Given the headlong – and continuing – rush to comply with the electronic logging mandate that began kicking in last month, few carriers may be up to speed on a different but contiguous and potentially very helpful rule.
According to John Seidl, transportation consultant with Integrated Risk Solutions and a former Wisconsin state trooper and FMCSA investigator, fleets will want to be conversant with this other rule because it can legally help drivers maximize their available driving hours.
That’s key because now that most drivers must use automatic onboard recording devices (AOBRDs) or electronic logging devices (ELDs), they can no longer get creative with their entries in paper logbooks to pump up available driving hours.
“As of Dec. 18, 2017, the fudge factor with paper logs went away,” says Seidl. But look back almost two years ago— to Jan. 29, 2016— when the Federal Motor Carrier Safety Administration’s rule prohibiting acts of coercion aimed at compelling truck drivers to violate federal safety regulations took effect for an interesting angle to play.
He says that the anti-coercion rule can be invoked at any time to help keep shippers/receivers and brokers from attempting to get drivers to violate key FMCSA regulations.
Specifically, the “Prohibiting Coercion of Commercial Motor Vehicle Drivers” rule forbids motor carriers but also shippers, receivers, and transportation intermediaries from coercing CDL holders to violate certain provisions of Federal Motor Carrier Safety Regulations. The covered regs include drivers' hours-of-service limits as well as CDL, drug and alcohol testing, and haz-mat rules.
According to FMCSA, the rule addresses three key areas concerning driver coercion:
- Procedures for commercial drivers to report incidents of coercion to FMCSA
- Steps the agency could take when responding to such allegations.
- Penalties that may be imposed on entities found to have coerced drivers
It’s that first proviso that Seidl sees as a win-win for carriers and drivers. “A driver can object on the spot to being told to violate HOS rules and if they do not heed the objection, the driver can file a complaint with FMCSA.”
Once an incident of alleged coercion is reported, the federal agency must initiate an investigation. If the agency finds for the driver, the shipper/receiver or broker can be hit with penalties that can include fines of up to $16,000 for each offense on any “motor carrier, shipper, receiver, or transportation intermediary that coerces a driver to violate the regulations listed in the definition of coercion.”
Seidl says that in educating drivers and others about how all this works, it’s crucial to get across that for a complaint to stick, what a shipper/receiver or broker is demanding must meet the FMCSA threshold of being “a threat of the loss of work or of an opportunity to work.”
He also points out that while the anti-coercion rule predates the ELD mandate, the latter rule puts teeth into the former. That’s because electronic logs can provide proof of attempted coercion by a shipper, receiver, or broker as well as be by a carrier to verify wait times and so justify billing shipper/receivers with detention charges.
Seidl often suggests to shippers and receivers that they modify their dock operations to make it easier for both drivers and carriers to manage Hours of Service given the constrictions created by running with ELDs.
He notes that, for example, by posting signs that prohibit certain access points to a yard, the shipper would enable a driver to use the "yard moves" exception allowed by the ELD rule. Another way they could help out would be by allowing a trailer to remain in the yard ruing a long wait period so the driver could use the "personal conveyance" option to drive his tractor to a nearby truckstop to take a scheduled break.
The anti-coercion rule was mandated by Congress back in 2014 in response to long-standing driver concerns that carriers and others are often indifferent to the operational restrictions imposed by federal safety rules, according to FMCSA.
During the rulemaking process, the agency noted that it heard from drivers who reported having been pressured to violate regulations “with implicit or explicit threats of job termination, denial of subsequent trips or loads, reduced pay, forfeiture of favorable work hours or transportation jobs, or other direct retaliations.”