New rule defines ‘driver coercion’ and demands lofty penalties for perpetrators
By Steve Brawner, Contributing Writer
A new FMCSA rule is meant to protect drivers from being coerced to violate rules by carriers, shippers, receivers and intermediaries.
The rule works in carriers’ favor by discouraging shippers from trying to force drivers to violate hours-of-service limits, CDL rules, drug and alcohol testing rules, and regulations governing hazardous materials.
But it also applies to carriers, and that could be a problem, said Dean Newell, Maverick Transportation vice president of safety and training.
“It kind of takes us out of the shipper saying, ‘This is the load, and if you want to continue doing business with us, you’re going to have to get it there.’ It stops all that stuff,” he said. “But on the flip side of that, it puts us right back in the middle of it. … If a driver’s disgruntled and he can make the accusation, then it’s up to us to do all the back office work in order to defend it. So to me, that’s not good.”
MAP-21, the nation’s previous surface transportation law passed in 2012, required the Federal Motor Carrier Safety Administration to create such a rule, which went into effect Jan. 29. Under the rule, drivers must make a complaint about coercion within 90 days of the incident. Penalties can be as high as $16,000 per violation, which will be deposited into the Highway Trust Fund.
The agency’s fines are usually limited to 2 percent of a firm’s gross revenue. However, the Federal Register published Nov. 30 states, “FMCSA will take aggressive action when a violation of the prohibition against coercion can be 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.”
The obvious concern is that drivers will make unsubstantiated claims for one reason or another. Prasad Sharma, an attorney partner at Scopelitis, Garvin, Light, Hanson & Feary, which represents motor carriers and intermediaries, said the FMCSA took that possibility into account.
“I would hope that’s not a frequent occurrence, but I think that does happen, and I think FMCSA recognized that in the rulemaking,” he said. “In fact, it kind of went out of its way to say, ‘Well, we may not pursue all claims. That doesn’t mean they’re false claims. It just means they’re unsubstantiated.’”
The agency published its notice of proposed rulemaking May 13, 2014, and received 90 submissions. The American Trucking Associations supported a ban on coercion but expressed concern about the rule’s effect on motor carriers’ relations with shippers, receivers and brokers. Others worried about unintended consequences, such as unfair allegations made by drivers. Concerns were expressed regarding whether entities would have to inquire as to the number of hours a driver had driven.
Room for improvement
Richard Pianka, ATA general counsel, said his group was supportive of the concept but concerned about the details, such as how to define “coercion.” He said ATA was generally pleased with the way FMCSA addressed those concerns.
“We definitely don’t think that anybody should be urging drivers to violate the hours of service rules,” he said. “We think compliance of hours of service rules is important, and so we certainly support in general FMCSA taking steps to ensure that nobody’s pushing drivers to drive outside their hours. … It’s a new rule, and like any new rule, we’ll have to see exactly how it plays out in practice.”
The final rule was amended to require the driver to make a specific objection in order for coercion to occur. That was a good change from the ATA’s perspective, Pianka said, because it means carriers and shippers won’t be required to guess at how much time a driver has left. Instead, the driver must object at the time the request is made and will have to show coercion occurred.
Sharma, a former American Trucking Associations general counsel, said other improvements would have kept the regulation out of some gray areas. While he’s glad that drivers must affirmatively object to a potential rules violation, he wishes the FMCSA would have required them to record their objections in writing at the time of the alleged incident. Such a move would help resolve disputes, he said.
Asked if a driver could be expected to do that in the moment, he said, “It seems to me if the driver is concerned enough that there’s going to be a violation, asking the driver to put that down at the time they’re making the objection would not be too far a step.”
Maverick’s Newell said the rule was needed in order for the FMCSA to implement its new rule requiring motor carriers to install electronic logging devices in trucks, a measure Maverick and the Arkansas Trucking Association support.
But he is also concerned about potential unforeseen effects.
“We’ve always been good when the driver said, ‘I’m tired;’ we just automatically shut them down,” he said. “My biggest fear, though, is, ‘OK, well, we shut them down and they miss a load that was going to get them home, are they going to construe that as coercion?”
One area that’s clear: A shipper or receiver can order a driver off its property, even if the driver claims he’s out of hours, without being guilty of coercion. The rule recognizes that property owners have a right to control access to their property, Sharma said.
