"The onus is on the driver," says attorney Jordan Jones attorney and executive director of Truck Accidents Attorneys Roundtable, commenting on steps that drivers must take to file a coercion complain under the new regulations that went into effect on January 29. "The reporting requirements are actually pretty stringent."
Jones recommends the following filing procedure:
Step 1: The driver must first decide if his or her situation is actually coercion under the new regulations. Jones says, "There has to be a threat or an actual act against a driver. The threat or the actual act can be things like withholding business, negative ramifications for your employment, threatening to fire somebody, and threatening to punish somebody for refusing to violate the rules."
Step 2: The driver has to say something. "Before it becomes coercion, the driver has a duty to tell them 'I can’t do this because I’m going to be in violation of the rules.' The driver has to tell them generally which rules. He doesn't have to say 'section three-point-whatever,' but he has to say, for instance, "I cannot take this run because I would violate hours of service.' The reason why they [FMCSA] did that is because shippers and receivers, for example, may not necessarily know if a driver is out of hours. The onus is on the driver to speak up."
Important: Jones says that if the carrier, shipper, etc. backs off, then coercion did not occur.
Step 3: Document the incident. Drivers should write down what occurred. They should keep texts, emails and document phone calls or conversations.
Step 4: File a complaint. There are two ways, says Jones. "They can either send it to the FMCSA field office in the state where the driver is employed or on line at the FMCSA's National Consumer Complaint Database." There are three complaint areas, Consumer, Driver and Industry. Drivers should click "Driver" and follow the prompts.
Jones says that drivers have 90 days to report alleged coercion. "FMCSA has a duty to investigate. Then, once they investigate, they also have to notify the driver what the results are. They have to notify the driver in writing."
Step 5: File a complaint with OSHA under the Surface Transportation Assistance Act. (Optional but recommended) "I would definitely do that," says Jones. "When you look at the actual penalties under the new coercion rule, the only real penalty is that the agency can fine the company. The maximum is $16,000, but that doesn’t benefit the driver who was fired. He's out of a job." The Department of Labor also has separate whistleblower protection programs. "I would definitely recommend doing both or all three," Jones says.
Jones does have a major criticism of the new regulation. A complaint may affect a drivers' ability to move around the industry because filing are made public. "I think it may discourage some people to speak up. If they speak out against their trucking company and it’s made public, and then he gets fired, he’s got to look for a new job." The fact that the driver filed a complaint may dissuade others from hiring him. "He may be a guy who’s living paycheck-to-paycheck like everybody else. That’s what I personally don’t like about the new regulation, the public aspect of the complaint. It's not a perfect rule, but it's a step in the right direction."
Attorney William Taylor represents transportation industry interests at Hanson Bridgett and agrees that the onus is on drivers. "The claim process, frankly, is really cumbersome from a driver standpoint." The response of carriers, shippers, freight forwarders and others on the employment side, however, is more straightforward and simpler.
Like drivers, they should document the complaint. "The first thing, even before you have a complaint, is to have a mechanism in place to deal with the communication, a paper trail in effect. You do a prophylactic approach waiting for a potential claim within the 90-day window that a driver has to make a formal complaint" says Taylor. "You’re just lining up your defenses early if a claim is made."
At the same time, the person who receives the claim should have an alternative way of moving the load with as little delay as possible. "You've got the practical problem of an end user waiting for the load. You’ve got this interim issue to deal with because the driver says that 'I’m over hours' or 'I only have four hours and I can’t make a seven-hour trip.' Someone has to respond right away to cover the load. You have to find a replacement driver."
If a claim is justified, says Taylor, it could open a window to further legal action which has nothing to do with the original claim. He says that the new regulation carries a nuance that the driver is acting as an employee when he may have been classified as an independent contractor. "My biggest concern about this, other than the [coercion issue], is whether or not this regulation, when it involves an owner-operator or independent contractor, is that it will create another argument for a misclassification claim against the carrier. I think there’s definitely something there. It’s yet to be tested whether or not this will play into a misclassification claim."