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What to know about the US ELD Mandate FAQ - ELD Driver Harassment

What to know about the US ELD Mandate FAQ - ELD Driver Harassment

Why do we have the US ELD mandate regulations?

  • The electronic logging device mandate, effective on Dec. 18th 2017, requires most carriers and drivers to convert from using paper logs or logging software to a registered ELD if they do not have an automatic on-board recording device in use.
  • And to those drivers using AOBRDs prior to the mandate’s effective date will only be able to keep using them for two more years - until Dec. 16, 2019.
  • It’s a mandate that has led to a lot of questions, with the government continuing to clarify and tweak the regulation over the last few months this year.
  • We’ve endeavored to find answers to the most common questions that arise from the FMCSA training road shows, print media, drivers, owner-operators, fleet owners, and social media starting with the basics of the ELD mandate.

 

DRIVER HARASSMENT & COERCION

  • No one will be as directly impacted by the ELD rule as drivers will be.
  • A related rule against driver harassment should also be kept in mind.
  • That rule took effect in January of 2016. The “Prohibiting Coercion of Commercial Motor Vehicle Drivers” rule specifically forbids motor carriers, shippers, receivers, or transportation intermediaries from coercing CDL holders to violate certain provisions of the Federal Motor Carrier Safety Regulations.
  • The covered regulations include drivers’ hours-of-service limits; CDL regulations; drug and alcohol testing rules; and haz-mat requirements.
  • The rule also prohibits anyone who operates a CMV in interstate commerce from coercing a driver to violate the commercial regulations. 

 

1. What do I need to know about the harassment provision of the ELD rule?

  • FMCSA defines harassment as an action by a motor carrier toward one of its drivers that the motor carrier knew, or should have known, would result in the driver violating hours of service (HOS) rules in 49 CFR 395 or 49 CFR 392.3.
  • These rules prohibit carriers from requiring drivers to drive when their ability or alertness is impaired due to fatigue, illness, or other causes that compromise safety.
  • To be considered harassment, the action must involve information available to the motor carrier through an ELD or other technology used in combination with an ELD. 
  • FMCSA explicitly prohibits a motor carrier from harassing a driver.

 

2. What are the differences between harassment and coercion?

  • A motor carrier can only be found to have committed harassment if the driver commits a specified underlying hours of service (HOS) violation based on the carrier’s actions and there is a connection to the electronic logging device (ELD).
  • Adverse action against the driver is not required, because the driver complied with the carrier’s instructions.
  • In contrast, coercion is much broader in terms of entities covered, and addresses the threat to withhold work from or take adverse employment action against a driver in order to induce the driver to violate a broader range of regulatory provisions or to take adverse action to punish a driver for the driver’s refusal to operate a commercial motor vehicle in violation of the specified regulations.
  • Unlike harassment, coercion does not have to result in the driver being in violation of the regulations and does not have to involve the use of an ELD.

 

3. What is the difference between an “edit” and an “annotation”?

  • An "edit" is a change to an ELD record that does not overwrite the original record, while an "annotation" is a note related to a record, update, or edit that a driver or authorized support personnel may input to the ELD.
  • Section 49 CFR 395.30(c)(2) requires that all edits, whether made by a driver or the motor carrier, be annotated to document the reason for the change. 
  • A driver can use annotations to indicate the beginning and end of a period of authorized personal commercial vehicle use, yard moves, as well as other special driving categories, such as "adverse driving conditions" (49 CFR 395.1(b)) or "oilfield operations" (49 CFR 395.1(d)).

 

4. Beyond compliance, what are the most important features for fleets to consider when evaluating ELDs?

  • It comes down to different factors that are relevant to a particular fleet
  • For instance, if your fleet operates with oilfield exemptions or under intrastate rules, ask your provider if the ELD has rulesets that make compliance easier in those situations.
  • You may want to look at how an ELD will interface with other software you use. Some ELDs integrate with transportation management systems, some don’t, and some that don’t may well integrate with a TMS down the road. 
  • Beyond making sure that the solution is on the list of registered ELDs, they should ask providers about the customer service and maintenance support they provide for devices, request a demo, and ensure they have each required feature or function as directed by FMCSA

 

5. Who can edit an ELD record?

  • Both the driver and authorized carrier staff can make limited edits to an ELD record to correct mistakes or add missing information.
  • All edits must include an annotation to explain the reason for the edit. In addition, the driver must certify that any carrier edit is accurate, and resubmit the records.
  • If the driver chooses not to re-certify RODs, this is also reflected in the ELD record. The ELD must keep the original, unedited record, along with the edits.
  • Although the ELD reflects the driver’s RODS, the driver and carrier share responsibility for the integrity of the records.
  • The driver certification is intended, in part, to protect drivers from unilateral changes.
  • However, if the driver is unavailable or unwilling to recertify the record, the carrier’s proposed edit and annotation would remain part of the record.

 

6. Can a user edit or change driving time that has been recorded by an ELD to non-driving time?

No.

  • An ELD automatically records all of the time that a CMV is in motion as driving time that cannot be edited or changed to non-driving time.

 

7. How can drivers use annotation of their logs to help clear up potential confusion in certain situations?

  • Any instance where an exception to the regulations is being used or when a driver goes over an hours-of-service limit, should be accompanied by an annotation 

 

References and Thank You

  • FMCSA 2017 Training Roadshows
  • Indiana State Commercial Vehicle Enforcement Division – Facebook Live - Officer Brent Hoover
  • Truckinginfo.com – 70 Answers to Top ELD Questions