ARE YOU A BAD INFLUENCE ON YOUR DRIVERS?

If so, you may have to clean your act up a little bit. By now, everyone concedes that the job of a truck driver is not an easy one, and is subject to what seems like an endless list of federal and state regulations. Unfortunately, most of them are necessary, and were established to ensure safety to drivers, their cargo, and other drivers on the highways. On the other hand, some of these regulations such as hours of service rules and driver log requirements sometimes slow down the movement of freight and can increase costs. Not surprisingly, under certain conditions, there is a temptation for a driver to fudge a little in order to deliver a load or get home.

These transgressions however, often do not originate with the driver. Ever since hours of service were established, drivers have complained about being coerced to violate rules regarding hours of service, drug and alcohol testing, commercial drivers’ licenses, and other out of service limitations. They have been threatened with such actions as job termination, denial of good loads, reduced pay, and other retaliations if they didn’t bend the rules. Finally however, after a considerable amount of study and several hearings on the subject, the Department of Transportation Federal Motor Carrier Safety Administration (FMCSA), on the day after Thanksgiving, announced a final rule prohibiting coercion of drivers to violate safety rules. The rule defines coercion as a threat by a motor carrier, shipper, receiver or transportation intermediary or their respective agents “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, Hazardous Materials Regulations, and the Federal Motor Carrier Commercial Regulations.” A finding on coercion is not dependent on the violation actually occurring.

In order for the coercion violation to have existed, the carrier, shipper, receiver, or intermediary must request an action that would result in a violation, the driver must inform the appropriate party that a violation would occur if he complies, and the carrier, shipper, receiver, or intermediary must then threaten or take some action if the driver refuses to comply.

It is interesting to note that this rule gives the FMCSA the authority to penalize parties other than the carriers, i. e. shippers, receivers, intermediaries, etc. Fines of up to $16,000 per offense are allowed under the new regulation.

Drivers (truck and bus) already have whistle blower protection under the Occupational Safety and Health Administration Act (OSHA). However, as I reviewed the procedure for filing the complaint, it seemed to me that proving the violation may be difficult. My guess is that at least in most cases, if a violation is requested, it will be done verbally without witnesses, leaving us with the proverbial “he said, she said” conundrum.

The new rule will go into effect on January 30, 2016, sixty days after publication in the Federal register.

 

Written By: Clifford F. Lynch