The Federal Register documents that the Occupational Safety and Health Administration had determined that 253 whistleblower complaints against employers from 2009 through 2012 by drivers had merit (out of 1,158 complaints), while FMCSA had validated 20 allegations by drivers that they had been coerced by carriers (out of 91 complaints). Those complaints were all against employers, while the rule also applies to shippers, receivers and brokers.
The Register reported that drivers testifying at FMCSA listening sessions and before Congress said they were being coerced by carriers, shippers, receivers and others to deliver loads that would force them to violate hours of service and other regulations, or to operate vehicles with mechanical problems.
“The consequences of their refusal to do so are either stated explicitly or implied in unmistakable terms: Loss of a job, denial of subsequent loads, reduced payment, denied access to the best trips, etc.,” the Register said.
For carriers, it’s long been illegal to try to coerce a driver to violate rules, so the new rule may not be a “sea change” for them, Sharma said.
However, the rule brings shippers, receivers and intermediaries under the FMCSA’s regulatory realm. Pianka said the ATA will be looking to see how much overlap there will be between this rule and existing whistleblower protections enforced by OSHA. He said the ATA is concerned about potential duplicative enforcement now that a new procedure and a new enforcement agency have been added to the mix.
“On the whole, we think that shippers and intermediaries and so on should be our partners,” he said. “We should all be committed to drivers operating within the rules, and this extends prohibitions that motor carriers have always been under.”
Bruce Carlton, president and CEO of the National Industrial Transportation League, a shipper group, said that while the rule’s initial draft was too vague, the final rule is “a perfectly livable solution.”
Under the rule’s original wording, a shipper could have violated the rule by telling one carrier that its driver’s potential hours of service violation forced it to find another carrier – the argument being that the first carrier was being “coerced” by the threat of a loss of future business. That possibility eventually was dropped in the final rule.
“There was sort of an ambiguous sense that having direct normal business conversations could somehow be deemed to be coercion, and our reading of the final rule says that a shipper or receiver can have those normal conversations that they would encounter with any service supplier, and not have that translated immediately into a coercion,” he said.
He said an example would be, “You keep sending me drivers who only have 30 minutes left on their hours of service. I’ve got a seven-hour haul here. Why are you doing this?’”
“That’s not coercion,” he said. “That’s just saying, ‘Look, we need a better relationship between our companies.’”
For safety’s sake
He said shippers, like carriers, have no interest in taking actions that result in a safety issue or rules violation. “Bluntly, if there is a bad shipper out there who is in fact twisting arms on a driver to violate a rule, well, maybe that shipper should be taken out of the picture, right?” he said. “The highways are there to service the trade, and we all want them to be as safe as possible.”
Chris Burroughs, senior government affairs manager with the Transportation Intermediaries Association, said the FMCSA did listen to the various groups’ concerns as it improved its original approach. Changes eliminated what he called a “known or should have known” provision that placed too much responsibility on shippers, receivers and intermediaries who could not be expected to know what rules a driver would potentially violate. That rule would have been potentially perilous for intermediaries, whose industry standard is to avoid direct communication with drivers.
“In the proposed rule, they wanted the brokers to reach out to the carriers or to the specific driver and say, ‘Hey, do you have enough hours for this?’ We strongly oppose our guys doing that,” he said.
Maverick’s Newell said in an interview Jan. 11 that his company doesn’t “foresee a huge problem internally on our company.” The carrier had already started having classes to train employees on how to comply with the rule. Executives and operations personnel were practicing responses to various scenarios.
“Everybody’s got to be on the same page. … It needs to be a consistent message across the board,” he said. “‘We are not going to do this.’ ‘This cannot be said like this.’ Things like that.”
He said that, as with other areas of trucking, communication and relationships will be important in successfully navigating the regulatory environment. Maverick’s technology enables its back office employees to estimate how many hours a driver has been on the road. It’s accurate to the point where the driver approved his logs, and an internal system has been built that can predict when a driver will arrive at the destination. It can predict hours of service accurately, but not exactly. So the carrier must still communicate with the person operating the 80,000-pound vehicle, and for that communication to occur successfully, trust must be built.
“People forget, this is still a people business,” he said. “People come first. You’ve got to have relationships with the drivers.”