Current through Register Vol. 48, No. 9, September 27, 2024
(a)
Except as provided in subpart of 38-382, each motor carrier shall make the
following investigations and inquiries with respect to each driver it employs,
other than a person who has been a regularly employed driver of the motor
carrier for a continuous period which began before January 1, 1971;
(1) An inquiry into the driver's driving
record during the preceding 3 years to the appropriate agency of every State in
which the driver held a motor vehicle operator's license or permit during those
3 years; and
(2) An investigation
of the driver's safety performance history with Department of Transportation
regulated employers during the preceding three years.
(b) A copy of the driver record(s) obtained
in response to the inquiry or inquiries to each State driver record agency
required by paragraph (a)(1) must be placed in the driver qualification file
within 30 days of the date the driver's employment begins and be retained in
compliance with Regulation Regulation 38-391.51. If no driving record exists
from the State or States, the motor carrier must document a good faith effort
to obtain such information, and certify that no record exists for that driver
in that State. The inquiry to the State driver record agencies must be made in
the form and manner each agency prescribes.
(c)
(1)
Replies to the investigations of the driver's safety performance history
required by paragraph (a)(2), or documentation of good faith efforts to obtain
the investigation data, must be placed in the driver investigation history
file, after October 29, 2004, within 30 days of the date the driver's
employment begins. Any period of time required to exercise the driver's due
process rights to review the information received, request a previous employer
to correct or include a rebuttal, is separate and apart from this 30-day
requirement to document investigation of the driver safety performance history
data.
(2) The investigation may
consist of personal interviews, telephone interviews, letters, or any other
method for investigating that the carrier deems appropriate. Each motor carrier
must make a written record with respect to each previous employer contacted, or
good faith efforts to do so. The record must include the previous employer's
name and address, the date the previous employer was contacted, or the attempts
made, and the information received about the driver from the previous employer.
Failures to contact a previous employer, or of them to provide the required
safety performance history information, must be documented. The record must be
maintained pursuant to Regulation
38-391.53.
(3) Prospective employers should report
failures of previous employers to respond to an investigation to the FMCSA
following procedures specified at Regulation Regulation 386.12 of this chapter
and keep a copy of such reports in the Driver Investigation file as part of
documenting a good faith effort to obtain the required information.
(4) Exception. For a driver(s) with no
previous employment experience working for a DOT regulated employer during the
preceding three years, documentation that no investigation was possible must be
placed in the driver history investigation file, after October 29, 2004, within
the required 30 days of the date the driver's employment beings.
(d) The prospective motor carrier
must investigate, at a minimum, the information listed in this paragraph from
all previous employers of the applicant that employed the driver to operate a
CMV within the previous three years. The investigation request must contain
specific contact information on where the previous motor carrier employers
should send the information requested.
(1)
General driver identification and employment verification
information.
(2) The data elements
as specified in Regulation Regulation
38-390.15(b)(1)
of this chapter for accidents involving the driver that occurred in the
three-year period preceding the date of the employment application.
(i) Any accidents as defined by Regulation
Regulation
38-390.5
of this chapter.
(ii) Any accidents
the previous employer may wish to provide that are retained pursuant to
Regulation Regulation
38-390.15(b)(2),
or pursuant to the employer's internal policies for retaining more detailed
minor accident information.
(e) In addition to the investigations
required by paragraph (d), the prospective motor carrier employers must
investigate the information listed below in this paragraph from all previous
DOT regulated employers that employed the driver within the previous three
years from the date of the employment application, in a safety-sensitive
function that required alcohol and controlled substance testing specified by 49
CFR Part 40.
(1) Whether, within the previous
three years, the driver had violated the alcohol and controlled substances
prohibitions under subpart B of Part 38-382 of this chapter, or 49 CFR part
40.
(2) Whether the driver failed
to undertake or complete a rehabilitation program prescribed by a substance
abuse professional (SAP) pursuant to Regulation Regulation
38-382.605
of this chapter, or 49 CFR part 40, subpart O. If the previous employer does
not know this information (e.g., an employer that terminated an employee who
tested positive on a drug test), the prospective motor carrier must obtain
documentation of the driver's successful completion of the SAP's referral
directly from the driver.
(3) For a
driver who had successfully completed a SAP's rehabilitation referral, and
remained in the employ of the referring employer, information on whether the
driver had the following testing violations subsequent to completion of a
Regulation Regulation
38-382.605
or 49 CFR part 40, subpart O referral:
(i)
Alcohol tests with a result of 0.04 or higher alcohol concentration;
(ii) Verified positive drug tests;
(iii) Refusals to be tested (including
verified adulterated or substituted drug test results).
(f) A prospective motor carrier
employer must provide to the previous employer the driver's written consent
meeting the requirements of Part 40.321(b) for the release of the information
in paragraph (e). If the driver refuses to provide this written consent, the
prospective motor carrier employer must not permit the driver to operate a
commercial motor vehicle for that motor carrier.
