Many employers faced a need to ramp up hiring of drivers to meet a higher demand for product deliveries and transportation logistics during the COVID-19 pandemic. To meet the demand for drivers, employers had to make quick hiring decisions while also ensuring products were still being delivered in a timely fashion.
Safe work environment
Businesses have a duty of care to provide a safe working environment for their employees and contractors. It is therefore important to limit exposing drivers to risk, to put in place proper safety and security protocols, and to clearly outline them in company policies.
Whether an employee or contractor, these drivers represent the brand they work for. If they do not adhere to company-mandated safety and security rules, because the business did not make them aware or they intentionally did not comply by acting with malice, this can put the drivers, other employees, customers and the company at risk financially, legally and with regard to their reputation.
Adherence to safety protocols
Operating in haste typically results in forced errors and mistakes within the business"
“This need to hire drivers quickly resulted in many businesses lowering their standards and accepting certain risks to meet the increased demand. Operating in haste typically results in forced errors and mistakes within the business, potentially leading to harmful events and a damaged brand reputation,” stated Thomas Kopecky, Chief Strategy Officer and Co-Founder, Ontic Technologies (Ontic), a unified protective intelligence software platform.
In the conversation presented below, Kopecky outlines the safety and compliance requirements needed to manage the risks while meeting the demand for drivers.
Q: What risks do employers face as they ramp up hiring to meet higher demand for drivers?
Thomas Kopecky: There have been instances in which a transportation contractor with multiple violations has simply established the business under a new name but continues to operate dangerously. Hastily hiring such a firm without proper enhanced vetting increases the risk from a safety, as well as a business continuity standpoint. Having to terminate a contract and replace a contractor midway can also have significant financial repercussions.
In addition to problems created by executing too quickly, employers are now required both to mitigate their own general liability risks and to manage the perceived risk they may create due to the pandemic. For example, if a delivery driver tests positive for COVID-19, there is the potential they have also exposed customers. Employers must consider contactless delivery or other methods and protocols to mitigate this presumed risk of the pandemic.
Q: What are the elements of safety and compliance involved in onboarding new drivers?
Thomas Kopecky: When onboarding new drivers, corporations must think about more than clean background checks and adequate infrastructure. Whether employees or contractors, organisations must focus on what other risks the drivers bring with them. As part of this review, an open source scrub should be conducted at the outset to discover the driver’s online activity.
Through this exercise, a whole host of questions can be addressed including, for example, whether their morals and values align with those of the company. Are they involved with fringe or radical interest groups? Do their actions conflict with the culture of the organisation, and could they have a negative impact? These are all questions that employers should be considering when hiring new drivers or contracting a new company.
Q: What tools are available to help companies vet their driver fleets and how can these tools make a difference?
Employers should also consider State Business Records for potential red flags
Thomas Kopecky: To vet their driver fleets, corporations can use several tools and resources that will strengthen the organisation’s overall security. Ideally this is a software platform that brings all this information into one place so vetting, real-time data and concerning activities are not siloed but can be connected in order to assess potential risks and threats.
Logically, businesses should consider reviewing Department of Transportation Records, which allow organisations to check whether drivers are licenced and appropriately insured. Employers should also consider State Business Records for potential red flags, such as whether an organisation is delinquent or no longer functioning in a given state.
Finally, it’s beneficial to review civil records as these can highlight any active or past cases associated with an organisation. This includes fraud, bankruptcy, poor business practices, and more.
Q: What should be the standard methodology to investigate and collect data on new driver programs?
Thomas Kopecky: Corporate culture and company policies impact the level of vetting required (determined by company policy), which varies from business to business. Quite often, most valuable investigative content is associated with an actual fleet company owner and not a recently created business entity so it behooves corporations to research this information first.
Then verify the information provided is correct, and whether any other conflicting information exists. As previously noted, employers should review civil and criminal records at the state level and cases at the federal level, as it is often the fleet company or owner involved in litigation that could reflect negatively on a brand. Media coverage and consumer complaints are another critical source for negative mentions that may not always appear in public records.
You should also ask if the Department of Transportation (DOT) regulates this contract or driver; and if they were once a provider and are now re-applying, is it under a new name? If the answer is yes to either question, it will be necessary to check DOT records for adequate licencing or insurance coverage to ensure providers applying under a new name aren’t trying to circumvent the vetting process.
Q: What are the privacy concerns, and how can potential employers ensure they do not violate issues of privacy as they vet drivers (and/or other employees)?
Businesses must conduct their operations in a fair, lawful, and transparent manner
Thomas Kopecky: Businesses must conduct their operations in a fair, lawful, and transparent manner. Employers often dictate their own guidelines and requirements from company to company. Companies must ensure they follow the law and handle data used for vetting driver fleets in a manner compliant with General Data Protection Regulation (GDPR), Health Information Portability and Accountability Act (HIPAA), and the Fair Credit Reporting Act (FCRA).
When utilising software platforms, those that aggregate public record data in real-time and efficiently to provide actionable insights will be key for protecting corporate driver fleets and businesses overall.
Q: How is addressing these issues different in the case of a contracted service versus a company employee?
Thomas Kopecky: Addressing these issues will vary from company to company, but it will be important for clients' legal counsel to help interpret the law in the respective state they operate in and make this final determination. This will help shape policy and the employer’s compliance requirements in the area of operation.
In some jurisdictions, contractors are vetted and treated like employees who are protected by FCRA. In contrast, there are more broad interpretations of what level of vetting and continuous monitoring can take place on contractors versus employees in other jurisdictions.
Q: What is at risk if companies fail to address these issues?
Thomas Kopecky: If companies fail to address security issues with managing their driver fleets, they risk major liability, business continuity and brand reputation. Every employee and contractor is in essence an ambassador of the brand, and in many instances, they are the only customer-facing representative for the enterprise.
Imagine you are a contractor driving for a major delivery service. If you were to get into an accident and tragically kill someone driving their branded truck, the repercussions of that accident would harm the brand as opposed to the small contracting company by which you are employed. This can have a disastrous impact on the enterprise, both from a reputation and financial standpoint.
When proactive steps are not taken to evaluate fleet companies or their owners, this can be viewed as negligence. Consider another example: A brand hires a driver company that has committed fraud while operating under another company’s name. What is the brand’s cost to conduct an initial onboarding assessment of this company versus the cost of investigating an issue, terminating the contract, and dealing with any potential litigation that might follow? The latter is clearly the financial burden. Corporations must proactively address risk associated with their driver fleets to mitigate risk before it occurs.
Q: What is the biggest misconception (in the industry and/or the public at large) about employee vetting requirements?
Enhanced vetting today often includes looking into a contractor’s background or its company
Thomas Kopecky: We have passed the days where everything is all about criminal background checks and instant alerts when a driver receives a DUI. We are entering a world where business continuity and resiliency are necessary. Companies are so reliant on contracted services or seasonal employee pools that if that roster of operators were found to be unsuitable, the business itself would not meet the demands of its customers.
Before the digital age, people only understood the driver vetting process to be based around a search of felony convictions. Enhanced vetting today often includes looking into a contractor’s background or its company from a different vantage point. Employers must begin to think about litigation history, negative media coverage and vocal social platforms, history of poor business practices or fraud, and more.
These are factors that need to be considered for a business to mitigate risk and maintain continuity of service in an era where timeliness and instant gratification are highly valued.