ELD Rule And Driver Harassment

“If the boss says, it must be right. Isn’t it?”

The Federal Motor Carrier Safety Administration came up with the ELD mandate to ensure safer road travel, efficient and streamlined fleet management and operation, and more importantly – adherence to hours of service (HOS) rule. Before introducing the mandate, the FMCSA conducted several researches and took into account various grievances filed by the drivers – the common one being coerced to change the HOS records and other instances of driver harassment.

When the ELD was introduced, FMCSA made sure that motor carriers could not harass or coerce drivers into violating federal laws. It clearly defines harassment as:

“Action by a motor carrier toward a driver (whether an employee or a contractor) that the carrier knew or should have known would result in an HOS violation in 49 CFR 395 or 49 CFR 392.3.” FMCSA also clearly states that harassment only applies when information from the ELD or any other technology used along with ELD is involved in the carrier’s action.

Therefore, harassment necessarily occurs due to the action of a motor carrier towards the employed driver, including an independent contractor, involving information from ELD, when the motor carrier is either aware or should have been aware that the actions thus were taken are in violation with Hours of Service (HOS) rules.

To make harassment rules and other related procedures easier for drivers, Matrack Incorporation has created this guide. In this informative guide to ELD rule and driver harassment, we will discuss the following:

• Regulations specified under 49 CFR 395
• Regulations specified under 49 CFR 392.3
• What can be considered harassment?
• Coercion
• Difference between driver harassment and coercion
• How ELD prevents harassment
• Procedure for reporting harassment
• Penalties

Before we can understand where and how the driver harassment can take place, it is important to know the regulations under 49 CFR 395 and 49 CFR 392.3. A motor carrier cannot ask its employed or contractual driver to violate any of these regulations but is required to ensure that all its employees follow them diligently. It is the duty of the carrier to be well-versed in these regulations, cannot use ignorance as an excuse to harass or coerce a driver.

49 CFR 395

The U.S Code of Federal Regulations defines the rules related to the driver’s hours of service (HOS) under 49 CFR Part 395. It clearly mentions that the rules under 395 are applicable to all motor carriers and drivers, except for certain exceptions like a short haul, adverse driving conditions, agricultural operations, and more. The regulation has several sections, however we will be discussing only those that are more likely to be violated.

Who does it apply to:

• All motor carriers and drivers except:
  
• Adverse and emergency driving conditions
  
• Driver-salesperson with less than 40 hours of drive time in 7 consecutive days
• Oilfield operations
• Short-haul operations
• Retail store deliveries
• Sleeper Berths
• State of Alaska
• State of Hawaii
• Travel time (driver traveling as instructed by the motor carrier but not driving)
• Agricultural operations
• Ground Water drilling operation
• Construction materials and equipment
• Utility Service vehicles
• Property-carrying driver
• Commercial Motor Vehicle transportation to or from a motion picture production site
• Attendance on commercial motor vehicles containing explosives
• Railroad Signal Employees

On-duty time: On-duty time refers to the time a driver begins work until he/she is relieved. Driving time includes:

• Time spent waiting to be dispatched at a plant, terminal, facility or any other property of the motor carrier or the shipper.
• Time is taken to inspect, service or condition a CMV
• Time spent resting in/on a parked vehicle, sleeper berth, riding in the passenger seat of a property carrying vehicle up to 2 hours
• Time spent in loading and unloading
• Time spent in repairing a disabled CMV
• Time spent giving a breath or urine sample
• Performing any other work for the motor carrier

The driving time: Motor carriers are required to ensure that the drivers drive with proper rest breaks as specified:

• A driver can start a work shift only after taking 10 consecutive hours off duty
• A driver may drive only during 14 consecutive hour period after taking the necessary 10 consecutive hour rest
• A driver can drive for only 11 hours during the 14 consecutive hour period and must take at least 30 mins break/sleeper berth, after having driven for 8 consecutive hours.
• A driver cannot drive after being on duty for 60/70 hours in any period of 7/8 consecutive days
• After working for 7/8 consecutive days, a driver must take 34 hours off duty period which must include two periods from 1:00 am to 5:00am.

Record of duty status (RODS): All drivers driving a commercial motor vehicle are required to keep a record of duty status through FMCSA compliant ELD, and in some cases, through AOBRD. The driver who is exempt from ELD rule is required to maintain RODS manually.