(g) After October 29, 2004, previous
employers must:
(1) Respond to each request
for the DOT defined information in paragraphs (d) and (e) within 30 days after
the request is received. If there is no safety performance history information
to report for that driver, previous motor carrier employers are nonetheless
required to send a response confirming the non-existence of any such data,
including the driver identification information and dates of
employment.
(2) Take all
precautions reasonably necessary to ensure the accuracy of the
records.
(3) Provide specific
contact information in case a driver chooses to contact the previous employer
regarding correction or referral of the data.
(4) Keep a record of each request and the
response for one year, including the date, the party to whom it was released,
and a summary identifying what was provided.
(5) Exception. Until May 1, 2006, carriers
need only provide information for accidents that occurred after April 29,
2003.
(h) The release of
information under 38-391 may take any from that reasonably ensures
confidentiality, including letter, facsimile, or e-mail. The previous employer
and its agents and insurers must take all precautions reasonably necessary to
protect the driver safety performance history records from disclosure to any
person not directly involved in forwarding the records, except the previous
employer's insurer, except that the previous employer may not provide any
alcohol or controlled substances information to the previous employer's
insurer.
(i)
(1) The prospective employer must expressly
notify drivers with Department of Transportation regulated employment during
the preceding three years -via the application form or other written document
prior to any hiring decision--that he or she has the following rights regarding
the investigative information that will be provided to the prospective employer
pursuant to paragraphs (d) and (e):
(i) The
right to review information provided by previous employers;
(ii) The right to have errors in the
information corrected by the previous employer and for that previous employer
to re-send the corrected information to the prospective employer.
(iii) [FN*]
(iv) The right to have a rebuttal statement
attached to the alleged erroneous information, if the previous employer and the
driver cannot agree on the accuracy of the information.
(2) Drivers who have previous Department of
Transportation regulated employment history in the preceding three years, and
wish to review previous employer-provided investigative information must submit
a written request to the prospective employer, which may be done at any time,
including when applying, or as late as 30 days after being employed or being
notified of denial of employment. The prospective employer must provide this
information to the applicant within five (5) business days of receiving the
written request. If the prospective employer has not yet received the requested
information from the previous employer(s), then the five-business day's
deadline will begin when the prospective employer receives the requested safety
performance history information. If the driver has not arranged to pick up or
receive the requested records within thirty (30) days of the prospective
employer making them available, the prospective motor carrier may consider the
driver to have waived his/her request to review the records.
(j)
(1) Drivers wishing to request correction of
erroneous information in records received pursuant to paragraph (i) must send
the request for the correction to the previous employer that provided the
records to the prospective employer.
(2) After October 29, 2004, the previous
employer must either correct and forward the information to the prospective
motor carrier employer, or notify the driver within 15 days of receiving a
driver's request to correct the data that it does not agree to correct to data.
If the previous employer corrects and forwards the data as requested, that
employer must also retain the corrected information as part of the driver's
safety performance history record and provide it to subsequent prospective
employers when requests for this information are received. If the previous
employer corrects the data and forwards it to the prospective motor carrier
employer, there is no need to notify the driver.
(3) Drivers wishing to rebut information in
records received pursuant to paragraph (i) must send the rebuttal to the
previous employer with instructions to include the rebuttal in that driver's
safety performance history.
(4)
After October 29, 2004, within five business days of receiving a rebuttal from
a driver, the previous employer must:
(i)
Forward a copy of the rebuttal to the prospective motor carrier
employer;
(ii) Append the rebuttal
to the driver's information in the carrier's appropriate file, to be included
as part of the response for any subsequent investigating prospective employers
for the duration of the three-year retention requirement.
(5) The driver may submit a rebuttal
initially without a request for correction, or subsequent to a request for
correction.
(6) The driver may
report failures of previous employers to correct information or include the
driver's rebuttal as part of the safety performance information, to the FMCSA
following procedures specified at Regulation Regulation 386.12.
(k)
(1) The prospective motor carrier employer
must use the information described in paragraphs (d) and (e) only as part of
deciding whether to hire the driver.
(2) The prospective motor carrier employer,
its agents and insurers must take all precautions reasonably necessary to
protect the records from disclosure to any person not directly involved in
deciding whether to hire the driver. The prospective motor carrier employer may
not provide any alcohol or controlled substances information to the prospective
motor carrier employer's insurer.
(l)
(1) No
action or proceeding for defamation, invasion of privacy, or interference with
a contract that is based on the furnishing or use of information in accordance
with 38-391 may be brought against--
(i) A
motor carrier investigating the information, described in paragraphs (d) and
(e), of an individual under consideration for employment as a commercial motor
vehicle driver.
(ii) A person who
has provided such information; or
(iii) The agents or insurers of a person
described in paragraph (l)(1)(i) or (ii), except insurers are not granted a
limitation on liability for any alcohol and controlled substance
information.
(2) The
protections in paragraph (l)(1)do not apply to persons who knowingly furnish
false information, or who are not in compliance with the procedures specified
for these investigations.
(Approved by the Office of Management and Budget under
control number 2126-0004)
[FN*] So in original. No subparagraph (iii) was
promulgated by State Register Volume 30, Issue No. 4, eff April 28,
2006.
