Drivers

Shippers Air Concerns about Driver Coercion Proposal

August 18, 2014

By Oliver Patton

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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.

Comments

  1. 1. Cliff Downing [ August 19, 2014 @ 03:57AM ]

    It is occasions like this that make me remember why I left OOIDA. They act more like union hacks than a real voice of reason. They applaud and actually think that $11,000 fines and shippers becoming safety departments is not going far enough? For once, please, sit down and shut up until you can start reasoning a little better. We are supposed to be adults. This nanny state stuff about whistle blower protection and stuff is really not important. If you say something, you are not going places in the company. If you need to say something, you need to find somewhere else to ply your skills. It is really that simple. No one is forced to do anything unless they allow themselves to be. If they do not have enough sand to stand their own ground without crying that they are being picked on, then they need to move on to some job that they can handle. I refuse to be stepped on or talked down to. I have left a customer property, refusing to allow them to load my truck, because they refused to act like adults. I have told carriers where they can stick it when they want me to do something stupid. I am still in this business, making a good living, and can look at myself in the mirror without feeling like I am a wimp. Maybe we do need more combat vets in the industry, like myself, to get some backbone in the industry.

  2. 2. somewhere [ August 19, 2014 @ 08:06AM ]

    My concern is when shippers and receivers force drivers to wait outside in the loading dock until you are loaded and when is far beyond 4 hrs of detention and then you have to make it on time for the appointment, now the broker. . if you are late you are charge a late fee and have to layover until next day downsizing your profits. That's when you have brake the law.and everyone knows it and everyone does it...thats why D.O.T.checks for log books and B.O.L.S time in and time out. N B S.

  3. 3. Tom Radwick [ August 19, 2014 @ 03:34PM ]

    Yes , no one can force you to do something against your will. This coercion is the result of Carriers failing to set out specific standards on Shippers, Receivers, Brokers. Deregulation started in '80 yet today there is more regulation by the govt. in trans. than in its history. The HOS exploited today was a power grab by the govt. in the name of "SAFETY" The Record Of Duty Status ,as it was then referred to, was created to PREVENT Carriers from abusing their drivers and not punish drivers for mistakes on their Logs. It was the Carrier who was responsible to control the hours a driver worked. When the ICC closed, DOT created the FMCSA to monitor the MOTOR CARRIER. That's why it's called the Federal MOTOR CARRIER SAFETY Administration. Why all this control over the Driver? If they'd follow up on a Carriers history from Field Inspection Reports rather then waste time developing useless grading methods this industry would be much closer towards zero fatalities. I have worked in Trans. for nearly 50 yrs & covered 6+ million miles w/no accidents, so I believe I have some credibility & stature. The idea that Speed Limiters, EOBR, Federal Registry of Medical Doctors will prevent future accidents is ludicrous. This Govt is so arrogant to require to test a licensed medical doctor with years of experience to demonstrate they know how to give a proper physical exam ? ( I'll concede the Govt.s' proficient in certain areas of human anatomy but I digress) Yet this same Govt. fumbles to provide National Health Care to its citizens.
    Congress needs to enforce their mandate on basic driver training along with more enforcement & education of the driving public. Creating a nationwide Mandatory Driver Training Requirements for new or teenage drivers would be a perfect place to start.
    To control coercion of drivers by Shippers is waste of time. Remember all the ballyhoo that was going to prevent Lumper abuse of the driver. Does anyone see a pattern here??

  4. 4. a tid bit od info [ September 07, 2014 @ 03:56PM ]

    lost a delivery point for a customer today from pushing on the receiver to acknowledge their own appointments, kept showing up 15 minutes prior to, then between 1 and 4 hours later you reach the dock. the long stays push the drivers over 14 hours. talk about coercion, but I still stay do not penalize the occasional offender, nail the career offender

 

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