Previous Employer Safety Performance History Under § 391.23: What If They Never Reply (2026)

Published October 2, 2026 | TruckerNavi Inc | 36 min read

By the TruckerNavi compliance team, led by Dmitry Borovoy, a New Jersey-licensed insurance producer and author of Safety Manager: From Zero to Expert.

The short answer: you owe a three-year investigation, they owe you an answer in thirty days, and your deadline runs whether or not they honor theirs. Under 49 CFR 391.23(a)(2) every motor carrier must investigate the driver's safety performance history with DOT-regulated employers during the preceding three years. Under 391.23(g)(1) each previous employer must respond within 30 days after the request is received, and must respond even when there is nothing to report. And under 391.23(c)(1), within 30 days of the date the driver's employment begins, your driver investigation history file must contain either the replies or documentation of good faith efforts to obtain the investigation data. One limiter belongs in the same breath: 391.23(a) opens with "Except as provided in subpart G of this part", the Limited Exemptions, and two of them, § 391.63 and § 391.65, switch this investigation off entirely for a narrow class of drivers. Both are set out below.

Read that last clause again, because it is the entire practical answer to a silent employer. The rule does not require you to obtain a response. It requires you to be able to prove you asked properly. An investigator opening your file is not counting replies. He is looking for a dated, addressed, specific request and a written record of what came back or did not. A carrier with ten unanswered requests and ten written records of the attempts is compliant. A carrier with three replies and seven blank pages is not. Everything below is sourced to the rule text at 49 CFR 391.23, the file rules at 49 CFR 391.53, and the supporting sections cited in each section.

This is a walk-through of the federal rules as written, not legal or employment advice for a specific hire.

What is the safety performance history investigation, in plain terms?

It is the part of hiring where you write to the companies the driver worked for and ask what happened there. The regulation calls the whole section Investigation and inquiries, and it actually contains two separate obligations that people constantly merge into one:

• 391.23(a)(1), the motor vehicle record. An inquiry, within 30 days of the date employment begins, to each driver's licensing authority where the driver held or holds a license or permit during the preceding 3 years, for that driver's prior 3-year driving history. This one goes to the government. (Note the wording: the current text says "each driver's licensing authority"; the version in force on July 20, 2026 said "each State". The amendment took effect July 21, 2026, so a request template or office instruction written before that date is quoting a superseded phrase.)
• 391.23(a)(2), the safety performance history. An investigation of the driver's safety performance history with Department of Transportation regulated employers during the preceding three years. This one goes to private companies, who have no reason to love you and every reason to be slow.

The two also land in two different files, which is the single most common filing error in this area. The MVR goes into the driver qualification file under 391.51(b)(2). The safety performance history goes into a separate secure driver investigation history file under 391.53. What belongs in the DQ file itself, document by document, is laid out in the DQ file audit checklist; the annual repeat of the MVR inquiry is a different obligation covered in the annual MVR review.

Who exactly do I have to write to, and for how far back?

Three years, but the rule is more precise than "three years" and the precision matters when you build the list.

• The pool of employers. Under 391.23(d) you must investigate, at a minimum, the listed information from all previous employers of the applicant that employed the driver to operate a CMV within the previous three years. Not every job. The DOT-regulated driving jobs.
• "Previous employer" is a defined term, and it reaches into the present. Under § 390.5T it means any DOT regulated person who employed the driver in the preceding 3 years, including any possible current employer. A driver who is still on another carrier's payroll while applying to you is on the list, awkward as that letter is to write.
• The accident window. Under 391.23(d)(2) the accident data covers accidents that occurred in the three-year period preceding the date of the employment application. The anchor is the application date, not the hire date. If the application sat on a desk for six weeks, the window did not slide with it.
• The drug and alcohol window. Under 391.23(e) the D&A inquiry runs to previous DOT-regulated employers that employed the driver within the previous three years from the date of the employment application, in a safety-sensitive function that required part 40 testing.
• The request must be findable. Also in 391.23(d), and quietly important: the investigation request must contain specific contact information on where the previous motor carrier employers should send the information requested. A request with no return address is a defective request, and it is the first thing that makes "we asked, they ignored us" look weak.

Your source for the employer list is the employment application itself under 391.21, which is why a sloppy application quietly becomes a 391.23 problem two months later. Do not accept an application whose employment history block says "drove for a company" with no name, address or dates: you cannot write the request, and an investigator will later read that block line by line against what is in the file.

