Review of Personnel Files by Truck Drivers – FMCSA Regulations

Determining whether a truck driver has the right to review his/her personnel file depends on the circumstances. Under FMCSA regulations, a driver has the right to review investigation information provided to a prospective employer by a previous employer under 49 CFR 391.23. Also, some states have enacted laws that provide employees with the right to review their personnel files while other states have not.

49 CFR 391.23 provides a driver the right to review and challenge documents provided by a previous employer to a prospective employer during the prospective employer’s investigation into the driver’s prior employment during the application process. For drivers who have had DOT regulated employment for the preceding three years, a prospective employer must notify the driver that the driver has the following rights:

(i) The right to review information received by previous employers;

(ii) The right to have errors in the information corrected by the previous employer and for that previous employer to re-send the corrected information to the prospective employer;

(iii) The right to have a rebuttal statement attached to the alleged erroneous information, if the previous employer and the driver cannot agree on the accuracy of the information. (49 CFR 391.23(i)(1)).

A driver must submit a written request to the prospective employer requesting the driver be permitted to review the investigative file provided by the previous employer. This written request may be submitted at the time of application or within thirty (30) days after hire or notification of denial of employment by the prospective employer. (49 CFR 391.23(i)(2)). When a written request is submitted, the prospective employer must provide the requested information within five (5) days of receiving the written request from the driver. However, if the requested information was not yet received by the prospective employer at the time of the written request, the prospective employer must provide the information within five (5) days of its receipt of the requested information from the previous employer.

If a driver believes that any of the investigative information provided is incorrect, he/she may 1) submit a request to the previous employer that the previous employer correct the information and/or 2) submit a rebuttal to be maintained as part of the safety performance information (following the procedures laid out in Sec.386.12.). In determining whether or not an employee has a right to view his/her personnel file, one must also look to state law. Several states have enacted statutes providing employees with the right to review their personnel file. For instance, Pennsylvania has enacted the Personnel Files Act (43 P.S. ยง1321, et. seq.). Pennsylvania’s Personnel Files Act provides both private and public employees the right to inspect their personnel files.

The Personnel Files Act does provide some limitations to an employee’s review of the records. An employer may require an employee submit a written request for inspection in order to aid the employer in determining what documents are relevant to the employee’s request for inspection. Also, the employer does not need to permit the employee to copy the file and a representative of the employer may be present during the inspection. Although, an employee will not be permitted to make copies of the file documents, he/she may take notes.

Under the Act, “employee” does not refer to terminated employees. However, case law does suggest that if a terminated employee requested to see his/her personnel file contemporaneously with the termination or within a reasonable time after being terminated they may be entitled to see the file. Therefore, even though an employee may have the right to inspect a personnel file the same does not necessarily hold true for a terminated employee. However, a terminated driver may have access to the investigative information provided to a prospective employer pursuant to 49 CFR 391.23 by a previous employer.

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