DOT Screening Program Doesn’t Violate Drivers’ Privacy

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By Jay-Anne B. Casuga

Oct. 21 — The Transportation Department didn’t violate truck drivers’ privacy by providing information about their non-serious safety violations to prospective employers, a federal appeals court decided ( Flock v. U.S. Dep’t of Transp. , 2016 BL 351349, 1st Cir., No. 15-2310, 10/21/16 ).

The ruling leaves intact the pre-employment screening program, or PSP, launched in 2010 by the DOT’s Federal Motor Carrier Safety Administration. For a fee, the program gives employers access to commercial driver applicants’ crash and inspection information. Driver consent is required before information is disclosed by the government.

In the present case, drivers contended that the PSP database should include only serious safety violations. They claimed that the inclusion of non-serious offenses, such as speeding tickets and other fines, violated their rights under the Privacy Act.

The U.S. Court of Appeals for the First Circuit disagreed, upholding the dismissal the drivers’ claim. The law allowing the FMCSA to collect safety information doesn’t restrict the agency’s discretion to disclose non-serious violations to employers, provided they have the drivers’ consent, the court said.

“Given that the focus of the database is on the motor carrier industry, by providing information on driver safety records to potential employers, it is hard to see how this goal would be undermined by the disclosure of more information,” the court said.

The court also rejected the drivers’ argument that the PSP’s consent forms are coercive because they must be signed in order for the drivers to seek employment. Employer use of the PSP is optional, and the drivers didn’t present evidence that their employment chances are “doomed entirely” because of the inclusion of non-serious violations, the court said.

Judge Norman H. Stahl wrote the opinion, joined by Judges Sandra Lynch and O. Rogeriee Thompson.

Paul D. Cullen Sr., Joyce E. Mayers and Paul D. Cullen Jr. of the Cullen Law Firm and John A. Kiernan of Bonner, Kiernan, Trebach & Crociata represented the drivers. Justice Department attorneys Caroline D. Lopez, Benjamin C. Mizer, Carmen M. Ortiz and Matthew Collette; DOT General Counsel Kathryn B. Thomson; and FMCSA attorneys Paul M. Geier, Peter J. Plocki, Joy K. Park, Charles J. Fromm and Debra S. Straus represented the agencies.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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