With the clock ticking on an effort to mandate electronic logging devices (ELDs) in the trucking industry – technology also known as electronic onboard recorders or EOBRs – the privacy of the data such devices collect on truck drivers remains one of the major concerns of this federal rulemaking effort.
“The new technology raises potential common law tort claims of invasion of privacy,” Cindy Bergmann, chair of the transportation team at the law firm of Freeborn & Peters LLP, explained to Fleet Owner.
“Essentially the courts have found that, in certain circumstances, individuals have a reasonable expectation of privacy and an invasion of that right can give rise to a tort claim for money damages,” she said.
Bergmann noted that the Federal Motor Carrier Safety Administration (FMCSA) – like all federal agencies – is required by the Privacy Act of 1974 to perform an “impact assessment” to evaluate how ELD systems will be used while determining where risks to invasion of privacy may occur, including procedures for mitigating that risk.
FMCSA has noted in a previous study that there is “scant evidence” so far that motor carriers are using ELD data to “harass” drivers – an issue highlighted in comments submitted to the agency so far regarding the ELD rule, notably by the Owner-Operator Independent Drivers Assn. (OOIDA).
“The agency must address the serious safety issue of how EOBRs are used to harass and coerce truck drivers into continuing to drive regardless of driving conditions, such as bad weather, congested traffic or simply if the driver is too tired to drive,” noted Todd Spencer, OOIDA’s executive VP, in a previous statement. “FMCSA has yet to show any direct correlation between ELD use and reduced crashes or any other kind of safety benefit.”
Freeborn’s Bergmann stressed, however, that it is the use of the information, rather than the technology itself, that’s causing the ELD privacy concerns and could be mitigated to a degree by following privacy ground rules established for drug testing results.
“Transportation employers have a legitimate interest in ensuring that their employees do not violate the law by operating trucks or trains while under the influence of drugs, and this interest justifies their ability to perform random drug tests,” she explained.
“The information can be used for this purpose, but once gathered, must be treated confidentially, as with any other private health information of their employees,” Bergmann added. “Similarly here, employers have a legitimate interest in ensuring that their employees do not violate hours of service (HOS) rules – and it is abuse of [such] data gathered that could raise privacy concerns.”
That’s why the drug testing rule parallels with impending ELD mandates are important, she said, as both have the ability to be abused by collecting too much data or by using the data improperly or failing to keep it private from viewing by anyone for any purpose other than preventing violations of the regulations.
That’s also why FMCSA’s supplemental notice of proposed rulemaking regarding ELDs – issued last March – requires that electronic records continue to reside with motor carriers and drivers and will only be made available to FMCSA personnel or law enforcement during roadside inspections, compliance reviews and post-crash investigations.
“The key going forward will be the implementation of the regulations for ELDs in a way that give employers clear guidance on what data can be collected and how it can be stored and used, along with clear disclosures to the employees about the nature and extent of the monitoring to be done,” Bergmann emphasized.
“The regulations will also include a specific prohibition on harassment of the drivers arising from the data collected, and provide a means for the drivers to file a complaint against their employers with FMCSA if they feel that these limits have been violated,” she noted.