F For 25 or more years, the U.S. trucking industry has struggled with a growing driver shortage. According to American Trucking Associations (ATA), if the current trend holds, the shortage may balloon to a shortfall of almost 175,000 drivers by 2024.
For many motor carriers, part of the solution has been to attract nontraditional drivers to careers behind the wheel, including felons who have served time in prison and are now seeking employment. However, while hiring felons can be great for carriers, regulatory requirements when considering hiring or not hiring a driver with a criminal record are not well understood.
Furthermore, the rules that apply in these cases are not unified nationally. There are Federal Motor Carrier Safety Administration regulations that conflict with guidelines of the Equal Opportunity Employment Commission.
There is also a growing trend among states and large cities regarding the use of criminal records for employment, ranging from asking about past criminal convictions on applications to not discussing criminal records until a contingent employment offer is extended. The practice of removing the criminal record question from employment applications is commonly called “Ban the Box.”
Today, more than 100 cities, counties and states have adopted some form of Ban the Box legislation, and the number continues to grow. This patchwork of laws means trucking companies with employees in multiple locations must play by different rules in different jurisdictions.
In some places, Ban the Box regulations are applicable where the employee lives, and in others they apply to where the work is performed — never do they apply to where the employer is domiciled.
Additionally, while some rules limit criminal record checks to a certain number of years regardless of the crime, others permit employers to deny applicants for older convictions. Lastly, some rules require a specific reason for adverse action — more than just showing the conviction.
All Ban the Box rules attempt to codify the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (under Title VII of the Civil Rights Act of 1964) published by EEOC. In effect, while it’s not illegal to restrict felons from a driver applicant pool, EEOC frowns upon it.
While felons are not a protected class based on race, color, religion, sex, national origin, age or disabilities, EEOC guidelines forbid the automatic rejection of a person because of a criminal past.
Also, recent criminal convictions (not arrests) can be used to deny employment only if the conviction has nexus to the job.
For example, a livestock carrier could deny employment to someone convicted of animal cruelty. Also, using a variation of requirements for a Hazmat CDL endorsement or a Transportation Worker Identification Card, or TWIC, an applicant may be denied employment based on specific parameters, including bans on employment for seven years for an arson conviction, 10 years for conviction of child abuse and a lifetime ban for being convicted of using a vehicle in the commission of a felony involving a controlled substance.
The trucking industry, which has a large and growing driver shortage, wants to hire people, not find reasons to deny employment. In the absence of a federal pre-emption, however, the number of states and localities issuing conflicting regulations and guidance will continue to grow.
At a minimum, carriers should remove questions about criminal activity from employment applications. A further step is not to request any criminal records until after a conditional offer of employment has been extended. Criminal background questions about convictions can be asked during the interview process, but Fair Credit Reporting Act rules require consent must be given by the applicant to use criminal records in a decision-making process.
Motor carriers tend to fall short under EEOC rules and guidelines by:
1) Reaching too far back to deny employment based on a criminal record.
2) Failing to show nexus of the conviction to the job.
3) Failing to allow an applicant to explain what happened and how he or she is reformed.
4) By using criminal records that are not current or accurate.
As a result of the wide disparity in guidelines and regulations, many carriers are implementing processes that meet the most stringent regulations and apply them across the board.
The very nature of trucking makes compliance with Ban the Box rules a significant challenge. Trucking, with the nation’s largest unsupervised labor force, is not like other industries. Few carriers know where an applicant will be working at the time the application is received and because operations are conducted on na- tional, regional and local levels, few can comply with different local, county or state rules based on where work is performed. If the trend continues, management of this process will require major rework of applicant tracking systems, which will add significant costs for trucking companies.
The trucking industry, which keenly understands the costs of the driver shortage, needs a national Ban the Box solution.