ELDs bring greater attention to Driver Coercion but Drivers concerned about Detention Time with ELDs honesty
We receive questions all the time about ELDs and this one I wanted to share. One way ELDs are keeping drivers honest, though they may not want to be honest due to chance of big loss in overall on-duty time, is when a driver is waiting for loading or unloading for hours.
On Nov 1st, 2017, Truckstop.com held a Facebook Live event: Demystifying the ELD Mandate, that addressed this topic. The question that was asked was: “How can ELDs help prove driver coercion or protect drivers from potential violations due to driver coercion?”
Jeremy Feucht, Truckstop.com
“That’s a great question Luke. So, the biggest thing here is the FMCSA was sued by several different groups of when they tried to end the EOBR back in 2011. Out of that mandate the courts rule did not have enough stipulations behind protecting drivers from harassment or coercion from their carriers, shippers, or brokers. So, they went through and elaborated on Rule 392.13, which is the fatigued driver rule and this rule basically states that at no point in time can a driver be asked to drive if they don’t feel like it. If they are, the FMCSA then handed down a ruling that stated that drivers could then look for civil penalties against carriers, shippers, and brokers if that is the case. We have seen two such instances of this happening, one most recently in New York for $275,000 on behalf the driver against the carrier. So this is something that should be taken very seriously and drivers have every ability to overtun any issue they have here. This is something really good the FMCSA handed down on driver coercion.”
Dave Gray, Glostone Trucking Solutions, reseller of Geotab
“One of our clients or contacts had a question yesterday about they had a delivery appointment but they ended up delaying him for seven hours so he ran out of hours. He was legally on-duty as he was supposed to have been and ran out of hours. So, now what? The receiver said you cannot park here, move your truck. Receiver is telling him he had to move but he was out of hours. So he was coerced to move down the road somewhere to the closest, safest spot to park. So, is there liability on that receiver? There could be.”
Jeremy Feucht, Truckstop.com
“The rule is 392.13, driver harassment. It is forbidding carriers, brokers, or shippers from asking a driver to drive while they are ill or fatigued, or if they are out of hours and they are asked to drive at that point. If any of those three items can be proven, then the driver has proof against the carrier, broker, or shipper/receiver to file a civil lawsuit that showed they were coerced to drive when they did not want to.”
Craig Jolly, HOS Reporter
“The ELD device can provide substantial data that the driver can use to make such a claim.”
Here is the situation noted below on what happened and how ELDs could help with proving driver coercion.
Driver: What about all the Brokers/Shippers/Receivers who hold drivers for hours and the ELD on-duty time runs out. Whether loading or unloading there’s a Time Factor problem. So how does this help in either case regarding ELDs?
Well, that’s always been a problem and “fudging” paper logs was one way drivers “solved” the problem. If you are waiting in line, you will still be in “On” duty status unless you can shut off the truck and walk away to be “Off” duty.
This shouldn’t affect drive time as you must travel faster than 5mph to trigger Drive time. It will be harder to fudge some of these details but you can now “prove” to the shippers that you were actually detained and can get paid for that time if it goes over the contract timeframe.
As always, if clock runs out while at receiver and they don’t allow you to stay there to sleep, you will still run the risk of driving past hours as you find a place to sleep.
Again, if showing your past 7 days to enforcement with your ELD, a list of potential violations will not pop up, they will have to see something obvious to ask about it.
Driver: How true your facts! But… here is an example:
- I made an “On Time Delivery” for Ralph’s. In fact, 45 min early.
- Now, was told I must wait, so ELD on Line #4, “on duty” as you said.
- 7hrs later, time was used up where gone.
- Moved into the next day, no reset yet.
- Finally in the early morning got unloaded, ELD STILL RUNNING. Overall 15hrs gone from being detained.
- Had to leave Ralph’s due to their policy.
- My reset was done but lost additional hours. Why? When loading/unloading = Line #4 ON DUTY…. RIGHT?
- Got a little detention, but lost another good load as well as time.
- I predict there will be a lot of LATE FEE CHARGES FROM RECEIVERS AND SHIPPERS due to clock is running.
You are right, this situation, due to the ELD not allowing you to fudge your logs, made you lose another load and valuable time. I don’t think the situation could legally have been handled differently unless you were able to meet the conditions to record meal and other routine stops made during a work shift as off-duty time, and even then, I don’t think being at a loading dock would be considered a Routine Stop.
- The driver is relieved of all duty and responsibility for the care and custody of the vehicle, its accessories, and any cargo or passengers it may be carrying.
- During the stop, and for the duration of the stop, the driver must be at liberty to pursue activities of his/her own choosing.
One thing you could have done is noted coercion on your logs – that the Receiver would not allow you to remain on the property after the unloading delay and running out of hours.
Under new rules regarding forcing a driver to break HOS rules, the receiver could be held liable should anything have happened while the driver was driving to find the “closest safe parking area”. If that log is audited and with the notation, the FMCSA could/should go after the Receiver and no violation would be given to the driver. If the receiver has many of these complaints/notations and caught by the FMCSA, the receiver may be fined (most likely not after one instance). This coercion rule should be tested in the coming year, pretty quickly.
Driver: I concur with Coercion is “Definitely” a factor here and I’m sure that many previous drivers could hold Ralph’s responsible on that technicality. Once again it’s “THE DRIVER” who loses both PAY AND A NEW LOAD” due to following ELD protocol. This is what drivers knew would happen and it’s happening as we speak. It’s more than “Efficiency & Safety” here.
Brokers/Shippers/Receivers/Companies could care less, but the ELD still prevails. No driver should endure what I went through, losing time. I believe this issue has been overlooked. Coercion vs Company’s Policies! It’s a pickle I tell you.