‘Burden of proof,’ shipper and receiver accountability highlight anti-coercion rule comments

| August 05, 2014
The agency's proposed 'driver coercion rule' will prohibit carriers, shippers, brokers and others from threatening drivers with loss of work as a coercion tactic to get them to operate in violation of federal safety regulations.

The agency’s proposed ‘driver coercion rule’ will prohibit carriers, shippers, brokers and others from threatening drivers with loss of work as a coercion tactic to get them to operate in violation of federal safety regulations.

Public comments so far are split various ways (especially from drivers) on the proposed federal rule that prohibits carriers, shippers, brokers and others from coercing drivers into operating their trucks beyond hours of service limits or against other regulations.

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Two key arguments have emerged, however: One contending the rule is past due and that the agency should do more to hold shippers and receivers accountable, and the other saying the rule is a good idea but places the burden of proof of coercion on truck operators, thereby undermining its purpose.

For instance, a public commenter whose name is listed as Brian says as long as the onus is on drivers to prove they were coerced, the rule won’t have much effect:

“I applaud the effort to end coercion that puts truck drivers in the position of either breaking the rules or being fired,” he writes, “but if you don’t put the burden of proof on the carrier or dispatcher, then it’s the driver’s word against the company, and the driver still ends up being punished. I have been told multiple times to falsify my logbook (which I won’t do) and have paid the price in lost wages, but it’s just my word so who is going to do anything about it unless I have written evidence to back up my claim?”

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Similarly, commenter David Brown called the rule “hogwash,” pointing to the driver’s responsibility to prove his or her claim as the reason.

“A much more simpler way would be to have the shipper timestamp the document and have the drivers’ logs show the actual time of arrival,” he wrote. “Charge $100 per hour from the time of appointment or arrival at the shipper or receiver and this will stop the coercion issues.”

He also added some words of encouragement for FMCSA, regarding their resistance to regulate shippers and receivers: “And yes, you can dictate this. Just say it’s a safety issue and mandate it. Quit trying to regulate on the sidelines and get in the game.”

Regarding actually proving coercion claims, commenter Robert says drivers should record all conversions with dispatchers, brokers and shippers. “Most if not all carriers using [electronic logging devices] already will not send such intent across those machines, seeing they can be easily photographed at any time. Thus making it a he/she said, which is not upheld in any case whatsoever.”

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But, he says, recording may be a dead-end street, too: “Companies will then enforce a ‘no recording’ policy, which most shippers or receivers already have in place, thus making one record all calls and meetings secretive…making it illegal for use. So the driver still has no proof unless FMCSA is willing to allow such action by the driver.”

The rule should have included language to guarantee “any proof provided,” Robert wrote.

Commenter David Spiegel said FMCSA’s rule should put more accountability on carriers, shippers and receivers, however:

The comment period on the rule ends Aug. 11. Click here to comment.

“The vast majority of drivers are tired of customers and carriers being able to threaten us in various ways without any accountability. Such actions represent a clear danger and even honest carriers are powerless to affect customer abuse of drivers. If this rule is implemented, you will send a strong message that drivers absolutely must be allowed to operate safe and legal. Many shippers and receivers will sternly oppose this because they like being able to avoid accountability for their actions and they like pushing drivers around without consequence. Pass this rule and make customers respect the rule of law that drivers have to. They are part of the industry so they must be regulated as well.”

Click here to see prior Overdrive coverage from the rule for more information.

  • Craig Vecellio

    It’s a move in the right direction, but the article hits home. Even with a Qualcomm, I have been subjected to coercion by dispatch and customers. What the article says about the driver’s hands being tied in the ability to provide proof of coercion is dead on. The reasons prohibiting secret call recording have to do with privacy and again, the article is dead on about company policies. There is an umbrella exception for recording done as part of a warranted police investigation. As part of the regulation, pass a law mandating all communication between a driver and dispatch be in writing via Qualcomm, text message, or some other medium. Pass a similar law that all paperwork be done at the gate in front of a camera, and that stop times begin and end at said gate. If you try to get a signature on paperwork for detention they just slam the receiving window shut. From there, a simple call log on the driver’s phone with no private details of the conversation would prove the coercion. We have all kinds of monitoring devices on drivers; including the monitoring of personal cell phones. Legally compel that they be used in ways that benefit the driver, not just regulate the driver.

