Cracks in the system: Blowing the whistle on coercion

user-gravatar
Updated Jan 19, 2021
This package explores the failures, frustrations and backdoor successes of the FMCSA’s “Coercion Rule” almost four years into its existence. See all entries in this special report at this link.This package explores the failures, frustrations and backdoor successes of the FMCSA’s “Coercion Rule” almost four years into its existence. See all entries in this special report at this link.

As of late October this year, there had been 2,636 driver complaints alleging driver coercion or harassment to ignore trucking regulations in the almost four years since a coercion rule went into effect.

Despite those thousands of complaints, however, only four cases citing the coercion statute have been closed by the Federal Motor Carrier Safety Administration (as of mid-September — a fifth case came to light involving UPS Freight after the initial publication of this feature). 

“It’s like they passed a law, but nobody does anything to enforce it,” says Lewie Pugh, executive vice president for the Owner-Operator Independent Drivers Association. 

The four cases cited 49 CFR 390.6 in the Federal Motor Carrier Safety Regulations, which prohibits coercion. That’s defined elsewhere as having occurred when the entity “threatens to withhold work from, take employment action against, or punish a driver for refusing to operate in violation.” The definition also says: “Coercion may be found to have taken place even if a violation has not occurred.”

No closed cases since 2016 showed violations of 49 CFR 390.36, which prohibits electronic-logging-device-related harassment. 

This six-feature package examines outcomes over the four years the FMCSA’s Coercion Rule has been in place. See navigation options at the bottom of the story to examine the remainder of the reporting. Follow this link to see a list of all the stories in the package.This six-feature package examines outcomes over the four years the FMCSA’s Coercion Rule has been in place. See navigation options at the bottom of the story to examine the remainder of the reporting. Follow this link to see a list of all the stories in the package.

FMCSA says there’s a good reason for the relative scarcity of coercion citations in closed cases. If a carrier, shipper/receiver, broker or freight forwarder is audited after a coercion complaint, it usually doesn’t result in a violation of the coercion rule itself, partly because it’s often difficult to provide adequate evidence of intent.

However, “If we couldn’t prove coercion or harassment, we could prove underlying violations” often enough in accompanying investigations, says FMCSA Enforcement Division Chief Bill Mahorney.

Overdrive reviewed the more than 18,000 overall cases closed by FMCSA since the coercion rule went into place in January 2016. Of those, the agency says approximately 150 enforcement cases — meaning fines were levied for violations — resulted from coercion or harassment complaints. Those include the four that actually charge a coercion violation.

Of those 2,636 driver complaints the agency has collected alleging coercion or harassment, since about 150 concluded with some kind of enforcement, the remaining 2,500 complaints were found lacking sufficient evidence or were not pursued to an enforcement result for other reasons. 

Violation of the coercion and harassment rules, and many other regulations, is punishable by a civil penalty of up to $10,000 per incident — a decent-sized stick to the smallest carriers, but mere pennies for the largest of fleets unless there are dozens of violations. Nonetheless, it’s the principal means by which FMCSA and states can punish a company for coercing or harassing drivers. 

Two of the four closed cases citing coercion were during fiscal year 2017 (October 2016 through September 2017), two during fiscal 2018. Two cases were against the same carrier, found to have reincarnated under a different name. None were found in the 2019 fiscal year as of mid-September. 

Even with FMCSA’s defense that coercion complaints yield other violations, critics of the rule still see shortcomings. 

One is that blowing the whistle, even when action is taken against a carrier or other business, doesn’t benefit a driver other than the hope that a penalty, or at least an intrusive investigation, will discourage further coercion. That’s little compensation for giving time to the process and risking career disruption. 

“The rule’s a joke,” says attorney Paul Taylor, whose Truckers Justice Center represents truckers. Most whistleblowers are likely to “continue to get coerced,” he believes, unless financial penalties for underlying violations found are such that they truly do move a business toward better behavior. 

Though the Owner-Operator Independent Drivers Association offers members assistance in filing a coercion complaint, Pugh says, “We’ve never seen any of our members’ complaints be acted upon” in a meaningful way. 

The four enforcement cases that cited the coercion rule also included other violations. Civil penalty totals ranged from almost $6,000 charged to a 14-truck fleet to more than $80,000 to a fleet of 40 trucks that was shut down as an imminent hazard after reincarnating under a different name. 

