KBG Injury Law
In the modern, digital era, we have all manner of devices, gadgets, and apps that follow our every move, but an electronic logging device, or ELD, is a tracker that is specific to the interstate trucking (and commercial bus) industry. ELDs replaced manual paper logs and low-tech electronic onboard recorders (EOBRs), which simply logged the miles driven by a vehicle.
Though mandated in 2015, the law gave truckers a few years’ grace to become fully compliant. Four years later, on December 17, 2019, ELDs became mandatory in the United States with few exceptions. (Incidentally, Canada followed suit and rolled out regulations in June of 2022.)
What is the purpose of an electronic logging device?
Not only do today’s ELDs act as GPSs for the four-million-plus tractor trailers constantly crisscrossing the United States every year. The hardware also monitors things like if the truck is in motion, how fast it’s going, if the engine is running (and for how long it has been), and even the truck’s rate of fuel consumption. This data is transferred to fleet managers and the U.S. Department of Transportation (DOT). Owner-operators and fleet managers use the data in many ways, like increasing fuel efficiency, keeping trucks on the best route to their given destination, and helping drivers stick to schedules.
But arguably the most important job of an ELD is tracking a driver’s hours of service (HOS). The Federal Motor Carrier Safety Administration’s hours-of-service regulations vary between property-carrying drivers (11-14 hours maximum) and passenger-carrying drivers (10-15 hours maximum). Beyond driving, hours of service include activities related to trucking, such as waiting for the dispatcher to give you the green light to get on the road or getting your vehicle serviced or repaired.
How an ELD vendor is bending the HOS rulesRecently an ELD vendor was caught gaming a loophole in the logging system to log extra drive time under a “ghost co-driver” account. Per FreightWaves:
A driver using ELD Rider software recorded a ghost co-driver being added to his device within 15-20 minutes after the driver contacted the company to request more hours.
At the time the U.S. driver contacted the ELD Rider representative in Serbia, the driver, who didn’t want to be named for fear of retaliation, had no drive time left on his clock and only 12 hours remaining on his 70-hour cycle before he was required by FMCSA to take a 34-hour reset.
[A] video, which was reviewed by FreightWaves, shows an alert being sent to the engine control module (ECM) connected to the driver’s truck. The alert notified the driver that a representative was logging him off and taking over to edit his logs.
He later received a call from ELD Rider confirming that the representative had edited the log to add a co-driver, often referred to as a ghost driver. The video then pans to the driver logging back into his device, showing that he now had almost 10 hours of drive time left in his day and around 68 hours remaining on his cycle before he must take 34 consecutive hours off duty before driving again.
Basically, the vendor and the trucking company coordinated to fake a second driver and bypass the HOS rules. In a separate incident, it was the trucking company that was accused of falsifying data in order to force workers to drive up to 20 hours a day, every day of the week.
According to FreightWaves, these are no isolated incidents: “a whistleblower told FreightWaves that representatives of ELD Rider have been manipulating drivers’ HOS logs to ‘cheat the system’ since 2019.”
Such violations of HOS regulations are a serious offense and can result in fines anywhere from $1,000 to $16,000—and even up to $75,000 if the rig is carrying hazardous materials.
Why are HOS rules so important?
The simple answer to why HOS rules exist is safety – for the public and for truckers alike. Commercial truck and bus drivers need to take sufficient rest and sleep breaks to maximize their performance and minimize the risk of accidents, injuries, or deaths. According to the 2020 Large Truck and Bus Crash Facts report from the Federal Motor Carrier Safety Administration (FMCSA), there were 4,842 fatal crashes involving large trucks, which the National Highway Traffic Safety Administration defines as “a truck with a gross vehicle weight rating (GVWR) greater than 10,000 pounds.” Another 45,900 wrecks caused all manner of injuries that needed immediate medical attention, and 86,618 crashes resulted in “towaways,” events in which disabled vehicles had to be cleared by emergency responders.
