As late-adopters within the trucking industry adjust to the mandatory use of electronic logging devices (ELDs), one expert believes the data from those devices should make it easier for truck drivers to file coercion complaints against motor carriers, freight brokers, shippers, and receivers.
In a conference call hosted by Stifel Capital Markets this week, John Seidl, a transportation consultant and account executive with Integrated Risk Solutions, said that ELDs will provide evidence of violations of the “coercion rule.”
According to the Federal Motor Carrier Safety Administration (FMCSA), “coercion” involves a threat by a motor carrier, shipper, receiver, or transportation intermediary to withhold business, employment or work opportunities from a driver – or to take or permit any adverse employment action against them – in order to induce truck operations in violation of government regulations, specifically hours of service (HOS) rules.
If drivers are pressured by their carrier, a broker, a shipper, or a receiver to bend the rules to pick up or deliver freight even though their available hours have expired, Seidl believes they can more easily submit documentation supporting claims of coercion using ELD data.
Yet he stressed that while failing to heed a driver’s objection that a freight transportation request would require him or her to break the rules falls under the coercion rule, there is an important catch: Motor carriers, shippers, receivers, and transportation intermediaries cannot commit coercion under the final rule unless and until they have been put on notice by the driver that he or she cannot meet the proposed delivery schedule without violating the HOS limits or other regulatory requirements.
The driver must then also file a written complaint to FMCSA with supporting documentation, Siedl said.
“They have to object to the shipper’s request and if the shipper fails to respond, then they need to file a written complaint – and they must document it properly. That’s where the ELD information comes in,” he explained. “And if FMCSA receives a written complaint, they have to investigate. And while you guys [trucking companies] are used to being visited by FMCSA investigators for safety audits, shippers are not. So this [coercion] rule has impact beyond carriers and drivers.”
When it comes to motor carriers violating the coercion rule, retaining copies of repeated electronic messages will be the key.
”If a driver is required repeatedly to respond to satellite or similar communications received during his or her sleeper berth period, or 30 minute break period, does this activity affect a driver’s duty status? Yes,” Seidl said.
“The driver cannot be required to do any work for the motor carrier during sleeper berth time, or 30 minute break period,” he emphasized. “So a driver who is required to access a communications system for the purpose of reading messages for the carrier, responding to certain messages – either verbally or by typing a message or otherwise acknowledging them is performing work.”
For the purpose of the FMCSA’s guidance on such situations, Seidl said “repeatedly” means a pattern or series of interruptions that prevent a driver from obtaining restorative sleep during the sleeper berth period or required 30 minute break.