When the investigation does not apply at all: part 391 subpart G

391.23(a) begins with a limiter most checklists drop: "Except as provided in subpart G of this part." Subpart G, Limited Exemptions, contains §§ 391.61, 391.62, 391.63, 391.65, 391.67, 391.68 and 391.69. Two of them come up in small fleets:

• 391.63, multiple-employer drivers. A driver who, in any period of 7 consecutive days, is employed or used as a driver by more than one motor carrier. For that driver you need not require a 391.21 application, need not make the 391.23 investigations and inquiries, and need not perform the 391.25 annual inquiry or annual review. What you must obtain before he drives: his name, his social security number, and the identification number, type and issuing driver's licensing authority of his CDL, kept for three years after his employment with you ceases.
• 391.65, drivers furnished by another motor carrier. You may use another carrier's single-employer driver without the generally applicable driver qualification file requirements, on that carrier's signed written certificate that the driver is fully qualified under part 391. The certificate must carry the driver's name and signature, the expiration date of his medical examiner's certificate, and its own expiration date, no longer than 2 years and never past the medical card. You must then contact the certifying carrier to verify the certificate is valid, and keep a copy for three years.

Neither is a shortcut for an ordinary hire. If the driver will be your own single-employer driver, subpart G does not reach you and the full 391.23 investigation applies.

How much time do they have, and how much do I have?

Two separate 30-day clocks that never touch each other. Confusing them is the most expensive misunderstanding in this section.

Their clock, 391.23(g)(1). Previous employers must respond to each request for the paragraph (d) and (e) information within 30 days after the request is received. The count starts at receipt, not at your mailing, which already hands them the postal float. Then comes the sentence that closes the obvious loophole: if there is no safety performance history information to report for that driver, previous motor carrier employers are nonetheless required to send a response confirming the non-existence of any such data, including the driver identification information and dates of employment. A clean driver still produces a letter.

Your clock, 391.23(c)(1). The replies or the documentation of good faith efforts must be in the driver investigation history file within 30 days of the date the driver's employment begins. Not from the application date, not from the day you mailed the request. From the day the person started working for you.

Run the arithmetic once and it changes the office routine permanently. Say the driver signs the application on March 1 and starts on March 10. Your deadline is April 9. If you mail the requests on March 10, the previous employer holds a lawful 30 days from receipt, roughly to April 12 once mail time is counted, and his lawful deadline falls after yours. He has violated nothing, and your file is empty. The only way to separate the clocks is to send every request on the day the application is signed. Every day you wait comes out of your thirty, not theirs.

One carve-out is written into the text and worth knowing in advance: any period of time required to exercise the driver's due process rights to review the information, request a correction, or include a rebuttal is separate and apart from the 30-day requirement. A dispute between the driver and a previous employer does not freeze your file and does not move your deadline. Your own slow mail is not carved out.

What must the previous employer actually send back?

Two blocks, and only two are mandatory.

Block one, 391.23(d), the safety side:

1. General driver identification and employment verification information, meaning the driver worked there, on these dates, under this name.
2. The accident data elements specified in 49 CFR 390.15(b)(1), which is the accident register list: date of accident; city or town, or most near, and the State; driver name; number of injuries; number of fatalities; and whether hazardous materials other than fuel spilled from the fuel tanks of the vehicles involved were released.

A qualifier that saves a lot of arguing: "accident" here is a defined term, not everyday English. Under the definition it means an occurrence involving a CMV on a highway that results in a fatality, in bodily injury to a person who as a result immediately receives medical treatment away from the scene, or in one or more vehicles incurring disabling damage requiring tow-away. It expressly excludes an occurrence involving only boarding and alighting from a stationary vehicle, and one involving only loading or unloading of cargo. So a scraped mirror in a truck stop is not on the mandatory list, and a previous employer who leaves it out has not violated anything.

Block two, 391.23(e), the drug and alcohol side. Whether within the previous three years the driver violated the prohibitions in part 382 subpart B or part 40; whether the driver failed to undertake or complete a rehabilitation program prescribed by a substance abuse professional; and, for a driver who completed a SAP referral and stayed with the referring employer, whether there were later alcohol tests at 0.04 or higher, verified positive drug tests, or refusals to test including verified adulterated or substituted results. How this half is now answered has changed, and that is the next section.

One detail inside 391.23(e)(2) is routinely missed, and it is the escape hatch for the half of the investigation that looks unanswerable. If the previous employer does not know whether the driver completed the SAP referral (the rule's own example is an employer that terminated an employee who tested positive on a drug test and never learned what happened next), then the prospective motor carrier must obtain documentation of the driver's successful completion of the SAP's referral directly from the driver. Silence on this point is not a dead end; the rule tells you where to go instead.