What information does ELD record automatically? The electronic logging device can record data automatically, which makes the data more accurate and authentic. It can record data regarding date, time, CMV geographic location information, Engine hours, vehicle miles, driver or authenticated user identification information, motor carrier identification data, and more. Also, any changes or edits to the data are recorded as annotations, which ensures that the edits are made only by authorized employees.

Motor Carrier responsibilities: It is the responsibility of the motor carrier to ensure that all the commercial motor vehicles in the fleet are equipped with ELD, and all drivers are trained in the proper use of the same. Also, the motor carrier must manage separate accounts for authorized ELD users and properly define the scope of their authority in regards to use of the ELD. A driver has right to access his/her own ELD records, and a motor carrier must allow it.

“Every motor carrier has information of the driver through ELD, and must retain them in compliance with FMCSA guidelines to protect the privacy of the driver.”

Driver responsibilities: Whenever an ELD prompts, a driver is required to provide the information needed. He/she is also required to input the correct information regarding duty status and nature of breaks. When asked by the safety officer, a driver is required to produce and transfer data from ELD in accordance with the instruction sheet provided by the motor carrier.

49 CFR 392.3

According to the 49 CFR 392.3, no driver must drive a commercial motor vehicle when his/her driving ability is impaired due to illness, fatigue or any other reason that would make it unsafe for him/her to drive. It is also the responsibility of both driver and the motor carrier to ensure that a driver is completely fit to drive.

What can be considered harassment?

In research conducted by the Federal Motor Carrier Safety Administration in early 2014, about 600 drivers and 800 carriers were asked to participate in a survey. The survey included a list of 14 interactions between the drivers and the carriers, and they were required to rate the interactions on the following points:

1. Number of times such interactions occurred during a month.
2. The drivers were asked if they identified these interactions as harassment.
3. The drivers and motor carriers who used ELD were asked if they thought the cause of harassment was a result of the complicated logging system of HOS.
4. If the interactions were positive or negative.

Here are some of the interactions that were included in the survey:

• While a driver is taking his/her mandatory 10 consecutive hour break before the start of a new work shift, a motor carrier cannot interrupt the same and engage them in some other work.
• A motor carrier cannot ask a driver to change or verify the changes made in the duty logs by the motor carrier to manipulate the data.
• We know that a driver has 14 consecutive hours to drive, of which the actual driving time should not be more than 11 hours. And after driving for 8 consecutive hours, a driver is required to take 30 minutes break. A motor carrier cannot ask the driver to delay this or any other breaks that he/she has to mandatorily take.
• ELD logs can be edited by authorized users. However. Driver logs can be edited by driver and the motor carrier. When a motor carrier edits logs, a verification of the same is required from the driver, who can either accept or refuse the changes. Hence, a motor carrier cannot ask driver to either make changes to the logs or accept unwarranted changes.
• There are certain regulations to speed limits that a driver has to follow. Based on the tie travelled and speed limit maintained, a driver can only cover a certain distance. A motor carrier cannot ask the driver to reach the destination of shipper or report to the workplace at an unrealistic time that would either need the driver to violate hours of service rule or require unsafe driving.
• While waiting for loading or unloading, a driver cannot be made to wait for more than 2 hours without being paid. In case a delay from the customer causes driver to wait for more than 2 hours, the motor carrier cannot ask driver to pay for any damages thus caused.

As a result of the survey, it was found that many drivers did not recognize the above interactions as harassment, even when they did face the interactions regularly. Also, less than 3% drivers associated the harassment with HOS logging in ELD.

You can read more about the research here.

COERCION

The FMCSA adopted the Prohibiting Coercion of Commercial Motor Vehicle Drivers, also known as the Coercion Rule and brought it into effect on 29^th January 2016. According to the rule, when a motor carrier, shipper, receiver, or transportation intermediary threatens the driver to withhold work, fire, or punish the driver in any other way for refusing to deliberately violate rules as laid down by the Federal Motor Carrier Safety Administration, Hazardous Materials Regulations (HMRs), and the Federal Motor Carrier Commercial Regulations (FMCCRs).