Given the size and weight of large trucks—about 35,000 pounds for a cab pulling an empty trailer and up to 80,000 pounds when the trailer is fully loaded—they’re by nature more dangerous than smaller, lighter vehicles.
Factor in that 2% of these large-truck crashes were hauling hazardous materials (gas, oil, flammable liquids, corrosives, radioactive materials, etc.), and you’ve accounted for yet another level of danger.
Why is ghost driving such a big issue?
First you should know there are perfectly innocent, legal reasons for “ghost” drivers. For example, if a company is giving a road test to a new driver, it may use a ghost driver to ensure that this testing session does not affect the collective HOS hours. There are also trucking company workers who are not required to log hours, like certain mechanics.
But adding a ghost driver to violate HOS regulations is not one of those reasons. All it does is ensure that drivers are overworked and likely exhausted behind the wheel. Driving without enough sleep each day is actually like being behind the wheel with a blood alcohol content (BAC) of 0.10. According to the Cleveland Clinic, a BAC level of 0.10% means that a person is likely to experience:
- Slowed thinking
- Reduced reaction time
- Slurred speech
- Lack of muscle coordination
- Lowered alertness
- Impaired judgment and reasoning
- A decreased ability to detect danger
And yet, thinking clearly, reacting quickly, and making good decisions are imperative to the safe operation of any motor vehicle much less a fully loaded, 36-ton big rig.
Thankfully, FMCSA is cracking down on ELD hardware companies whose products are not compliant, and companies are self-enforcing as well.
Scopelitis
Since the mandated implementation of Electronic Logging Devices (ELDs) in December 2019, the trucking industry has largely – sometimes begrudgingly – accepted them and their role in managing Hours of Service (HOS) regulations. However, despite their intended use in preventing driver fatigue, a disturbing trend is emerging: the rise of “ghost” ELDs. These are falsified or tampered-with devices that undermine the very purpose of ELDs, posing significant safety and regulatory challenges.
What Are “Ghost” ELDs?
A “ghost” ELD refers to an electronic logging device that either falsifies data or is intentionally manipulated to create false logs. ELDs are required to accurately record driving time, rest periods, engine data, and driver activity. But with ghost ELDs, the data is either tampered with to show compliance when the driver is in violation, or the device itself is not connected to the engine as required. This creates the illusion of legal operation while allowing drivers or companies to bypass regulations.
Why Are They a Problem?
- Undermining Safety Regulations: The primary reason for the ELD mandate is to ensure drivers don’t work excessive hours, which could lead to fatigue, a factor in many accidents. When ghost ELDs are used, drivers can exceed their allowed hours without detection, putting themselves and others at risk. Fatigued driving significantly increases the likelihood of crashes, injuries, and fatalities. In this sense, ghost ELDs defeat the purpose of HOS regulations meant to protect public safety.
- Unfair Competition: Companies that comply with ELD regulations have to carefully manage driver hours and face the operational costs of keeping drivers within legal limits. However, those using ghost ELDs gain an unfair advantage by allowing drivers to work longer and cover more miles, which translates to lower costs and faster deliveries. This creates a distorted playing field where honest companies face a disadvantage while unscrupulous operators exploit the system.
- Legal and Financial Risks: Tampering with or falsifying ELD data is illegal and can lead to severe consequences for both drivers and carriers. Fines for violating ELD regulations can be steep, and companies caught using ghost ELDs risk even higher penalties. Moreover, in the event of an accident, falsified logs could expose companies and drivers to lawsuits, insurance complications, and potential criminal charges. Ghost ELDs can result in substantial financial losses due to fines, legal fees, and reputational damage.
- Eroding Trust in the System: The effectiveness of the ELD mandate relies on the assumption that the technology is accurately capturing driver activity and enforcing compliance. Widespread use of ghost ELDs threatens to erode trust in the system, not only among regulators but also within the industry itself. If ghost ELDs become more common, the integrity of the entire regulatory framework could be called into question, potentially leading to stricter enforcement measures and scrutiny.
