rate for large fleets (those with at least $30 million in revenue) was 116 percent. Meanwhile, the average turnover for small truckload fleets (those with less than $30 million in annual revenue) was at 90 percent, and the less-than-truckload line-haul turnover rate was 13 percent.
Don’t Shred Files the Day Your Driver Leaves
Such high turnover rates mean that many employers are dealing with pre-employment and post-employment situations on a regular basis. It is important to remember that Part 391 requires employers to retain both Driver Qualification Files and SPH files for three years after a driver leaves the company’s employment.
Employers are REQUIRED To Respond to Inquiries
As of Oct. 30, 2004, employers are required to respond to inquiries they receive about prior FMCSA-regulated drivers. Not responding to an inquiry may result in DOT fines and penalties, and it may also open the door to civil lawsuits. The regulations direct prospective employers to report to FMCSA when previous employers fail to respond to inquiries.
How Long do You Have to Respond?
Part 391 requires that you respond within 30 days of receiving an inquiry. However, before you release the information you will want to make sure that the prospective employer has sent you an appropriate copy of the driver’s written authorization seeking information about the prior employee’s Safety Performance History. If an inquiry does not include a signed driver’s authorization, follow up with the prospective employer before you respond.
What Information Must You Provide?
Part 391 requires prospective employers to do a Safety Performance History inquiry with all prior employers of the applicant where the employee was in a DOT-regulated position over the previous three years. As a former employer, you are required to provide information about the following elements:
- Verify employment. You must confirm basic driver identification and the dates the driver worked for you.
- Report Accident History. You must provide accident records for any occurrence within the previous three years that meets the definition of accident in the FMCSRs. These records should include date of the accident, location (including nearest city or town and state) of the accident, driver’s name, number of injuries, and number of fatalities. If hazardous materials were being transported, you must report if they were released as a result of the accident. You may also provide information that is retained pursuant to your company’s internal policies regarding minor accident information.
- Report Drug and Alcohol Violation History. For individuals who were employed in a safety-sensitive function that required drug and alcohol testing, you must report any violations of 49 CFR Part 40 or Part 382 that occurred within the previous three years.
You are also required to report if the driver failed to complete a rehabilitation program prescribed by a Substance Abuse Professional (SAP), or if the driver had a testing violation after the completion of a SAP’s referral.
Even if you do not have anything to report as far as accidents and drug and alcohol violations, you are still required to respond to the inquiry within the 30-day period. You will want to make sure that you verify basic information about the driver, including the dates of employment. Former employers must keep their responses to inquiries in the SPH file for one year. Required information includes a summary of the information that was released and to whom and when it was released.
Drivers Have the Right to Review Responses
Under Part 391, applicants who have DOT-regulated employment history over the preceding three years have the right to review information provided by their former employers as part of a SPH inquiry. The driver simply needs to provide a written request to the prospective employer. This request can be submitted at the time of application or as late as 30 days after the driver is hired or is notified that he or she will not be hired. If a driver discovers any erroneous information in the SPH inquiry records, he or she may send a Request for Correction to the former employer who provided the information. The driver also has the right to rebut information from former employers about DOT regulated positions held in the previous three years.
As you are aware, prospective employers are required to inform drivers of their rights in writing prior to accepting an application during the hiring process. This means that you can be sure that your former drivers know about their rights and your responsibilities in the pre-/post-employment process.
What if You Receive A Request for Correction?
As a previous employer, you have 15 days to respond to a Request for Correction from a driver. There are two ways that you, the former employer, can respond: 1) Correct the erroneous data, or 2) Notify the driver that no correction will be made.
Necessary Steps to Correct Erroneous Data
As the former employer, you must correct the erroneous data and forward those corrections to the prospective employer. Retain a copy of the corrected information in the former driver’s SPH file so that this information can be provided to any future prospective employers. When you correct the information and send it to the prospective employer, you do not need to notify the driver.
Notifying a Driver That No Correction Will Be Made
If you do not agree to correct the information, you must notify the driver within 15 days of receiving the request that no correction will be made.
What to do When a Driver Rebuts Your Information
Part 391 also provides drivers with the right to rebut, or contest outright, the information provided by former employers regulated by the DOT. A driver can submit a rebuttal after a request for correction, or initially without a request for correction. A driver wishing to contest information provided by a previous employer must send the rebuttal directly to that employer with instructions to include the rebuttal in his or her SPH file. As the previous employer, within five business days you must: 1) Forward a copy of the rebuttal to the prospective employer, and 2) Include the rebuttal in the driver’s SPH file.
Record-Keeping Requirements
Employers need to retain Driver Qualification Files and SPH files for three years after an employee leaves the company. Since you most likely do not have SPH files for employees hired before the new requirements went into effect on October 30, 2004, you will want to set up a file when an employee leaves your company. In this file you will retain:
- Responses to prospective employer inquiries for one year after the response date.
- Notifications of correction for three years from the date the driver left your employ.
- Driver rebuttals for three years after the driver left your employ.
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