PSP A NIGHTMARE for CARRIERS

Some of the research for this article was from writer and attorney Rob Moseley at CCJ Magazine. 

The Federal Motor Carrier Safety Administration's (FMCSA) Pre-Employment Screening Program (PSP) is in affect. PSP has been touted as an essential tool designed to help trucking companies make informed hiring decisions, which should lead to safer roads. CSA is mandated by Congress and play’s a central role in regulatory compliance. This legislation represents a combined effort to eliminate high-risk operators, and at the same time, raise the safety bar for the motor carrier industry. 

With greater access to information, motor carriers and drivers are under more scrutiny. Without doubt, carriers must be mindful of hiring a driver when the driver's history could potentially impact its overall safety rating. Drivers should be concerned about employability as many companies are evaluating current drivers to determine acceptable standards for new hires. 

Carriers do not have to use PSP when making hiring decisions, PSP is a resource for the motor carrier and will likely be a resource for the next attorney who sues your company. 

CSA should change the way motor carriers look at drivers. But for some carriers it has not had any affect on hiring. Now, more than ever, motor carriers have strong incentives to employ mechanisms to reduce their legal exposure. By and large, no employer is immune from a lawsuit resulting from allegedly negligent hiring practices. Negligent hiring is based on the principle that a company is subject to liability for harm resulting from conduct in the employment of unqualified persons for activities that involve risk of harm to others. 

The wording used by the FMCSA on use of PSP reports gives no warning whatsoever as to the potential legal problems that may fall on the shoulders of carriers. Right now, safety managers or HR employees are making decisions about hiring drivers that could be detrimental to their company. 

This liability is not based on the rule of agency, but on the law of torts, and many jurisdictions recognize this independent tort. As the tort suggests, "the employer's liability under such a theory does not rest on the negligence of another, but on the employer's own negligence." 27 Am. Jur. 2d Employment Relationship §§ 392-393. Stated differently, the employer's liability under this theory is not derivative, it is direct. Id. An employer's liability rests on whether, under the totality of circumstances surrounding the hiring, the employer exercised reasonable care. 

Id. "The duty to exercise reasonable care in making the decision to hire a particular applicant includes an employer's obligation to conduct a reasonable investigation into the employee's work experience, background, character and qualifications." Id. 

Ultimately, how carriers choose to use PSP data is up to them, said William McQuade, FMCSA's associate administrator for Enforcement in Field Activities. Records cannot be requested for current employees as the purpose is for pre-employment screening only. PSP is only authorized to provide data to motor carriers for pre-employment screening purposes with written consent from the applicant or applicants as required in Section 31150(b)(3). Carriers must continue to contact individual states to get drivers' motor vehicle records. 

Although PSP creates an alternative to requiring drivers and motor carriers to submit an FOIA request or Privacy Act request to FMCSA, individual driver records will be protected in accordance with the federal privacy laws. That is to say, requests from any third party (e.g. law firms) will be treated as an FOIA request to the FMCSA. 

The PSP is administered by a private company, which charges a fee to the user carriers and drivers. PSP provides access to five years of crash data and three years of roadside inspection data. As capacity in the freight business tightens and the market for qualified drivers shrinks, the PSP will be a recruiter's enemy and the plaintiff's lawyer's friend. A NIGHTMARE for CARRIERS!!! 

In other news, the state of Tennessee is suspending the license of drivers for 60 days if the drivers have two or more MVR violations. We do not yet have information about this practice in other states as yet. 

Rickey Gooch 

Justice for Truckers