Questions remain as driver coercion rule is set to take effect at end of January

Effective January 29, the Federal Motor Carrier Safety Administration’s (FMCSA) so-called driver coercion rule, formally known as the “Prohibiting Coercion of Commercial Motor Vehicle Drivers,” will take effect.

As previously reported by LM, this rule adopts regulations that prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate commercial motor vehicles (CMVs) in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs)—including drivers’ hours-of-service limits; the commercial driver’s license (CDL) regulations; drug and alcohol testing rules; and the Hazardous Materials Regulations (HMRs), according to the Federal Register. The rule also prohibits anyone who operates a CMV in interstate commerce from coercing a driver to violate the commercial regulations.

And when the FMCSA initially issued a notice of proposed rulemaking request for comments for a rule entitled “Coercion of Commercial Motor Vehicle Drivers in May 2014, there was significant confusion as to how the rule would work among shippers, carriers, receivers, 3PLs and brokerages, and other industry stakeholders. What’s more, it included various moving parts that were viewed as fundamentally changing multiple aspects of how freight is moved by motor carriers, tendered, and brokered.

But the final rule clarified various parts of that with some key changes, including:
-amending the definition of coercion from a violation for a shipper or 3PL to refuse a load to a driver if it “knew or should have known” that a driver was about to exceed or already exceeded HOS regulations even if the driver informed the shipper or 3PL of the impending HOS deadline;
-with a shipper and 3PL having to ask a driver about HOS availability and raising liability concerns, the final rule makes it clear that the driver has an affirmative obligation to inform the motor carrier, shippers, receiver, or 3PL when a trip cannot be made without violating one or more regulations;
-brokers are not allowed to directly communicate with drivers and are not employees of a motor carrier and deal directly with the motor carrier, not the specific driver, and if a broker communicates directly with a driver, they could be held liable for vicarious liability and coercion; and
-the deadline to file coercion complaints will work off of a 90-day filing deadline to ensure drivers have a sufficient time to prepare and submit a coercion complaint

Most of the changes in the final rule were endorsed by John Cutler, general counsel of NASSTRAC (National Shippers Strategic Transportation Council).

“We are pleased to see that the agency dropped several of the worst features of the rule,” said Cutler. “The final rule no longer imposes on shippers, intermediaries or receivers a ‘duty to inquire’ whether drivers are can comply with all safety requirements (HOS, safe tractors and trailers, working brake lights, etc., etc.) for the services requested. In addition, the final rule drops the ‘respondeat superior’ legal theory under which shippers, intermediaries and receivers might have been considered ‘employers’ of the drivers who work for the motor carriers. That theory could have caused a great deal of trouble for defendants in ‘negligent hiring’ lawsuits. These are positive developments, and the comments that NASSTRAC and others filed seem to have done some good.”

Cutler also explained that it is imperative to remember that no one defends coercing drivers to violate safety rules, or, in other words, by demanding that a driver spend 16 hours behind the wheel to meet a delivery deadline 0r else risk being fired. And he added that FMCSA clarified in response to a NASSTRAC comment, that there is nothing wrong with a shipper saying it will stop using a trucking company that sends in a driver with 4 hours driving time left on the clock when the haul will require 7 hours, as it is legal “to decide not to use a carrier that does not dispatch drivers who can meet the agreed upon delivery schedule,” as explained in the final rule.

But even with these improvements in the final rule, Cutler made it clear some concerns remain, too.

“It’s pretty clear that FMCSA wants to continue expanding its regulatory reach to include shippers, receivers and intermediaries,” he said. “Also, all of the foregoing clarification of what the rule does not cover is in the explanatory text for the rule, not the rule itself. Shippers, receivers, and intermediaries will need to try to remember what the explanatory text says, or keep a copy of the Federal Register notice. Only the rule itself will be in the CFR.”

The rule also has stiff penalties at up to $16,000 per occurrence, if a shipper, receiver or intermediary makes threats to a driver “to induce the driver to operate ... under conditions which the driver stated would require him or her to violate one or more of the regulations,” according to the rule’s language.

“The exposure to penalties is there whether or not the driver actually violates any regulations,” said Cutler. “In addition, what does it mean for the driver to have “stated’ that the service called for could not be provided in compliance with regulations? Stated how, and to whom? A night watchman or a yard jockey? FMCSA refused to require documentation.”

A better alternative that would result in the rule making more sense and also expose shippers to less liability, according to Cutler, would be if it said something akin to ‘In order to be subject to penalty, shipper, receiver or intermediary personnel with authority over the transportation service must have persisted in the coercion after learning of a driver’s statement that the service could not be performed without violation of one or more of the regulations.’

“As things now stand, we don’t know how the rule will be applied, or who will be believed when a driver has one recollection and a shipper, receiver or intermediary has another,” he said. “A driver caught violating HOS rules might have an incentive to blame a shipper or broker even if there was no coercion. Shippers, receivers and intermediaries may need to consider adding no-coercion sign-offs from truck drivers to their shipment documentation.”

As for how shippers need to be most aware of in regards to the final rule, Transportation Intermediaries Association (TIA) Government Affairs Manager Chris Burroughs said it’s similar to what TIA tells its own members: make sure you have good procedures in place; don’t talk directly to drivers to avoid vicarious liability; and if there is an issue, work with the motor carrier.

When the rule takes effect, Burroughs said TIA will be taking a close look at how enforcement is done, saying there is a concern that it creates a ‘he said-she said’ between a motor carrier driver, owner-operator and a shipper or broker, with TIA paying close attention to how TIA responds to coercion complaints and what enforcement action is taken.

“Everyone in the industry believes that no driver should be coerced into doing anything illegal, we can all agree with that,” he said. “But we don’t want to create a situation where one of our guys gets unfairly put in a situation where he has a pay a $16,000 fine for something he had no responsibility over. It will be very interesting to see how this is enforced.”