In the driver’s seat

June 5, 2014
Obama administration is trying to put drivers in charge

From the dawn of the trucking industry—and certainly since the big growth period following deregulation—trucking executives have talked about building their companies around the driver.  How close the reality matches the rhetoric depends mostly on market conditions, but over the past couple of years, a qualified driver’s importance and leverage has never been greater.  Yet, the Federal Motor Carrier Safety Administration (FMCSA) is trying to give drivers still more leverage.

In an interview last month with Fleet Owner, FMCSA Administrator Anne Ferro responded to a question about what one thing she would do to improve truck safety if she did not have to worry about Congress or the courts.  “Improve drivers’ working conditions and compensation,” Ferro said.  “Treat them as professionals every step of the way.  Give them a reasonable work life, a reasonable work schedule, and a reasonable pay for the very difficult job they do.”

Based on FMCSA’s recent actions, it’s obvious this isn’t just talk. The most dramatic example is a provision in the Dept. of  Transportation’s highway reauthorization proposal to force carriers to pay drivers at least minimum wage for detention or other time spent on duty but not driving.

Congress will never agree to the driver compensation measure, but FMCSA does have authority to impose other changes that could get drivers more leverage and freedom.  The new electronic logging device proposal, for example, includes measures aimed at reducing the opportunity for driver harassment.  True, a federal appeals court forced FMCSA to address harassment, but the agency might have gone further than necessary.

Last month, FMCSA proposed to bar carriers, shippers, receivers and brokers from coercing drivers to violate certain regulations. Congress mandated the rule, but again, the agency went beyond the mandate.

Under FMCSA’s proposal, 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 noted that in some cases a driver could complain to FMCSA about coercion and to the Occupational Health and Safety Administration (OSHA) about discrimination regarding the same event.  With OSHA we’re talking real money.  In November, OSHA ordered a trucking company that had only about 60 trucks to pay more than $1 million.

It’s a good bet that many won’t understand the regulations well enough to know whether they are coercing a driver to violate a regulation.  So if a driver, for whatever reason, doesn’t want to haul or wait for a load, the anti-coercion regulation could be a “get out of work” card.

Like OSHA does already, FMCSA investigators would first determine whether a complaint is frivolous, and surely many will be. According to a recent General Accountability Office study, 51% of the closed whistleblower complaints involving truck and bus drivers in fiscal 2013 were dismissed.

The ultimate outcome of coercion and whistleblower complaints isn’t the only, or perhaps even the most, important issue, however.  A mere threat by a driver to file a complaint could be enough to put the driver in the driver’s seat.

Beltway Briefs

  • FMCSA extended until June 26 the comment period on the proposed rule on electronic logging devices and supporting documents for HOS compliance.
  • Groups representing motor carriers and law enforcement asked FMCSA to expand its proposed drug and alcohol testing clearinghouse to require employers to report observed substance misuse and drivers’ admission of it.
  • Automatic onboard recording devices (AOBRDs) are not required to print out a hard copy, FMCSA confirmed.  The agency also clarified the data that needed to be displayed roadside on AOBRDs that have electronic displays.
  • McKee Foods Transportation asked FMCSA for an exemption from HOS rules to allow team drivers to split their mandatory 10 hours of rest into two periods, provided neither is less than three hours.

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