Drivers issued citations later deemed inaccurate or misleading could continue to find it difficult to have the information removed from databases used for preemployment screening, based on a recent appeals court decision.
In ruling that the Federal Motor Carrier Safety Administration is not considered a consumer reporting agency — even though the FMCSA falls under the jurisdiction of the Federal Credit Reporting Act (FCRA) — the U.S. Court of Appeals for the District of Columbia Circuit denied owner-operators increased protections against the consequences of inaccurate or misleading information in FMCSA safety reporting databases.
“We had hoped that the news would have been that drivers would have had a new tool to protect their reputation,” Paul Cullen, an attorney for the plaintiffs in the lawsuit, told FreightWaves.
“If you have a significant violation on your PSP [Pre-employment Screening Program] report, people are much less willing to do business with you, whether you are a driver seeking employment or a carrier trying to get loads from brokers. It can have a huge impact, and that’s why these drivers went to court to try to defend themselves.”
The case began with a district court lawsuit filed in 2012 by four owner-operators and the Owner-Operator Independent Drivers Association against the U.S. Department of Transportation and FMCSA.
The drivers had all been issued tickets — later reduced or dismissed — for violating state vehicle safety laws, yet FMCSA refused to remove the original citations from its Motor Carrier Management Information System (MCMIS). The drivers later authorized the release of their PSP reports, which also included the original citations, as required by prospective employers. The drivers alleged that the citations caused them to miss out on employment opportunities.
In 2016, the district court dismissed the complaint for lack of standing. It was amended in 2018 but dismissed again in 2019 on the grounds that FMCSA, in releasing MCMIS records as required by statute, is not a “consumer reporting agency” under FCRA, and the drivers subsequently appealed. The appeals court’s review was decided on Sept. 24.
Cullen pointed out that a “significant positive” change occurred in FMCSA safety reporting procedures shortly after the lawsuit was filed: If an adjudication is dismissed without a fine or the person is found not guilty, the violation is removed from the driver’s record.
However, “there’s still work to be done to ensure that this whole process is fair,” Cullen said. “Inaccurate or misleading safety information is still available to potential employers.”