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OSHA urges greater FMCSA flexibility over coercion

The Federal Motor Carrier Safety Administration’s (FMCSA) proposed definition of coercion is too limited, as is the time FMCSA is proposing to give drivers to lodge a complaint, the head of the Occupational Health and Safety Administration (OSHA) said.

Aug. 11 was the deadline for comments on FMCSA’s proposed rules addressing driver coercion. In addition to OSHA, FMCSA has received comments from groups representing carriers, shippers, intermediaries, drivers and safety advocates.

In a letter to FMCSA, David Michaels, assistant Secretary of Labor for occupational safety and health, said that in enforcing OSHA’s whistleblower protection authority in trucking the agency has found that coercion is broader than just threats related to loss of work, future business or other economic opportunities.

Coercion may also include threats of violence, demotion, reduction of pay and withdrawal or reduction of benefits, “or any action that is capable of dissuading a reasonable employee from engaging in whistleblower activity,” Michaels said. Instead of specifying the types of coercion covered, he recommended that coercion be defined as threatening “to take or permit any adverse employment action.”

Michaels also told FMCSA that OSHA’s experience is that the proposed 60 days for filing a written complaint is too short and would lead to excluding many potential cases. FMCSA should lengthen the filing period to 180 days and allow not just formal written complaints but also phone, email, social media and other means, he said. Michaels noted that Congress has set 180 days as the filing period in numerous recent laws involving OSHA oversight.

“The nature of employment-related matters makes it necessary for potential complainants to have more time to file,” Michaels said. “Workers who have been retaliated against need time to digest what has happened to them, seek counsel, and find other employment.”

FMCSA’s proposed filing requirements also are too restrictive, Michaels said. For example, the agency should consider a complaint as timely filed if it is filed with any FMCSA Division Administrator even if it wasn’t filed with the appropriate FMCSA Division Administrator. If a driver files a complaint with the wrong office, he has no control over how long it will take for the complaint to make its way to the right office, he noted.

Michaels also recommended against requiring drivers to cite specific regulatory provisions they were coerced to violate. “Drivers are in a unique position to witness coercion, and FMCSA should encourage reports of coercive activity. Requiring drivers to allege specific provisions of the regulations places an unnecessary burden on the drivers, which would reduce the potential effectiveness of this anti-coercion provision.”

Although Michaels did not address the fact in his comments, FMCSA’s proposal specifically notes that the same set of facts could lead to both a coercion investigation by FMCSA and a whistleblower investigation by OSHA. The two agencies recently signed a memorandum of understanding to share information.

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