the advent of the Pre-employment Screening Program (PSP), motor carriers are
becoming more aware of the parameters established by the FCRA (Fair Credit
Reporting Act) and the importance of remaining compliant during the hiring
these regulations have done is add a level of complexity to what I call ‘the
back end’,” says Steve Sichterman, Vice President of Business Development for
DriverFacts, a service designed to improve hiring practices for truckload
carriers. “Carriers are now crossing their t’s and dotting their i’s, making
sure they’ve done everything correctly. This complexity is so much greater
today, and that makes it tough.”
there are simple steps to help your company navigate these complicated
regulations and avoid costly litigation.
The four steps to FCRA compliance
Disclosure & authorization
Fair Credit Reporting Act guidelines, an employer must disclose clear intent—in
writing—to order a background check.
to Sichterman, simply including a small disclaimer at the bottom of an
application—especially one using complicated, extraneous language—is not
enough: “The intent must be stand-alone, meaning it should be presented to the
applicant as its own separate document, using language that is easy to
understand. Anything other than that, and you could put your company at risk.”
issuing the intent, the employer must receive written authorization from the
applicant before moving forward with the inquiry. While the intent must stand
alone from the application and other documents, it is acceptable for the
authorization provided by the applicant to be in the same document as the
Pre-adverse action notice
the background report produces information that could negatively impact
eligibility, the employer informs the applicant of their right to obtain a free
copy of the report and their right to dispute the information contained
therein. The employer must also provide a copy of their Summary of Rights,
which affirms an applicant of his or her rights during the reporting process
under the FCRA.
Wait a reasonable
period of time
a Pre-Adverse Action Notice has been issued, the employer must wait a
reasonable amount of time before disclosing to the applicant that their
application has been denied. “What constitutes a ‘reasonable amount of time’ is
not clearly defined by the FCRA,” Sichterman explains. “But many carriers follow
an 8-10 day waiting period to give the applicant enough time to contest
Adverse action notice
a reasonable amount of time has passed and it’s clear the applicant has chosen
not to contest, the employer must then tell the applicant they are no longer
under consideration for employment.
employer must also provide the contact information of the vendor used to generate
the report, as well as a statement that explains the vendor is not responsible
for the outcome and therefore cannot disclose the reasoning behind the
employer’s final decision.
What does this mean for
appears to be an assumption in the industry that motor carriers are largely
exempt from FCRA regulations.
reality, the FCRA only makes certain accommodations for motor carriers to
better meet the specific challenges they face. DriverFacts recommends companies
follow these motor carrier provisions to keep in compliance:
so many drivers apply over the phone or online rather than in person, intent
can be issued by mail, telephone, computer or other similar means
authorization for background screening can be oral, written or received
company must disclose before ordering the report and inform the driver they
have the right to obtain a free copy and dispute CRA findings
pre-adverse action notice is required, but adverse action notice (within 3
days) must say:
o The application
rejection was based on report
o Must include contact
information of the screening firm
o Screening firm was not
responsible for the decision and cannot provide the reason for the rejection
o A free copy of the
report can be requested and therefore disputed with the screening firm
o If a free copy is
requested and proper identification provided (within 3 days), the employer must
provide the report and the FCRA Summary of Rights
Case in point
Boyd v. CEVA Freight,
2013, U.S. Dist. Lexis 169514 (E.D. Va. November 27, 2013)
one driver applied online for a truck driving position with CEVA, LLC, his
application was rejected due to what the company claimed were conflicting dates
on his previous employment.
the driver maintained he never received advance notice regarding his background
check and the company failed to provide a copy of his Summary of Rights, the
court ruled in his favor, reinforcing FCRA guidelines to all DOT-regulated
The spike in litigation
is currently a significant increase in FCRA litigation against employers. The
most commonly alleged violations are:
not stand-alone or confusion caused by release language
pre-adverse action disclosure or process
is this happening?
is difficult for carriers because local laws pertaining to FCRA vary per state.
This poses additional difficulties for national companies who are only trying
to keep up.
many carriers who face litigation plead under the willful violation theory.
damages or statutory damages ($100 - $1,000)
fees and costs
actual damages; no statutory damages
fees and costs
further complicate matters, courts remain divided and operate under their own
the Box is a national movement aimed at convincing employers to remove the criminal
record check box from their applications. Ban the Box supporters push for this
information to be disclosed after a
company has made the decision to move forward with a hire so that all
applicants have a level playing field.
the past five years, Ban the Box legislation has exploded in private sectors nationwide.
But like most regulations, BTB laws vary by location and may not apply to some
your company ban the box?
you determine asking applicants to disclose criminal history is a necessary or
an unnecessary risk, it’s important to be consistent. After checking with your
local counsel, be sure to follow the same steps with each applicant.
you do decide to ask for disclosure, carefully consider when and how the
question should be asked.
The information you
receive from applicants is PI data—Personal Information. As the employer, it is
your responsibility to protect this information at all times, during the
application process and beyond.
What does the EEOC
say about arrest & conviction records?
2012, the Equal Employment Opportunity Commission released its long-awaited
guidance on arrest and convictions records:
cannot rely on the mere fact of any arrest but may rely on conduct suggesting
satisfy the standard, the policy must “effectively
link” specific criminal conduct—and its dangers—with the particular job
o Formal validation under
the Uniform Selection Guidelines; and
o Targeted screen
A company can determine on its own the eligibility
of an applicant with a conviction record by using an individualized review
important to remember EEOC’s suggestions should be viewed as “guidance” only,
can multi-state employers continue to use a single employment application? Because
regulations vary by location, it’s in your company’s best interest to seek
advice from your local counsel. Separate applications may be necessary.
can your company streamline compliance efforts?
There are additional steps you can take to
streamline your company’s compliance efforts. DriverFacts recommends:
- Forming a “working
group” by designating Subject Matter Experts (SMEs)
- Considering a
privileged program audit with the objective of examining FCRA compliance and
identifying opportunities to fortify within the company
- Evaluating whether the
identified opportunities “make sense” for your company
Hiring in today’s
challenge in recruiting is that—up until recently—most carriers didn’t even
think they had to abide by these regulations,” Sichterman says. “So it’s become
a learning process.”
recruiting game is changing every day, and litigation presents serious risks
and repercussions to your business. Always seek the advice of local counsel to
ensure you’re in proper compliance with FCRA law—so you can spend more time
enjoying what you loved about the transportation industry in the first place…the
people who power it!
automates DOT-mandated work history requests to free motor carriers from the
traditional methods of processing hiring materials. We work with our members as
an extension of their own compliance department, providing a customized,
accurate and trusted service that guarantees the receipt of information in a
cost-effective and timely manner. Enjoy paperless storage, automatic image
archiving and DOT compliance while retaining ownership of your data.
DriverFacts is designed to drive employee efficiencies and save valuable time,
money and resources.
more information on DriverFacts: