The Owner-Operator Independent Drivers Association (OOIDA) isn’t giving up its court battle with DAC just yet.
The association last week filed a request with the Tenth Circuit Court of Appeals in Denver to rehear the case against USIS Commercial Services, the agency that collects driver employment history information for its DAC reports.
A three-judge panel of the circuit court ruled against OOIDA on Aug. 19 in the appeal of an August 2006 verdict. In the original trial, OOIDA unsuccessfully claimed that USIS violated the Fair Credit Reporting Act. The rehearing petition asks that the full court (en banc) and not just a panel, decide the case.
The request focuses on two findings by the appeals court that deny truck drivers the protections they would have if DAC reports were held to the standards of FCRA.
First, according to the petition, the panel’s decision “ignores 90 years of unbroken jurisprudence” by not holding DAC reports to the letter of law — specifically, to language that grants exclusion from FCRA only for reports “solely between” the consumer and the person making the report.
As a result of the decision, the sale of statements by employers that include hearsay about employees is now considered outside the bounds of FCRA.
OOIDA attorney Randall Herrick-Stare said the FCRA exception is meant to allow businesses like Sears to sell information about its customers’ charge accounts to a database operator, a “consumer reporting agency,” for resale.
But the court defined “first-hand knowledge” to include knowledge from statements by third persons if they were about matters relevant to the employer’s business. Or put simply, if it is about the motor carrier’s business, its regular sale to DAC of hearsay about drivers does not violate the FCRA, according to the OOIDA attorney.
Herrick-Stare said it appears the court was concerned about the free flow of information in employment reference situations which, because they do not involve a regular sale, are not covered by the FCRA. He also noted the panel did not comment on the “regular sale” aspect of carrier submissions into DAC’s database. (Motor carriers contribute driver information to the DAC database and receive credit toward the driver history reports that they purchase.)
And what’s so important about holding DAC to the FCRA standards?
“If we had been successful, then drivers would know the reports are being transmitted to the database because they would have to give their permission,” Herrick-Stare told The Trucker. “Then they’d have a right to dispute the statement if it’s not ‘accurate’ and so forth.”
The second point of OOIDA’s rehearing request is that the court of appeals has weakened the duty of reporting agencies to prepare accurate reports.
OOIDA argued that the trial court should not have allowed USIS to admit testimony that carriers typically follow-up on a driver’s DAC record with phone calls to previous employers. In essence, the court allowed evidence of a history of post-report communications among strangers to excuse pre-report behavior by the consumer reporting agency, Herrick-Stare said. Or even more simply, because of that decision, USIS isn’t held responsible for inaccuracies in its DAC reports.
The appeals panel upheld the trial court’s ruling.
In its petition, OOIDA argues the case is of “exceptional importance” and should be reheard.
“The rights of hundreds of thousands of drivers to compete fairly for jobs in the trucking industry are stake,” the petition states. “The precedent created by this decision also has implications that go far beyond the trucking industry.”
Indeed, Herrick-Stare said “friends of the court” briefs could be filed by other parties with an interest in the scope of consumer report exceptions. Such additional interest could aid OOIDA’s request for a rehearing, but the requests are rarely granted, according to Herrick-Stare.
“What the court didn’t seem to appreciate is that there’s an awful lot of hiring folk who use DAC reports as a screening device,” the attorney said — the upshot being that drivers often aren’t given the benefit of the doubt when it comes to ambiguous or even outright erroneous employment histories. An application with a questionable DAC report could well go into the trash can without the follow-up call being made, Herrick-Stare suggested.
Of particular concern are the “ambiguous” items on the Termination Record Form (TRF) that may not mean the same thing to the carrier who fills out the report and the carrier who receives it.
“The ones that sent us around the bend were the definitions of ‘cargo loss’ and ‘equipment loss,’ which have no causal mechanism associated with them, so you can’t tell if it was the driver’s fault of not,” Herrick-Stare said, also noting the vagueness of “company policy violation.” “And ‘other’ is just mind boggling — how can it refer to anything but the relations between drivers and third parties?
“That’s why we thought, quite frankly, we were in a really strong position.”
Herrick-Stare pointed out that OOIDA understands the need for driver employment history reports, and said that the association has been wrongly accused of trying to squelch anything that reflects poorly on drivers.
“We are in favor of accuracy and we are in favor of precision. We are in favor of truth telling. We are opposed to ambiguity which is used as a mechanism to blackball drivers,” Herrick-Stare said. “The system as it is now constructed abets that — it doesn’t do it, but it allows it to happen.”
The association isn’t asking that the DAC reports be thrown away completely, he added.
“The vast majority of the TRF is useful information and it’s useful to everybody,” Herrick-Stare said, citing items such as what equipment a driver operated, where he drove and what he hauled. “We have no criticism of that.”
