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Insights: Compliance- The Criminal History Question and a Conditional Job Offer (Part 2 of 2)

With the proliferation of ‘Ban the Box’ laws around the country, criminal history inquiries of a driver-applicant must usually be made after a conditional offer of employment is extended to a driver.  

This reality for many motor carriers quickly raises some important questions, such as: (1) what is a conditional offer and when should it be made when the applicant is a CDL driver? (2) what screening should a motor carrier perform prior to making a conditional offer? and (3) beyond criminal history, what additional screening or tests must be done after a conditional offer?  

Employment ApplicationPrecisely describing or explaining what constitutes a conditional offer, and when it should be made to CDL driver-applicants in the trucking space, is tricky since there is no definitive standard in law or regulation.  In other words, there is no single federal law, no black and white regulation, and no motor carrier industry-developed standard or guideline, that one can find and read to understand exactly what questions you can (and cannot) ask, what data you can collect, what tests you can administer, and what background checks you can initiate prior to a conditional offer. That’s the bad news.  The good news is there are some common industry practices, a few laws, and some legal precedent from which we can draw.

Let’s start with the conditional offer itself.  What is it? Generally speaking, a conditional offer should be a bona fide offer, which means that, at the time the offer is extended, the motor carrier should have considered and exhausted all hiring factors that it reasonably could have considered up to that point.  The following are some factors that, in many cases, can reasonably be considered by a motor carrier before a conditional offer is extended:

  1. Meets the 21 yr-old minimum age requirement
  2. Reads and speaks the English language (sufficient to meet federal standard)
  3. Proper license (and endorsements, if applicable)
  4. Proper training or experience to safely operate the type of vehicle
  5. Safe driving experience consistent with company standards
  6. Satisfactory accident history consistent with company standards
  7. No gaps, or sufficiently explained gaps, in work experience
  8. MVR check, including not being under a State-issued disqualification

After verifying these, and perhaps completing other company-driven tests (e.g., a physical agility test) and background checks (e.g., credit history), the company may issue the CDL driver a conditional offer.  This offer would then be conditioned upon the driver meeting additional qualification requirements including:

  1. Passing a DOT-required medical exam, conducted by a certified examiner, which the Americans with Disabilities Act requires be done after a conditional offer, and
  2. Passing a criminal history check, with any history evaluated on an individualized basis, consistent with job requirements and company standards.  Under State ‘Ban the Box’ laws in at least 10 States, this must be done after a conditional offer.

While these lists appear to be distinct and fairly straightforward, it is more complicated because there are additional tests that don’t fall neatly on either list.  For example, a CDL driver must also pass a DOT-required, company-administered road test, unless the driver meets the DOT-specified exemption. This road test process could be conducted and completed either before or after a conditional offer.  The geographic location of the carrier and the driver-applicant often dictates when it is done.

The same is true for the DOT-required pre-employment drug test.  A motor carrier can determine when this required drug test is conducted (before or after a conditional offer).  And, given its cost, most carriers choose to conduct it after a conditional offer.

Also, not contained above on either list is the DOT-required “safety performance history” verification, commonly referred to in the motor carrier industry as ‘verification of employment’ or ‘VOE.’  This DOT-required “safety performance history” check involves multiple data checks, and includes checking for any past DOT drug and alcohol testing program violations. In practice, many carriers initiate it before a conditional offer, and complete it after such an offer.  Like the DOT road test and pre-employment drug test, carriers can choose when they perform and complete the DOT-required safety performance history checks.

As you can see, and many of you may already know, the screening and hiring process for a CDL driver is complicated, cumbersome and time-consuming.  And, only parts of it are regulated by federal and state law. It’s important to know that only the DOT required medical exam and certification process, and a criminal history inquiry (in at least 10 States), must be performed after a conditional offer.  The remainder of the DOT required screening, qualification and hiring process may be done and, arguably, should be done in many cases, prior to a conditional offer.


If you have questions about this topic, please contact DriverReach’s regulatory and compliance expert, Dave Osiecki at dosiecki@scopelitisconsulting.com

NOTE:  This article cannot and should not be relied upon by carrier personnel as legal advice. It is intended as a short guide to help fleet safety and hiring personnel understand some important timing questions and issues involved in screening and hiring professional drivers who must have a CDL to perform their job.

 

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