Monday, September 8, 2014

Big guns aim at coercion rule

“U.S. trucker coercion rule could impact global supply chains.”

Holy moly! Skyrocketing prices! Shippers and brokers in jail! The end of logistics as we know it!

OK, I’m overstating the case. But then, so are the industry groups quoted in the Journal of Commerce article under this headline. It’s all about reactions to the proposed FMCSA rule intended to protect you from coercion to break HOS rules.

Of course the rule, which finally acknowledges pressures on drivers, doesn’t go far enough. Enforcement depends on individual drivers to document coercion, file complaints, and follow through – not easily done or even possible when you’re dependent on relationships likely to explode if you complain.

But these guys have it the other way around.

As they see it, the proposed rule would enable nit-picky drivers to make trouble for dispatchers, brokers, shippers, receivers, ocean carriers, manufacturers, or just about anybody in the supply chain from an Italian cheese maker to the pizza delivery guy at your door.

As if truck drivers keep lawyers on retainer.

The National Shippers Strategic Transportation Council, NASSTRAC, calls the proposal “a stunning overreach and abuse of regulatory power.” The custom brokers’ group with a name too long to deal with says, “Shippers and transportation intermediaries typically hire trucking companies rather than the drivers those companies employ.”

And the Transportation Intermediaries Association, TIA, is upset that the proposal would “expose shippers, receivers, and (brokers) to vicarious liability suits.”

Well, yeah. That’s the whole idea. Vicarious – meaning secondhand or by proxy in law – is exactly the kind of responsibility targeted by the proposal.

If a broker tells a carrier a shipment must be delivered without regard to the hours available to a driver, then that broker should bear some responsibility. If manufacturers, logistics companies, or others create supply chains with unreasonable truck transit demands as part of the bid specs, then they should be as accountable as the carriers who win the bids.

There’s nothing “stunning” about government reach in the proposal. Secondhand, or “vicarious,” liability is well established in the courts. When brokers hire unsafe carriers or improperly supervise drivers and accidents ensue, secondary parties are held liable for their roles. For example, C.H. Robinson, one of the biggest brokers in the world, was ordered to pay more than $23 million in a fatal 2008 crash of a truck it hired. It lost an appeal of the judgment in 2011.

No one is overreaching here, simply recognizing responsibility where it actually lies. 

In the day-to-day world of trucking, drivers have few options when it comes to coercion. You can accede to it and break the rules at the risk of your safety – never mind your safety rating.

Or you can decline and take the business consequences – lose a load or lose a job, perhaps. But most drivers work so close to the edge and each paycheck is so critical, that the idea of filing a complaint and seeing it through a bureaucratic trek with an uncertain outcome is not an option at all.

Even so, the big guns of commerce have come out blazing. It appears they’re going to do everything they can to make this proposal, inadequate as it is, go away altogether.