Feds must address driver harassment before pursuing EOBRs

By David Tanner, Land Line associate editor | 2/9/2012

During a daylong hearing this week in Washington, DC, OOIDA Executive Vice President Todd Spencer explained how electronic on-board recorders can be used to harass drivers, especially if the recorder is tied to a fleet-management system. Spencer addressed the Motor Carrier Safety Advisory Committee, of which he is a member, on a number of topics including EOBRs.

“On-board recorders can’t measure when a driver is tired, when a driver ever needs to stop or when a driver needs a break, but certainly a fleet-management program can let a motor carrier know their driver stopped,” Spencer said Thursday, Feb. 9, following the previous day’s hearing.

“Of course, then the motor carrier wants to know, ‘Why stop?’ … If you still have hours to run, they expect you to run.”

Harassment is more than just a driver complaint. Last summer, the Seventh Circuit Court ordered the Federal Motor Carrier Safety Administration to vacate a final rule on electronic on-board recorders because the agency failed to address harassment related to use of the devices.

Had OOIDA not filed that lawsuit, the FMCSA would likely be much closer to an industry-wide mandate for on-board recorders.

“The court shot the agency’s rule down on the issue of harassment, but the court also, from my perspective, chastised FMCSA for not even bothering to see if carriers who use these now are actually safer carriers,” Spencer said. “From our perspective, they’re not. They’re simply not.”

The FMCSA requested that MCSAC come up with recommendations the agency could use to proceed with a new rulemaking while abiding by the court ruling. A handful of recommendations were offered, but the committee made no final decisions and must have another meeting.

In addition to the harassment issue, Spencer raised a point about cost and how small operators would likely see no benefit from an EOBR mandate.

“From our perspective, the people we represent, the one-truck operator, if these things were to cost thousands of dollars, what’s the benefit to you? It’s simply not there,” he said.

Spencer says EOBRs could also be used to reclassify a certain segment of operators.

“If a carrier or if the government requires on-board recorders in the trucks of owner-operators leased to carriers, with this level of productivity, management, control and oversight, you are not a contractor anymore; you are an employee,” Spencer said. “This whole issue is opening up so many cans of worms.”

Listening sessions on the horizon

The FMCSA is set to announce a listening session or possibly a series of listening sessions related to the issue of driver harassment and EOBRs, an agency official confirmed to Land Line. Dates and times have yet to be announced.

Spencer said the session or sessions will provide truckers an opportunity to speak about their experiences.

“The FMCSA is going to be interested in hearing more from drivers about the way on-board recorders and other technologies are actually used to push them – maybe push them to drive when they shouldn’t be driving, or other things,” Spencer said.

“They will undoubtedly do a rulemaking on this and solicit comments. Drivers certainly should avail themselves of that opportunity and let the agency know what’s going on.”

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