Addressing the Issue
FMCSA appears to be poised to attempt to tackle the problem of ghost ELDs. Presently, the Agency relies on “self-certification” – basically the honor system for providers and carriers. (Canada, by contrast, requires ELD providers to be certified by an independent third party, offering a layer of security in their specifications.) In September 2022, however, FMCSA published an Advanced Notice of Proposed Rulemaking (ANPRM) requesting comments on a handful of ELD issues, including the question of whether a certification process should be established.
According to the Spring 2024 Unified Agenda, the next step in the regulation-making process – a Notice of Proposed Rulemaking (NPRM) – is scheduled to be released in June 2025.
Industry awareness and training can also help curb the use of ghost ELDs. Drivers and companies need to understand the serious risks associated with non-compliance and be educated on how to properly and legally use ELDs.
As technology continues to evolve, it is crucial for the industry to prioritize compliance and integrity, ensuring that ELDs serve their intended purpose of improving safety and transparency in the trucking industry.
Joseph Bui
Civil cases generally only result in monetary damages or orders to do or not do something, known as injunctions. A criminal case may involve both jail time and monetary punishment.
The American justice system addresses the wrongdoings that people commit with two different types of cases: civil and criminal.
Generally speaking, criminal cases are offenses against the state, even if immediate harm is done to an individual. Accordingly, they are prosecuted by the state in a criminal court.
On the other hand, civil cases typically involve disputes between parties regarding the legal duties and responsibilities they owe to one another. In general, family law disputes and personal injury cases are civil cases. These cases are handled through civil lawsuits that are prosecuted in civil court.
Although there is some overlap between civil and criminal cases, there are several ways in which you can tell the difference between a criminal case and a civil case.
Criminal Case vs. Civil Case: Distinctions
Here are some of the key differences between a criminal case and a civil case:
Crimes are considered offenses against the state, or society as a whole
Criminal offenses and civil offenses are generally different in terms of punishment
The standard of proof is very different in a criminal case versus a civil case
Criminal defendants have a constitutional right to a trial by jury
Defendants in a criminal case are entitled to an attorney and will be assigned a public defender if they cannot afford one
More protections are afforded to defendants in a criminal trial
Crimes are Offenses Against the State
Even though one person might murder a particular person, the murder itself is considered an offense to everyone in society. Accordingly, crimes against the state are prosecuted by the state. The prosecutor, which is generally the district attorney or city attorney, files the case in court as a representative of the state. If it is a civil claim, then a private party files the case.
Differences in Punishment
Because criminal cases have greater consequences, including the possibility of jail and even the death penalty, criminal cases have many more protections in place and have a higher standard of proof.
The Standard of Proof
Everyone accused of a crime is presumed to be innocent until they are proven guilty. In general, crimes must be proven beyond a reasonable doubt, whereas civil claims are proven by lower standards of proof, such as the preponderance of the evidence.
“Beyond a reasonable doubt” means the prosecution has provided evidence that proves that there is no other reasonable explanation outside of the defendant’s guilt.
“Preponderance of the evidence” means it is more likely than not that something occurred in a certain way.
The prosecutor in a criminal proceeding has the burden of proving that the defendant is guilty beyond a reasonable doubt. This is known as the burden of proof.
Under this burden, the defendant has no obligation to prove their innocence. The standard of proof the prosecutor must meet is much higher than in a civil case. After all, criminal convictions, such as felonies and misdemeanors, tend to carry heavier consequences for a defendant than civil penalties do in civil suits.
Jury Trials
Criminal cases almost always allow for a trial by jury. Civil cases do allow juries in some instances, but many civil cases will be decided by a judge alone in what is referred to as a bench trial.
The Right to an Attorney
A defendant in a criminal case is entitled to an attorney. If they can’t afford one, the state must provide an attorney. Defendants in a civil case don’t have the right to an attorney. If they can’t afford one, they’ll have to represent themselves.
