On November 30, 2015 the FMCSA published a new rule, Prohibiting Coercion of Commercial Motor Vehicle Drivers, or the driver coercion rule. The rule gives commercial truck and bus drivers additional protection from being coerced into violating federal motor carrier safety regulations (FMCSRs) and will go into effect on January 29, 2016.
What is the Driver Coercion rule?
The driver coercion rule prohibits any entity that operates a commercial motor vehicle in interstate commerce from coercing a driver, and gives the FMCSA enforcement authority over shippers, receivers, and transportation intermediaries, as well as other motor carriers.
This rule came in response to complaints from commercial drivers who reported being pressured by carriers to violate federal safety regulations, including hours of service limitations, CDL requirements, drug and alcohol testing, and hazardous materials regulations. The rule establishes exactly what constitutes driver coercion, as well as what the driver and the FMCSA must do in response.
In general, driver coercion must involve threats for job termination, reduced pay, and forfeiture of favorable work hours or future transportation jobs. Examples include:
- A carrier demanding that a schedule be met that would be impossible without violating hours of service restrictions
- Compelling a driver to bypass important federal safety regulations and potentially endanger other drivers on the road.
While the driver coercion rule has been touted as "a long time coming" and is a response to what seems like an age-old problem, what are the real-world implications?
How is coercion defined under the rule?
FMCSA defines "coercion" as, "[a] threat by a motor carrier, shipper, receiver, or transportation intermediary...to withhold business, employment or work opportunities from, or to take or permit any adverse employment action against, a driver in order to induce the driver to operate a commercial motor vehicle under conditions which the driver stated would require him or her to violate one or more of the [applicable FMCSA] regulations, which the driver identified at least generally...or the actual withholding of business, employment or work opportunities or the actual taking of any adverse employment action to punish a driver for having refused to engage in such operation."
Under the rule, the driver must be able to identify the problem clearly enough ("at least generally") to enable FMCSA to determine that it falls within a requirement or prohibition of the Agency's regulations. It will be sufficient, for example, if the driver indicates that he or she objects to a particular trip because of an hours of service problem or a maintenance issue.
The act of coercion is complete when the attempt to coerce is made. The attempt must include some kind of threat; merely asking a driver to make a trip that would violate a regulation would not constitute coercion. The driver must inform the motor carrier, shipper, receiver, or transportation intermediary when he or she cannot make a requested trip without violating one or more of the applicable regulations. If a coercion attempt occurs, the driver must make a complaint within 90 days.
What is the role of the shipper?
Shippers cannot coerce a driver to violate a rule, and the motor carrier cannot charge a shipper with coercion. The clarified rule allows a shipper or transportation intermediary to call a motor carrier and request another driver or to give the load to a different motor carrier. Neither action would attempt to force a driver to violate the FMCSRs, nor would they involve a threat to take other adverse employment action against the driver.
This final rule does not require shippers, receivers, and transportation intermediaries (unlike motor carriers) to monitor a driver's compliance with the HOS rules or other regulations. But 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."
How does the rule impact brokers?
Brokers are not employees of a motor carrier, nor are motor carriers agents or representatives of brokers. In a normal arms-length transaction, the broker deals with a motor carrier, not an individual driver. The motor carrier must comply with the FMCSRs and must assign a driver who has sufficient hours to complete the trip on the schedule outlined by the broker and to provide equipment that meets standards. If coercion occurs, it is likely on the part of the motor carrier that employs the driver.
How will FMCSA handle coercion claims?
While the FMCSA will review all reports of coercion, the Agency cannot take action against a carrier unless there is evidence that an unfavorable report on a driver was motivated by a desire to punish a driver for refusal to be coerced. FMCSA will take aggressive action when an instance of coercion is substantiated. This action will include civil penalties consistent with the regulations, and may include initiation of a proceeding to revoke the operating authority of a for-hire motor carrier.
In addition, it should be noted that drivers' identities would not remain confidential in coercion cases. A party accused of coercion cannot defend itself without knowing the name of the accuser and when and where the alleged incident occurred. This rule does not cover retaliation for reporting incidents that cannot be substantiated.
Industry response to the rule so far can be best described as mixed. The rule is vague and at this point there are more questions than answers.