Question: We’re required by our insurer to run a motor vehicle report (MVR) for all employees who drive company vehicles. Does running MVRs trigger Washington’s Fair Chance Act (FCA) compliance, and what kind of release or consent should we obtain prior to running the MVR?
Answer: Yes, running an MVR can trigger the FCA requirements. In terms of what consent to get, use the Washington Department of Licensing’s release if you’re running the MVR yourself. If you’re using a third party to run the MVR, also collect the normal consent you use when a third party does a background check for you.
Special analysis and disclosure requirements under the FCA are required if you want to take a “tangible adverse employment action” (rejecting an otherwise qualified applicant, or disciplining, suspending, demoting, denying a promotion for, or terminating an employee), based on an “adult conviction record” (any information about adult criminal convictions, including records related to the conviction such as citations; see RCW 49.94.005(1) for the full definition). An MVR will include incidents that involve criminal conduct, such as convictions for DUI or vehicular assault, so it can show information covered by the FCA. Concerningly, the Washington State Attorney General’s FCA webpage goes even further than the statute by using the much broader term of “criminal records” (RCW 49.94.005(3)) in its FCA summary of the analysis and disclosure requirements related to a tangible adverse employment action. This expansive reading is a reminder that as you analyze whether your MVR triggers the FCA, erring on the side of caution and applying the FCA will be wise.
With all of this in mind, before you take adverse action based on an “adult conviction record” that you find in the MVR, be sure to comply with the requirements of the FCA. Those steps include analyzing whether there is a “legitimate business reason” for taking the adverse action, and making multiple notifications to the employee during the process. See our Legal Guide, Background Checks: Simple Third-Party Reports, particularly the Washington content on pages 7-13, for a full breakdown of the steps.
For your consent or release, if you’re running the MVR yourself, follow the steps for employers on the Department of Licensing’s webpage for how to get another person’s driving record, which include obtaining a Driving Record Release of Interest. If you’re using a third party to run the MVR, also have the employee sign a standard disclosure and authorization, as you would for any background check process. See page 8 of our Model Form, Background Checks: Federal, Oregon, and Washington Notices, for a sample standard disclosure and authorization.
Members: As always, let your Vigilant Law Group employment attorney know if you have any questions about your situation or process.