Defendant’s Rights and Protections
The protections afforded to defendants under criminal law are considerable. An example is the protection against illegal searches and seizures under the Fourth Amendment. Many of these well-known protections aren’t available to a defendant in a civil case.
The Same Conduct Can Result in Civil and Criminal Liability
Although criminal and civil cases are treated very differently, many people often fail to recognize that the same conduct can result in both criminal and civil liability. Perhaps one of the most famous examples of this is the O.J. Simpson trial. The same conduct led to a murder trial (criminal) and a wrongful death trial (civil).
In part, because of the different standards of proof, there wasn’t enough evidence for a jury to decide that O.J. Simpson was guilty beyond a reasonable doubt in the criminal murder case. In the civil trial, however, the jury found enough evidence to conclude that O.J. Simpson wrongfully caused his wife’s death by a preponderance of the evidence.
The civil cases resulting in NUCLEAR VERDICTS sound the alarm for tort reform. Nuclear verdicts are increasing both in amounts and frequency and the need for tort reform across the nation, especially in so-called “judicial hellholes”. Motor carriers need to be operating safely and compliant. This calls for a “Safety Culture” attitude within the management and employees. It is imperative that drivers are WELL vetted, DQ files are current, and HOS regulations and FMCSRs are followed and obeyed by ALL employees.
The FMCSA Driver Violations In 2023 show that many drivers and motor carriers are not operating safely and in compliance.
Operating a CMV Without a CDL (53,317 OOS Orders)
ELD – No Record of Duty Status (ELD Required) (33,603 OOS Orders)
False Report of Driver’s Record of Duty Status (30,772 OOS Orders)
No Record of Duty Status When One Is Required (ELD Not Required) (13,075 OOS Orders)
Driver Does Not Have a Valid Operator’s License for the CMV Being Operated (8,569 OOS Orders)
Driver Failing to Retain Previous 7 Days Records of Duty Status (8,298 OOS Orders)
Operating a Property-Carrying Vehicle Without Possessing a Valid Medical Certificate (6,259 OOS Orders)
Driver Operating a CMV Without Proper Endorsements or in Violation of Restrictions (6,023 OOS Orders)
Prohibited From Performing Safety Sensitive Functions Per 382.501(a) in the Drug and Alcohol Clearinghouse (5,447 OOS Orders)
False Record of Duty Status – Improper Use of Personal Conveyance Exception (4,855 OOS Orders)
The same for CMV violations discovered in 2023.
Tire-Flat and/or Audible Air Leak 393.75A3 (98,922 OOS Orders)
Brakes Out of Service: The Number of Defective Brakes Is Equal to or Greater Than 20 Percent of the Service Brakes on the Vehicle or Combination 396.3ABOS (49,501 OOS Orders)
Inoperative Turn Signal 393.9TS (43,200 OOS Orders)
No/Improper Breakaway or Emergency Braking 393.43 (27,965 OOS Orders)
Flat Tire or Fabric Exposed 393.75A (23,127 OOS Orders)
Inoperative Brake Lamps 393.9BRKLAMP (22,893 OOS Orders)
Inoperable Required Lamp 393.9 (18,929 OOS Orders)
Brake Tubing and Hose Adequacy 393.45 (15,977 OOS Orders)
Axle Positioning Parts Defective/Missing 393.207A (12,574 OOS Orders)
Leaking/Spilling/Blowing/Falling Cargo 393.100B (12,518 OOS Orders)
These driver and vehicle violations indicate that many motor carriers are failing to adhere to the guiding star of compliance, the FMCSRs. The plaintiff attorneys do not have to look far for the portable ATMs for large payouts.
49CFR part 390.1(e) Knowledge of and compliance with the regulations;
(1) Every employer shall be knowledgeable of and comply with all regulations contained in this subchapter that are applicable to that motor carrier’s operations.
(2) Every driver and employee involved in motor carrier operations shall be instructed regarding, and shall comply with, all applicable regulations contained in this subchapter.
