Deborah Lockridge
In the years since mandatory electronic logging devices for most U.S. truck drivers went fully into effect in late 2019, log falsification violations rank as one of the most common driver-related violations discovered by enforcement officials.
Log falsification is a misrepresentation of a commercial driver’s duty status or driving time on their daily record of duty status. They can be uncovered during roadside inspections or during Department of Transportation audits of motor carriers. And whether they are deliberate or unintentional, they can be a major problem for fleets.
But there are things you can do to reduce the number of violations.
Nearly 5% of all driver-related roadside inspections involved some kind of a log falsification in the years from 2019 to 2023, according to Federal Motor Carrier Safety Administration statistics — and they rank as the fourth most common driver-related violation.
It’s even worse in compliance reviews, AKA DOT audits, where log falsification is actually the second most common violation that’s discovered. The FMCSA has reportedly discovered around 21,000 log falsification violations in their DOT audits, which amounts to around 6% of the audits that they conduct, says Brandon Wiseman, president of Trucksafe Consulting.
“Those numbers — 5, 6% — don’t seem like all that all that big of a deal, but they are,” Wiseman says.
Why can log falsification violations be so bad for motor carriers, why are there so many false log violations, and what can fleets do to fix it?
Log Falsifications Hurt Your CSA Score
Log falsifications discovered during roadside inspections affect a motor carrier’s CSA (Compliance, Safety, Accountability) score in the hours of service BASIC as shown in the FMCSA’s Safety Measurement System.
“They are heavily weighted, and they can cause a motor carrier’s CSA score in the hours of service basic to tick up pretty quickly,” Wiseman says. “And in fact, a high hours of service BASIC score is a very common trigger for a DOT audit.
“The more log falsifications you as a fleet are incurring, the more likely it is you’re going to have the DOT knocking at your door,” he says.
Log Falsifications Hurt Your Motor Carrier Safety Rating
What those DOT inspectors discover during that audit will mean the difference between a Satisfactory, Conditional, or Unsatisfactory Safety Fitness Determination (more commonly known simply as a safety rating.)
Wiseman explains that during a DOT audit, investigators are looking for critical-level violations in your hours of service records.
“What they mean by a critical level of violations is a pattern of noncompliance over a certain period of time, or over a certain number of logs that they are sampling,” Wiseman explains. “A 10% or higher violation rate in that context, that would amount to a critical level violation.”
Investigators are looking for violations of the rules themselves — the 11-hour driving rule, the 14-hour daily rule, the 70-hour rule, etc. — but they’re also looking for log falsifications.
“If they find a log falsification violation rate of 10% or more in the DOT audit — which is not that hard to find — then you’re going to get a critical level violation in the hours of service factor for that audit. And if you get a critical level violation in the hours of service factor, you’re not getting out of that audit with anything better than a Conditional safety rating.”
What he has seen in the years of working with clients on their regulatory compliance is that the most common way fleets get a downgraded safety rating is log falsifications.
“Aside from getting a downgraded safety rating, the other thing you can usually expect to receive is a civil penalty,” Wiseman adds. Just how much that fine may be will vary based on factors such as the size of your company and how many violations were discovered, but Wiseman said he’s seen log falsification fines from $5,000 up to $50,000.
False Logs + Crash Litigation = Bad News
And let’s not forget the potential for litigation following a crash.
In its 2020 research report on how “nuclear verdicts” affect the trucking industry, the American Transportation Research Institute found that there were five particular factors brought against a defendant that yielded 100% verdicts in favor of the plaintiff.
The top one was hours-of-service or logbook violations.
“If your fleet has a real problem with drivers falsifying their logs, whether it’s deliberately or inadvertently, and one of your drivers is involved in a catastrophic accident, you can be sure that the log falsification issue is going to come to light in that litigation,” Wiseman says. “And it may very well haunt you in that litigation, particularly if one of the reasons for the accident has to do with driver fatigue.”
How do Log Falsifications Happen?
One of the biggest culprits behind log falsification, says Wiseman, is the use and abuse of “personal conveyance” status.
“In fact, it is being widely misused by a lot of drivers to conceal hours of service violations,” he says.
“Personal conveyance has always been and continues to be a significant source of misunderstanding among drivers, among carriers, among law enforcement, among the FMCSA itself. Nobody can really get their arms around it.”
Personal conveyance, he says, is for a limited circumstance where a commercial driver could legally log their driving time as off duty. When ELDs were implemented, because the device will automatically log as on-duty driving if the vehicles is moving, officials added the “personal conveyance” status as an option so the ELD doesn’t count against their hours limits.
A legitimate use of personal conveyance might be an owner-operator who’s not under dispatch and needs to use his truck to help move his brother from Indiana to Florida. Or he has a boat that he needs to take down to the lake.
“Truly personal reasons,” Wiseman notes.
Part of the problem, he says, is that personal conveyance is not written in the official rules but is published as a guidance.
Mis-Using Personal Conveyance Status
Drivers can mis-use the personal exemption option in their ELDs, whether it’s from a lack of understanding of the rules or a deliberate falsification.
Wiseman offers the example of a driver who’s under dispatch for a motor carrier and has only 50 more miles to go when he or she hits the 11-hour daily driving limit. Regulations require the driver to shut down for the required rest period right there.
“But if you really want to get the job done, and you want to avoid the appearance of an hours of service violation, the way you get around that is by flipping yourself into personal conveyance status,” Wiseman says.
To someone who’s not digging into it very deeply, he says, it will look like the driver was in compliance with the hours of service rules that day.
