§395.22 Motor carrier responsibilities—In general.

Question 1: Can the electronic logging device (ELD) information packet be in electronic form?

Guidance: Yes. The user’s manual, instruction sheet, malfunction instruction sheet, and supply of blank driver’s records of duty status (RODS) graph grid can be in electronic form. A logging software app would meet the requirement for supply of blank RODS. This is in accordance with the FMCSA rule titled Electronic Document and Signatures, published April 16, 2018 (83 FR 16210). For more information, see 49 CFR 390.32(b).

Question 2: How does the Electronic Logging Device (ELD) rule address harassment of drivers using ELDs?

Guidance: 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.

Question 3: What are the differences between harassment and coercion?

Guidance: 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.

Question 4: What should a driver consider before filing a harassment complaint?

Guidance: 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.

Question 5: How much time is allowed for a driver to file a harassment complaint?

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

Question 6: Where should a driver file a harassment complaint?

Guidance: 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).

Question 7: Can a driver use a portable electronic logging device (ELD)?

Guidance: Yes. A driver may use a portable ELD. A portable ELD must be mounted in a fixed position during commercial motor vehicle (CMV) operation and visible to the driver from a normal seated driving position. This information can be found in the ELD Rule section 395.22(g).

Question 8: What information must be submitted in a harassment complaint?

Guidance: 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 §§392.3 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.

Question 9: Can the required electronic logging device (ELD) user manual be in digital format?

Guidance: Yes, the required ELD manuals listed in 49 CFR 395.22(h) can be in digital format.

Question 10: As a motor carrier, how can I be sure an electronic logging device (ELD) is compliant?

Guidance: The motor carrier is responsible for checking that their device is registered, as established in 49 CFR 395.22. Motor carriers should only purchase an ELD that is self-certified by the manufacturer to be compliant and that is registered and listed on the FMCSA website.

The list of registered ELDs can be found at https://eld.fmcsa.dot.gov/List. Motor carriers should also familiarize themselves with the ELD checklist and the ELD rule.

In the event that an ELD is removed from the registration list, FMCSA will place the removed device on FMCSA’s Revoked ELDs List.

Question 11: Can an electronic logging device (ELD) have a feature to warn drivers about approaching hours of service limits?

Guidance: Yes. FMCSA allows, but does not require, warning or notification to drivers when they are nearing their hours of service limits.

Question 12: Can a driver have more than one user account?

Guidance: No, an electronic logging device (ELD) must not allow creation of more than one driver account associated with a driver’s license for a given motor carrier.

In the case of owner-operator, the same person may have two accounts: a driver account for logging hours of service and a supporting personnel account for managing the backend.

Question 13: What is the definition of harassment in the Electronic Logging Device (ELD) rule?

Guidance: 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.

Question 14: How long must a motor carrier retain electronic logging device (ELD) record of duty status (RODS) data?

Guidance: A motor carrier must retain drivers’ records of duty status (RODS) and supporting documents for six months. 395.8(k). Additionally, a back-copy of the ELD records must be maintained on a device separate from that where original data are stored for six months. 395.22(i). A motor carrier must retain a driver’s ELD records in a manner that protects driver privacy. 395.22(i).