(3) All motor vehicle equipment and accessories required by this chapter shall be maintained in compliance with all applicable performance and design criteria set forth in this subchapter.
| Doug Marcello |
Why It Matters
Risk reduction and denuclearization is not solely the responsibility of safety and risk departments. Every department can – and must – act within their powers to reduce exposure to liabilities.This is even more important in an era of deductibles/retention and captives. The all-out effort in every department protects the public, preserves company profits, and deflates an existential threat.
What’s the Problem
There is a misconception that risk is limited to being a safety and risk department problem. Impose procedures. Minimize claims.
Moreover, safety and risk are misconceived as company burdens. They restrict profits. They erode the bottom line. Burdens.
While safety and risk lead to risk reduction, it must be a company-wide effort. Every department can contribute to do what they can to minimize exposure.
Unfortunately, these other departments are incentivized to the contrary. Sales to get loads. Recruiting to fill seats. Operations to route. Maintenance to keep wheels turning.
All these functions have elements of risk. Yet few companies incentivize, let alone focus, on reducing these risk-bearing elements. In today’s environments, it is a “must” to do so.
What Can Be Done
Safety and risk is not just external, addressing interaction with the motoring public and billboard lawyers. It is also an internal endeavor evangelized to all departments:
- Sales: Risk-based pricing. Load pricing is market drive. But that pricing cannot ignore risk. The risk inherent in a load that goes to a litigious or accident-fraught location.I have clients that lament the costs of cases in “hellhole” jurisdictions. Yet, they priced the load to that location priced for less risky locations.
Sales must fulfill that role. Loads must be priced for the potential exposure. Or declined if the price does not factor the risk.
I know, easy for me to say as an attorney. But I’ve seen the alternative and the losses suffered by the failure to include risk or exposure in the pricing calculation.
- Recruiting: Exposure starts with drivers. Their actions, and their pasts, are potential detonators.“Filling the seat” indiscriminately feeds the frenzy of the billboard attorneys. As I’ve said before, for them it’s not about the accident, it’s about the company. Systemic failures.
Questionable (dubious) hiring lobs them a soft one. The billboard attorneys can attack the company for hiring an unqualified driver to operate an 80,000-pound truck among the motoring public.
The defense starts with hiring. Qualified drivers. Defensible backgrounds. Training to address deficiencies.
Again, easy for me to say. But I’ve seen the alternative…and what it costs.
- Operations: How can operations reduce risks? They just direct traffic.Answer: A lot. First, driver management is vital — hours of service, fatigue, weather … all of these are potential detonators.
Second, routing is risk-related. Telematic companies provide insight into the most dangerous roads, days of the week, times of day. These are invaluable insights that can minimize risk if employed in routing.
And one of the largest recent verdicts included an argument that weather should have been considered in routing.
Third, detention time. The American Transportation Research Institute’s recent study found increased risk when there is excessive detention time. Not just rushing to make up time, but even en-route to get the load.
- Maintenance: Functioning vehicles reduce risk. Not just by avoiding failure-caused accidents, but by minimizing driver distraction and rushing due to lost time.Plus, post-accident inspections that reveal pre-accident defects are fodder for the argument of billboard attorneys that there is a systemic failure that requires a big verdict. “The company couldn’t even keep their vehicles compliant. How do you think the rest of the company operates?”
The Big Thing
Multi-departmental safety and risk requires one overarching commitment: A safety culture. It starts at the top. With the folks who are responsible for, judged by, and profit from the bottom line.
In my current presentation, “Safety Profit,” I preach the message of this full-court press by the entire company and all departments to protect profit – and the company itself. Management must buy in and make clear their commitment to the message.
When that happens, safety and risk are no longer a burden. They are a profit. Keeping money on the bottom line by stemming the hemorrhage.
Bottom Line
Safety and risk will determine your bottom line. But all departments can and must contribute. Make sure this message reaches all and is effectively enforced. |
