The FCRA and Motor Carriers: What do you Need to Know? Pt. 1
Background screening, especially in the trucking industry, can be more complex than it appears. HireRight Associate Counsel Nicole Campion explains what employers need to know about the FCRA for motor carriers, in the first of this two part blog.
Most motor carriers conduct pre-employment screening and regular rescreening of drivers to determine whether they satisfy the Department of Transportation (DOT) and company requirements to bring (or keep) on board. This screening may seem like a simple task: order a background check from the background screening company, provide the screening company with the driver’s information and receive a detailed background report with all of the information you requested for review.
In reality, ordering a background check on a current or prospective driver (or any other employee) is somewhat more complex than it may appear. The process is governed by a patchwork of federal and state laws that those ordering background reports for use in employment decisions must comply with. And to make the process even more complex for motor carriers, the federal law governing the use of background reports by employers, the Fair Credit Reporting Act, contains a limited exception known as the “regulated trucking exception” that establishes modified procedures when applicants are applying to certain DOT regulated positions.
In this two-part blog, we’ll take a closer look at some of the pre-and post-report requirements the Fair Credit Reporting Act places on employers and how the regulated trucking exception impacts those requirements. In part one we will focus on the pre-report requirements, while part two will focus on the post-report requirements.
The Fair Credit Reporting Act (FCRA) and Employment Purposes
Despite the use of the term “credit” in its name, the Federal Fair Credit Reporting Act (the “FCRA”) does far more than regulate credit reports and information. The FCRA also regulates the provision and use of consumer reports (commonly referred to as “background reports”) containing a variety of information, including criminal and driving records, for a variety of purposes – including employment decisions.
When a background report will be used in connection with making an employment decision, the report is generally referred to as having been ordered for “employment purposes.” At its most basic, employment purposes covers the evaluation of a person for employment, promotion, reassignment, or retention. However, in their 40 Years of Experience with the FCRA report, the Federal Trade Commission (FTC) stated that “employment purposes” is broadly construed, and may also apply to screening non-employee workers such as owner-operators (see page 32).
Generally speaking, employers – including motor carriers – must comply with the FCRA when they order virtually any type of background report from a consumer reporting agency such as HireRight, including reports containing motor vehicle records checks or criminal checks.
What is the FCRA’s “Regulated Trucking Exception”?
The regulated trucking exception is a limited exception to some of the FCRA’s requirements for employers when ordering and using consumer reports for employment decisions. This exception, found in Sections 604(b)(2)(B) and 604(b)(3)(B) of the FCRA, applies only when:
An applicant is applying for employment in “a position over which the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49, or a position subject to safety regulation by a State transportation agency”; and
The only interaction the employer has had with the applicant in connection with their application has been by mail, telephone, computer, or other similar means.
While this exception may frequently apply for motor carriers, it is important to note that it applies only when a position meets the specific limited conditions that sections 604(b)(2)(B) and 604(b)(3)(B) of the FCRA establish. Other positions within a motor carriers’ organization – such as office staff or other non-drivers – do not qualify for this exception. Additionally, the exception does not apply if, for example, there are any in-person interactions between the employer and the driver. For those positions that do not qualify for the regulated trucking exception, motor carriers must comply with all of the standard FCRA requirements that apply to employers.
Fair Credit Reporting Act (FCRA) Obligations Pre-Report
When an employer plans to order a background report on an applicant, the employer must first provide the applicant a clear and conspicuous disclosure in writing, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes. Practically speaking, an employment purpose disclosure should be:
Easy to identify and understand for any reader, and clearly state that a consumer report may be obtained for employment purposes.
In writing and not given verbally.
Its own document and not be included within an employment application or other document (except the employment purpose authorization).
Free of any extraneous information such as waivers or releases of liability, state notices, or information regarding additional rights the consumer may have.
The employer must also get the applicant’s written authorization to obtain the background report before they obtain the background report.
It is important to note that the FCRA contains additional requirements when ordering a background report containing “medical information,” or when ordering an “investigative consume report.” Additional requirements may also apply based on jurisdiction or the products ordered in a background report.
FCRA Exception for Regulated Trucking Positions
When the regulated trucking exception applies, the employer must first give “notice” (instead of disclosure) and get “consent” (instead of an authorization).
The notice must be provided before the employer orders the background report, but can be written, electronic, or oral. The notice must inform the applicant that a consumer report may be obtained for employment purposes and include a summary of the consumer’s rights under Section 615(a)(3) of the FCRA. The consent must also be obtained prior to the report being ordered, and can also be written, oral or electronic.
The regulated trucking exception does not apply to any additional requirements based on product or jurisdiction.
See the table below for a side-by-side comparison of the FCRA pre-report disclosure and authorization requirements for regulated trucking positions versus all other positions.
Regulated Trucking Positions (604(b)(2)(B))
All Other Positions (604(b)(2)(A))
Oral, written, or electronic notice that a consumer report may be obtained for employment purposes Must include a summary of the consumer’s rights under section 615(a)(3)
Written disclosure that a consumer report may be obtained for employment purposes Must be clear and conspicuous, and in a document that consists solely of the disclosure
Oral, written or electronic consent for the employer to obtain the report
Written authorization for the employer to obtain the report
State and Local Laws
In addition to the Federal Fair Credit Reporting Act, there are many state and local laws that impose additional restrictions and obligations on employers when ordering and using background checks in employment decisions. Check out HireRight’s Ban the Box and Fair Chance Hiring Laws and Consumer Reporting Laws, Credit Checks and Discrimination White Papers for more information.
How Can HireRight Help?
HireRight makes a number of reference documents covering a variety of topics available to customers in our Resource Library.
HireRight also offers an array of services designed to help facilitate compliance with the Fair Credit Reporting Act and similar state and local laws. Contact your Account Manager or Customer Service Representative today for more information.
Release Date: October 12, 2022
Nicole Campion is Associate Counsel at HireRight, with a focus on U.S. compliance for the HireRight organization. Nicole earned her Juris Doctorate from Albany Law School and is licensed to practice law in the state of South Carolina. She currently holds an FCRA Advanced Certification through the Professional Background Screening Association (PBSA) and GRC Professional Certification from OCEG. Nicole is an active member of the Professional Background Screening Association’s Industry Practices committee, frequently contributing to practical guidance documents for member organizations, and was a presenter at the PBSA’s 2021 mid-year conference.