THEY MEAN BUSINESS

In 1984, Congress enacted the Surface Transportation Assistance Act (STAA) which prohibited discharging, disciplining, or discriminating against an employee who refused to operate a commercial motor vehicle if doing so would violate a regulation, etc. related to CMV safety, health, or security. This regulation was typically enforced (or not) under the OSHA provisions of the Act.

As regulations regarding truck drivers and delivery pressures increased, the risk of violating this statute also increased, and the MAP-21 Act authorized the Federal Motor Carrier Safety Administration (FMCSA) to publish a rule applying more specifically to drivers in the current environment. After hearings on the matter, including testimony of drivers who had been coerced or discriminated against, on November 27, 2015, FMCSA published new rules on coercion. The rules provide procedures for reporting such incidents (with whistleblower protection), steps the agency can take when responding, and penalties for coercion against drivers. Earlier, OSHA and FMCSA had signed an agreement to work together in strengthening the provisions of STAA. It is important to note that the new rules apply not only to motor carriers (think dispatchers) but also to shippers, receivers, and brokers. Any pressure to violate hours of service, commercial drivers’ license requirements, drug and alcohol testing, or other trucking regulations is strictly prohibited.

A recent, cautionary case in point involved a New Jersey logistics service provider (LSP) who fired a driver who was significantly delayed by a storm and could not make his delivery and return home without violating hours of service rules. His solution was to deliver the load to a closer facility of the same customer. The LSP then dispatched a truck to make the last mile delivery. The customer got their shipment and the driver did not violate his hours of service limits. All’s well that ends well, right? Wrong! The LSP fired the driver the next day. OSHA felt the law was quite clear and that the driver had acted in the best interests of everyone, including himself.

In case there was any doubt that OSHA and the FMCSA are very serious about these issues, it was dispelled by the penalty levied against the LSP.

1. Immediate reinstatement of the driver.
2. $126,000 in back pay.
3. $50,000 in compensatory damages
4. $100,000 in punitive damages and attorney fees.
5. Expungement of all records of the event.
6. No retaliation against the driver.
7. Posting of a sign outlining the order and reminder of drivers’ rights under the law.

The name of the LSP has been released, but the driver’s name will not be.

Each party has 30 days to request a hearing, but the key point to remember is that shippers, receivers, and others – not just motor carriers – may be penalized under the law.

Written By: Clifford F. Lynch