Fleets, Shippers Criticize Agency’s Coercion Proposal

This story appears in the Aug. 18 print edition of Transport Topics.

Reaction was split over a proposed rule prohibiting the coercion of truck drivers to violate hours-of-service and other safety rules, with many carriers and shippers saying it goes too far, but some advocacy groups expressing concerns it doesn’t go far enough.

The Federal Motor Carrier Safety Administration said the proposal, issued in May, is aimed at improving safety and establishing procedures for drivers to file formal claims.

At a farewell meeting with reporters last week, FMCSA Administrator Anne Ferro called the proposal an “impressive piece of the 2012 MAP-21 transportation law that recognized the impact that supply chain influences have on the driver.”

“It’s the first time there’s been a clear reach in our safety mandate into shipper behavior, broker behavior and others outside of our immediate regulatory oversight structure,” Ferro said.    

The comment period closed last week and the agency is reviewing the comments.

Nasstrac, a group representing shippers, called the proposal a “stunning overreach and abuse of regulatory power.”

The group stated it has no sympathy for those who attempt to make truck drivers violate safety regulations.

However, it said 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.”

American Trucking Associations said it supports the notion of prohibiting coercion, but has reservations about how the rule could affect relations between carriers, shippers, receivers and intermediaries. The federation also expressed concern about potential abuse of the compliant process by drivers.

The National Industrial Transportation League also criticized the rule, saying that shippers and receivers cannot closely monitor potential coercion because they do not have access to the driver logs, driver licensing and qualification files, or drug-and-alcohol testing.

“These files are maintained and managed by the carrier employer,” NITL said. “The shipper or receiver has no authority to direct or control the actions of the driver.”

Truckload carrier Schneider suggested the proposal would cause knowledgeable shippers and other third parties to “studiously avoid interaction” with drivers to avoid being reclassified as the driver’s employer.

“Chilling interaction between a driver and shipper does not serve safety interests,” Schneider said.

The Transportation Intermediaries Association said it is fully aware the rule was mandated by Congress, but as proposed does not comport with the law. TIA said it would create new liabilities for shippers and intermediaries, confuse its members and appears to exclude public entities and government facilities.

TIA said it agrees that drivers should not be coerced to violate federal motor carrier safety regulations, but that the proposal “moves the broker beyond the statutory provision of ‘arranging’ for transportation by a motor carrier for compensation,” the group said.

Conversely, the Owner-Operator Independent Drivers Association called the proposed rule “a completely untapped area for substantial improvements in motor carrier safety.”

“OOIDA is concerned, however, that the scope of the proposed rule, set by the proposed definition of coercion, is too narrow and limited to achieve the intended policy goals and statutory mandate,” the group said.

The proposal would not help end some common causes of driver coercion, and does not reach some parties who routinely coerce drivers but have no employment or contractual relation with them, OOIDA said.

The Advocates for Highway and Auto Safety said FMCSA appears to “render the proposed rule meaningless by requiring a driver to actually lodge an objection after being pressured to violate the federal motor carrier safety regulations for the incident to be considered coercion.”

“Not only will this ill-advised and illogical requirement eviscerate the proposed rule, it will serve as an incentive for bad actors to engage in coercion because unless a driver clearly and specifically objects, the entity issuing the order is not subject to any penalties under the rule even though the coercion has occurred,” Advocates said.

The Occupational Safety and Health Administration, responsible for enforcing whistleblower protection provisions, suggested the rule limited the definition of coercion to the threat to withhold or withholding of current or future business, employment or work opportunities from a driver.

“Coercion and coercive tactics 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 whistleblowing activity,” according to OSHA. “OSHA, therefore, recommends that FMCSA broaden the types of coercive actions that are prohibited.”

OSHA also recommended that the agency extend to 180 days from 60 days the filing period for whistleblower claims by drivers.

The Snack Food Association suggested that a recent agreement between OSHA and FMCSA to cooperate on investigating and adjudicating retaliation against transportation employees suggests enforcement already is under way.

“SFA has seen no data that quantify the extent to which coercion of drivers may have an adverse effect on highway safety,” the association said. “However, if the agency establishes such a connection, SFA recommends it use the enforcement tools at its disposal to address this issue under existing regulation.”