  • Mike

    I agree shippers and receivers and dispaters do abuse this and do need to be regulated as well. My employer puts cost over safety and is allowed to get away with it from the bullshit “I never told you that”

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  • William McKelvie

    Go ahead and pass the ruling. And watch it become like everything else that was supposed to STOP, PREVENT, and it not get enforced. Just like the Jasons Law, it’s not being enforced now is it? NOPE. The key is not passing the law alone, but making sure it has the proper support, funding and enforcement as well.

  • L.G.

    Every driver should know by now that you had better not be late for any appointment, but the shipper or receiver can make you wait for as much as 5 or 6 hours over that appointment to load or unload you, but you better not be LATE!

  • L.G.

    When are you people going to get off our a## and make a rule or regulation that quits blaming the driver and the trucking industry for all the wows and put it where it belongs!

  • jojo

    Just like training a dog, the carriers will let the Driver sit, Without Pay, to teach them how to properly manage the truck.
    No Words Need Be Said!!!
    This training technique has been used a lot of years very successfully!!!
    And Drivers only want detention pay from shippers and receivers???
    How about a fair and reasonable hourly based salary that pays the Driver for working no more than 70hrs in an eight day period???

  • Paulie

    Company drivers who sit at the shipper for more than 2 hours should be compensated by multiplying the extra minutes by their mileage pay, counting the duty time as it was driving. This should be a federal law, there’s no other way to stop time abuse. Detention is a very messy process, always an argument. Owner operators should get a flat fee for any extra hour, I’m thinking $60-100.

  • Dwayne

    Have anybody had there trl towed from a Wal-Mart DC for not giving drivers a place to rest after they held them past there 14 hr rule?

  • MercenaryMan

    Every trucking compnay uses Video Surveillance thats time stamped, Guard Gates thats time stamped, Arrival calls, Departure calls, its not that hard to see, Shippers and Recievers load and unload at there liesure and there pace, if your in a hurry you wait longer, if you ask, you wait longer, simply connect a system that allows a drivers GPS location to be connected to the Dispatch, they would call or email there truck is in que to be loaded and they have arrived on time, now the Shipper or Reciever has one hour to get it done, after that its Detention or rate adjustment….the technology already exists to verify, and its just being abused and treated like your a pain in there butt to arrive ON TIME, and expect the Loading/Unloading to occur on time….

  • sthomas1957

    The problem is that carriers know how to game the system. For example, one big carrier I worked for that remains unnamed (but they have a blue superhero as a logo on their trucks that looks like something I wore on my pajamas when I was about three years old) had a 670 mile load from Salt Lake City to Phoenix for the Dollar Tree company.
    Okay, if you run about 61 mph for eleven hours of driving you can get there just under the 11-hour rule. The problem was, however, that the loads were usually about 45,000 lbs. and the trucks they were running were nothing more than Volvos with D12 engines in them. Anyone pulling that kind of a load up and down the mountains in Utah and Arizona knows perfectly well that you’d be lucky even to average 50 mph. It usually took practical hours about 12-13 hours to run the route, which meant that you’d have to stop for your 10-hour break and resume the load in the morning and get to your first stop at mid-morning instead of 0600 when the first drop was scheduled to deliver.
    Now, this was a big carrier that perfectly well knew the hours-of-service rules, and a shipper hauling lots of freight that should have been informed of the situation. A driver could refuse to take the load, but then he would likely start getting loads averaging about 1700 miles a week total.
    That’s how the industry “coerces” drivers. Nothing on record showing coercion, but the driver, if he wants freight and a decent paycheck, has to figure out by himself how to get around the problem and get the loads there on time regardless as well as take on all the risks if he has an accident or gets pulled into a weigh station for a log book check. And if he refuses to run that way? No problem, the company knows perfectly well that it has dozens of drivers just waiting in line to go with it.
    That’s why big carriers, not owner/operators, need e-logs in their trucks. No one “coerces” an owner-operator to take a load that he knows he can’t do. It’s the big carriers as well as the outlaw companies that “coerce” drivers.

