On November 30, 2015 the DOT issued its final rule prohibiting coercion of commercial drivers, which expands the current whistle-blowing provisions jointly administered by the Department of Labor and the Department of Transportation via a Memo of Understanding issued last year. The main point of expansion is that now a covered driver is protected not only from discharge, discipline or discrimination for engaging in certain protected activities (focusing on safety regulations issued for this industry), but it now includes “coercion” of such drivers not only as to safety violations, but also as to any violations of commercial regulations that would apply to “motor carriers, shippers, receivers or transportation intermediaries.” The regulations are quite vague regarding what “coercion” shall consist of, stating the DOT will investigate any “non-frivolous” claim that a motor carrier, shipper, receiver or transportation intermediary, or their respective agents, officers, or representatives, have threatened to or actually withheld business, employment or work opportunities from, or taken any adverse employment action against, a driver in order to induce the driver to operate a commercial motor vehicle under conditions in which the driver would be required to violate one or more of the regulations that are codified within the Federal Motor Carrier Safety Regulations.
The obvious parties to be involved in “coercive” tactics involving activities related to breach of safety and commercial regulations directed at truck drivers would generally be motor carriers. Here the player field has been expanded to include shippers, consignees, and transportation intermediaries. This will require some understanding by these entities as to what this new risk might entail. Just as an example, commencing on July 1, 2016, pursuant to the Safety of Life at Sea (SOLAS) container weight verification requirements, global mandatory requirements, will go into effect. Shippers must provide a gross weight certificate to the ocean carrier and the port terminal operator in advance of vessel loading. The Certification must be “signed,” meaning a specific person representing the shipper is named and identified as having verified the accuracy of the weight calculation on behalf of the shipper. Without this Certification, containerized cargo will not be loaded on a vessel. It will be areas like this where shippers, consignees, intermediaries, including freight forwarders, custom house brokers, FMCSA Property brokers, may get enticed to provide undue influence on a driver to provide such Certifications. Again, this is only an example of where this type of dynamic might present itself. It will require that these industry groups become sensitive to the new requirements of programs like SOLAS, but also of the implications of unduly influencing truck drivers in areas where safety and/or commercial regulations are in effect.
Hence, we can add the Department of Transportation to the long list of Agencies under the current administration which is expanding the scope of liability for various entities in the transportation industry. Accordingly, policies and procedures need to be reviewed and modified; and appropriate training needs to be conducted, to avoid transportation personnel from being named as offenders of this new law, which includes monetary penalties up to $10,000 per offense. A driver had 60 days from the act of coercion to file a claim.
For additional information, please contact Terry Potter, Carlos Rodriguez, or Joe Orlet.