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(c) 2016 Jon L Gelman, All Rights Reserved.

Sunday, November 29, 2015

Drivers' Protected From Being Forced to Violate Safety Regulations

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today announced the publication in the Federal Register of a Final Rule to help further safeguard commercial truck and bus drivers from being compelled to violate federal safety regulations.  The Rule provides FMCSA with the authority to take enforcement action not only against motor carriers, but also against shippers, receivers, and transportation intermediaries.

“Our nation relies on millions of commercial vehicle drivers to move people and freight, and we must do everything we can to ensure that they are able to operate safely,” said U.S. Transportation Secretary Anthony Foxx.  “This Rule enables us to take enforcement action against anyone in the transportation chain who knowingly and recklessly jeopardizes the safety of the driver and of the motoring public.”

The Final Rule addresses three key areas concerning driver coercion: procedures for commercial truck and bus drivers to report incidents of coercion to the FMCSA, steps the agency could take when responding to such allegations, and penalties that may be imposed on entities found to have coerced drivers.

“Any time a motor carrier, shipper, receiver, freight-forwarder, or broker demands that a schedule be met, one that the driver says would be impossible without violating hours-of-service restrictions or other safety regulations, that is coercion,” said FMCSA Acting Administrator Scott Darling.  “No commercial driver should ever feel compelled to bypass important federal safety regulations and potentially endanger the lives of all travelers on the road.”

In formulating this Rule, the agency heard from commercial drivers who reported being pressured to violate federal safety regulations with implicit or explicit threats of job termination, denial of subsequent trips or loads, reduced pay, forfeiture of favorable work hours or transportation jobs, or other direct retaliations.

Some of the FMCSA regulations drivers reported being coerced into violating included: hours-of-service limitations designed to prevent fatigued driving, commercial driver’s license (CDL) requirements, drug and alcohol testing, the transportation of hazardous materials, and commercial regulations applicable to, among others, interstate household goods movers and passenger carriers.

Commercial truck and bus drivers have had whistle-blower protection through the Department of Labor’s Occupational Safety and Health Administration (OSHA) since 1982, when the Surface Transportation Assistance Act (STAA) was adopted.  The STAA and OSHA regulations protect drivers and other individuals working for commercial motor carriers from retaliation for reporting or engaging in activities related to certain commercial motor vehicle safety, health, or security conditions.  STAA provides whistleblower protection for drivers who report coercion complaints under this Final Rule and are then retaliated against by their employer.

In June 2014, FMCSA and OSHA signed a Memorandum of Understanding to strengthen the coordination and cooperation between the agencies regarding the anti-retaliation provision of the STAA.  The Memorandum allows for the exchange of safety, coercion, and retaliation allegations, when received by one agency, that fall under the authority of the other.

For more information on what constitutes coercion and how to submit a complaint to FMCSA, see: www.fmcsa.dot.gov/safety/coercion.  Please note: the Final Rule takes effect 60 days following its publication in the Federal Register.
This rulemaking was authorized by Section 32911 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Motor Carrier Safety Act of 1984 (MCSA), as amended.

For a copy of today’s Federal Register announcement, see: www.federalregister.gov/articles/2015/11/30/2015-30237/prohibiting-coercion-of-commercial-motor-vehicle-drivers.
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.