AUGUST 6, 2019 – In an effort to eliminate unnecessary regulatory requirements, the FMCSA published a request for public comment regarding the proposed removal of a document that has been an important part of the hiring process for decades: the DOT-compliant application.
And while one less requirement seems like it would be a welcomed change for motor carriers, this is one regulation they don’t want to see go. Of the hundreds of comments received by the federal government this spring, the vast majority were in favor of preserving the application and all of the information it provides.
Most of the comments in favor of keeping the application pointed to the important role it plays in hiring safe drivers. “Completely eliminating the requirement that trucking companies obtain a DOT-specific application will put companies, drivers, and motorists at risk,” one commenter wrote.
Another pointed to the difficulty in running MVRs and other background check reports because Social Security Numbers and birthdates would no longer be required. “The proposed change in regulations to eliminate the application would not improve safety. It would make it much more difficult to access their suitability for employment and lengthen the process.”
Depending on Ban the Box laws in the driver’s locale, it could also mean that an employer would now have to issue a conditional offer of employment before running any background checks.
Why the Application is Being Considered for Removal
Two years ago, the DOT published a Notification of Regulatory Review that explained their intention of reviewing current regulations and other agency actions to see if they were still necessary – or whether they created an unnecessary burden. During that evaluation, the American Trucking Associations recommended removing the DOT compliant application requirement from Part 391 of the regulatory language. Their opinion, was that the 10-year required work history created too much of a burden on both the motor carrier and the applicant who may have held many positions in the preceding decade.
The Implications of the Change
Given the pushback by motor carriers of all sizes, it’s unclear what the FMCSA will ultimately decide to do about the DOT compliant application requirement. After reviewing many of the public comments regarding the proposed change, our Compliance Officer and her legal team here at Foley did some research to see whether the industry concerns were valid – as well as what would change should the application requirement be removed.
What we found, was that although the removal of the application would prevent motor carriers from collecting Social Security Numbers and birth dates on the initial application, some Ban-the-Box laws we researched did provide an exemption for motor carriers. That being said, the application of the law can be quite complex…particularly since laws vary depending on the state or city where the driver works and lives. “Even if the application requirement in section 391.21 is removed, some motor carriers may still be exempt from fair chance hiring and Ban-the-Box laws in certain jurisdictions,” Foley Compliance Counsel Melissa Snyder said. “In other places, motor carriers would still be required to comply with local fair hiring laws to the extent that they don’t conflict with DOT regulations. This will need to be examined on a jurisdiction by jurisdiction basis, however.”
Keep in mind that even if the application is removed, the federal regulations prohibit employers from knowingly using a driver who is disqualified from driving due to criminal or other offenses – a requirement that won’t change if the proposed rule is passed into law. This means that you, as a motor carrier, will still need to collect the same information and run the same background screens that are required today. The big question, is whether you’ll be able to collect that information on the initial application or after you’ve made a conditional offer of employment. If it’s the latter, your time-to-hire process could lengthen at a time when getting drivers hired and behind the wheel quickly has never been more important.
“The time it would take to hire would be increased which would negatively affect both us as a carrier and the driver applying,” one commenter wrote. We as a company are already spending more time trying to hire safe drivers.”
Related Article: 3 Ways to Improve Your Driver Recruiting Experience
The bottom line? If the application requirement is removed, it would make it even more important for carriers to work with a third-party background screening partner that understands both DOT regulations and federal, state and local background screening laws. This will ensure they stay fully compliant with DOT, FCRA, EEOC and state/local employment laws.
What are your thoughts on the DOT compliant application?
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