Mark Schedler - Sr. DOT Editor - J. J. Keller & Associates, Inc.
September 13 , 2019
In an effort to discourage carriers from requiring drivers to drive when their ability or alertness is impaired, the ELD mandate includes two regulations addressing coercion and harassment. Complaints filed by drivers who were ordered to continue driving despite fatigue, illness, or other causes that could compromise safety, are currently being addressed by FMCSA. To avoid putting the safety of your drivers at risk — and ensure compliance with the ELD mandate — take a minute to familiarize yourself with following definitions and examples of coercion and harassment.
“Coercion,” as defined in §390.6, prohibits (the carrier, shipper, receiver, broker, and their agents) from threatening a driver with future employment or business action to get the driver to violate the safety regulations, once the driver states he/she cannot operate the vehicle without violating safety regulations.
“Harassment” as defined in §390.36, involves the carrier’s use of information from an electronic logging device (ELD) or related system that caused a driver to violate a regulation or that the employee should have known would have resulted in a violation.
For example, if you were to remove a load from a driver who states he/she cannot make the delivery, it is considered “standard business practice,” NOT coercion. However, if your driver says he/she cannot deliver a shipment without violating regulations, and you order the driver to complete the delivery anyway, this is an example of coercion.
Your policy should clearly state that a driver cannot be threatened with future employment or business action (coercion) if the driver states he/she cannot drive due to illness or fatigue, being out of hours, the condition of the vehicle, or any other safety or compliance issue. The driver also should not be forced to run the load based on remaining hours in the electronic log, despite a regulation knowingly being violated (harassment).
If necessary, a shipment can be taken away from a driver and reassigned to a more suitable driver to get it delivered on time, provided the action doesn’t come with a threat. Managing overall driver performance is certainly allowed, but be careful to exercise your progressive discipline policy consistently across your fleet if a driver isn’t meeting company standards.
For additional guidance adjusting your policies and procedures to adhere to final ELD mandate requirements, see Part 1 of our Countdown to Full ELD Compliance series.
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