By Silvia Zicherman
Safety has always been a concern in the commercial trucking industry. In response, the Federal Motor Carrier Safety Administration (FMCSA) issued a mandate Dec. 16, 2015, in the Federal Register designed to combat driver fatigue, increase reporting accuracy and minimize road accidents through the required use of Electronic Logging Devices (ELDs). The rule sets out who must use ELDs, the required technical standards for ELDs, new supporting document requirements, as well as prohibitions against driver harassment using data obtained by an ELD.
The rule applies to most commercial motor carriers and drivers who are currently required to maintain records of duty status (RODS). The FMCSA requires compliance with the rule by Dec. 18, 2017. FMCSA estimates that the rule will affect over 3.5 million truck drivers, so employers should make sure that they are in compliance.
According to the FMCSA, the rule was created to promote a safer work environment for drivers, and to make it easier and faster to accurately track, manage and share RODS data. The ELD works by synchronizing with the vehicle’s engine to automatically record driving time and other driving information. According to an FMCSA study, automated electronic logs can reduce hours of service (HOS) violations by as much as 50 percent and decrease a motor carrier’s overall crash rate by 10 percent.
Automated logs make drivers more efficient and productive because drivers no longer have to spend time manually tracking their hours using paper logs, which are not always accurate. Additionally, the electronic logs provide drivers with real time HOS violation alerts, which reduces potential HOS violations.
However, with this type of electronic monitoring of employees, Congress and the FMCSA recognized that there is a potential for the devices to be used by employers to harass their drivers or for confidential personal data contained in the devices to be improperly disclosed by law enforcement officials.One of the greatest safeguards for drivers, and potential pitfalls for employers, is the rule’s protections against driver harassment.
The rule defines harassment as a motor carrier’s use of information obtained from an ELD (or through other technology used in combination with and not separable from the ELD) to take action toward a driver it employs (either directly or as an independent contractor), which the carrier knew or should have known would result in the driver violating the regulations against driving with impaired alertness due to fatigue or illness or violating the HOS regulations. Not only does the rule prohibit harassment generally, but also:
1. It provides a process for drivers to file written complaints;
2. It mandates an ELD mute function to ensure a driver is not interrupted in the sleeper berth; and
3. It includes anti-tampering provisions such as: limiting editing ability for ELD records by either a driver or motor carrier; required driver certification when a driver edits an ELD record and preservation of original ELD records, even when edited.
The rule also provides that if a carrier is found to have harassed a driver, it will be subject to a civil penalty for harassment in addition to a penalty for the HOS violation. The driver who has been harassed has 90 days to file a written complaint using the National Consumer Complaint Database or with the FMCSA Division Administrator for the state where the driver is employed.In addition to harassment, employers should be aware that the rule prohibits coercion of drivers.
Coercion is defined more broadly than harassment, in that it can pertain to motor carriers, shippers, receivers, and transportation intermediaries (brokers and others). Coercion is defined as a threat to take any adverse employment action against a driver, or to withhold business employment, or a work opportunity from a driver, to get him/her to violate FMSCA regulations. Additionally, carrying out a threat to punish a driver who refuses to violate the regulations also constitutes coercion. Specifically, the rule prohibits a motor carrier from coercing a driver to falsely certify his data entries or RODS.
If an employer does this, a driver can also bring a whistleblower action against the employer.While the rule offers drivers protection, the ELD mandate also provides employers with significant benefits and potential cost savings. In addition to reducing the administrative burden for employers by automatically tracking and recording a vehicle’s movement (as well as saving and storing the data), complying with the ELD mandate can save an employer money.
The devices can be used to reduce waste and correct employee behavior by allowing an employer to track how much time each driver spends idling. Identifying drivers who idle too frequently or for too long can save an employer money in fuel costs. Another cost saving benefit from ELDs is that they can be used to reduce an employer’s liability when it comes to accidents by recording data that can be presented as evidence that the driver of the truck was not at fault.
For example, the data can be used to show that the driver was not speeding. An additional cost benefit to an employer is lower insurance premiums. Because ELDs are seen as promoting safety by reducing driver fatigue and minimizing accidents, insurance companies will offer employers that comply with the ELD mandate better rates. Additionally, because ELDs also have a GPS tracking feature, insurance companies will offer an additional savings in premiums because the risk that the truck can be stolen is reduced.Complying with the ELD rule can also save an employer money when it comes to maintenance costs.
Because the devices are automatically connected to the truck’s diagnostic port, it allows employers to monitor fault codes. Thus, employers are able to proactively address maintenance issues. The same is true with regard to actively monitoring the vehicle through its GPS tracking device. Employers are able to track the trucks at all times without having to contact the driver, while also being able to plan out more efficient routes for the trucks.One of the biggest benefits of the devices is being able to track an employee’s driving behavior.
A driver’s bad behavior, such as excessive acceleration and speeding can be tracked so that an employer can address the behavior with an employee and correct it with additional training, as opposed to threats of termination, which could constitute coercion under the rule. An employer can also use this information to reward good drivers, which increases motivation and driver retention rates.
The ELDs are required by most commercial motor carriers in order to be compliant with FMCSA’s ELD mandate. When used properly the devices can be used by employers to safeguard an employee’s safety, correct employee behavior, and as a cost saving device. However, employers have to be careful they do not use the devices to harass or coerce their employees, and that they respect their employees’ privacy.
Silvia Zicherman is an affiliate of LDA Compliance Consulting Inc. She is an attorney and has 12 years of experience in the construction industry as a former marketing director at a national construction law firm.