On November 30, 2015, the Federal Motor Carrier Safety Administration (FMCSA) issued its final rule prohibiting the coercion of drivers to violate federal regulations relating to safety and the operation of commercial motor vehicles. These regulations went into effect on January 29, 2016. It is very important for parcel shippers to understand these new regulations and how they will be affected by them as violations carry substantial penalties.
There are two key components to the regulations. The first is to define the prohibited conduct. The new regulations state “A motor carrier, shipper, receiver, or transportation intermediary, including their respective agents, officers, or representatives, may not coerce a driver of a commercial motor vehicle to operate such vehicle in violation of” certain specified safety and vehicle regulations.
This begs the question as to what it means to “coerce a driver”? The definition of coercion is the other key component of the regulation: “Coerce or Coercion means either a threat by a motor carrier, shipper, receiver, or transportation intermediary, or their respective agents, officers or representatives, to withhold business, employment or work opportunities from, or to take or permit any adverse employment action against, a driver in order to induce the driver to operate a commercial motor vehicle under conditions which the driver stated would require him or her to violate” safety and vehicle regulations.
An example of this would be if a driver told a manager of a trucking company that he would not be able to complete a shipment to destination without violating his hours of service limit… and then the manager told the driver that if he doesn’t keep driving he would not be paid or would suffer some other financial consequence.
The situation addressed in the regulations would most typically arise in the day-to-day interactions between drivers and motor carrier dispatchers and managers. However, parcel shippers are not isolated as even international air shipments begin with a truck driver picking up the shipment.
During the rule making process, many concerns were raised as to the proposed wording of the regulations. Of particular concern was what would a shipper be allowed to do and what would they not be allowed to do. Of further concern was whether the regulations would create an obligation for shippers to do something that they were not previously legally obligated to do.
In response to these concerns, the FMCSA specifically stated in its decision that “This final rule does not require shippers, receivers, and transportation intermediaries (unlike motor carriers) to monitor a driver’s compliance with the HOS rules or other regulations…There would be no requirement or even occasion to inquire into the driver’s available hours unless the driver had raised an objection to the delivery schedule.”
To further satisfy these concerns, the Agency “has amended the definition of ‘‘coercion’’ to make clear that the driver has an affirmative obligation to inform the motor carrier, shipper, receiver, or transportation intermediary when he or she cannot make the requested trip without violating one or more of the regulations listed in the definition. Motor carriers, shippers, receivers, and transportation intermediaries cannot commit coercion under the final rule unless and until they have been put on notice by the driver that he or she cannot meet the proposed delivery schedule without violating the HOS limits or other regulatory requirements.”
Another example addressed in the decision was: “Shipper A hires Carrier B to deliver a load on a reasonable schedule. However, when Carrier B’s driver arrives to pick up the load, he tells Shipper A that he has to go off duty in a few hours under the HOS regulations, making it impossible to meet Shipper A’s delivery schedule. Shipper A says in frustration, ‘That’s the last time I use Carrier B.’ Is Shipper A subject to a penalty of up to $11,000 just for saying those words, even if no safety violation occurs? How many penalties could Shipper A face if it makes no more use of Carrier B?”
The FMCSA stated that, “Shipper A has not coerced the driver to violate the HOS rules, nor has it coerced Carrier B to put pressure on the driver to violate the rules. It has simply decided not to use a carrier that does not dispatch drivers who can meet the agreed upon delivery schedule.”
While the clarifications and comments of the FMCSA relieve many concerns of the shipper community, it still must be kept in mind that violations can result in a civil penalty of up to $11,000.00!
While these penalties are new, it should be noted that it has always been the case that a shipper can be held civilly liable if it is determined that the shipper’s conduct lead to a violation of one or more regulations which in turn caused or contributed to a highway accident or other injuries.
All for now!
Brent Wm. Primus, J.D., is the CEO of Primus Law Office, P.A. and the Senior Editor of transportlawtexts, inc. Previous columns can be found on www.PARCELindustry.com. Your questions are welcome at firstname.lastname@example.org.