Federal Update
Is a harassment-proof EOBR even possible?
Back at the drawing board after being forced by the courts to vacate its initial rule on electronic on-board recorders, the Federal Motor Carrier Safety Administration is still trying to figure out how to prevent carriers from using EOBRs to harass drivers.

By David Tanner, associate editor

Solving the issue of driver harassment related to the use of electronic on-board recorders continues to be a tall task for the FMCSA.

The agency recently requested information from OOIDA and other stakeholders about a survey of commercial drivers the FMCSA intends to conduct on the issue of harassment. In response, OOIDA is urging the agency to ask the right questions of the right people or miss the mark altogether.

The FMCSA’s driver survey is not happening by chance.

In 2011, the Seventh Circuit Court of Appeals ruled in favor of OOIDA and forced the FMCSA to vacate its initial rule that would have required electronic on-board recorders – also known as EOBRs or electronic logging devices, ELDs – for motor carriers that have unsatisfactory safety ratings.

Even with the first EOBR rule vacated, Congress chose to include a provision in the current highway bill that orders the agency to pursue an industry-wide mandate as pushed by the American Trucking Associations and The Trucking Alliance, a group of large carriers consisting of J.B. Hunt, Maverick, Schneider, Knight and others.

In a recent notice in the Federal Register, the FMCSA released some sample questions it could ask drivers about harassment by carriers. In response to that notice, OOIDA says a pending survey can be effective only if it asks the right questions of the right people while accurately defining “harassment.”

“Driver harassment is a little examined issue that affects highway safety and drivers’ work and quality-of-life issues. There is no program or program element currently at FMCSA that protects drivers from motor carrier harassment,” OOIDA President and CEO Jim Johnston stated in comments to the agency.

The survey must focus on drivers who have already been operating with EOBRs, he added.

“In order to respond to the Seventh Circuit’s concerns, FMCSA’s survey should contain carefully crafted questions as to how motor carriers propose to use EOBRs to support what they consider to be legitimate productivity goals. By the same token it must include a comprehensive set of questions to drivers so that they may identify the potential for harassment.”

OOIDA surveyed drivers on its own in 2011, and offers that up for consideration as the agency tweaks its own survey questions.

The OOIDA survey showed 42 percent of drivers of EOBR-equipped trucks had been contacted by their carriers to ask why their truck was stopped, while 37 percent said their carriers told them to get back on the road regardless of why they were stopped.

Thirty-four percent of EOBR drivers reported that their motor carrier audited or changed their logs to suit a particular purpose such as adding available time to their driving clocks.

When it comes to data, OOIDA questions how it will be collected and used by carriers and law enforcement without violating a driver’s rights.

“Using an EOBR to monitor a driver’s personal use of a vehicle amounts to unconstitutional surveillance,” OOIDA Executive Vice President Todd Spencer told Land Line.

“Even company trucks are used for personal conveyance,” Spencer said. “Certainly, companies may feel like they have the right to monitor the movement of that equipment, but personal use should be separate from government surveillance.”

Definition questioned
FMCSA’s sample survey defines harassment as, “an act by a motor carrier, involving the use of information available through EOBR technology (either alone or in combination with other technology) to track a commercial motor vehicle driver’s hours of service and requiring the driver to violate federal hours of service rules or fatigue or ill driving restrictions.”

Based on what drivers told OOIDA, the Association offers to add the following to the definition, that a carrier shall not use EOBRs “in a manner that distracts drivers while operating a commercial motor vehicle or that wakes, disturbs or otherwise interrupts a driver’s quiet use of his/her off-duty time; and … for a use other than that related to compliance with the hours-of-service regulations or monitoring productivity.”

In closing, OOIDA urges the FMCSA to continue to explore the harassment issue.

“If not done properly, this survey has little potential to shed much light on driver harassment and coercion,” Johnston stated. LL