Congress directed the Federal Motor Carrier Safety Administration (FMCSA) to prohibit carriers, shippers, receivers and transportation intermediaries from coercing drivers to violate certain federal safety and hazardous materials regulations.
FMCSA published a proposed rule regarding the subject in May and earlier this month the deadline for comments on the proposed rule passed.
During the comment period, the Occupational Health and Safety Administration (OSHA) commented on the proposed rule, telling FMCSA that “coercion” needed to be considered on a broader basis.
In a letter to FMCSA, David Michaels, assistant Secretary of Labor for occupational safety and health, said that in enforcing OSHA’s whistleblower protection authority in trucking the agency has found that coercion is broader than just threats related to loss of work, future business or other economic opportunities.
Coercion may also include threats of violence, demotion, reduction of pay and withdrawal or reduction of benefits, “or any action that is capable of dissuading a reasonable employee from engaging in whistleblower activity,” Michaels said. Instead of specifying the types of coercion covered, he recommended that coercion be defined as threatening “to take or permit any adverse employment action.”
Michaels also told FMCSA that OSHA’s experience is that the proposed 60 days for filing a written complaint is too short and would lead to excluding many potential cases. FMCSA should lengthen the filing period to 180 days and allow not just formal written complaints but also phone, email, social media and other means, he said. Michaels noted that Congress has set 180 days as the filing period in numerous recent laws involving OSHA oversight.
“The nature of employment-related matters makes it necessary for potential complainants to have more time to file,” Michaels said. “Workers who have been retaliated against need time to digest what has happened to them, seek counsel, and find other employment.”