For coercion to occur, it is not necessary that any provision is violated. Coercion can occur if the driver has been fired, not given work, or reprimanded for refusal to violate. For coercion, these three things are important:

• Driver is requested by motor carrier, shipper, receiver or any other transportation authority to carry out a task that breaks or goes against the provisions of FMCSA, HMRs or FMCCRs.
• Driver informs them that the request made will violate the rules of hours of service or result in unsafe driving.
• Driver is threatened with unfavorable employment conditions, termination of employment, or any other punishment for not going through with the request

The difference between driver harassment and coercion:

The major difference between harassment and coercion is the nature and scope of violations. 

• Harassment occurs when a driver takes an action on the insistence of motor carrier that violates the rules of Hours of Service.
• The action taken by the driver on request of the motor carrier must be related to electronic logging device.
•  Coercion occurs when the driver refuses to instructions given by a motor carrier, shipper, receiver, or transportation intermediary that potentially violate the provisions of FMCSA, HMRs, and FMCCRs, and is threatened.
• Coercion does not require that the driver accepts the request. If he/she is threatened with the loss of a job, or any other unfavorable working condition, it will be deemed as coercion.

Coercion has a broader scope than harassment. The act of threatening a driver for refusal to break any regulation is considered coercion. It does not necessarily require the driver to actually violate a law. However, harassment is when the driver does violate a provision of HOS as instructed by the motor carrier.

How ELD prevents harassment?

The Federal Motor Carrier Safety Administration explicitly prohibit a motor carrier to instruct its employed or contractual driver to take an action in connection with ELD that can violate the rules of Hours of Service. There are other technical provisions that ELD offers to prevent harassment:

• The electronic logging device comes with a “mute ” function, which can be used by the drivers while taking a break or sleeper berth time. The function does not allow the driver to be interrupted during break time. This feature helps the driver in taking the required rest before getting back on duty, and also assures that the motor carrier cannot instruct the driver to cut short the break or disturb them in any other way.
• ELD devices record most data automatically. However, the data thus recorded can be changed. Edits to the recorded data can be made by an authorized users, along with the reason for edits known as annotations. Also, the original data recorded by the ELD is retained, so that all edits made have electronic proof.
• When a motor carrier makes changes to the ELD data, it needs to be verified by the driver. The driver can either accept or refuse the edits made. With the help of edits and annotations feature, a driver is protected from any changes made to the logs by other authorized users.

ELDs allow only a limited amount of data to be edited and to record every edit made to the data. In case a driver is being harassed, the record from ELD can be submitted as evidence of the same.

Procedure for filing a harassment complaint:

The FMCSA has laid down the following provisions for harassment complaints related to ELD:

• Once the driver has established the occurrence of harassment, a written complaint must be filed with the National Consumer Complaint Database here.
• Alternatively, a driver can also file a written complaint with the FMCSA Division Administrator for the State in which the driver is employed. You can find the list of Division Administrator here.
• The application must contain information on

1. Driver’s name, address, and contact information;
2. Name and address of the motor carrier that allegedly harassed the driver;
3. Explanation of how ELD or related technology was part of harassment;
4. Date of the alleged harassment;
5. How the action taken by the motor carrier was in violation of either 49 CFR 392.3 or 49 CFR 395; and
6. Driver’s signature.

• Any evidence of the action that can assist FMCSA in investigating the complaint.
• Before filing for harassment complaint, the driver must go through the provisions laid down by the FMCSA and Department of Labor’s whistleblower law regarding coercion.
• A driver must file a written complaint of harassment within 90 days of the alleged action.

Penalties for driver harassment:

As per the Federal Motor Carrier Safety Administration, if a motor carrier is found to have harassed a driver in connection with ELD or related technology, a civil penalty for harassment as well as a separate penalty for violation of hours of service rules can be levied on the motor carrier.

To sum it up, the ELD rule and technology offer various ways to safeguard a driver’s interest against harassment and coercion. It also ensures that drivers and motor carriers are in complete compliance with regulations of FMCSA and HOS making the work environment safer for the drivers and other employees.

Drivers and motor carriers must, therefore, opt for an ELD that is FMCSA certified as well as compliant. Matrack Incorporation has exactly the ELD you need. We have over a decade of experience in providing ELD, tracking and comprehensive fleet management services across the country. For any information related to ELD, or to know more about our services, get in touch with us now!