Forced Loading, Unloading or Paying For The Cost

Using the Tools of the Trade

When it comes to any operation a person must have the tools to get the job done. Sometimes the tools at hand aren't as simple as a wrench or a hammer. Sometimes the tools are the laws and regulations at our disposal. As long as they have such laws and regulations then we must learn how to use them to our benefit. Let’s take a moment to look at the circumstances of loading and unloading and who is responsible for the cost of such.

The federal law, 49 of the U.S. Title Codes under section 14103, states that a carrier can't be forced to load or unload the truck nor can a carrier be forced to pay for it. As described below:

§14103. Loading and unloading motor vehicles
(a) Shipper Responsible for Assisting.—Whenever a shipper or receiver of property requires that any person who owns or operates a motor vehicle transporting property in interstate commerce (whether or not such transportation is subject to jurisdiction under subchapter I of chapter 135) be assisted in the loading or unloading of such vehicle, the shipper or receiver shall be responsible for providing such assistance or shall compensate the owner or operator for all costs associated with securing and compensating the person or persons providing such assistance.
(b) Coercion Prohibited.—It shall be unlawful to coerce or attempt to coerce any person providing transportation of property by motor vehicle for compensation in interstate commerce (whether or not such transportation is subject to jurisdiction under subchapter I of chapter 135) to load or unload any part of such property onto or from such vehicle or to employ or pay one or more persons to load or unload any part of such property onto or from such vehicle; except that this subsection shall not be construed as making unlawful any activity which is not unlawful under the National Labor Relations Act or the Act of March 23, 1932 (47 Stat. 70; 29 U.S.C. 101 et seq.), commonly known as the Norris-LaGuardia Act.

http://uscode.house.gov/view.xhtml?path=/prelim@title49&edition=prelim

This is a statutory law that prohibits any shipper or receiver from forcing a carrier or their driver(s) to load or unload the property belonging to the shipper or receiver onto or off from the truck or trailer. The law was passed under the Motor Carrier Act of 1980. However, there is no regulation to be found in the Code of Federal Regulations. Therefore, we don’t have a regulatory code to cite when filing a complaint. The Federal Motor Carrier Safety Administration (FMCSA) claims that it may have gotten lost during the transition from the Interstate Commerce Commission to the FMCSA , from 1992 - 2000. That’s okay, because we have the statutory code, U.S. Code Title 49 Section 14103, to file a complaint and they can enforce the law by using that code.

The law does state that a carrier cannot be forced or coerced into loading or unloading property from the vehicle or paying for such. However, it also quotes the National Labor Relations Act, which is about collective bargaining or the ability to contract. You will have certain protections under the law as it is written. However, if you sign a contract to load or unload the vehicle or take on the responsibility for the loading or unloading of the vehicle, or paying for the cost of doing so, then you will have no legal recourse and will be held accountable for the loading, unloading or any associated cost with the process. According to our telephone conversation with the FMCSA, a verbal agreement is as good as a signed contract. So, be careful about what you promise. Company drivers must understand that if you accept a job with a carrier that has a company policy that requires you to load or unload a truck then you are agreeing beforehand to provide that service. Everyone is required to ascertain their agreement prior to taking a job, agreeing to a load from the broker, or contracting with a shipper.

In order to determine if you are being coerced we me must define coercion. According to the FMCSA coercion is much broader than harassment and is defined as follows.

“A motor carrier can only be found to have committed harassment if the driver commits a specified underlying hours of service (HOS) violation based on the carrier’s actions and there is a connection to the electronic logging device (ELD). Adverse action against the driver is not required, because the driver complied with the carrier’s instructions. In contrast, coercion is much broader in terms of entities covered, and addresses the threat to withhold work from or take adverse employment action against a driver in order to induce the driver to violate a broader range of regulatory provisions or to take adverse action to punish a driver for the driver’s refusal to operate a commercial motor vehicle (CMV) in violation of the specified regulations. Unlike harassment, coercion does not have to result in the driver being in violation of the regulations and does not have to involve the use of an ELD.”

https://www.fmcsa.dot.gov/faq/what-are-differences-between-harassment-and-coercion

According to Black's Law Dictionary coercion is defined as follows.

