OOIDA Asks the Tenth Circuit Court of Appeals to Rehear the DAC Report Case

The OOIDA is far from done with fighting the DAC in court. The Owner-Operator Independent Drivers Association filed a request last week in Denver so the Tenth Circuit Court of Appeals can rehear a USIS Commercial Services case. This company compiles the employment history of all drivers which is then used for yearly DAC reports. On August 19th, the Circuit Courts three judge bench made a ruling against the OOIDA in their attempt to appeal a verdict from August 2006. In those original court proceedings, the OOIDA was unsuccessful in claiming USIS had violated Fair Credit Reporting Acts in their business dealings. CDL truck driving jobs and Class A truck driving jobs were dealt a blow by this action.

As for the rehearing, it has been asked of the Court to provide an en banc (full court) and not a three person panel like in the past. This rehearing will focus mainly on appeals court findings that may actually deny truckers protections they might have had if reports by the DAC actually had the same standards as the FCRA. And, according to this petition, the three person panel ignored some 90 years of continual justice as they did not view the reports of the DAC with the letter of the law in mind.

Thus the decision of the court has made selling statements made by employers “out of bounds” of the FCRA if they contain “hearsay” information about employees. Randall Herrick-Stare, OOIDA attorney, stated that these FCRA exceptions are there so businesses that sell their customers charge account info to consumer reporting agencies and database operators for resale are allowed to do so. And the courts definition of first hand knowledge includes third party statements if about relevant subjects having to do with their employers business. So, if the statements are made dealing with a motor carriers business, there is no violation of the FCRA when selling driver hearsay to DAC.

But Herrick-Stare, the OOIDA attorney, believes the court became more concerned with free flowing information within situations of employment referencing. And since these situations don’t involve regular sales, the FCRA does not cover them. The attorney also noticed that this panel had made no comment about regular sale carrier submissions in DAC database where business owners provide information about their drivers and then earn credits applicable to future driver report purchases. Again, not a good sign for Class A truck driving jobs or CDL truck driving jobs. The second half of the OOIDA request of a rehearing deals with the fact that prior Court of Appeals rulings have undermined the integrity of reporting agencies to construct accurate reports.

USIS testimony allowed by the Court of Appeals dealing with follow-up calls about the DAC records of a driver made by carriers to his previous places of employment should never have been allowed, according to the OOIDA. That is because, with that allowance of testimony, the court decided that an account of post reporting and communications between total strangers would excuse the pre reporting behavior of consumer reporting agencies. The petition with the court states, “The rights of hundreds of thousands of drivers to compete fairly for jobs in the trucking industry are stake. The precedent created by this decision also has implications that go far beyond the trucking industry.”