Coercion to Drive Fatigued

In the trucking industry, the pressure to move freight rarely stops at the end of a driver’s legal shift.

Dispatchers call. Brokers make threats about future loads. And managers suggest, with varying degrees of subtlety, that a driver who doesn’t get the job done won’t be seeing many jobs going forward. For decades, this kind of pressure was widely practiced, rarely named, and almost never prosecuted.¹

Federal law now has a name for it. Under 49 C.F.R. § 390.5T, “coercion” occurs when a motor carrier, shipper, receiver, or transportation intermediary threatens to withhold work, take adverse employment action, or punish a driver for refusing to operate in violation of federal safety regulations.² The rule covers violations across the full scope of federal motor carrier safety requirements, including hours-of-service limits, CDL regulations, drug and alcohol testing rules, and hazardous materials regulations.

The coercion rule took effect on January 29, 2016. FMCSA adopted the rule in response to longstanding driver complaints that motor carriers, shippers, receivers, transportation intermediaries, and brokers were insisting on deadlines that could not be met without violating hours-of-service or other safety regulations. Drivers who refused were threatened with loss of a job, reduced pay, fewer loads, or less desirable trip assignments.³

Federal Regulations & Coercion Generally

The legal definition of coercion under 49 C.F.R. § 390.5T is specific. Under the final rule, coercion is defined as a threat by a motor carrier, shipper, receiver, or transportation intermediary to withhold business, employment, or work opportunities from, or to take or permit any adverse employment action against, a driver in order to induce the driver to operate a vehicle under conditions the driver stated would require a regulatory violation. Coercion also includes the actual withholding of work or taking of adverse action to punish a driver for having refused.⁴

Coercion Under 49 C.F.R. § 390.5T

WHO CAN COERCE

A motor carrier, shipper, receiver, or transportation intermediary.

THE THREAT

To withhold business, employment, or work opportunities from, or to take or permit any adverse employment action against, a driver.

THE PURPOSE

To induce the driver to operate a vehicle under conditions the driver stated would require a regulatory violation.

ALSO COERCION

The actual withholding of work or taking of adverse action to punish a driver for having refused.

A coerced violation does not have to occur for the rule to apply. The coercion rule took effect on January 29, 2016.

The last clause of the provision matters. A coerced violation doesn’t have to occur for the rule to apply. Coercion can occur regardless of whether the driver actually agrees to operate in violation of regulations and includes actions such as withholding business, employment, or work opportunities.

There is, however, a procedural threshold. The driver bears an affirmative obligation to put the other party on notice. Under the rule, the driver must identify, at least in general terms, the rule or regulation that would be violated. Simply asking a driver to make a trip that would result in a violation is not, by itself, considered coercion under the rule. The coercion occurs after the driver objects, and the carrier or other party responds with a threat or adverse action anyway.

Drivers who want legal protection need to document their objections clearly and promptly. Industry advocates and safety directors recommend that drivers send written communications such as texts or emails stating which regulation would be violated before any threat is made. That contemporaneous record becomes the foundation of any subsequent complaint.

THE NOTICE THRESHOLD

1 The Driver Names the Rule The driver must identify, at least in general terms, the rule or regulation that would be violated.

2 A Request Alone Is Not Coercion Simply asking a driver to make a trip that would result in a violation is not, by itself, considered coercion under the rule.

3 The Threat Follows the Objection The coercion occurs after the driver objects, and the carrier or other party responds with a threat or adverse action anyway.

4 The Objection Goes in Writing Industry advocates and safety directors recommend that drivers send written communications such as texts or emails stating which regulation would be violated before any threat is made.

The Economics Behind Fatigued Driving

Explicit threats are only part of the problem. Coercion doesn’t require a supervisor saying, “drive or you’re fired.” Structural features of carrier compensation create constant, low-grade pressure that operates below the threshold of any single actionable threat.

Many truck drivers are paid by the mile or load rather than by the hour, which can incentivize drivers to drive longer hours to maximize their income. When drivers’ paychecks depend on covering more miles rather than following safety regulations, the financial motivation to violate hours-of-service rules becomes apparent. A driver who stops to take a required rest break loses both time and money. However, a driver who pushes through gains both.⁵

Route assignment can add another layer of complexity. When companies give their most “efficient” drivers the best, most profitable routes without scrutinizing how those drivers are achieving their pace, the practice can create a system in which compliance is economically penalized and noncompliance is rewarded, without a single explicit threat ever being uttered.

Research supports the connection between pay incentives and commercial motor vehicle driver safety more broadly. Researchers have found that the mileage pay rate and payment method affect the probability of a logging violation or a crash. Decreased sleeping hours and increased driving miles both correlate to an increased probability of drivers violating a working time regulation and having crashes. The pay structure is a safety variable.⁶

PRESSURE WITHOUT A THREAT

Paid by the Mile

Many truck drivers are paid by the mile or load rather than by the hour, which can incentivize drivers to drive longer hours to maximize their income.

Rest Costs Money

A driver who stops to take a required rest break loses both time and money. However, a driver who pushes through gains both.

Route Assignment

Companies give their most “efficient” drivers the best, most profitable routes without scrutinizing how those drivers are achieving their pace.

Pay Rate and Crashes

Researchers have found that the mileage pay rate and payment method affect the probability of a logging violation or a crash.