“Compulsion; force; duress. It may be either actual, (direct or positive.) where physical force Is put upon a man to compel him to do an act against his will, or implied, (legal or constructive.) where the relation of the parties is such that one is under subjection to the other, and is thereby constrained to do what his free will would refuse.”

https://thelawdictionary.org/coercion/

The types of coercion that a driver or carrier may experience in the trucking industry may be a receiver claiming that you will or may be detained if you don’t load or unload the freight or pay for it. A broker withholding a load from you for refusing to agree with the loading or unloading of the freight or paying for the loading or unloading of the freight. In some cases, a broker or shipper may claim that they have a cap on how much that they will pay for a lumper service and will attempt to force the carrier to pay for the remaining balancing of anything that exceeds that cap. No carrier is responsible for any amount of the cost for lumper services.



Now we know the situation how do we handle the circumstance?

Your first course of action as a company driver is to make an agreement with your potential employer or current employer that you are not required to load, unload, or be required to pay for any service for the loading or unloading of the truck. It would be helpful for you to provide a copy of the law ( USC Title 49 Section 10143) and explain to your potential employer that it states “ It shall be unlawful to coerce or attempt to coerce any person providing transportation of property by motor vehicle for compensation in interstate commerce.”

As an owner-operator or carrier, you may want to keep a copy of the law (USC Title 49 Section 14103) and present it in your contract agreement that you will not be loading or unloading any freight and that you will not be paying for the cost of a lumper service in whole or part. That all cost associated with the loading and unloading of the freight onto or off from the vehicle is at the cost and discretion of the shipper or receiver of such freight. Also, we feel that it may be a good idea to include how much time that you are allotting for the loading and unloading and how much you are charging for any time that exceeds the allotted time. We suggest that you charge your overall average earnings per mile adjusted for fuel cost, adjusted for wear and tear, times the average speed, equals rate per hour for detention time.

IE: $2.75 per mile
    6 miles per gallon at a rate of $3.00 per gallon is $0.50 per mile = 2.25
    $0.16 per mile for wear and tear = 2.09
    55 mile per hour average travel time
    2.09 x 55 = $114.95 per hour for detention time prorated by the minute.
    $114.95÷ 60= $1.9158. 5 minutes would amount to $9.579 or round up to $9.58 per minute.

This is a fair market value for your time and equipment that is being unduly held. We assess this based on the fact that while at the dock the driver must log that time as on duty not driving. This is time that a carrier and driver cannot recoup through other means. Once time is spent it can never be recovered. Therefore, the driver and equipment must be compensated adequately for their time.

https://www.bts.gov/bts-publications/freight-facts-and-figures/freight-facts-figures-2017-chapter-4-freight


What to do if you feel that you are being coerced

• We recommend that you bring the law to their attention. You may need to provide them a copy of the law and make certain that they understand that you are willing to file a report on such a circumstance. We suggest that you never argue with anyone about the matter. In the event that they do not want to work with you and you choose to accept the work that requires you to load or unload the freight you still may file a complaint about coercion. Avoid making an agreement to load or unload the trailer or pay for the cost or any part of the cost, because you will be obligated under a verbal agreement and may negate the opportunity to file a complaint.

 

• You must document the circumstance before you may report the circumstance. The best process to document the circumstance is by email. If they are writing it to you then you have an excellent source of documentation. In a circumstance where you are being coerced on the phone then you need to have the ability to write down the conversation word for word. Some States allow for a person to record a conversation as long as one person of the conversation is knowledgeable about the recording. Of course, you may inform a person that you are recording the conversation before proceeding to ask them questions.

 

• The final step is to actually report the act of coercion to the Federal Motor Carrier Safety Administration. You may do so by going to the National Consumer Complaint Database at https://nccdb.fmcsa.dot.gov/nccdb/home.aspx and there you will find 3 panes, 1 that says Consumer, another that says Driver, and a 3rd one that says Industry. Click on the blue button that says “file a complaint” in the 3rd pane that says Industry and follow the steps from there. You have 90 days to file a complaint from when the incident of coercion has taken place and it may take as long as 90 days before you hear back from the FMCSA in regards to your complaint. You may file your complaint anonymously if you don't want to be identified to the company that you are filing against.

Everyone is an essential part to create a better work environment for all members of the trucking community. We all must do our part. There is no excuse for a driver to be treated with disrespect and we must work as a collective whole in order to stop it. By using the tools of the trade, the National Consumer Complaint Database, we have an ability to change how business gets done in our industry. This is our tool to hold all trucking companies, brokers, shippers and receivers responsible to the laws and regulations when they attempt to work around them by dumping more of the workload on the driver in an attempt to extract free or cheap labor out of you.

As a side note:
We would like to take a moment to inform you that we are not offering legal advice. We are offering information for your benefit with links to substantiate our claims. You should always consult an attorney for legal advice and, as directed, contact your state DOT field office for any information or assistance that you may require in regards to coercion of any sort.