  • RichieC

    mandatory detention………if a shipper wont document the time….screw them…they will be billed as the trucker desires…..when did the trucker need the shipprs permission to bill? When a few thousand dollar detention bills arrive…they will get the message. In fact…i think a fed rule stating its legal to record every conversation in interstate trade…no matter what the state rule is….should be enacted…so shippers cant hide behind the govt helping them beat the driver to the ground.

  • annon

    abandond freight…..amish auctions……detention….any break of more than the time it takes to move the forklift from storage to truck….is a ceasation of the unloading / loading.

  • Art

    For the most part I agree with many of the comments regarding the regulation accountability being applied to and enforced in regards to shippers and receivers. I am amazed that carriers dont charge more detention pay for holding drivers hostage. I am also concerned with shippers/receivers telling drivers they can not complete a rest period on their property. This one act forces drivers to travel to a safe haven illegally and is probably the most frequently abused area of the driving regulations.

  • James Roberts

    With Electronic logging you can log on duty while you sit at the shipper and reciever. The driver is not making money and that tractor is not making money. The company wants their tractors to making money . If all the drivers would use Line 4 instead od Line 1&2 things might get better for them. Use the Hours of service laws against the trucking companies.

  • mike

    Aparently Paulie you do not have your own truck trailer and authority i getmore than this now most times for detention statement like this drive rates down. How is it my fault you do not get a good rate? take lessons sir on some carriers that do and i will assure you most carriers do get that i get at least 50 an hour from the megas carriers if i run there loads and more per hour from some shipper and recivers and brokers.

  • James Roberts

    Today we do not any privacy. The government can track you down with cell phones and computers. The Drivers should use that to tell the companies and shipper and receivers how they are going to drive. Saftey comes first. Doctors used the law and they make their customer wait in their office. Truckers needs to do the same thing. The FMCSA is giving us a union. Our union dues are our taxes.

  • Chris

    Why is it ok to sit at a shipper or receiver for free while being employed by a carrier? Why do we believe that they should get 2 hours free for loading? How many times have we arrived on time for a delivery or pick up appointment and sat there because the dock crue is on a lunch break or mandatory break. Why are they getting paid and we have to sit there for free?
    The whole pay per mile is wrong.
    The FMCSA set hours of service not miles per service. If we switch to a per hour pay all this detention issue will go away very fast without the need of new laws and regulations.

  • guest

    Yep the driver is always the SLAVE.

  • guest

    Coersion, threats, intimidation and abuse of the driver have always been the NORM in trucking…..they all ACT surprized how SCREWED the driver gets……lol……all a JOKE as usual. Rich get Richer.

  • guest

    Company will make you WANT to quit if you are not a good Obediant Punk/Slave for them all to get Rich.

  • Mj

    Funny as a dispatcher I get that I’m out of hours talk but when the driver needs money or wants a load he can make it happen. The whole system is screwed and when the govt gets involved it gets worse

  • Dude

    It’s funny how Shippers have cameras and other recording devices that they say they can use against you if they need to. But tell you that you cannot record them and if so, can not use it against them.

  • Chris

    Just the same way they will charge you $150 for being 1/2 and hour or 1hr late yet they expect you to wait for at least 2 hours at their dock for free to get loaded or unloaded and even after 2 hrs you have to get tough to get $50 if you are lucky. There is no fair game or respect for your time and service.

  • Janet M. Kell

    My husband passed just over a year ago so no more letters saying he was driving over his hours! He was forced to if he wanted his job. I can name the the shippers an receivers along with addresses an phone #s. He kept a list of all companies to assist in remembering where an who to talk to. Over the years and different companies he was forced to drive if he wanted his job that is, with a growing family at home he did what most drivers did, he drove!

  • William McKelvie

    Chris, go ahead and keep BARKING and PUSHING for hourly pay. Big ATA companies don’t want to pay you guys now. So when FOXX gets his way, and you all go to MINIMUM WAGE rate for EVERYTHING, then what will you have to say? Yes that is what I said, MINIMUM WAGE. FOXX has submitted this to congress more than once already.

