By now, most motor carriers1 should be familiar with electronic logging devices (ELDs) or alternative on-board recording devices (AOBRD). As of April 1, 2018, inspectors for the Federal Motor Safety Carrier Administration (FMCSA) may issue out-of-service orders to drivers for failure to install or use an ELD. However, if you are a motor carrier whose drivers use ELDs, then also be aware that ELDs may not be used for purposes considered by the FMCSA as “harassment.” 49 CFR § 390.36. This may pose an issue for motor carriers who use ELDs to monitor driver productivity, even though doing so is expressly permitted in the FMCSA “harassment” provision. See Id.
In 2010, a federal appeals court struck down the FMCSA’s rule about ELDs for inadequately addressing issues surrounding the use of ELDs for “harassment.” Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580, 588 (7th Cir. 2011).Now, the current ELD rules more extensively address the issue of harassment and create procedures for a driver to file a complaint of harassment against a motor carrier. 49 CFR §§ 386.12, 390.36. As discussed below, motor carriers can take precautions to avoid liability for harassment involving an ELD device.
How Drivers can be Harassed by A Motor Carrier Using An ELD
The Owner-Operator Independent Drivers Association (OOIDA) claims that motor carriers can use ELDs to monitor driving progress in real time and impose pressure on drivers in violation of the FMCSA’s rules. Owner-Operator Indep. Drivers Ass’n, 656 F.3d at 589. According to an OOIDA survey, more drivers with ELDs feel pressure to speed and drive while fatigued. Some drivers have also reported feeling “more harassed” from motor carriers as a result of ELDs.
The FMCSA’s definition of “Harassment”
According to the FMCSA, harassment with an ELD involves the following:
(1) an action by a motor carrier toward a driver
(2) involving the use of information from an ELD
(3) where the motor carrier knew or should have know that doing so would result in the driver violating 49 CFR § 392.3 or § 395. 49 CFR § 390.36.
Under the FMCSA’s definition of harassment, motor carriers should be mindful of the role ELDs can play in violating rules prohibiting impaired driving and Hours of Service (HOS) requirements. 49 CFR §§ 392.3, 395. Part 392.3 prohibits operation of a commercial vehicle “while the driver’s ability or alertness is so impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.” 49 CFR § 392.3. Rules for HOS requirements, reporting and maintenance of ELDs are covered by Part 395. 49 CFR § 395.
The FMCSA expressly allows use of an ELD to monitor productivity. 49 CFR § 390.36. More specifically, the FMCSA rules stat a motor carrier may “monitor productivity of a driver provided that such monitoring does not result in harassment.” 49 CFR § 390.36.
Motor carriers should not be afraid to use ELDs to monitor productivity as long as doing so would not result in violating federal regulations against fatigued/impaired driving, as well as HOS and ELD requirements.
Therefore, a motor carrier should not use an ELD to monitor a driver while knowing or permitting that driver to drive while tired or intoxicated. Motor carriers should lean toward using ELDs to occasionally check up on drivers and should avoid making statements that may cause a driver to prolong driving.
Motor carriers can minimize accusations of harassment by avoiding overly frequent or unnecessary contact with drivers while using ELDs. Overly frequent driver contact may cross over into the FMCSA’s definition of harassment even if done to ensure driver productivity. Constantly trying to ensure productivity could cause a driver to feel intimidated or otherwise pressured to drive fatigued.
Another way to avoid harassment accusations is by both maintaining accurate HOS reporting and ensuring that drivers do not drive over the maximum driving time under 49 CFR § 395.3. While it is important to ensure compliance with rules for ELDs under 49 CFR § 395, motor carriers should also take seriously any concerns from drivers as to ELDs. For instance, if a driver expresses concern or difficulty in using an ELD or in complying with ELD regulations, then such issues must be addressed.
When using an ELD to monitor productivity, be sure that productivity is considered alongside FMCSA rules and maximum driving requirements. If there is any concern that harassment may be alleged, then it is important to document any related instances and how ELD was used in those instances.
What Happens When a Driver Files A Complaint of Harassment
A driver alleging harassment must file a complaint with the FMCSA 90 days “after
the event.” 49 CFR § 386.12. The FMCSA Division Administrator for the state in which the driver is employed determines whether a complaint alleging harassment is frivolous. Id. If non-frivolous, the Division Administrator conducts an investigation. During this time, a motor carrier under investigation is supposed to be put on notice that “49 U.S.C. 31105 includes broad employee protections,” and (2) retaliation against a driver may result in action from OSHA. Id. Moreover, the FMCSA is also supposed “to ensure that the driver is not subject to coercion, harassment, intimidation, disciplinary action, discrimination or financial loss” following the filing of a complaint. Id.
Motor Carriers under investigation from the FMCSA or those who have received a complaint should avoid any action that could be construed as retaliation against the complainant. This includes termination of employment or services, nasty e-mails, inappropriate or rude comments, threats, docking of pay, refusal to pay or settle wage claims, demotion, and acts targeting the complainant.
If a complaint is filed, a motor carrier should consider retaining counsel. Please contact Paul Steinhoffer, Alex Sweis, Kristin Taurus, or James Cook.
1Some drivers not subject to ELD requirements include: (1) drivers who use paper Records of Duty Status (RODS) for not more than 8 days during any 30 day period; (2) drivers who conduct driveaway-towaway operations, where the vehicle being driven is the commodity being delivered; and (3) drivers of commercial trucks manufactured before model year 2000. 49 CFR 395.8(a)(1)(iii).