Motor carriers agree that competition is fierce to find and hire qualified truck drivers. It often can be a race to see which company can successfully help applicants navigate the hiring process first.
Kevin Hill, director of research at FreightWaves, discussed how to avoid legal HR pitfalls when recruiting drivers with David Robinson, a labor and employment law partner at the Scopelitis Law Firm, during a virtual fireside chat at the FreightWaves Carrier Summit on Wednesday.
After working with trucking companies for 30 years, Robinson said it’s important for recruiters at carriers to know the laws and regulations in every state before hiring new drivers.
“I like to help (carriers) navigate issues that both come up and hopefully prevent things before they come up,” he said.
Background checks are a hot topic in the trucking industry, Robinson said, as class action lawsuits have been filed against carriers that failed to comply with the Fair Credit Reporting Act, a federal statute that employers have to comply with if they want to conduct background checks using third-party consumer reporting agencies.
“And so if you’re going to use one of these companies to get a background check, like a criminal history report or an MVR, you have to comply with the Fair Credit Reporting Act,” Robinson said.
“On the front end of the hiring process, when you have an applicant in front of you and they’re applying, you have to use a compliant disclosure form that discloses that you’re going to go get a background check using a third-party consumer reporting agency and you have to get their written authorization to do that,” Robinson said. “Now, in my experience, companies at least are getting a form in front of somebody that is being signed. The problem is that the statute’s really technical as to the language that can be in there and what cannot be in there.”
Communicating with drivers on the back end when a carrier makes the decision not to hire a driver based on information contained in their consumer report is crucial.
“You need to make a written notice to these applicants that you’ve made a preliminary decision not to hire a driver based on information in the consumer report,” Robinson said. “As an industry, we have been horrible on the back-end requirement.”
Preemployment agility tests
While Robinson said there’s value in requiring agility testing to ensure truck drivers can do the job, carriers must be careful not to violate the Americans with Disabilities Act.
“When I say agility test, it is really movements that mimic the job,” Robinson said. “If it’s a true agility test where you’re just seeing if they can do tasks, that’s not a medical exam. You can conduct an agility test either on a pre-offer or on a post-offer basis.”
However, he said problems can arise when carriers utilize third-party companies to do the agility testing.
“When you contract with occupational therapists to conduct that screening, they naturally want to make sure people are safe to do the agility test,” Robinson said. “And they may take heart rate measurements and blood pressure readings before and after the agility test. And when you do those things, you cross the line and that becomes a medical exam and so then the ADA kicks in.”
Carriers can only conduct medical exams after a conditional offer of employment has been extended to a driver.
“I’ve been urging employers to take a close look at their agility test and talk to the folks who are conducting the test and find out if these kinds of physical measurements are being taken,” Robinson said. “You just need to make sure you’re handling them at the right spot in the process.”
Checking to see if a driver has a criminal history plays a large role in carriers’ hiring programs.
“We’ve seen over the past 10 years or so this mosaic of laws across the country,” Robinson said. “Some of them are local and city, some of them are by state. We now have about 17 or 18 states that have statewide ban-the-box laws.”
Ban-the-box laws mean that private employers cannot have a box on their applications that asks about criminal history in the initial application. Once a conditional offer of employment has been extended to a driver, employers are allowed to ask about a driver’s criminal history.
“Many transportation companies have terminals in many locations, hire drivers from different states and it’s really hard to navigate this mosaic of laws,” Robinson said.
He recommends carriers look at their applications to ensure they are not violating ban-the-box laws in certain states.