Obtaining and using motor vehicle reports
In vetting a potential or existing employee, an employer may want to obtain and review a motor vehicle report. A motor vehicle report (“MVR”) is a document, generally prepared by a state’s department of motor vehicles, containing information regarding a particular person’s driving record. MVRs may include confirmation of the person’s status as a licensed driver, indications of any suspensions or revocations of his or her driver’s license, and records of moving violations.
For certain employers, driving may be a critical part of employee duties. This is particularly true in the realm of occupations requiring a commercial driver’s license (“CDL”). Other companies may not need employees to operate commercial vehicles or heavy machinery, but still may employee salespeople, site managers, or others whose duties involve work in the field. Even companies whose employees work primarily in an office may require personnel to occasionally get behind the wheel to attend conferences or meetings. When an employee drives for work, it subjects the employer to potential liability if the employee is involved in an accident. These liabilities can include claims arising out of injuries to the employee, injuries to third parties, and property damage. While not all traffic accidents can be prevented, obtaining a current or prospective employee’s MVR may help a company identify unsafe drivers before an accident occurs.
Obtaining the MVR
MVRs are typically prepared by and can be obtained from state departments of motor vehicles. The specific steps necessary to obtain an MVR will vary from state to state. Certain states facilitate dissemination of MVRs more easily than others. Employers are advised to familiarize themselves with applicable local procedures.
Companies qualifying as motor carriers under U.S. law are required to obtain MVRs for their drivers. Under the United States Department of Transportation Federal Motor Carrier Safety Regulations, every motor carrier must maintain a driver qualification file for each driver it employs. That file must include the MVR for each state in which the driver held a CDL in the prior three years. The employer must update this record check on an annual basis. Accordingly, in the context of motor carriers, obtaining MVRs on a regular basis is a required part of doing business.
However, many companies not subject to the Federal Motor Carrier Safety Regulations may still have an interest in obtaining MVRs pertaining to employees and prospective employees. In this context, obtaining the desired MVRs may require a company to navigate certain privacy protections.
The first applicable privacy law is The Driver’s Privacy Protection Act of 1994 (“DPPA”).3 Under the DPPA, state departments of motor vehicles are prohibited from releasing an MVR without a driver’s consent unless the disclosure is for a “permissible use.” For instance, an MVR can be obtained in the “normal course of business” in order to “verify the accuracy of personal information submitted” to the business. Further, if the state that holds the record has authorized the disclosure of the MVR to the employer under its own law, it can be released under the DPPA. Most importantly, if the employee consents in writing to the disclosure of the MVR, it can be released to the employer. Accordingly, the best practice is to simply require that employees or prospective employees consent to the release of the MVR as a condition of employment.
Additionally, an MVR is considered a consumer report under the Fair Credit Reporting Act (“FCRA”). Outside of the trucking industry, an employee must provide written consent to the release of the MVR to an employer. If a person is not hired or is terminated as a result of the content of the MVR, this constitutes an “adverse action” under the FCRA and must be reported to the employee or prospective employee. In such instance, the company must provide the name, address, and phone number of the agency that provided the adverse information. Effective January 1, 2013, due to the enactment of the Dodd-Frank Wall Street Form and Consumer Protection Act of 2010, responsibility over enforcement of the FCRA has shifted from the Federal Trade Commission to the newly-created Consumer Financial Protection Bureau (“CFPB”). The CFPB has issued updated notices and forms that must be used by employers when hiring third parties to conduct background checks (including obtaining MVRs) with respect to employees or prospective employees. Employers are advised to make sure to use the latest forms so as to ensure FCRA compliance.
National Driver Register
In addition to seeking information from state departments of motor vehicles, the National Highway Traffic Safety Administration (“NHTSA”) maintains a National Driver Register (“NDR”). The NDR is a computerized database of information about drivers who have either had their licenses revoked or suspended or have been convicted of a serious traffic violation such as driving while intoxicated. State departments of motor vehicles report such incidents to the NDR. The NDR itself does not maintain records detailing the violations, but will “point” a requesting party to the state in possession of them.
Obtaining a driver record from the NDR has the benefit of providing a national search. Accordingly, if a driver committed a serious infraction in a state in which he or she does not presently work or reside, the NDR can help his or her employer or prospective employer discover the infraction. Such information could be missed on a state- level search. Employers should note, however, the NDR does not generally reveal information regarding minor moving violations such as speeding tickets, and accordingly, it is only a supplement to and not a replacement for state-level searches.
In order to obtain a record from the NDR, an employer or prospective employer should have the driver complete a National Driver Register Employee Driver Record File Check Form, which is available at http://www.nationaldriverregister-forms.org/. The current or prospective employee can then deliver the form to his or her state department of motor vehicles, which in turn forwards the request to the NDR. The NDR then issues its report directly to the employer or prospective employer.
Employers should develop policies with respect to their use of any MVR obtained for a current or prospective employee. Such policies should be designed to address the concerns of ensuring public safety, avoiding liability for negligent hiring, and treating employees and prospective employees fairly. The best practice is to commit the policy to writing and apply it consistently. This serves two significant purposes. First, an appropriate policy demonstrates that the company takes significant care to employ appropriate personnel, which can be crucial in defending potential third-party claims arising out of traffic accidents. Second, the policy will help the company defend itself in any discrimination or retaliatory discharge suit filed by persons whom the company elects either not to hire or to terminate from employment.
A written policy with respect to MVRs should indicate that the company reserves the right to investigate its employees’ driving records and take employment action as appropriate. The MVR policy may choose to set forth the exact number, frequency, and/or seriousness of infractions that will lead to discipline, termination, or preclude a candidate from being hired. Further, an MVR policy should impose an affirmative reporting duty upon employees to notify employers of various types of traffic citations as appropriate. Depending on the workplace and the nature of the employees’ duties, such reporting requirements may or may not extend to minor moving violations such as speeding tickets. The policy may also make the employees’ consent to the employer obtaining MVRs a condition of employment. It is best to have an employee or prospective employee sign an acknowledgment of his or her receipt and review of the MVR policy. The MVR policy may also be incorporated into a broader driving policy that extends to issues such as use of company vehicles, rules regarding mobile phone use while driving, seat belt use, and other similar items.
Obtaining an MVR for an employee or prospective employee can be a crucial risk management procedure for companies whose employees may get behind the wheel. Employers should be mindful to appropriately navigate applicable privacy laws when obtaining MVRs. Further, employers should adopt and consistently enforce policies with respect to obtaining and using MVRs for employment purposes.
The foregoing is not legal advice. Employers are advised to consult counsel with respect to developing and enforcing policies regarding motor vehicle records.
*Markel Specialty is a business division of Markel Service, Incorporated, the underwriting manager for the Markel affiliated insurance companies.