A proposed rule prohibiting carriers, shippers, brokers and others from coercing drivers to drive beyond hours of service limits or in contravention of other federal rules has been released by the Federal Motor Carrier Safety Administration.
In addition to the prohibition of coercion and threatening drivers to exceed hours limits, the rule puts in place procedures for drivers to report coercion to the agency and procedures for the agency to respond to the allegations.
The rule is in some ways related to the March-released proposed electronic logging device mandate, whose predecessor — the 2011 limited electronic onboard recorder mandate — was tossed in court due to FMCSA’s failure to address the issue of driver harrassment as part of the rulemaking.
The coercion rule will have a 90-day comment period from the date of its publication date, which is slated for May 13. The rule was mandated by language in the current highway funding act, MAP-21.
The rule would make it illegal for carriers, shippers, receivers or intermediaries (brokers) to coerce drivers by threatening them “with loss of work or other economic opportunities for refusing to operate a CMV under circumstances that those entities knew or should have known would require a driver” to violate FMCSA’s hours limits, drug and alcohol testing rules or hazmat regulations, among other rules, according to the agency’s proposal.
These entities have broken the agency’s coercion rule if they “fail to heed a driver’s objection that the request would require him/her to break the rules,” the proposal reads.
However, drivers’ liability to comply with safety rules is not absolved if they are coerced, the agency says.
The rule imposes a penalty of up to $11,000 per violation on the entities prohibited from coercion in the rule. The agency also says it has the authority to suspend or revoke authority from a carrier or broker if it does not comply.
The agency says its rule also may overlap with provisions of the Surface Transportation Assistance Act, which prohibits employers from retaliating against drivers who refuse to operate a vehicle for safety reasons. Those rules are enforced by the Department of Labor, whose main goal is employee protection, whereas FMCSA says its rule is geared toward safety.
The STAA would protect driver wages, but FMCSA says it has “no authority to compensate drivers who experience coercion,” per the rule.
Any discrimination claims by drivers would lay the burden of proof on the accusing driver. Drivers must present evidence to FMCSA to back up their claims, the agency says.
A driver alleging coercion — and therefore violation of the new reg — must file a written complaint with FMCSA within 60 days of the event, according to the rule, detailing where the coercion happened or the principal place of business of the alleged violator. Complaints must include a driver’s name, address and telephone number; the name and address of the person allegedly coercing the driver; the specific provisions of the regulations the driver alleges he or she was coerced to violate; and a brief statement of the facts that substantiate each coercion allegation.
The rule says FMCSA will then determine whether the complaint is legitimate and has met the requirements of the regulation before initiating an investigation. The driver complainant will be notified of the findings from any investigation in a timely fashion, the agency says.
The rule also would direct the agency to study and consider driver coercion as a potential issue when developing rules.
The public comment period is set to open May 13, and comments can be made online at regulations.gov using the docket number FMCSA-2012-0377.
"Until a formal regulation is established with clear guidelines and borders ...