You might be under the false impression that carriers don’t need to respond to a previous employer inquiry if the signed consent form from the driver is more than 30 days old. If so, conflicting information from the FMCSA is likely to blame.
I call this the “30-day misconception” and it’s quite common.
The simple fact of the matter is that FMCSA-regulated carriers MUST respond to previous employer inquiries within 30 days, regardless of when the driver’s consent form was signed. Read on to find out why, and where the confusion around this regulation comes from.
Nearly two decades ago, the FMCSA added to its compliance regulations to include 40 CFR Part 391.23(g). This states that previous employers are required to respond to any DOT defined inquiries about former employees, regardless of when the inquiry was made or when the consent form was signed.
At the same time, though, no changes were made to 49 CFR 391.23, Question 1, in 391.23’s guidance Q&A. This pre-existing guideline from 1997 makes the conflicting suggestion that carriers don’t generally need to reply to certain inquiries. This seemingly minor oversight by the FMCSA has been causing confusion for compliance officers ever since.
Make no mistake: it is mandatory under FMCSA regulations for carriers to reply to any DOT defined inquiry about past employees, even after 30 days, and regardless of when consent was provided. What’s more, this holds true even if there are no safety performance issues to report.
Regulations Outweigh Guidelines
The number one reason compliance officers get confused by the FMCSA handbook is that they’re unsure which of the conflicting statements to follow. So, let’s clear the confusion now: in legal terms, regulations trump guidelines every time. Members of an organization like the FMCSA are legally required to follow the regulations. Meanwhile, guidelines are merely recommended best practices with little legal bearing.
This means the FMCSA regulation that requires carriers to respond to all past employee inquiries is more important than the outdated FMCSA guideline that suggests it’s unnecessary.
The Confusing “Three 30s”
You might have noticed the number 30 comes up a lot in the FMCSA’s 391.23, which makes things extra confusing. Carriers are often unsure, when told to reply within 30 days, when the 30 days first began. There’s a misconception that the 30 days begin when the former employee signs the consent-to-contact form, which isn’t the case.
Let’s break down all the 30s for the sake of clarity:
- After hiring a driver, carriers have 30 days to submit an inquiry for a previous employment check.
- Once the inquiry has been received, the receiving carrier has 30 days to reply.
- The 30-day countdown starts once the driver has actually been hired, not when they first signed the consent form, which could have been much earlier.
Compliance officers just need to keep things simple: when a previous employment inquiry comes in about a former employee, send a reply promptly to avoid issues.
Don’t let the “30-day misconception” catch you out! All inquiries into past employee safety information require a reply under FMCSA regulations, even if the driver consent form was signed more than 30 days ago. If there are no safety performance issues to report, previous carriers are still required to respond saying as much. A reply is always required.