New DOT rule to protect truck drivers against coercion

The Federal Motor Carrier Safety Administration says a new rule will allow it to crack down on companies that force drivers to violate safety regulations in order to make on-time deliveries or otherwise avoid compliance costs.    Motor carriers, transportation intermediaries, shippers and receivers who pressure commercial truck and bus drivers to skirt federal safety regulations in order to maintain schedules will be subject to enforcement action, according to a new rule issued by the Federal Motor Carrier Safety Administration on Friday.
   The document says the agency will investigate complaints of coercion, including threats to fire an employee or suspend future business, and could levy civil penalties of up to $16,000 per violation, up from $11,000 in the proposed rulemaking. In extreme cases of non-compliance, the FMCSA could even seek to revoke a carrier’s operating authority.
   A shipper, for example, that urges a carrier to instruct drivers to make deliveries on time without regard to whether the daily cap on hours driven has been exceeded could be targeted for investigation under the rule, as could a trucking company that advises drivers to overlook maintenance problems.
   Drivers have complained for years that parties in the supply chain often don’t seem to care about operational limits placed on them by federal regulations. They say they are forced to operate vehicles with mechanical issues, and violate hours-of-service regulations, as well as rules related to driver’s licenses, drug and alcohol testing, and transporting hazardous material to get the job done, or else face consequences such as job termination, denial of subsequent loads, reduced payment, or denial of access to good routes and favorable work hours. Threats of retaliation can be stated explicitly or be implied.
   Between 2009 and 2012, the Occupational Safety and Health Administration received 253 valid whistleblower complaints from commercial motor vehicle drivers and Department of Transportation investigators fielded 20 more coercion allegations, according to the final rule published in the Federal Register.
   “Our nation relies on millions of commercial vehicle drivers to move people and freight, and we must do everything we can to ensure that they are able to operate safely,” Transportation Secretary Anthony Foxx said in a statement. “This rule enables us to take enforcement action against anyone in the transportation chain who knowingly and recklessly jeopardizes the safety of the driver and of the motoring public.”
   The final rule takes into account concerns voiced by the Transportation Intermediaries Association, the National Industrial Transportation League and other trade groups that the original definition of “coercion” could ensnare shippers for simply making rational decisions to find alternative means to move a time-sensitive load.
   “Read literally, the definition would now make it a violation for a shipper or transportation intermediary to refuse a load to a driver if it ‘knew or should have known’ that the driver was about to exceed or already had exceeded the HOS regulations,” the TIA said in written comments filed with FMCSA. “Yet, the shipper or transportation intermediary could not properly request that the driver perform the transportation, as it would then be both ‘coercing’ the driver and aiding and abetting the HOS violation. So, if a driver assigned by a motor carrier shows up to pick up a load and advises the shipper or transportation intermediary that he or she cannot lawfully handle the load due to HOS or other concerns, the shipper or transportation intermediary would not be able to contact the carrier and request that they replace the driver. Instead the load would just sit. This is a catch 22…”
   The FMCSA said it reworked the proposed rule to address that type of unintended consequence.
   “Obviously, a shipper or transportation intermediary should not be liable for withholding a load from a driver who has stated that he or she could not make the trip without violating the federal motor carrier safety regulations,” it said. There is no coercion to violate regulations when a shipper gives a load to another carrier when a driver cannot meet the requested delivery schedule due to hours-of-service limits.
   The new language prohibits taking or permitting any adverse employment action rather than withholding “current or future business, employment or work opportunities.”
   The final rule, which goes into effect in 60 days, also spells out procedures for commercial drivers to report incidents of coercion to the FMCSA.
   “No commercial driver should ever feel compelled to bypass important federal safety regulations and potentially endanger the lives of all travelers on the road,” FMCSA Acting Administrator Scott Darling said of the new rule.
   The rulemaking was authorized by Congress in the 2012 MAP-21 transportation reauthorization bill.