Mr. Charles Medalen
Regulatory Affairs Division,
Office of Chief Counsel
Federal Motor Carrier Safety Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
RE: Coercion of Commercial Motor Vehicle Drivers; Prohibition
Docket No. FMCSA-2012-0377
Federal Motor Carrier Safety Administration
Dear Mr. Medalen:
On behalf of the Transportation Trades Department, AFL-CIO (TTD), I am pleased to comment on the Federal Motor Carrier Safety Administration’s (FMCSA) Notice of Proposed Rulemaking (NPRM) to Prohibit the Coercion of Commercial Motor Vehicle Drivers. By way of background, TTD consists of 32 affiliated unions that represent workers in all modes of transportation, including those who operate over-the-road buses and other commercial motor vehicles, and therefore have an interest in this rulemaking.
We support FMCSA’s NPRM which would implement section 32911 of MAP-21 to provide commercial motor vehicle (CMV) drivers with clear protection against threats of losing work or their jobs if they object to operating a CMV under circumstances which their employer knows or should know would cause them to violate federal regulations. Coercing drivers to violate FMCSA’s safety and commercial regulations jeopardizes drivers’ well-being and the safety of their passengers and other motorists. Aimed at improving CMV safety and curbing coercion, the NPRM defines and prohibits coercion, establishes procedures by which drivers may file claims of coercion and FMCSA must review them, and creates penalties for those who violate this new standard.
As the agency notes, drivers have long experienced coercion by employers, shippers, receivers, and transportation intermediaries that prioritize profit over safety. In order to meet demands to complete trips on time or show passengers around a new city, drivers are sometimes pressured to operate unsafe vehicles, exceed hours of service limitations, or commit other unlawful acts. Those refusing to do so face consequences that threaten their livelihood. In fact, drivers surveyed as part of a 2012 study expressed concern that they would lose future work opportunities if they turned down a job which they believed would cause them to violate hours of service (HOS) standards. They also explained that drivers willing to accept those runs “may get rewarded with more jobs, including more desirable trips.” The study also found that charter and tour bus drivers, largely dependent on passenger tips, had issues with HOS regulations because they felt pressure from passengers who wanted to be driven around after reaching their destination. The concerns identified in 2012 were not new, as driver focus groups formed in 1999 identified similar concerns.
Of course when drivers are coerced to violate the law, the safety of those riding their bus and sharing the road is put at risk. Buses traveling with bald tires and worn brakes or operating when they have been ordered out-of-service pose obvious safety concerns. Fatigued drivers operating well past the federal limits in order to meet employer and passenger demands have slower reaction times and are likely to make mistakes that well-rested drivers would avoid. While this NPRM helps curb fatigue, this problem will continue to plague the industry until the factors that lead to fatigue are corrected.
Recognizing the importance of this rulemaking, the agency uses its existing authority to help prevent drivers from being coerced to violate FMCSA’s commercial regulations in addition to the safety regulations also protected under this NPRM as mandated by section 32911. We support the decision to expand the scope of this rulemaking, and we agree with the agency’s rationale that its regulations, even its commercial standards, are important to the safety of the CMV industry and must be followed. Accordingly, ensuring that drivers are not forced to violate either safety or commercial regulations will help prevent coercion that undermines CMV safety.
In promulgating this NPRM, FMCSA offers support for the very individuals who make this mode of transportation possible by helping to prevent CMV drivers from being forced to jeopardize safety in exchange for a paycheck. To improve this proposal, we offer the following suggestions and commentary.
As stated above, this is an important rulemaking for CMV drivers. To ensure it has the greatest effect possible, the agency must clarify drivers’ responsibilities under the new standards.
Specifically, the final rule must define what constitutes an ‘objection.’ The benefits afforded under this proposal are largely contingent upon a driver objecting to an employer’s orders. As stated in the preamble, “A threat would not constitute coercion unless the driver objects or attempts to object to the operation of the vehicle…” However, the NPRM does not define what actions drivers must take in order to ‘object’ to such operation. Without a standard in place, it would be easy for employers, shippers, receivers, or intermediaries to dispute drivers’ claims that they objected to the operation of a CMV. Given that drivers are responsible for providing proof that coercion occurred, it is imperative that FMCSA clearly describe what it considers an ‘objection.’
