On November 30th, the Federal Motor Carrier Safety Administration (“FMCSA”) published its rule on driver coercion with an effective date of January 29, 2016. The rule prohibits conduct intended to induce the driver to operate a commercial motor vehicle (“CMV”) where the driver has objected that such operation would require the driver to violate regulations of the FMCSA, including the Federal Motor Carrier Safety Regulations (“FMCSR”). Penalties for a violation can be assessed up to $16,000 per violation. The penalty is retained by the FMCSA and not shared with the complaining driver. While the rule remains concerning for reasons noted below, the FMCSA listened to and addressed many of the concerns of forwarders and other intermediaries that came out of the FMCSA’s notice of proposed rulemaking. 1. Duty to Inquire. The proposed rule arguably imposed a duty on parties hiring carriers to inquire as to whether the driver could perform a move without violating any of the applicable regulations. The final rule clarifies that there is no duty of inquiry. 2. Driver Objections. Not only is there no duty of inquiry on the part of the forwarder, in order to lodge a coercion complaint, the driver must voice an objection prior to transporting a load and must at least generally point to a regulation that the driver thinks may be violated. In addition, drivers must file claims with the FMCSA within 90 days of the allegedly coercive conduct. 3. Withholding Business from Carriers. The FMCSA also clarified that it is perfectly normal and acceptable for a forwarder to refuse to use a motor carrier that fails to provide drivers that can complete runs without running afoul of safety regulations. For instance, the FMCSA stated that it would be acceptable for a forwarder to refuse to use a carrier that dispatches drivers that cannot meet agreed upon schedules due to lack of available hours (assuming no other coercion of the driver directly). These clarifications are welcome, but the question of what constitutes coercion remains vague and subject to interpretation. While the final rule certainly gives the impression that it will be more common for a driver to make a claim of coercion against a motor carrier than against a forwarder, that generally has to do with the fact that a driver is more likely to make objections to the motor carrier, and is more likely subject to coercion (whether explicit or implicit) by the motor carrier. Where the “driver is the carrier” (in other words, in the one driver/one truck environment), the forwarder runs a higher risk of potential coercion because the forwarder will necessarily be dealing with the driver directly. Moreover, to the extent forwarder personnel are interacting directly with drivers rather than with motor carrier dispatch, the risk of coercion complaints increases. Thus, in addition to minimizing direct interaction with drivers (which is good practice regardless of the new coercion rule), forwarders should consider training personnel to identify potential objections that could trigger a coercion claim, and should also adopt policies and procedures addressing how to respond to and document such objections. Source: AfA