Conflicting rules spur controversy over use of moving violation reports in hiring

I've had many calls recently about whether or not Moving Violation Reports (MVRs) for current and new-hire drivers are confidential. On one side of the controversy are consumer protection laws, which are requiring insurance companies to establish policies and procedures to protect the confidentiality of MVRs, thus restricting carriers' access to these records.

On the other side are the carriers, who feel they have the right to use these records in checking out driver candidates, citing federal rules that protect them from liability lawsuits when they run background checks.

Insurers are basing their policies on three federal laws that establish guidelines for protecting the consumer privacy rights of non-public information: the Fair Credit Reporting Act; the Driver's Policy Act; and the Gramm-Leach-Bliley Act.

Much of the current controversy can be attributed to efforts by the insurance industry to implement strict privacy protection policies.

What's disturbing about this is that carriers have fought hard to get protection from liability lawsuits connected to assessing new-hire driver prospects. The Transportation Efficiency Act for the 21st Century (TEA-21), for example, contains a provision that protects motor carriers and their agents (i.e., insurers) from liability lawsuits when conducting background checks of driver candidates.

Technically, carriers aren't even required to get permission from driver candidates to obtain MVR information. But they are required to give applicants the opportunity to review and/or comment on the information. In addition, TEA-21 says that state and local governments cannot enact laws imposing liability provisions.

Why haven't we heard more about these protection-from-liability provisions? And why are insurers trying to restrict our access to these records?

The answer to the first question is that TEA-21 also includes a requirement that DOT amend Section 391.23 of the Federal Motor Carrier Safety Regulations as follows:

"...to provide protection for driver privacy and to establish procedures for review, correction and rebuttal of the safety performance records of a commercial vehicle driver."

That action is tied up with a rewrite of the Hazardous Materials Transportation Act of 1994; proposed rules have not been released.

The answer to the second question is more complex. First, since insurance companies are generally viewed as "financial institutions," they're more closely regulated by the consumer-protection provisions included in GLB and other state legislation.

Second, states such as California, for example, have imposed strict legislation that addresses who can access motor vehicle reports and what can be done with the information in those reports.

In addition, the vast majority of insurance company customers are private individuals who are protected by the broadest form of the language. Most insurers are enacting broad company policies that prohibit disclosure of MVR information without the express written consent of the driver involved.

You can see why we expect a good deal of discussion and debate over MVR access in the foreseeable future.

Until this controversy is sorted out, I urge you to work with your insurance companies to present your side of the issue. It may also be a good idea to work with reputable third-party reporting firms to obtain MVR information. Local insurance agencies or brokers may be confused to the point of gridlock and won't respond to your requests for information.

Finally, get permission - both initially and annually - from driver candidates as well as current drivers whenever you're going to request MVR information.