This is the second installment in our new feature "Ask the Attorney." (Read the first issue on salary history bans—and what this means for background check procedures.)
Melissa Snyder, FCRA-Advanced Certified from the Professional Background Screening Association (PBSA), is Good Egg's attorney and compliance manager. Melissa will be fielding occasional questions and answering them in a general way.
The big disclaimer, of course, is that any information she provides on this blog is simply educational in nature, not legal advice. You should consult your own attorney regarding your specific situation.
Now, onto the latest question . . .
Our insurance company recently asked for our CEO's driver's license. Turns out, the insurance company wants to run MVRs on every person that drives in our company. Is this something you've been hearing more about? If yes, what sort of compliance issues are at play—is it up to the insurance company to obtain proper disclosures, or would we in HR have to let employees and applicants know that they might need to undergo an MVR? Do we need to define what it means to 'drive on behalf of the company'?
Let's unpack this question, because it's an important one (and it has several moving parts).
First, let's define "driving on the company's behalf." This includes any time spent driving "on the job" during work hours. It would exclude an employee's daily commute to the office and driving to grab something to eat during the employee's lunch break. But it would include driving to a sales meeting while the employee is "on the clock."
When furnished by a consumer reporting agency, motor vehicle records (MVRs) are consumer reports under the Fair Credit Reporting Act (FCRA). Section 604 of the FCRA is known as "permissible purpose." It essentially defines how/when/why a consumer report can be obtained. I'll be referencing two common permissible purposes for obtaining MVRs under the FCRA – insurance and employment.
If an employer provides its insurance company personal information to run MVRs on employees that drive on behalf of the company because the insurer requires it (and not necessarily to influence a decision on hiring, retaining, or promoting the employee), it may be prudent for the employer to ensure that the insurer has certified to the consumer reporting agency that the MVRs will be used in connection with the underwriting of insurance and for no other purpose. Above all else, the employer should be hyper-aware that the insurer is the "end-user" of the MVRs/consumer reports and is not permitted to share them with the employer for the purpose of making an employment decision.
Will following the FCRA's disclosure and authorization requirements cover us?
If you think your insurance company has been improperly providing you MVR reports (reports that you sometimes find useful), you may be wondering if following the FCRA's disclosure and authorization requirements would allow you to occasionally use an insurance MVR to make an employment determination. Unfortunately, the answer is NO. As the requestor, the insurer must invoke a single permissible purpose (insurance underwriting) for ordering the MVRs and must not sell or furnish the information to a third party for the same or any other purpose. Failure to do so would mean risking substantial criminal and civil penalties for violations of the FCRA and breaching its supplier contracts with state licensing agencies.
If being "insurable," so-to-speak, is not a condition of employment, and you don't have background check policies and procedures that delineate when the results of an MVR check disqualify individuals in certain job categories from employment, then you may find that invoking the FCRA's permissible purpose of employment is not the right move anyways.
For example, maybe an employee whose MVR report is problematic for the insurer will keep their same position at the company, but he or she will stop driving on the job. Instead, he or she might use public transit, ride-sharing, carpooling, etc. to attend offsite meetings, conferences, seminars, and other business events scheduled during work hours.
However, most employers are not in a position to modify their job requirements in this way, and they deem MVRs an essential part of the hiring process to ensure all employees who get behind the wheel on company time are safe drivers with a valid license.
When to obtain MVR check disclosures and authorizations.
If an employer determines that the results of an MVR check may directly affect certain employees' continued ability to do their job (or certain applicants' qualification for the position sought), the employer should have the applicants/employees with those job types sign background check disclosures and authorizations to consent to MVR checks being run for the permissible purpose of employment.
The good news: these MVRs will generally have more information than those furnished for insurance purposes. MVRs used for employment purposes may contain additional years of information, certain violations that were suppressed on the insurance MVR, and medical certification information (required for FMCSR compliance).
IMPORTANT NOTE: An employer must be careful to certify an appropriate permissible purpose to the MVR vendor for each instance, and to strictly follow the adverse action procedures prescribed under the FCRA for that permissible purpose.
When employers should run MVR checks.
Regardless of the permissible purpose for requesting driving records, an employer should only request (or provide information to its insurer to request) MVRs on applicants/employees who will be driving on the job in some capacity.
As your background check provider should know, in some jurisdictions, a consumer reporting agency (CRA) may obtain an abstract of the driver's information only when the applicant has applied for a position that will involve operating a motor vehicle (commercial or otherwise) to some extent during work hours for a business purpose.
Bottom line: Any employee who occasionally drives "on the clock" has a job with driving responsibilities. Don't just have your bases covered when it comes to insurance. And don't assume that simply checking driving records at the time of hire is good enough to mitigate risk. Speak with an informed provider (like Good Egg!) who can help you develop and deploy a custom, continuous screening strategy that will protect your company from the colossal expenses and brand damage that come with defending against negligent hiring and negligent retention lawsuits.
Don't leave MVR checks to just anyone.
Make sure you are working with a compliant background check provider. In addition to a certification of the permissible purpose for the MVR checks, your background check vendor should obtain a statement from you that the applicant is applying for a position that involves driving on company time.
In addition, your vendor should facilitate the provision and obtaining of all necessary disclosures and authorizations (think DPPA releases and FCRA forms at the federal level, as well as state driver release forms) and be aware of expiration periods for state-specific driver releases and certifications/affidavits of use, where applicable.
If you are unsure if your current provider is complying with all of these MVR-specific requirements (and a simple question to them confirms those suspicions), you may want to consider partnering with a vendor that specializes in MVR checks and MVR monitoring.
Got a question for Melissa? Let us know!