FMCSA's Rules Provide Safeguards for Coercion and Harassment of Drivers of Motor Carriers

 
Friday, June 17, 2016
 

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) published a Final Rule to help further safeguard commercial truck and bus drivers from being compelled to violate federal safety regulations.  The Rule provides FMCSA with the authority to take enforcement action not only against motor carriers, but also against shippers, receivers, and transportation intermediaries. 

The Final Rule addresses three key areas concerning driver coercion: procedures for commercial truck and bus drivers to report incidents of coercion to the FMCSA, steps the agency could take when responding to such allegations, and penalties that may be imposed on entities found to have coerced drivers. 

Coercion occurs when a motor carrier, shipper, receiver, or transportation intermediary threatens to withhold work from, take employment action against, or punish a driver for refusing to operate in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs), Hazardous Materials Regulations (HMRs) and the Federal Motor Carrier Commercial Regulations (FMCCRs). Coercion may be found to have taken place even if a violation has not occurred. 

In formulating this Rule, the agency heard from commercial drivers who reported being pressured to violate federal safety 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.

Some of the FMCSA regulations drivers reported being coerced into violating included: hours-of-service limitations designed to prevent fatigued driving, commercial driver’s license (CDL) requirements, drug and alcohol testing, the transportation of hazardous materials, and commercial regulations applicable to, among others, interstate household goods movers and passenger carriers.  

Commercial truck and bus 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.  STAA provides whistleblower protection for drivers who report coercion complaints under this Final Rule and are then retaliated against by their employer.

  • The Electronic Logging Devices Rule provides for protection against harassment for drivers.  The rule very specifically states:

    Action by a motor carrier toward a driver (whether an employee or a contractor) that the carrier knew or should have known would result in an (Hours of Service) HOS violation in 49 CFR 395 or 49 CFR 392.3. 

    Harassment only applies if the carrier’s action involved information from an ELD, or other technology used in combination with an ELD. The ELD Rule provides several provisions to help prevent harassment:

  • It prohibits carriers from harassing drivers.
  • It provides a process for drivers to file written complaints.
  • It mandates an ELD mute function to ensure a driver is not interrupted in the sleeper berth.
  • It includes anti-tampering provisions:
  • Limited editing ability for ELD records by either a driver or motor carrier.
  • Required driver certification when a carrier edits an ELD record.
  • Preservation of original ELD records, even when edited.
 
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