After a U.S. district court passed down a judgement in 2011 that the FMCSA did not sufficiently address driver harassment in its previous electronic logging device (ELD) rulemaking, the agency was forced to go back to the drawing board.
Publication of the FMCSA’s new electronic logging device rule is just around the corner – with a projected publication date of Sept. 30.
ELDs enable truck drivers and commercial motor carriers to electronically track hours of service (HOS) compliance. One of the major concerns surrounding the upcoming ELD mandate is how it will address the potential for driver harassment. During an Aug. 26 webinar, Tom Cuthbertson, Omnitracs’ vice president of regulatory compliance, discussed just that.
After the court nixed its previous mandate, the FMCSA began holding listening sessions on the topic, Cuthbertson said. The issues that emerged from those discussions include:
How log hours changed in the automatic on-boarding recording devices (AOBRD) without driver knowledge
Comments regarding treatment of employment if drivers were found not driving beyond limits
Comments on how shippers can force drivers to move vehicles from their property
Prohibition of Coercion Notice of Proposed Rulemaking
The upcoming mandate, according to Omnitracs, is looking like it will allow drivers to edit their own logs and create annotations on all entries and edits. This, Cuthbertson noted, puts drivers in control of their own logs. He added that drivers will be able to approve all edits from the system before they’re applied, and that even though the back office can make edits, all must be approved by the driver before final submission. If a driver rejects an edit, the carrier then begins a process for reconciliation, Cuthbertson explained.
Another regulation that came up is the content of the Prohibition of Coercion Notice of Proposed Rulemaking. Cuthbertson said this more clearly defines coercion from the dispatcher, carrier, broker or shipper of the driver. That could mean penalties of $11,000 and punitive damages of $250,000 if a harassment issue becomes a labor case, he added.
“This addresses harassment, so drivers have an opportunity to do something if they think [harassment] could have happened,” Cuthbertson explained.
During the question-and-answer portion of the webinar, one attendee asked Cuthbertson if drivers could “cheat” the ELDs by unhooking relays. Cuthbertson advised that would be a mistake.
“If they unhook, we’re going to know it was unhooked because there’s going to be a gap in the odometer readings,” he explained, adding that this move would only generate more questions. “If someone wants to do that, they’ll be making a mistake. Trying to dance around it would not be advisable; there’s enough information to track it.”
Another attendee asked about potential issues that can arise when logging on and off the ELD. Cuthbertson advised that drivers would have to be careful to identify the difference between on- and off-duty activities.
Drivers logging on and in the vehicle are considered on duty, he said, adding that any activity involving the vehicle would be considered on duty. Meal breaks and sleeping are considered off duty.
By 2017, or two years after a final rule is filed, all CDL drivers will be required to keep a record of duty status and must use an ELD to document their compliance with HOS rules. The new rule will add technical and performance specifications that define what the device must feature.
Connect to the truck’s engine to record if the truck is in motion
Allow the driver to log in and select on-duty, off-duty, or on-duty not driving; drive segments must be automatically selected based on vehicle movement
Graphically display a record of duty status, so a driver can quickly see hours in a day
Provide data in a format that’s standardized and can be transmitted to law enforcement in a number of prescribed ways, such as wireless web services, USB, or Bluetooth 2.0
Be provider-certified that the device meets the proper specifications
Be listed on an FMCSA website (upcoming)