The Scale of the Fatigue Problem

The reason coercion to drive fatigued receives its own federal prohibition is straightforward: fatigued driving kills people at scale. FMCSA’s Large Truck Crash Causation Study, conducted with the National Highway Traffic Safety Administration using crash data collected between 2001 and 2003 and built on in-depth investigations of 963 serious crashes, estimated that driver fatigue was present in roughly 13 percent of the large trucks involved in fatal or injury crashes nationally during the study period.⁷

Fatigue is also notoriously underestimated in crash investigations because it leaves no chemical trace and depends on self-reporting that rarely happens in the aftermath of a serious accident. Highway safety advocates point to surveys of long-haul drivers reporting that a majority often or sometimes feel drowsy while driving, and that a substantial share have fallen asleep at the wheel of a commercial truck at some point in their careers.⁸

An analysis of 182 major National Transportation Safety Board (NTSB) investigations completed between 2001 and 2012, across all transportation modes, found that 20 percent identified fatigue as a probable cause, contributing factor, or finding. These results represented the first-ever examination of fatigue identified in major NTSB investigations. And for a hazard that doesn’t appear in toxicology reports and can be obscured by falsified logs, these figures likely represent significant undercounting of the true scope.⁹

THE SCALE OF FATIGUE

13%

Estimated share of the large trucks involved in fatal or injury crashes nationally with driver fatigue present during the study period.

963

serious crashes examined in the in-depth investigations behind the Large Truck Crash Causation Study.

20%

of 182 major NTSB investigations identified fatigue as a probable cause, contributing factor, or finding.

Crash data collected between 2001 and 2003; NTSB investigations completed between 2001 and 2012.

The physiological basis is well-documented. Research has shown that after roughly 17 to 19 hours awake, performance is comparable to a blood alcohol concentration (BAC) of 0.05 percent, and that after longer periods without sleep, performance can reach levels equivalent to a BAC of 0.10 percent.¹⁰ Both thresholds exceed the 0.04 percent blood alcohol concentration that triggers mandatory removal from duty for a commercial driver under federal regulation.¹¹ A driver who hasn’t slept and is being pushed to deliver a load on schedule is, in measurable terms, driving drunk.

The Coercion Complaint System & Its Limitations

The coercion rule allows drivers to report incidents of coercion to FMCSA, which is authorized to issue penalties against motor carriers, shippers, receivers, or transportation intermediaries that have coerced drivers. Complaints must be filed within 90 days of the alleged coercion action.¹² Violations can result in civil penalties of up to $19,246 per offense, an amount periodically adjusted for inflation. In egregious cases, FMCSA can also initiate proceedings to revoke a carrier’s operating authority.¹³

Coercion complaints filed with FMCSA increased every year after the rule took effect in 2016, more than doubling by the third year despite the ELD mandate taking effect in late 2017. Observers expected that the ELD mandate would reduce coercion by making log falsification harder, but complaint volume continued to rise.¹⁴

The increase reflects at least two dynamics. First, awareness of the complaint process has grown. Second, once ELDs were mandated, complaints commonly involved being forced to drive over hours, being required to give up mandatory rest periods, and being directed to utilize the “personal conveyance” mode while off-duty to better position the truck for the next workday.¹⁵ The ELD didn’t eliminate pressure on drivers; it changed the tactics used to get around documented violations.

Another drawback is the penalty structure. Critically, the per-violation civil penalty structure has drawn criticism from safety advocates who noted, in comments on the rule, that the fine “pales in comparison to the $250,000 punitive fine that can be levied against a company by the Department of Labor under the Surface Transportation Assistance Act after a finding that a driver was dismissed for refusing to compromise a health or safety standard.” When fines are small relative to the cost of compliance, the economic calculus of coercion doesn’t always break in safety’s favor.¹⁶

COMPLAINTS & PENALTIES

90 DAYS Filing Window Complaints must be filed within 90 days of the alleged coercion action.

$19,246 Maximum Civil Penalty Per offense, an amount periodically adjusted for inflation. In egregious cases, FMCSA can also initiate proceedings to revoke a carrier’s operating authority.

$250,000 The Comparison Advocates Drew The punitive fine that can be levied against a company by the Department of Labor under the Surface Transportation Assistance Act after a finding that a driver was dismissed for refusing to compromise a health or safety standard.

Coercion, Liability & Litigation

When a fatigue-related crash occurs and investigation reveals coercion, the legal exposure for the carriers, shippers, and brokers changes significantly. A record of coercion can bolster a claim against a company by showing that it has tried to put the public at risk by directing drivers to violate safety laws. More than that, it supports a finding that the carrier’s conduct was not merely negligent but deliberate. Deliberate conduct can give rise to punitive damages.

The scope of potential defendants is also broader under the coercion framework than it might initially appear. If a driver is being coerced by their employer to drive in violation of hours-of-service standards, and the driver informs the shipper or transportation intermediary of that coercion, it is on those parties to either request the carrier send another driver or contact another company. If they’ve been informed of the forced dispatch and send the coerced driver with a load anyway, that shipper or intermediary may also be liable for violating federal prohibitions against coercion. However, if a driver does not inform those parties of the coercion, they are not subject to the rule’s penalties, as the notice element is required.

DRIVER GAVE NOTICE

✓It is on those parties to either request the carrier send another driver or contact another company.

✓If they send the coerced driver with a load anyway, that shipper or intermediary may also be liable for violating federal prohibitions against coercion.

NO NOTICE GIVEN

✓If a driver does not inform those parties of the coercion, they are not subject to the rule’s penalties.

✓The notice element is required.

Shippers and brokers frequently assume that exposure in a fatigue crash ends with the carrier. But under the coercion rule, shippers and brokers are also exposed to liability. Evidence of schedule pressure communicated through shipper or broker channels (unrealistic delivery windows, penalties for late arrival, load confirmations sent after a driver has already communicated hours limitations) can establish that those entities participated in creating the conditions that caused the crash.

Drivers who filed coercion complaints before a crash may also have created a pre-incident record that is difficult for a carrier to explain away. The complaint, the ELD data, and the post-complaint assignment history taken together can establish a pattern of pressure and retaliation that goes directly to the question of punitive damages.