Optional and not demandable: under 391.23(d)(2)(ii) a previous employer may volunteer minor accident detail it keeps under 390.15(b)(2) or its own internal policy. You can ask. You cannot treat a refusal as non-compliance.

The working table: what you request, from whom, by when, and what happens if nobody answers

Print this one. Each row is a separate obligation with a separate failure mode.

Why did the drug and alcohol half stop going to previous employers?

Because the Clearinghouse now holds three full years of data, and FMCSA closed the manual route on purpose.

Under 391.23(e)(4): as of January 6, 2023, employers subject to § 382.701(a) must use the Drug and Alcohol Clearinghouse to comply with this section with respect to FMCSA-regulated employers. FMCSA's own Clearinghouse notice on pre-employment investigations puts it bluntly: from that date, prospective employers must conduct a pre-employment query under § 382.701(a), and inquiries not conducted under § 382.701(a) will not satisfy these inquiry requirements.

What that changes in practice:

• The old paper D&A questionnaire to a trucking company is dead weight for FMCSA-regulated history. Sending it does no harm, but it does not close the requirement, and a file that contains only that questionnaire has a hole in it.
• The query must be a full query. Under 382.701(a)(2) the employer must conduct a full query, which releases the information and requires the individual driver's specific consent. The limited query is the tool for the annual check under 382.701(b), not for hiring.
• Two carve-outs survive in the rule text. Under (e)(4)(ii) you must still request D&A information directly from employers regulated by a DOT mode other than FMCSA, because that data is not in the Clearinghouse. Under (e)(4)(i), if the applicant is subject to follow-up testing and has not completed all follow-up tests, you must request the follow-up testing plan directly from the previous employer per 49 CFR 40.25(b)(5).
• Consent is a hard gate on both sides. 391.23(f)(1): you must give the previous employer the driver's consent meeting § 40.321(b), and if the driver refuses to provide it, you must not permit that driver to operate a CMV. 391.23(f)(2) says the same about refusing consent for the Clearinghouse query.

The annual limited query is a separate obligation on a separate calendar, worked through in the annual Clearinghouse query process. The rest of the drug and alcohol program, from the consortium to random selection, sits outside this article. What matters here is that the safety half of the investigation still moves by mail and telephone, and that is where the silence happens.

What do I actually do when the previous employer goes silent?

This is the practical core, and the rule answers it directly rather than leaving you to improvise. Three steps, in order.

Step 1. Build a record that survives a stranger reading it

391.23(c)(2) is unusually specific about what a written record must contain. The investigation itself may be anything you like: personal interviews, telephone interviews, letters, or any other method the carrier deems appropriate. But for each previous employer contacted, or each good faith effort to do so, the record must include:

• the previous employer's name and address;
• the date the previous employer was contacted, or the attempts made;
• the information received about the driver from the previous employer.

And then the sentence that governs this whole article: "Failures to contact a previous employer, or of them to provide the required safety performance history information, must be documented." Silence is not a gap in the file. Silence is a thing you are required to write down.

Step 2. Report the non-responder to FMCSA, and keep the report

391.23(c)(3): prospective employers should report failures of previous employers to respond to an investigation to FMCSA using the complaint procedures at § 386.12, and keep a copy of the reports in the driver investigation history file as part of documenting a good faith effort to obtain the required information.

That last clause is why this step is worth twenty minutes. The complaint is not primarily a weapon against the other carrier. It is evidence in your own file. A printed complaint confirmation converts "we called a few times" into a dated federal record of the attempt. Under 386.12(a)(1) the complaint is filed in writing with the National Consumer Complaint Database at nccdb.fmcsa.dot.gov or with any FMCSA Division Administrator, must be signed, and must contain your name, address and telephone number; the name and address of the alleged violator with the specific provisions you believe were violated (here, 391.23(g)(1)); and a concise but complete statement of the facts including the date of each alleged violation. Information on filing is available at 1-888-DOT-SAFT (1-888-368-7238).

Two honest caveats. First, 386.12(a)(1) frames the process around a substantial violation, which the same paragraph defines as one "which could reasonably lead to, or has resulted in, serious personal injury or death". A silent HR desk fits that definition awkwardly, which is part of why the complaint is worth filing for your own paper trail rather than for the outcome. The same paragraph sets a filing window of no later than 90 days after the event, so file promptly rather than in a batch at the end of the year. Second, the Division Administrator screens complaints and investigates the non-frivolous ones; you should not expect the missing history to arrive as a result. The point is the paper trail.

