FMCSA Takes Action to Prohibit Coercion of Commercial Motor Vehicle Drivers and Extends its Jurisdiction Over Shippers and Receivers
On November 27, 2015, the Federal Motor Carrier Safety Administration (“FMCSA”) issued a final rule prohibiting motor carriers, shippers, receivers, and transportation intermediaries from coercing drivers to operate commercial motor vehicles (“CMV”) in violation of the FMCSA safety regulations and the federal Hazardous Materials Regulations (“HMR”), and prohibiting operators of CMVs from coercing drivers to violate certain FMCSA commercial regulations. The rule includes procedures for a driver to report an incident of coercion and for investigation and action by FMCSA in response to such reports.
Violators of the rule are subject to civil penalties of up to $10,000 per incident. The rule takes effect on January 29, 2016.
Significant highlights from the agency’s final rule are as follows:
Applicability. The rule applies broadly to prohibit motor carriers, shippers, receivers, and transportation intermediaries from coercing drivers to violate certain FMCSA safety regulations and the HMR. Such broad applicability extends FMCSA’s jurisdiction to include the regulation of shippers and receivers for the first time. In addition, the rule prohibits anyone operating a CMV in interstate commerce from coercing a driver to violate certain FMCSA commercial regulations.
Definition of Coercion. The FMCSA revised its proposed definition of “coercion” to clarify the intended scope of the rule. The new definition states that:
• A driver has an affirmative obligation to explicitly inform a motor carrier, shipper, receiver or transportation intermediary when he or she cannot complete the requested trip without violating the Hours of Service (“HOS”) rules or another safety regulation. This obligation requires a driver to identify “at least generally” the rules he or she would violate in the course of his or her delivery.
• After a driver has provided notice of a potential safety violation if he or she delivers the load, a motor carrier, shipper, receiver or intermediary who explicitly threatens to or actually does “withhold business, employment or work opportunities from or to take or permit any adverse employment action against the driver” would have engaged in coercion.
Conduct Constituting Coercion. The FMCSA clarified in the final rule that an act of coercion may still occur even though a driver does not actually violate an existing safety or commercial regulation. However, the agency explained that merely asking a driver to make a trip that would cause him or her to violate a regulation does not constitute coercion. Rather, a shipper, receiver, or transportation intermediary must fail to heed a driver’s objection that the request would require him or her to break an existing safety rule.
Significantly, the FMCSA stated the driver coercion rule does not require shippers, receivers, and transportation intermediaries to monitor a for-hire driver’s compliance with the HOS rules or other safety regulations. Further, FMCSA will not find a violation of the driver coercion prohibition where the shipper, receiver or transportation intermediary learns that a driver cannot haul the requested load without violating a certain safety violation and such party subsequently requests that the motor carrier employing the driver provide another suitable driver or gives the load to a different motor carrier.
Liability of Brokers vs. Motor Carriers. Based on FMCSA’s existing definition of an “employee” and prior regulatory guidance, the FMCSA clarified that a motor carrier may be liable for violating the driver coercion rule where it hires an independent owner-operator who coerces one of its drivers to violate a safety regulation, regardless of whether the hiring motor carrier knew of such coercion. However, a broker who hires a motor carrier to perform transportation services will generally not be liable for coercion based on the actions of the motor carrier, because motor carriers are not the broker’s agents or representatives and a broker is not an employee of a motor carrier. An exception to this application of the rule may occur if a broker exercises control over the driver and attempts to require the driver to deliver a load in violation of the safety regulations.
Complaints and Investigations. A driver’s complaint alleging coercion must be signed and contain the (i) driver’s name, address, and telephone number; (ii) name and address of the person who allegedly committed the act of coercion; (iii) regulations the driver was allegedly coerced to violate; and (iv) a concise and complete statement of facts relied upon to substantiate each alleged act of coercion, including the date of each violation. Upon receipt of a complaint, the FMCSA Division Administrator will determine if a complaint is frivolous and meets the above requirements. Non-frivolous complaints will be investigated and the findings will be provided to the driver.
$10,000 Civil Penalty. Individuals or entities that violate the new driver coercion regulations will be subject to civil penalties of up to $10,000 for each offense. A motor carrier who willfully violates the rule may have its operating authority revoked.
Burden of Proof. The government will have the burden of proof when imposing civil penalties for violation of the driver coercion regulations. The FMCSA, however, stressed the importance of the essential evidence a driver must provide for it to sustain a successful coercion action against a carrier, shipper, receiver or transportation intermediary.
90 Days to File Coercion Complaint. The final rule extends the time a driver will have to file a coercion complaint from 60 days, as provided in its NPRM, to 90 days.
Legal Authority. The agency’s action was derived from a Congressional mandate included in Section 32911 of the Moving Ahead for Progress in the 21st Century Act (“MAP-21”) (Pub. L. 112-141) and the Motor Carrier Safety Act of 1984, specifically 49 U.S.C. § 31136(a).
The final rule can be accessed here: https://www.gpo.gov/fdsys/pkg/FR-2015-11-30/pdf/2015- 30237.pdf .