New Federal Motor Carrier Safety Administration (FMCSA) rules issued over winter allow drivers to file complaints for coercion and harassment. All parties to the transportation supply chain, including shippers, may find themselves subject to investigations and steep penalties. Your company can work to manage the risk associated with coercion or harassment claims by implementing operational best practices.
Driver Coercion Claims
Driver coercion claims carry risk for motor carriers, brokers, forwarders and shippers. The FMCSA’s “Prohibiting Coercion” rule, effective on January 29, 2016, prohibits coercing drivers to operate in violation of the safety regulations, hazardous materials regulations or the motor carrier commercial regulations. [Prohibiting Coercion of Commercial Motor Vehicle Drivers, Final Rule, 80 Fed. Reg. 74695-74710 (November 30, 2015)]
Driver coercion occurs where threats or adverse actions, including withholding future opportunities, are taken against a driver in response to the driver’s statements that transporting a load will violate the regulations. Merely withholding a particular load from a driver who raised regulatory concerns about that shipment is not considered coercion. However, any threats or adverse actions where a driver raises concerns or refuses to haul will be considered coercion—even if the driver’s allegation of potential violations was incorrect.
Driver Harassment Claims
Carriers may also find themselves subject to driver harassment claims. The FMCSA’s “Electronic Logging Device (ELD) Mandate,” with a compliance date of December 18, 2017, in part prohibits harassing drivers to violate the Hours of Service (HOS) rules in connection with the use of ELDs. [Electronic Logging Devices and Hours of Service Supporting Documents, Final Rule, 80 Fed. Reg. 78292-78416 (December 16, 2015)] Driver harassment claims are a risk beginning the very moment ELDs are installed in power units, despite the mandatory compliance date.
Driver harassment occurs where the driver commits a violation of the Hours of Service (HOS) rules based on the carrier’s actions in connection with an ELD. Unlike coercion, harassment requires that the carrier “knew or should have known” the driver would engage in fatigued driving or violate the HOS rules and that the violation actually occurred. The flood of ELD data that carriers are now receiving, or will soon receive, dramatically increases the likelihood of possessing information about the driver’s realtime performance and failing to consider that data when dispatching loads.
Your Risk Exposure
Coercion and harassment claims carry civil penalties of up to $16,000 for each offense. Claims can also result in revocation of operating authority in egregious cases. Civil penalties are in addition to any penalties associated with underlying regulatory violations and any lawsuits filed by drivers, such as for retaliation in response to refusals to haul.
Driver complaints must be filed with the FMCSA local Division Office or the National Consumer Complaint Database within 90 days of the incident. The FMCSA will investigate all non-frivolous complaints that include adequate information regarding the alleged coercion or harassment. The investigation will include contacting both the driver and the company against whom the claim was filed for additional information. The FMCSA is also recommending that drivers consider filing whistleblower complaints with the Occupational Safety and Health Administration (OSHA).
Your Operations Playbook
Take action to avoid being blindsided by coercion or harassment claims and to help manage those claims if they should occur. The following are eight best practices to consider as you develop and implement your plan for managing the risk of coercion and harassment.
- ENGAGE each driver professionally and with respect, just as with an independent third-party service provider. Recognize that compliance is a team effort.
- TRAIN all staff who interact with drivers to be aware of the regulatory issues relevant to their areas and to be proactive in conversations with drivers. Even seemingly simple driver comments, such as noting an outdated inspection certificate or low tire tread, could result in a coercion claim if the driver is persuaded to proceed.
- STOP if a driver states that a request will cause him or her to violate the regulations. Listen carefully and understand the driver’s concern.
- DO NOT take any actions that may be viewed as pressuring, threatening, intimidating or otherwise harming a driver after he or she expresses a concern. Any consequence for raising a regulatory issue will be used in support of a coercion claim.
- COLLABORATE with those involved to find a solution for hauling the goods. Accept that your company, or your carrier or broker, may need to find an alternative means of servicing a shipment due to the driver’s concern.
- DOCUMENT any communications or incidents with drivers regarding regulatory issues. Create a record of the specific concern, any relevant facts and circumstances, and your company’s response. Of course, also document the names of the individuals involved and the dates and times of communications or actions.
- MAINTAIN all records and dispose of them appropriately. If a record is created, keep it in accordance with your document retention policy and the requirements for that information type.
- MANAGE data received from ELDs if you are a carrier. Any data in your company’s possession will be imputed knowledge in support of a harassment claim if dispatch orders or assigned loads caused HOS violations or fatigued driving.
If your company finds itself the target of an FMCSA investigation, your documentation of the events in question and demonstration of responsible processes and procedures will be key to an appropriate outcome.