Via this link, hear audio from FMCSA’s listening session at the Great American Trucking Show in August. OOIDA Executive Vice President Lewie Pugh (pictured) urged FMCSA to follow up on drivers’ coercion complaints to help counter a widespread objection to the hours of service proposal. That’s the common driver worry that if the proposed off-duty pause of up to three hours is put in place, “you’re setting yourself up” for a logistics chain party to force a driver off-duty at the docks when he might not truly be, Pugh said in a later interview.Via this link, hear audio from FMCSA’s listening session at the Great American Trucking Show in August. OOIDA Executive Vice President Lewie Pugh (pictured) urged FMCSA to follow up on drivers’ coercion complaints to help counter a widespread objection to the hours of service proposal. That’s the common driver worry that if the proposed off-duty pause of up to three hours is put in place, “you’re setting yourself up” for a logistics chain party to force a driver off-duty at the docks when he might not truly be, Pugh said in a later interview.

Another shortcoming seen by some in the rule is that it doesn’t ensure there will be no retribution against the complainant. Instead, drivers are left with the option of seeking protections offered under the Surface Transportation Assistance Act, in place since 1982. It protects drivers from retribution for refusal to violate a regulation.

Such wrongful-termination cases can result in reinstatement of employment or reversal of the punitive action if affirmed by the Occupational Health and Safety Administration. Also, they can be taken to court if denied for potential monetary damages related to a firing or other action.

Ideally, “If you air the dirty laundry, somebody should clean it” in-house, says independent owner-operator Vince Crisanti. But too often, pointing to problems inside a company simply isn’t enough to improve a driver’s situation. 

“Say you live in rural Alabama, and there’s a carrier there with a contract to ship from the local place making furniture,” Crisanti says. “Are you going to turn them in [if] they’re the only employer in your area?” 

Given the real risk of retaliation by an employer or lessor, the coercion rule is “something of a joke,” he says. “The turnover rate is so high for drivers in the trucking industry — you know there’s another person right behind you.” 

Yet another of the rule’s shortcomings, as seen by some, is that there is no provision for monetary award to a whistleblower in a successful filing without taking an STAA case to court. Success there requires strong evidence of punitive retaliatory action.

“I get coercion calls every day,” says Taylor, whose law practice is built largely on such cases. One common problem is “drivers getting coerced to go 300 to 400 miles on personal conveyance.” That abuses the intended purpose of PC to allow short moves — such as to find parking after running out of hours at a receiver — to occur off-duty. Other cases involve “drivers coerced to go on paper” logs while turning off an electronic logging device.

Among those inquiries, Taylor says, “there are potential cases, when some sort of discipline is imposed” for the driver’s refusal to be coerced. STAA protections include clear remedies: reversal of the discipline imposed, and the option for administrative court review with potential damages. 

In addition to hours- and fatigue-related violations, other regulations also can be tied to coercion, says Joe DeLorenzo, director of FMCSA’s Office of Enforcement and Compliance. Those include “not possessing required operating authority, and vehicle maintenance issues. These cases all fall into the agency’s normal investigation and enforcement procedures, perhaps leading to a civil penalty case made against the motor carrier.”

Further coercion and harassment measures were codified with the ELD mandate. Introduced in tandem with the coercion rule, the mandate prohibits ELD-technology-related harassment of drivers by their carriers or lessors. 

The concern is use of information through the ELD “that the motor carrier knew, or should have known, would result in the driver violating” either the 49 CFR 392.3 prohibition on driving while ill or fatigued or a portion of the hours rules. A common example is using in-cab communications tied into an ELD to disturb a resting driver with a dispatch during a 10-hour off-duty period.

Read next: The irony of e-logging and coercion: Complaints on a steady rise since mandate

Also in this package: 

The irony of e-logging and coercion: Complaints on a steady rise since mandate

Drivers citing coercion face an uphill battle

Parties other than carriers now subject to enforcement under the coercion rule

Righteous whistleblower or 'disgruntled employee'?

How to file a coercion or harassment complaint

Showcase your workhorse
Add a photo of your rig to our Reader Rigs collection to share it with your peers and the world. Tell us the story behind the truck and your business to help build its story.
Submit Your Rig
Reader Rig Submission