Although Congress directed the Federal Motor Carrier Safety Administration to prohibit carriers, shippers, receivers and transportation intermediaries from coercing drivers to violate certain federal safety and hazardous materials regulations the agency’s proposed rule also prohibits carriers from coercing drivers to violate certain commercial regulations.
FMCSA’s notice of proposed rulemaking was published in the May 13 Federal Register, and comments are due by Aug. 11. The NPRM’s major provisions define prohibited coercion, establish procedures for drivers to report incidents of coercion to FMCSA and set out rules of practice the agency would follow in response to allegations of coercion.
In the NPRM, FMCSA said it expected most violations to relate to hours-of-service regulations or vehicle maintenance, but the proposal covers a wide range of regulations, including those related to commercial driver’s licenses and controlled substances, for example.
In the highway authorization law known as MAP-21 Congress mandated that FMCSA ensure that any regulations adopted under the Motor Carrier Safety Act of 1984 (MCSA), as amended, do not result in coercion of drivers by motor carriers, shippers, receivers, or transportation intermediaries. The agency also proposes to prohibit entities that operate commercial motor vehicles in interstate commerce from coercing drivers to violate the commercial regulations.
“Applying the same ban to commercial provisions that are not immediately related to safety is nonetheless consistent with the goals of [MCSA Sec. 31136] and will help to inhibit the growth of a culture of indifference to regulatory compliance, a culture known to contribute to unsafe CMV operations,” FMCSA said. In addition, banning coercion to violate the commercial regulations is within broad authority transferred from the Interstate Commerce Commission, the agency said.
FMCSA said that coercion of drivers to violate commercial requirements could affect their ability to operate CMVs safety, such as requiring a driver to operate a vehicle when the owner had neither obtained operating authority registration from FMCSA nor filed proof of insurance. The coercion proposal covers other commercial regulations, including the leasing regulations that govern carriers’ use of owner-operators, for example.
Because the MAP-21 requirement that authorizes action against shippers, receivers and intermediaries applies only to safety and hazmat rules, the provision barring coercion to violate the commercial regulations applies only to operators of CMVs, which principally are motor carriers.
Violators would be subject to civil penalties of up to $11,000 per offense, and FMCSA could suspend, amend, or revoke the operating authority registration of a for-hire motor carrier, broker or freight forwarder. In determining the amount of any civil penalty, Congress directed FMCSA to consider a number of factors, including the nature, circumstances, extent, and gravity of the violation committed, as well as the degree of culpability, history of prior offenses and effect on the ability to continue to do business, the agency noted. “Congress, however, entrusted FMCSA with the responsibility to ensure motor carriers operate safely by imposing penalties designed to ensure prompt and sustained compliance with safety laws.”
“It's a good start to addressing the indifference of the rest of the supply chain to their role in safety. They have benefitted for too long from their practices of making drivers wait with no regard for the effect it has on drivers’ schedules, the need for rest or compliance with safety regulations. We would, however, like to know more about how the agency plans on enforcing the regulation as we continue to review the details of the proposal," said Norita Taylor, spokesperson for the Owner-Operators Independent Drivers Assn.
What is coercion?
As defined in the NPRM, coercion is a threat to withhold – or actually withholding – current or future business, employment or work opportunities from a driver for objecting to the operation of a CMV under circumstances that the threatening party “knew, or should have known” would require the driver to violate the regulations.
FMCSA said that the standard “knew, or should have known” is essentially a restatement of the common law principle of “respondeat superior,” which holds the “master” (employer) liable for the acts of his “servant” (employee). In most cases, FMCSA holds motor carriers responsible for the actions of their drivers, the agency noted.
“When a shipper, receiver, or transportation intermediary directs a driver to complete a run within a certain time, it has assumed the role normally reserved to the driver’s employer,” FMCSA said. “As such, it may commit coercion if it fails to heed a driver’s objection that the request would require him/her to break the rules. The shipper, receiver, or transportation intermediary will not be excused from liability for coercion because it did not inquire about the driver’s time remaining or pretended not to hear the objection.”
FMCSA emphasized that an act of coercion did not absolve the driver of his duty to comply with safety regulations and that a threat would not constitute coercion unless the driver objected or attempted to object to the operation of the vehicle for reasons related to the applicable regulations. The agency invited comments on whether and how drivers might modify their interactions with shippers, receivers and intermediaries in response to this requirement.
The agency noted that it is considering driver harassment and coercion as part of the electronic logging device rulemaking and that to the extent a coercion issue relates directly to the use of ELDs parties need to address it in that rulemaking given that the comment deadline is approaching.
Overlap with OSHA
FMCSA acknowledged that its proposed anti-coercion rule might overlap with the employee protection provision of the Surface Transportation Assistance Act (STAA), which is administered by the Occupational Health and Safety Administration within the Labor Department.
STAA prohibits discipline or discrimination against drivers who refuse to operate a CMV because doing so would violate a safety or health standard or because the driver reasonably believes the operation could harm himself or the public. If OSHA finds for the driver it can order the employer to reinstate the driver, pay back pay and compensatory damages, pay punitive damages up to $250,000 where warranted, and take other remedial actions, FMCSA noted.
The mandate for OSHA is to protect drivers while FMCSA’s mandate is safety, FMCSA said. And the tools available are different as FMCSA, unlike OSHA, cannot compensate the driver; instead it can impose civil penalties on the carrier, shipper, receiver or intermediary or suspend or revoke a carrier’s authority.
But it’s not necessarily an either-or situation. “A driver who files a complaint about discharge or other discrimination with OSHA may be able to file a complaint about coercion with FMCSA,” the agency said. But whether it’s an OSHA complaint or an FMCSA complaint, drivers “bear a substantial burden of proof. Neither OSHA nor FMCSA can proceed without evidence, and the driver will have to provide much of that evidence.”
The NPRM gives the driver up to 60 days to file a complaint with the FMCSA division administrator for the state where the incident occurred or where the party alleged to have coerced the driver has its principal place of business. Allegations brought to the attention of other FMCSA officials through letter, e-mail, social media, phone call or other means will be referred to the division administrator for the principal place of business of the entity alleged to have coerced the driver. Delays in transferring the allegation to the appropriate official do not stay the 60-day period for filing a written complaint.
If the FMCSA division administrator finds the complaint to be non-frivolous he will investigate, and the case will follow rules of practice already in place for other agency adjudications. FMCSA noted that prosecution of coercion in will require disclosure of the driver’s identity, so the agency will “take every practical means within its authority to ensure that the driver is not subject to harassment, intimidation, disciplinary action, discrimination, or financial loss as a result of such disclosure.”