  • psycho

    New trucking law. – this is easist way to share what i think about this new law. http://pinterest.com/pin/375346950167118855/?utm_source=android_share

  • psycho
  • Chris

    I understand that there will be opposition to an hourly wage system, I would be surprised if there wasn’t any but the way things are going with big companies lowering the speed on their trucks to save on fuel and the hours of service reducing the amount of time you can drive plus the unpaid detention time at the dock and increased downtime of the new zero emission trucks, having a minimum wage for a lot of drivers would be an improvement.
    How good does it do being paid by the mile if you are sitting for a good share of the 70 hours per week and the majority of it is unpaid.
    I’m sure you will say that if you are not treated well in one company you can always go and work for another but the reality is that the grass isn’t greener anywhere else. What drivers are changing companies for lately isn’t even for a raise in pay but it is to get treated with more respect and having more home time.

  • William McKelvie

    Go back and re read my first response to you. You call my stance OPPOSITION? May I suggest STRONGER COFFEE, and look around you. Just WHO is JBHUNT and others hiring? No speak english please line up, we are hiring. So what will you get? Minimum wage. You guys instead of fighting guys like me who are trying to help you, should UNITE. Once you all get past the supertrucker stories and super trucker drama, UNITE and make things better. Hell, the port guys are attempting to make that happen, why can’t you guys and gals do that too??

  • Thomas Perkins

    But see the market place has that already and they don’t understand pay anyone if the work demands it.

  • Chris

    I’m not fighting against guys like you and this isn’t even my battle. I stopped being a company driver 10 years ago and I’m working my my own authority with my own equipment directly with shippers.
    I just remember how it used to be and noticing how things are changing for the worse.
    I feel sorry for these drivers perusing their dreams just to find out that they are being lied to and abused.
    It is a bitter reality and the idea of the freedom and the open road has been taken away by the Qualcomm and video cameras.
    I am member of the OOIDA but even they have to pick their battles.
    We are being attacked in so many fronts that is is difficult to see where the hit is coming from.
    Unity has been an issue for truckers since I rememberer. There is a lot of complaining but little action. It is hard to focus on other thinks when you are working paycheck to paycheck. Some drivers don’t even have a home to go back to their home is the truck.
    I’m doing pretty well now but it took a while to figure things out.

  • Jammer

    I’ve seen where they will charge up to $500.00 if you’re late delivering a load, at a food warehouse.

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  • g22p

    You do what the Boss tells you to do or get fired . That goes for truckers too .

  • Donald Lloyd Derrick

    When shippers/consignees negotiate rates very rarely do they include a detention rate. Shippers/consignees want a basic flat rate for their shipments. Unless something is done at the contractual level I don’t see this ever changing unless Uncle Sam gets involved.
    I have been at the table with other brokers & carriers trying to get a lane or customer. First one mentions or includes a detention clause is usually the first one out…
    I personally am very liberal with rates towards trucks. A truck driver makes a bad broker…he sides with the driver all the time..I digress.
    Its a double edged sword for brokers…I have personal experience in this. I set a rate for a shipper that is somewhat HIGH. I sell the shipment to John Q Trucker and all goes off without a hitch…he gets in loaded and unloaded on both ends in less than 3 hrs combined. That’s good for all involved…but then the trucker thinks I am screwing him cause I kept my margin and he should have been paid more… So I give the next truck more money for the shipment, cept this time there is a problem at either end of the shipment. Diver has 6 hours in loading and unloading and wants money from me to cover his detention and lost wages/backhaul. But I don’t have any more money in the load cause I was bullied by the truck to give him more to haul it on the rate con.
    In conclusion, we carriers/brokers will lose regardless…the detention fees have to be added on the back end of shipment rate. It can’t be pre negotiated by the shipper/sonsignee but it can be pre agreed upon on a rate con.
    We know as driver, shippers, carriers & brokers who the problem docks are. Every one in the industry has had the phone call. But only the driver amplifies the need to be paid, I agree totally. But in the office, it is very difficult to get the extra money from the shipper/consignee. It usually means losing a customer to a cheaper carrier who won’t charge detention.

    A government mandate on allowable time to load or unload a vehicle or a time/rate equation to offset driver time and wages, is as far fetched a reality as trucking from California to Hawaii.
    I am all for any solution, I have been a company driver, O/O, broker, dispatcher and have seen this scenario from all angles, There just isn’t an easy answer or remedy that will appease all that is involved.

  • Big R Phillips

    Yeah i heard something about that…WoW!

  • Big R Phillips

    I agree and congrats on going independent.

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