UPS Fined for Terminating ELD Refusal

UPS working to resolve legal dust-up after firing driver who refused to drive without an ELD

 

A lot of these company’s don’t realize that they changed and added an addendum to the FMCSA regulations that allows for drivers to now file formal complaints about that stuff

NCCDB - National Consumer Complaint Database

What is the definition of harassment in the Electronic Logging Device (ELD) rule?

A1. 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.

Q2. How does the Electronic Logging Device (ELD) rule address harassment of drivers using ELDs?

A2. The ELD rule has provisions to prevent the use of ELDs to harass drivers. FMCSA explicitly prohibits a motor carrier from harassing a driver, and provides that a driver may file a written complaint under 49 CFR 386.12(b) if the driver was subject to harassment. Technical provisions that address harassment include a mute function to ensure that a driver is not interrupted in the sleeper berth. Furthermore, the design of the ELD allows only limited edits of an ELD record by both the driver and the motor carrier’s agents, and in either case, the original ELD record cannot be changed. As a result, motor carriers will be limited in forcing drivers to violate the hours of service (HOS) rules without leaving an electronic trail that would point to the original and revised records. The driver certification is also intended, in part, to protect drivers from
unilateral changes—a factor that drivers identified as contributing to harassment.

Harassment will be considered in cases of alleged hours of service (HOS) violations; therefore, the penalty for harassment is in addition to the underlying violation under 49 CFR 392.3 or part 395. An underlying HOS violation must be found for a harassment penalty to be assessed.

What are the differences between harassment and coercion?

A4. 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 (CMV) 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.