DOT Prohibits Coercion of Drivers

Gawda Members May Be Subject to this Coercion Rule as a Carrier,
Shipper or Customer of Freight

The Federal Motor Carrier Safety Administration (FMCSA) has published a final rule prohibiting motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate commercial motor vehicles in violation of certain provisions of the Federal Motor Carrier Safety Regulations — including drivers’ hours-of-service limits; the commercial driver’s license regulations; drug and alcohol testing rules; and the Hazardous Materials Regulations.

This rule includes procedures for drivers to report incidents of coercion to FMCSA, establishes rules of practice that the agency will follow in response to reports of coercion, and describes penalties that may be imposed on entities found to have coerced drivers. The new rule was published on November 20, 2015 and became effective as of January 29, 2016. The rule was mandated by Congress in MAP-21, the highway legislation enacted in 2014.

This is the first time that the FMCSA has regulated shippers or receivers; previously, the agency’s jurisdiction extended only to motor carriers, brokers and other transportation intermediaries. Thus, GAWDA members may be subject to this coercion rule as a carrier, shipper or customer of freight.

Commercial truck drivers have had whistle-blower protection through the Department of Labor’s Occupational Safety and Health Administration (OSHA) since 1982, when the Surface Transportation Assistance Act (STAA) was adopted. The STAA and OSHA regulations protect drivers and other individuals working for commercial motor carriers from retaliation for reporting or engaging in activities related to certain commercial motor vehicle safety, health, or security conditions. The STAA provides whistleblower protection for drivers who report coercion complaints under this final rule and are then retaliated against by their employer.

In June 2014, the FMCSA and OSHA signed a Memorandum of Understanding to strengthen the coordination and cooperation between the agencies regarding the anti-retaliation provision of the STAA. The Memorandum allows for the exchange of safety, coercion, and retaliation allegations, when received by one agency, that fall under the authority of the other.

For more information on what constitutes coercion and how to submit a complaint to FMCSA, see the FMCSA webpage on Coercion (at: www.fmcsa.dot.gov/safety/coercion).
This is the first time that the FMCSA has regulated shippers or receivers. Previously, the agency’s jurisdiction extended only to motor carriers, brokers and other transportation intermediaries.
According to the FMCSA, coercion may be found to have taken place even if a regulatory violation has not occurred. An example of coercion is when a motor carrier terminates a driver for refusing to accept a load that would require the driver to violate the hours of service requirements. The FMCSA states that following must occur in order for coercion to have existed:

  • A motor carrier, shipper, receiver, or transportation intermediary requests a driver to perform a task that would result in the driver violating certain provisions of the FMCSRs or HMRs
  • The driver informs the motor carrier shipper, receiver, or transportation intermediary of the violation that would occur if the task is performed, such as driving over the hours of service limits or creating unsafe driving conditions; and
  • The motor carrier shipper, receiver, or transportation intermediary makes a threat or takes action against the driver’s employment or work opportunities to get the driver to perform the requested task.

The key to a finding of coercion is that there must be a threat or some action taken against the driver’s employment or work opportunities.
Companies must make sure that they do not allow the stresses of delivery schedules to justify squeezing drivers to violate safety requirements. That is now a regulatory violation, in addition to being bad management practice.

Gases and Welding Distributors Association
Meet the Author
GAWDA’s Government Affairs and Human Resources Legal Consultant Rick Schweitzer is president of Richard P. Schweitzer, PLLC in Washington, D.C. He is also GAWDA’s general counsel. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.