We also request that the agency clarify whether drivers who object to, but ultimately decide to operate a CMV in violation of federal standards, are covered under this proposal. The preamble states that “An act of coercion…does not absolve the driver of his responsibility to comply with safety regulations…” Yet, as discussed throughout the preamble and as provided in proposed section 390.5(1) and (2), coercion occurs when drivers ‘object’ to illegally operating a CMV. It could be possible that drivers afraid of losing their jobs may first object and then submit to employers’ pressure to operate a CMV. If that occurs, it is unclear whether drivers would be protected under this rulemaking, or, upon the agency’s investigation of a coercion claim, would subject the driver to penalties for driving a CMV when s/he knew that doing so would violate federal regulations.
Coercion Defined, Section 390.5(1) and (2)
As discussed below, we support the agency’s definition of “coerce/coercion,” though we request clarification of the proposed language.
In particular, we support the inclusion of the prohibited actions listed in 390.5(1) and (2): a threat “to withhold, or the actual withholding of, current or future business, employment, or work opportunities from a driver…” As stated above, evidence shows that these threats and actions have been used against drivers for years. It is logical that they be included here.
Motor Carriers, Shippers, Receivers, Intermediaries
We also agree with the agency that an act should be considered ‘coercion’ when a motor carrier, shipper, receiver, or transportation intermediary “knew, or should have known” that the operation of the CMV would be in violation of federal regulations. Because employers are generally responsible for their drivers’ actions, they must be knowledgeable of the regulations that apply to their operations. Feigning ignorance or being unfamiliar with applicable regulations should not absolve employers of their responsibility to uphold important federal standards, especially when failure to abide them jeopardizes public safety and worker well-being.
Inconsistency in 390.5(1) and (2)
We request FMCSA to clarify the text in 390.5(2) which deals with noncompliance of commercial regulations.
Currently, that paragraph states that an act will be considered ‘coercion’ if it is made against a driver “objecting to the operation of a commercial motor vehicle, or to taking other action or to the failure to act…” We note that “or to taking other action or to the failure to act” are not included in 390.5(1) which deals with noncompliance of safety regulations.
We suspect the additional language has been included 390.5(2) to provide the correct grammatical context for the commercial regulations listed. We request the agency to clarify this and to ensure that the same protections are afforded to drivers regardless of whether their objections are based on violations of commercial or safety regulations.
Coercion Prohibited, Section 390.6
We support the language found in proposed section 390.6 which prohibits a motor carrier, shipper, receiver, or transportation intermediary, including their respective agents, officers, or representatives, from coercing a driver to operate a CMV under circumstances that they know, or should know, would cause the driver to violate various FMCSA safety and commercial regulations.
With regard to the safety regulations that section 390.6(a)(1) prohibits violation of, we support the inclusion of the HOS requirements and CMV inspection, repair, and maintenance standards, among the others specified. Protecting drivers from being coerced to work longer hours than allowed or to operate unsafe vehicles is important to motorcoach safety.
With regard to penalties faced by those who violate the new coercion standard, we support the proposal to apply a civil penalty of up to $11,000 for each violation, the potential for a violation to affect a carrier’s safety fitness rating, and the possibility of suspending, revoking or amending a carrier’s operating authority. The importance of this rulemaking necessitates stiff fines such as those proposed. Lessening their severity only undermines the impact of this proposal.
FMCSA Coercion Complaints and OSHA Whistleblower Claims of Retaliation
We also support the agency’s statement that drivers who file coercion complaints with FMCSA may also file retaliation complaints with the Occupational Safety and Health Administration (OSHA).
As FMCSA explains, the coercion protections created by this proceeding may overlap with the whistleblower provisions administered by OSHA, which protect drivers from employer retaliation for refusing to operate a CMV for reasonable fear of injury to themselves or others. Recognizing that the mandates underlying FMCSA and OSHA’s provisions have different focuses, it is important that drivers have access to both protections as necessary.
These workers have difficult jobs, operating long hours and often under harsh conditions to complete their assignments. The protections created by this NPRM will help prevent employers from exacerbating these conditions and jeopardizing public safety. We applaud the agency for promulgating this rulemaking to protect CMV drivers, and we hope the agency will take our comments into consideration.