ELD Electronic
Logging Devices

In 49 CFR 390.36(a), 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 part 395 or §  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. In §  390.36(b), FMCSA explicitly prohibits a motor carrier from harassing a driver.

The ELD rule has provisions to prevent the use of ELDs to harass drivers. Under 49 CFR 390.36, FMCSA explicitly prohibits a motor carrier from harassing a driver, and provides that a driver may file a written complaint under §  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 HOS violations; therefore, the penalty for harassment is in addition to the underlying violation under §  392.3 or part 395. An underlying HOS violation must be found for a harassment penalty to be assessed.

No. Real-time tracking of CMVs is not required in the ELD rule. However, a motor carrier may use technology to track its CMVs in real time for business purposes. A motor carrier is free to use this data as long as it does not engage in harassment as defined in 49 CFR 390.36 or violate other provisions of the Federal Motor Carrier Safety Regulations (FMCSRs).

As defined in 49 CFR 390.36, a motor carrier can only be found to have committed harassment if the driver commits a specified underlying hours of service 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, as defined in §  390.5T, 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.

FMCSA encourages any driver who feels that he or she was the subject of harassment to also consider FMCSA's coercion rule, 49 CFR 390.6, and the Department of Labor's whistleblower law, enacted as part of the Surface Transportation Assistance Act (49 U.S.C. 31105), which provides retaliation protection.

A driver must file a written harassment complaint no later than 90 days after the event in accordance with 49 CFR 386.12(b).

In accordance with 49 CFR 390.36(c) and 386.12(b),the driver must file a written complaint with the National Consumer Complaint Database at http://nccdb.fmcsa.dot.gov or with the FMCSA Division Administrator for the State where the driver is employed (http://www.fmcsa.dot.gov/mission/field-offices).

Under 49 CFR 390.36 and 386.12(b), the following information must be submitted in writing:

1. Driver's name, address, and telephone number;
2. Name and address of the motor carrier allegedly harassing the driver; and
3. Statement of the facts to prove each allegation of harassment, including:
   1. How the electronic logging device (ELD) or other technology used with the ELD contributed to harassment.
   2. The date of the alleged action.
   3. How the motor carrier's action violated either §  3 or 395.
   4. Driver's signature.

Any supporting evidence that will assist FMCSA in the investigation of the complaint should also be included along with the complaint.