Shippers Air Concerns about Driver Coercion Proposal
August 18, 2014
Federal truck safety regulations are venturing into new territory with a proposal to protect drivers from coercion, igniting concerns among shippers and others about how the rule will affect them.
The proposal by the Federal Motor Carrier Safety Administration aims to prevent carriers, shippers, receivers or brokers from forcing drivers to violate requirements such as hours of service or other regulations.
It was ordered by Congress in the 2012 highway law, MAP-21, in response to longstanding driver concerns that carriers and others often are indifferent to the operational restrictions imposed by the safety rules.
The agency proposed an approach to the rule back in May and solicited comments that were due August 11.
In general, the proposal would prohibit threating drivers who decline to do a job because it would force them to break the rules. A violation could lead to a fine of as much as $11,000, and the proposal sets forth procedures drivers could follow to report coercion.
Reaction to the proposal ranges from objections that it does way too much, to insistence that it does too little.
Shippers: 'Stunning Overreach'
The strongest comments come from shippers who believe the agency’s approach would make them responsible for drivers they do not control.
The National Industrial Transportation League said the proposal would require shippers to make sure drivers are complying with rules that are typically monitored by their employers.
Shippers also are concerned that the procedures for reporting coercion are based on “he said/she said” exchanges, which would be hard to confirm.
The National Shippers Strategic Transportation Council described the proposal as “a stunning overreach and abuse of regulatory power.”
“In effect, FMCSA seeks to deputize virtually all American businesses, along with federal, state and local governments, and individuals shipping personal property and household goods, as unofficial compliance personnel regulated by this agency,” the council said in its comments.
Shippers typically do not have the expertise to judge drivers’ responses to queries about compliance, the council said. Moreover, the group said, the agency is wrong when it says there would be no additional cost to shippers to comply with the rule.
Shippers already have good reasons not to coerce drivers to break the rules, the council said. For instance, they face lawsuits triggered by crashes, for example, and they drive the same roads as the trucks they hire to distribute their goods.
There may be some shippers who do push drivers to break the rules, but the agency’s approach will place new burdens and costs on the majority who do the right thing, the council said.
The Transportation Intermediaries Association, which represents brokers, said the proposal would require its members to act as employers when it comes to ensuring compliance with safety rules.
Trucking: 'Standard of Proof'
Trucking interests have a different take on the issue.
American Trucking Associations generally supports the agency’s approach, with some reservations about how it could affect carriers’ relationships with their customers.
The agency’s proposed procedure for reporting coercion – the driver would have 60 days to file a written report following a complaint – is too loose, according to ATA.
ATA recommended that the complaint be filed at the time of the incident, in order to preserve the evidence and prevent “he said/she said” situations.
ATA agrees that drivers should “bear a substantial burden of proof” in filing a complaint and suggested that the agency include a convincing evidentiary standard for claims.
The agency also should clarify what it means by coercion, so that legitimate business decisions are not included, ATA said. For instance, a driver may see coercion if he loses a load many days after he filed a complaint, but the company may have a legitimate reason for dropping that load.
“A clear and convincing standard of proof would help protect against interference with legitimate commercial business judgment without eroding the protection offered by the prohibition on coercion,” ATA said.
Another trucking group, the Motor Carrier Coalition, said the agency needs to clarify who is responsible when a carrier engages an independent owner-operator who in turn engages other drivers.
“The FMCSA should consider revising the rules to better clarify to whom they apply,” said the coalition, which represents a dozen large carriers including Schneider National and C.R. England.
“If it does not, there’s a chance motor carriers could be unfairly stripped of their operating authority if an owner-operator, over whom they have no control, coerces its driver(s) to violate certain regulations,” the coalition said.
The Owner-Operator Independent Drivers Association applauded the agency for the proposal but said it does not go far enough.
“This is the first time this agency has attempted to address the causes of violations of the motor carrier safety rules, rather than merely interdicting violations after they have occurred,” OOIDA said in its comments.
“This is a completely untapped area for substantial improvement in motor carrier safety.”
The group said the agency needs to make coercion enforcement a routine part of its work by teaching inspectors and auditors how to spot bad practices, and using the FMCSA hotline to spotlight complaints.
OOIDA also said the final rule should include whistleblower protections, and should require carriers to keep copies of all electronic communications with drivers so they can be reviewed during safety audits and compliance reviews.
The citizens’ group, Advocates for Highway and Auto Safety, also said the proposed rule does not go far enough.
It said the agency should investigate all allegations of coercion whether or not the driver makes a contemporaneous objection.
“Simply because a driver did not object to an order of coercion does not mean that it did not occur,” the group said.
It also said that the 60-day requirement for filing a written report should not be used to discourage drivers from complaining. Once a complaint is received within 60 days of the event, the style of that communications should not be cause for rejecting the complaint, the group said.
The agency will review these comments and make any changes it believes are necessary before posting a final rule, perhaps by the end of the year.