Step 3. Close the file inside your own 30 days anyway

Nothing about their silence pauses your clock. 391.23(c)(1) requires the replies or the documentation of good faith efforts in the file within 30 days of the date employment begins. The same paragraph carves out one thing and one thing only: any time needed for the driver to exercise due process rights to review the information, request a correction or add a rebuttal is separate and apart from that 30-day requirement. Your own slow mail is not carved out.

What does a "documented good faith effort" look like on paper?

The regulation never defines the phrase, so build to the elements it does name in 391.23(c)(2) and keep the evidence a stranger can verify:

• A dated copy of what you sent, including the specific contact information for the reply that 391.23(d) requires, and the driver's signed release.
• Proof of transmission, not just intent: a fax confirmation, a certified mail receipt, an email in the sent folder, a returned envelope.
• A contact log with the date of every attempt, the method, the person spoken to, and what was said. Two or three attempts by different methods reads as diligence; one letter reads as a formality.
• The name and address you used, so a reviewer can see you wrote to a real company at a findable address rather than to a guess.
• A copy of the 386.12 complaint, per 391.23(c)(3).
• A short closing memo stating what was requested, from whom, when, and that no response was received as of a stated date. This is the page an investigator reads first.

The pattern here is the same one that governs the road test and its substitutes: the regulation cares less about the outcome than about the documented, dated act. That logic is worked through for a different document in the road test and its accepted equivalents.

Where do these records live, and who is allowed to open them?

Not in the driver qualification file, and not in the shared drive everyone in the office can reach.

49 CFR 391.53 creates a separate driver investigation history file and puts four conditions on it:

• Secure location with controlled access. That is the literal wording of 391.53(a).
• Access limited to those involved in the hiring decision or who control access to the data. The motor carrier's insurer may have access except the alcohol and controlled substances data.
• Use limited: "This data must only be used for the hiring decision." Not for a later termination argument, not for a dispatch dispute.
• Contents fixed by 391.53(b): a copy of the driver's written authorization to seek the alcohol and controlled substances history under 391.23(f)(1), and a copy of the responses from each previous employer or documentation of good faith efforts to contact them, with name and address, date contacted, and information received. Failures to contact, or of them to provide, must be documented here too.

The confidentiality duties are mirrored on the sending side. Under 391.23(h) the previous employer and its agents and insurers must protect the records from disclosure to anyone not directly involved in forwarding them, and the previous employer may not provide any alcohol or controlled substances information to its own insurer. Under 391.23(k) the same applies to you as the prospective employer: use the information only as part of deciding whether to hire, and do not give the alcohol and controlled substances information to your insurer.

Precision note on the second and third rows: 391.53(c) is worded narrowly. It says the safety performance histories received from previous employers for a hired driver must be retained for as long as the driver is employed and for three years thereafter. It does not separately name the release form or the documented attempts. Keep the whole file on that same clock anyway: 391.53(d) requires you to produce everything in it on request, and a file missing the release is the finding, not the argument.

What rights does the driver have over what gets sent about him?

More than most carriers realize, and the notice duty falls on you, before you decide anything.

Under 391.23(i)(1), a driver with DOT-regulated employment in the preceding three years must be expressly notified, via the application form or another written document and prior to any hiring decision, of three rights: to review the information provided by previous employers, to have errors corrected by the previous employer and re-sent, and to attach a rebuttal statement if the driver and the previous employer cannot agree.

The mechanics, all in the rule text:

• When the driver can ask. A written request, at any time, including when applying or as late as 30 days after being employed or being notified of denial of employment (391.23(i)(2)).
• How fast you answer. Within five business days of receiving the written request. If you have not yet received the history from the previous employer, the five days start when you do.
• When the request lapses. If the driver has not arranged to pick up or receive the records within 30 days of your making them available, you may treat the request as waived.
• Corrections. The driver sends the correction request to the previous employer, not to you. Under 391.23(j)(2) that employer must either correct and forward the data, or notify the driver within 15 days that it does not agree to correct it.
• Rebuttals. Under 391.23(j)(4), within five business days of receiving a rebuttal the previous employer must forward a copy to you and append it to the driver's information for the duration of the three-year retention requirement. A driver may file a rebuttal without first requesting a correction.
• Escalation. Under 391.23(j)(6) the driver may report a previous employer's failure to correct or to include a rebuttal to FMCSA under the same § 386.12 procedure you use.

Practical consequence for a small carrier: the due process clock is not your 30-day clock. 391.23(c)(1) says any time needed for the driver to exercise these rights is separate and apart from the 30-day file requirement, so a dispute in progress does not excuse an incomplete file and does not have to be resolved before you close it.

Can a previous employer be sued for telling the truth?

