Making the latest technology developments work for your fleet

The right to harass

Is it legal to use electronic logs to improve productivity?

Motor carriers have an affirmative duty to neither require nor permit drivers to violate federal regulations. And when drivers and owner-operators accept a job, they must realize that safety and compliance are nonnegotiable terms of employment.

As a result of the Federal Motor Carrier Safety Administration’s new Compliance Safety Accountability program, carriers have had to ratchet up their enforcement policies. One of the most effective methods is to adopt electronic onboard recorders. Although drivers at first may resist this policy, they have little basis to argue the technology – which makes it virtually impossible to fudge logbooks – constitutes a form of harassment.

In 1988, Congress passed a statute, U.S. Code section 31137(a), that says any regulation from the U.S. Secretary of Transportation concerning the use of monitoring devices to increase compliance with hours-of-service regulations must “ensure that the devices are not used to harass vehicle operators.” But it also says that the devices may be used to monitor operator productivity.

Now, 23 years later, the statute’s meaning of the word “harass” is frustrating FMCSA’s plan to mandate EOBRs.

In April 2010, FMCSA issued a final rule that would mandate EOBR use for fleets that had a history of serious HOS violations. Included was a statement that the agency “has taken the statutory requirement into account in the final rule.”

Court decision. The ruling vacates FMCSA’s EOBR regulation and sends it back to the agency to define productivity and harassment.

Nonproductive time. EOBRs that meet FMCSA’s basic requirements don’t break down “on duty, not driving.”

A different view. Fleets that understand how drivers manage their time can help them make more money.

In late August, the U.S. Court of Appeals for the Seventh Circuit ruled in favor of a lawsuit filed against FMCSA by the Owner-Operator Independent Drivers Association. The ruling vacates the EOBR regulation and sends it back to the agency for further proceedings consistent with the opinion. The ruling also impacts the agency’s proposed rulemaking last February to require EOBRs be used by all carriers.