The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has adopted a new regulation which will prohibit anyone who operates a commercial motor vehicle in interstate commerce from coercing a driver to violate certain commercial regulations. This “Coercion Rule,” which will take effect January 29, 2016, gives the FMCSA authority to take enforcement action not only against motor carriers, but also against shippers, receivers and transportation intermediaries (including their agents or representatives).
So what exactly is coercion? The FMCSA defines “coercion” as when a motor carrier, shipper, receiver or transportation intermediary threatens to withhold work from, take employment action against or punish a driver for refusing to operate in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs), Hazardous Materials Regulations (HMRs) and Federal Motor Carrier Commercial Regulations (FMCCRs). An example would be if a motor carrier terminates a driver for refusing to accept a load that would require the driver to violate the hours-of-service requirements.
The rule comes in response to complaints received by the FMCSA from commercial drivers who reported having received pressure to violate certain regulations such as the hours-of-service requirement or transportation of hazardous material, and having received threats including job termination, reduced pay and forfeiture of favorable work hours.
From a legal standpoint, commentators fear this rule may by relied on to argue that shippers, receivers and transportation intermediaries are accountable for the actions of their drivers. Or, the rule may be used as a basis of liability in every broker, shopped and logistics provider case. The new rule clarifies that a motor carrier may found to have violated the driver coercion rule if it hires an independent owner-operator who coerces one of its drivers. However, a broker who hires a motor carrier to perform transportation services will not be liable for coercion based on the actions of the motor carrier, because motor carriers are not the broker’s agents and a broker is not an employee of a motor carrier. An exception may occur if a broker exercises control over the driver and then requires the driver to violate a safety regulation. Hopefully the net outcome of this rule won’t be to create a way for plaintiffs’ attorneys to argue that an intermediary’s conduct contributed to a crash.
When the coercion rule takes effect on January 29, 2016, the FMCSA will then start accepting coercion complaints from drivers. The rule includes procedures drivers are to use in reporting incidents of coercion to the FMCSA. It also establishes rules of practice that the FMCSA will follow in response to reports of coercion, as well as describes penalties that may be imposed if entities are found to have coerced drivers. Violations of this rule may result in penalties of up to $16,000.00.
It is anticipated the FMCSA field offices will be flooded with complaints which will have to be sifted through to determine which are worthy of investigation.
The Final Rule can be found at http://www.regulations.gov/#!documentDetail;D=FMCSA-2012-0377-0100.
Anna Newell is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.
Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com