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FMCSA Final Rule Prohibits Coercion of CMV Drivers

Thursday, February 11, 2016
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  • The rule prohibits threatening or taking certain actions to either persuade a driver to operate a CMV or to punish a driver who has refused to operate a CMV, in violation of current regulations.
  • Coerced drivers may file a complaint with the FMCSA within 90 days of the incident.
  • Penalties may include civil fines and revocation of operating authority for certain entities.

IMPORTANT DATES

January 29, 2016 Final rule became effective. The final rule applies to all employers, employees and CMVs that transport property or passengers in interstate commerce.

OVERVIEW

On Nov. 30, 2015, the Federal Motor Carrier Safety Administration (FMCSA) issued a final rule prohibiting coercing drivers to operate commercial motor vehicles (CMVs) in violation of certain regulations. The final rule also implements procedures that drivers must follow to report coercion incidents and describes the penalties the FMCSA may apply to enforce this rule.

The rule applies to all employers, employees and CMVs that transport property or passengers in interstate commerce. The final rule became effective on Jan. 29, 2016.

Action Steps

Motor carriers, shippers, receivers and transportation intermediaries should train their personnel on how to identify and prevent coercion under the final rule.  In addition, affected entities should adopt contingency plans, policies and procedures that will allow them to deal with situations in which a CMV trip is required but an assigned driver objects to operating the CMV because doing so would violate an existing regulation.

The Final Rule

The final rule prohibits motor carriers, shippers, receivers and transportation intermediaries—and their respective agents, officers or representatives—from coercing a CMV driver into operating a CMV in violation of certain regulations. The adjacent table shows the definitions of key terms that the final rule incorporates into current FMCSA regulations.

Under the final rule, “coercion” includes threatening or taking certain actions to either persuade a driver into operating a CMV or punishing a driver who has refused to operate a CMV, under conditions that would violate current regulations, including:

  • Hours-of-service limits;
  • Commercial driver license requirements;
  • Drug- and alcohol-testing rules; and
  • Hazardous materials regulations.

Under the final rule, coercion can occur regardless of whether drivers agree to operate CMVs and violate FMCSA regulations. Coercive actions include:

  • Withholding business, employment or work opportunities; and
  • Taking (or permitting) any adverse employment action.

For coercion to take place, the driver must identify, at least in general terms, the rule or regulation that may be violated; in other words, the driver must first object to a trip that is likely to result in noncompliance with the law. This objection is an affirmative driver obligation to inform the motor carrier, shipper, receiver or transportation intermediary that the driver cannot complete a trip without violating one or more FMCSA regulations. Coercion is not possible if a driver does not put the motor carrier, shipper, receiver or transportation intermediary on notice.

With the final rule, the FMCSA also clarifies that coercion requires, at a minimum, some kind of threat. In other words, simply asking a driver to make a trip that would violate existing regulations is not considered coercion. Similarly, discussing or exploring with the driver whether a trip will result in one or more violations may not necessarily result in coercion. However, coercion could arise in these situations if the substance of the conversation results or contains a threat, whether explicit or implied, that the driver would suffer an economic loss or adverse employment consequence because of a refusal to violate FMCSA regulations. The FMCSA emphasized that there is no coercion when a shipper simply gives a load to another driver after the original driver informs the shipper that he or she cannot meet the requested delivery without committing a violation.

Finally, the final rule does not require shippers, receivers or transportation intermediaries to monitor a driver’s compliance with FMCSA regulations. This obligation remains with the motor carrier. As indicated before, coercion incidents can occur only after a shipper, receiver or transportation intermediary has failed to consider a driver’s objection to making a trip when the trip would result in a violation of existing regulations.

Filing Coercion Claims

Drivers who believe they were coerced into violating a regulation are encouraged to file a written complaint with the FMCSA within 90 days of the incident. Drivers may file a complaint regardless of whether they actually operated the CMV and violated existing regulations. The complaint must be signed by the driver and include:

  • A description of the action that the driver claims is coercion;
  • The regulation that the driver has been asked to violate;
  • The driver’s name, address and telephone number;
  • The name and address of the person accused of coercing the driver; and
  • A concise, but complete, statement of the facts that support each coercion claim (including the date of the alleged coercion).

The FMCSA will investigate coercion claims and determine whether the claim is frivolous and whether coercion occurred. The FMCSA will take every practical mean to ensure that drivers are not subject to harassment, intimidation, disciplinary action, discrimination or financial loss because they file coercion claims. This may include coordinated efforts with the Occupational Safety and Health Administration (OSHA) to enforce the retaliation and whistleblower protections that are available to drivers.

Penalties

The FMCSA stated in the published final rule that it plans to take “aggressive action when a violation of the prohibition against coercion can be substantiated.” This may include ordering a violator to pay a civil fine of up to $16,000 per offense and revoking operating authority for certain affected entities.

More information

Please contact the Horton Group for more information about FMCSA regulations.

 

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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