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E-Logs from the Driver’s Perspective

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What Do Commercial Drivers Think of E-Logs

Because of the many criticisms we heard about the Electronic Logging Device (ELD) and e-logs from our clients, we thought we would do a little digging to see if the concerns expressed by many of our clients were isolated to California drivers, or were these concerns a nationwide occurrence? Before the mandatory implementation of ELD and e-logs use on 18 December 2017, we heard a lot of rumblings about the expense of the initiative, especially from owner-operators and independent long-haul truckers. Other drivers working for large carriers worried about who would bear the cost of the device, the driver or the carrier? Since the mandate does not address that aspect, carriers could saddle drivers with the expense. Some of their other concerns focused on the unintended consequences and privacy issues truckers and other commercial driver’s license (CDL) holders had about e-logs.

The Unintended Consequences of the Use of E-Logs

Richard “Dick” Grasso, a multimillionaire and one-time Wall Street CEO said, “Clearly there are always unintended consequences of any legislative or regulatory act that's taken in the heat of battle.” Many truckers would say in response; there should not have been nearly as many unintended consequences with e-logs if the Federal Motor Carrier Safety Administration (FMCSA) and the Secretary of the Department of Transportation (SECDOT) had done their due diligence to meet the intent of the Congressional mandate. However, many of the concerns about costs, coercion/harassment of truckers, and their privacy were ignored by the very people who could have made a more significant impact.

According to the Owner-Operator Independent Drivers Association (OOIDA), a non-profit group of independent truckers with nearly 150,000 members from all 50 states and Canada, the FMCSA and SECDOT failed to consider their member’s interests and public safety was ignored in the interest of expediency in implementing the ELD and e-logs. The SECDOT was directed by Congress to mandate a system “capable of recording a driver’s hours of service and duty status accurately and automatically…” and the SECDOT, would prescribe the regulations “ensuring that an electronic logging device is not used to harass a vehicle operator.”

According to the OOIDA’s response to the request for Supplemental Notice of Proposed Rulemaking (SNPRM), the ELD or e-logs do not “automatically”change the record of duty status (RODS), nor prevent the harassment and coercion of shippers and fleet management because manual manipulation of e-logs is still possible. Further, OOIDA believes the mandatory use of e-logs and the expense of installation and use is not warranted when it provides only a minimal improvement over manual e-logs, apart from “form and manner” entries, which are normally standard, such as driver/co-driver’s name, fleet headquarter’s main office address, etc. The driver should manually enter/update these items during their pre-trip inspection and thus has minimal impact on the RODS.

Drivers are concerned with the harassment and coercion prohibited by FMCSR and Congressional mandates but somehow ignored by policymakers in adopting the e-logs system. Unscrupulous carriers and shippers are ultimately more concerned with profits than hours of service (HOS). That is until too many violations cause an intervention by Safety Measurement System (SMS) inspectors. Then, they fire a few truckers who were caught doing what they were coerced into doing. When that fails, they change the carrier name and continue as if nothing happened as a “new entity.” Unfortunately for many drivers, their careers are over.

Another unintended consequence of e-logs is that drivers are often at the mercy of traffic conditions and forced to take their mandatory break at inconvenient times where facilities or parking are not available. Most drivers understand they are mandated to take a break before eight hours of driving and plan accordingly but sitting in a traffic jam can change their plans, as does loading and unloading delays.

Privacy Concerns and Constitutional Rights Violations

The Congressional mandate of e-logs, as well as FMCSA rules, call for electronically monitoring an entire class of people, which restricts their right to move freely without addressing the driver’s right of due process. The closest comparable statute that required the government to monitor an entire class of people electronically was the Adam Walsh Act.

The Act required the wearing of a monitoring device by accused sex-offenders to receive bail. The Act also acknowledged the government’s valid concern of providing for the safety of the public as does the ELD mandate. However, several federal courts at different levels struck down the Act as unconstitutional. The Act’s sweeping encroachment on all people accused as sex-offenders, without due process, negated their Constitutional protection of “innocence until proven guilty.” These courts found the Act denied the accused their right of due process and deprived them of their Constitutionally protected freedom of movement due to the monitoring device.

An individual’s danger to public safety must be determined through due process in the courts. The Act’s imposition of curfew restrictions and electronic monitoring were seen by its creators as necessary to alleviate the threat. However, the courts did not see it that way.

Similarly, without due process, an entire class of people, nearly three million truckers and other CDL holders’ Constitutional right to freedom of movement might well be denied by electronic monitoring under the ELD initiative.

Kern County Traffic Ticket Defenders

In Lamont, Shafter, Bakersfield, Mojave, Ridgecrest, and Delano traffic courts in Kern County, truckers have an outstanding advocate, Bigger & Harman, APC. Call Bigger & Harman, (661) 349-9300, when you receive a ticket for violation of the e-log’s procedures, a non-compliant ELD, or a traffic ticket in a CMV or your private vehicle. As you well know, avoiding a conviction on a traffic ticket could save your career and a clean driving record could make it easier to get that higher paying job with a larger firm.

Send Bigger and Harman an email to attorney@markbigger.com, include the details of the incident and attach a scanned copy of your ticket with the personal information blacked out. We will reply with our evaluation of your alternatives.

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References:

The 2018 CA Commercial Driver Handbook .pdf

OOIDA’s Comments in Response to FMCSA’s SNPRM .pdf

Various CDL holder comments on Trucker websites