Drivers call my office regularly to ask how a company could refuse to hire them. There are many legal reasons a company could decide not to hire a driver. In this article we will review the practical reasons companies don’t hire certain drivers.
 
I asked Kelly Anderson, President and CEO of Impact Training Solutions, who works with and trains carriers on recruiting, about his experience and expectations for carriers and drivers. Kelly told me about the largest challenges carriers are facing today in driver recruiting:
 
Finding and hiring qualified drivers is the number one concern carriers have with recruiting.  The U.S. is facing the largest qualified driver shortage in many years.  There are several key reasons for this.

  • Aging drivers. The “baby boomers” are stepping into retirement and not enough younger men and women are looking to truck driving as a profession.
  • Carrier Safety Administration (CSA). Carriers that run the Pre-Employment Screening Program (PSP) tell me 50% of drivers they turn down would have been hired if they didn’t have the information contained on the PSP.  This may seem unfair, but I believe it is becoming a standard of care for our industry.
    • When CSA 2010 was being tested and people became aware of it, there was a rumor that the Federal Motor Carrier Safety Association (FMCSA) was going to disqualify up to 300,000 drivers for having bad safety records.  The FMCSA said they didn’t issue the CDL so they wouldn’t disqualify a driver from driving; they would investigate and enforce issue with carriers.  Well, I know of a couple instances where they deemed a driver an “imminent hazard” to public safety and banned them from driving commercial motor vehicles in interstate commerce.  This authority is spelled out in 383.52 and it allows them to disqualify a driver for up to one year.
  • Drivers leaving the industry. During the recession many drivers found themselves without a job and carriers weren’t hiring.  As a result many people left the industry and haven’t and probably won’t, come back. The owner-operator was affected in the recession as many companies let them go first in an effort to load their company trucks. Many couldn’t find loads or companies to lease-on with and they went out of business.  That situation was followed by tight credit checks for those looking for a truck loan.  The Internal Revenue Service and state governments are currently trying to find taxable income by declaring that owner-operators are in fact employees of the carrier.  The end result is there are fewer owner-operators left in the industry.
  • Unemployment. In 2009 and up until March of 2010, many drivers were on unemployment because companies weren’t hiring.  However, many decided to stay on unemployment as long as the benefits were available. Our government extended the length of time for the unemployment benefits, so we’ve ended up with a lot of unemployed drivers in the last three years.  When their benefits ended and they tried to get a new trucking job, many companies would not hire them. This is due to policies related to how many months of not driving they’ll allow in a three-year period.
  • Medical concerns. Weight, diabetes, sleep apnea, and high blood pressure are concerns for driver health and could be a reason for a refusal to hire.  Many fleets have implemented a work ability test as part of their orientation process.  Those that have implemented these tests tell me it has had a huge impact on their work-related injuries. Less injuries means the carrier saves more money.

There are other major issues recruiting departments face such as the Equal Employment Opportunity Commission (EEOC) and Fair Credit Reporting Act (FCRA) enforcement.

  • The EEOC laws have not changed, but the enforcement guidelines have.   For instance, a carrier in a New York advertisement said they don’t hire convicted felons.  A potential driver calls and says “I’ve got a felony, will you hire me?” and the recruiter says, “No, we have a company policy that we don’t hire felons.” The next call was from the EEOC because using these records as an absolute measure to prevent an individual from being hired cannot be used in this way.
    • About one in three African-American men, about one in six Hispanics, and one in 17 White men have been incarcerated.  Based on these statistics, the EEOC decided if you won’t hire anyone with a felony conviction, you would have a “disparate impact” on Black and Hispanic men.   They don’t think a criminal conviction should keep a person unemployed for the rest of their life.
    • Some cities have passed laws prohibiting an application question asking if you have been convicted of a felony. There are two legal ways a carrier can address this:
      • Prove they are only banning criminal conduct directly related to the job requirements.
      • Have one-on-one interactions with the potential employee and consider the individual's specific information about the nature of the crime, the time elapsed, and the nature of the job.
    • So a company can’t have a blanket policy regarding not hiring a person with a criminal record.  If you have a criminal record, legally the recruiter could hire you if they feel you will be safe, compliant, listen to and follow instructions. Many recruiters use JoBehaviors, a behavioral assessment tool that takes the subjectivity out of the hiring decision.  It tests a person on their behavior and their score gives an indication of whether they have the right behavior for a company. If the carrier tests every applicant, it is legal and EEOC compliant.  If they only test applicants with criminal records, they’ll be guilty of “disparate treatment” and then EEOC will call again.
  • The next area is the FCRA.  Again, the laws haven’t changed, but enforcement has been stepped up. Recruiting departments order Motor Vehicle Records (MVR), employment records, criminal records, and PSP reports.  All of these are considered consumer reports and are regulated by the FCRA.  Most recruiters know they need a signed release to order the PSP and any other consumer report when they meet the applicant in person.  However, section 604 paragraph B of the FCRA has a provision for trucking companies to order the MVR (from most states), criminal record, and employment record with verbal permission. This can be done as long as the applicant has been notified of their consumer rights and the only interaction has been over the phone or some other electronic means.
    • Where a lot of companies are failing to comply is in the adverse action letters. This is where we are seeing increased enforcement. When an employment decision is based on information contained in a consumer report for an applicant never met face-to-face, an adverse action letter must be sent.  If met face-to-face, a pre-adverse action letter should be sent followed by an adverse action letter. The pre-adverse action letter gives the applicant a chance to explain the situation and get it corrected if the report is flawed.  Failing to send these letters can cost up to $1000 per occurrence. 

Now that you have the overall view of the issues carriers have recruiting qualified drivers, you realize most of these issues fall back on the driver.  The fact is if you have a bad driving record, were unemployed for a significant amount of time, or have severe health problems, your chances of employment are greatly reduced.
 
If you have further question for Kelly Anderson, you can reach him at 888-429-3445 or his email is kelly@impacttrans.com
  

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Jim Klepper

Jim Klepper is a nationally-recognized transportation attorney and trucking industry advocate. His national law firm is entirely dedicated to trucking defense, and has defended over 260,000 CDL drivers and carriers since the advent of the CDL. He is personally licensed to practice law in 16 states, including the United States Court of Appeals and the U.S. Supreme Court. A prominent author and speaker, Jim regularly writes legal advice columns for truckers in industry trade journals, and is a featured advisor on national radio shows. He serves on the Board of Directors of the Truckload Carriers Association, the American Trucking Association, the Arkansas Trucking Association, the Oklahoma Trucking Association and the Oklahoma Humane Society. Mr. Klepper is active in many charities and trucking industry initiatives, and is also a Licensed Pharmacist.

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