This is the reason many small carriers refuse to answer at all, and the rule addresses it head on. 391.23(l)(1) states that no action or proceeding for defamation, invasion of privacy, or interference with a contract based on the furnishing or use of information in accordance with this section may be brought against the carrier investigating the information, the person who provided it, or their agents and insurers, with insurers excluded from that limitation for alcohol and controlled substance information.

The protection is conditional, and the condition is the interesting part. Under 391.23(l)(2) it does not apply to persons who knowingly furnish false information, or who are not in compliance with the procedures specified for these investigations. Read together with 391.23(g), that produces a blunt operational conclusion for the day you are on the answering side:

What does the answering side owe, and what do most carriers get wrong?

Every carrier is on both sides of this eventually. Your obligations as the previous employer, from 391.23(g):

1. Respond within 30 days after the request is received, to requests for the paragraph (d) and (e) information.
2. Respond even when there is nothing to report. The rule is explicit: you are "nonetheless required to send a response confirming the non-existence of any such data, including the driver identification information and dates of employment." A clean driver still generates a letter.
3. Take all precautions reasonably necessary to ensure the accuracy of the records you send.
4. Provide specific contact information in case the driver wants to dispute or rebut what you sent.
5. Keep a record of each request and the response for one year, including the date, the party it was released to, and a summary of what was provided.

Under 391.23(h) the release "may take any form that reasonably ensures confidentiality, including letter, facsimile, or e-mail", so the format is not the obstacle anyone pretends it is. The three failures that show up repeatedly: sending nothing because there was nothing to say; answering by phone with no written copy retained, which fails the one-year record duty in (g)(4); and forwarding drug and alcohol information to the company's own insurance agent, which 391.23(h) prohibits outright.

What does an investigator pull on this during an audit?

Under 391.53(d) a motor carrier must make all records and information in the driver investigation history file available to an authorized FMCSA representative or special agent, an authorized State or local enforcement representative, or an authorized third party, upon request or as part of any inquiry, within the time period the requesting representative specifies. There is no roadside version of this. It is an office exercise, and it is done file by file.

What the reviewer is checking, in the order it usually happens:

• Does the driver investigation history file exist as a separate file at all? A carrier that keeps everything in one folder has already failed the security and access conditions in 391.53(a), regardless of contents.
• Is the driver's written release in it? 391.53(b)(1). Missing releases are common because the form is signed at the interview and then filed with the application.
• For each employer on the application, is there either a reply or a documented attempt? Names are cross-checked against the employment application. An employer listed on the application with nothing corresponding in the investigation file is the classic finding.
• Are the dates inside the windows? File complete within 30 days of employment start; accident data covering the three years before the application.
• Was the Clearinghouse pre-employment query run before the driver drove? This is now the D&A half of the same investigation.
• Is anything in the file being used for something other than hiring? 391.53(a)(2) and 391.23(k)(1) both restrict it to the hiring decision.

A related trap worth naming because it sits in the same file drawer: the medical side of qualification runs on completely different rules and different files, including the self-certification the driver files with the licensing authority. Those are covered in medical certificate self-certification and, when it goes wrong, in CDL downgrade over an expired medical card.

A routine that keeps this file clean for a small fleet

1. Send all requests on the day the driver signs the application, not on the day he starts. Every day you wait comes out of your own 30 days, not theirs.
2. Use one request template that names the driver, the dates claimed, the specific information required by 391.23(d) and (e), your return address, fax and email, and a plain reference to the 30-day response duty under 391.23(g)(1). Attach the signed release. A request that quotes the rule gets answered more often.
3. Run the Clearinghouse full query before the driver touches a truck, and file the result. It is not optional and it is not the annual limited query.
4. Log every attempt the same day: date, method, person, outcome. A log built later is worth much less than a log built as you go.
5. At day 20, escalate. Second mailing plus a phone call to anyone still silent. That leaves ten days to file the 386.12 complaint and write the closing memo inside the window.
6. At day 30, close every driver either way. Reply filed, or memo plus log plus complaint filed. Never leave a name open.
7. Keep the investigation file physically or digitally separate with restricted access, and never copy alcohol or controlled substances information to your insurance agent.
8. Answer other carriers' requests within 30 days, including the "nothing to report" letters, and keep your copy for a year. You are protected when you comply and exposed when you do not.

FAQ

Related articles

• The Annual MVR Review: What It Is and What Goes in the File
• The Road Test and Its Accepted Equivalents
• Medical Certificate Self-Certification: How It Reaches the State
• CDL Downgrade Over an Expired Medical Card
• Driver Qualification File: The Full Audit Checklist