Despite a rule against forcing drivers to knowingly violate federal regulations, it’s unclear if it has helped
A little more than a year ago, the Federal Motor Carrier Safety Administration began enforcing a federal coercion rule against stakeholders in the supply chain. While the rule, officially called the Prohibiting Coercion of Commercial Motor Vehicle Drivers (coercion rule) and formerly enacted on Jan. 29, 2016, applies to anyone in the supply chain, it is most commonly considered a driver protection rule.
What it does not seem to have done, though, is increase the number of coercion complaints. That could change come December, though, as truck drivers with their newly installed (and mandated) electronic logging devices (ELD), feel empowered to more actively report coercion by shippers or their carrier employers.
“I have not seen any particular police action regarding coercion,” David Heller, vice president of government affairs for the Truckload Carriers Association, told FreightWaves. “I am hoping that the agency will start to look at this language as the [ELD] compliance date draws near in an effort to combat detention time. As of December, they will finally have electronic proof of detention time, whether they choose to do something about it is the million-dollar question.”
Officially, the coercion rule came about because drivers complained of being forced to violate federal regulations related to things such as hours-of-service, CDL, drug and alcohol testing, and the transportation of hazardous materials.
“During the four-year period from 2009 through 2012, OSHA determined that 253 whistleblower complaints from CMV drivers had merit.” FMCSA said in the official documentation announcing the rule. “In the same period, FMCSA validated 20 allegations of motor carrier coercion of drivers that were filed with DOT's OIG. This is an average of 68.25 acts of coercion per year during the four-year period.”
A FreightWaves request made to FMCSA for information on the number of coercion complaints filed in 2016 was not answered.
According to FMCSA, a shipper, receiver, or transportation intermediary “may commit coercion if it fails to heed a driver’s objection that the request would require him/her to break the rules.”
The belief by many prior to the rule was that drivers failed to object to a shipper or carrier demanding they drive for fear of losing their job. The coercion rule was meant to provide some legislative support for drivers with fines up to $16,000 per violation.
“Any time a motor carrier, shipper, receiver, freight-forwarder, or broker demands that a schedule be met, one that the driver says would be impossible without violating hours-of-service restrictions or other safety regulations, that is coercion,” said Scott Darling, FMCSA acting administrator at the time. “No commercial driver should ever feel compelled to bypass important federal safety regulations and potentially endanger the lives of all travelers on the road.”
For coercion to occur, FMCSA says the following must exist:
- A motor carrier, shipper, receiver, or transportation intermediary request a driver to perform a task that would result in the driver violating certain provisions of the FMCSRs, HMRs, or the FMCCRs;
- The driver informs the motor carrier, shipper, receiver, or transportation intermediary of the violation that would occur if the task is performed, such as driving over the hours of service limits or creating unsafe driving conditions; and
- The motor carrier shipper, receiver, or transportation intermediary make a threat or take action against the driver’s employment or work opportunities to get the driver to take the load despite the regulatory violation that would occur.
Whether drivers remain afraid to file objections at this point for fear of retaliation is unclear. Annette Sandberg, principal of TransSafe Consulting and a former administrator of FMCSA, echoed Heller’s comments regarding violations – there just hasn’t been any noticeable uptick, she says.
Heller hopes the coercion language will help curb detention times, “but FMCSA is not real clear on whether they have congressional authority to use ELD data for a purpose that is not coercion.”
What is clear, though, is that anyone who violates the coercion rule faces stiff penalties. With the addition of ELDs in December, the hammer may finally swing to drivers, so it will bear watching to see if there is a sudden uptick in complaints.