However, he says, “it doesn’t take much for law enforcement and for motor carriers to do a little bit of digging on that personal conveyance segment of your time and figure out if you were legitimately off-duty for personal reasons or not. And if they find out that you weren’t, then it’s a log falsification.”
Ironically, Wiseman says, the driver actually would have been better off to have just violated the 11-hour rule than to be found falsifying driver logs.
Personal Conveyance Misconceptions
A common misconception is that the personal conveyance status can be used by drivers to get to a safe parking place for their required rest if the first place they stop is full. In fact, Wiseman points out, that is only for right after loading or unloading. The guidance says an accepted use of personal conveyance is “time spent traveling to a nearby, reasonable, safe location to obtain required rest after loading or unloading.”
“That’s a very common misunderstanding is that that there’s some so-called safe haven allowance in the personal conveyance guidance,” Wiseman says. “It’s not true. If you run out of hours and you’re in the middle of the highway, there’s no way for you to get to a safe location to rest except to go in violation. That’s your only option.
“DOT would tell you, you should have planned better for that situation. And now you’re going to suffer the consequences of your hours violation.”
Other Reasons for Driver Log Falsifications
Some of the other common reasons behind log falsification violations may be inadvertent.
For instance, a driver might put themselves into off duty status in a situation where the regulations require them to be in on-duty/not driving status.
The most common example, he says, is drivers logging off-duty when fueling their trucks. That time is supposed to be logged as on duty/not driving.
“A lot of times drivers just don’t realize that they’re supposed to be an on-duty status during while they’re fueling their vehicles, and so they flip themselves into off duty status. That’s considered a log falsification.”
Another common area where logs are falsified — deliberately or inadvertently — is unassigned driving time when using an ELD.
ELDs automatically start logging driving time whenever a vehicle starts moving. If nobody is logged in, that goes into the carrier’s back-office access to the ELD software and put on an unassigned driving report.
When the DOT comes to audit you, Wiseman says, “one of the first things they’re going to ask for when they’re looking at your hours of service is your unassigned driving report. And it’s a very common way that carriers run into trouble in those audits.
“They turn over this unassigned driving report, and if it’s got thousands of hours of unassigned driving time, DOT oftentimes considers those to be log falsifications. Because a way for drivers to conceal hours of service violations is just by not logging into the device.”
FMCSA expects motor carriers to be reconciling the time on those unassigned driving reports and assigning them to the driver to whom they belong.
There are certain instances where there’s no driver to whom they belong, like when a technician is taking the truck out to diagnose or evaluate a problem. In those cases, Wiseman says, it’s important to annotate what those unassigned driving time entries are.
What Can Motor Carriers Do to Prevent Log Falsification Violations?
“There’s no magic formula to this,” Wiseman says. “It takes effort on your part to get these things under control.
“First things first, you can’t fix what you’re not measuring.”
Wiseman recommends fleets watch key safety and compliance metrics. When it comes to log falsifications, he says, safety managers need to watch the carrier’s hours-of-service CSA score in the SMS.
“If you see that you’re getting a bunch of log falsifications, now’s the time to deal with that before it balloons into a big problem and you have DOT knocking at your door,” he says.
In addition, monitor key reports that come from your ELD system, such as personal conveyance and unassigned driving time.
Carriers need to regularly audit their driver logs to look for common problems, such as logging fueling time as off-duty.
“Once you know where you are having problems, you actually have to take action to get control of them,” Wiseman says.
If a driver is incurring false log violations or a lot of personal conveyance time, the first step is to have a conversation with that driver.
“If it turns out that it’s a nefarious reason, then you need to take disciplinary action against them,” he says. There needs to be a progressive discipline program in place in fleet policies and it needs to be followed.
But if it turns out that false log violation, an overabundance of unassigned driving or personal conveyance time stems from a lack of understanding of the rules, drivers need education.
“You need to be educating your drivers, making sure they understand when they can use personal conveyance and when they can’t. Or if it’s unassigned driving time that you’re having a problem with, making sure that they are being held accountable to logging into their device. “Holding drivers accountable, giving them the education they need. That’s really what goes into getting control of these issues.”
What’s Your Trucking Fleet’s Personal Conveyance Policy?
One way motor carriers can address personal conveyance problems is by putting in place a more restrictive company policy than what the DOT guidance outlines.
For instance, the guidance says, a motor carrier could:
- Ban the use of a commercial motor vehicle for personal conveyance purposes.
- Set a distance limitation on personal conveyance.
- Prohibit personal conveyance while under a load.
Click on link below to see video.
https://youtu.be/t61S5Qs5lKQ
Kathy Close
ACSA BASIC (Behavior Analysis and Safety Improvement Category) score is a percentile ranking used to compare a motor carrier against its peers to assist in identify high-risk carriers.
The Federal Motor Carrier Safety Administration (FMCSA) generates CSA BASIC scores for the following seven categories:
- Unsafe Driving: Dangerous or careless operation of commercial motor vehicles (CMVs).
- Hours of Service Compliance: Driving CMVs when ill, fatigued, or in violation of the hours-of-service rules.
- Driver Fitness: Operation of CMVs by drivers who are unfit to operate a CMV due to lack of training, experience, or medical qualification.
- Controlled Substances and Alcohol: Operation of a CMV while impaired due to alcohol, illegal drugs, and misuse of prescription medications or over-the-counter medications.
- Vehicle Maintenance: CMV failure due to improper or inadequate maintenance or inadequate cargo securement.
- Hazardous Materials (HM) Compliance: Unsafe marking, handling, or transportation of hazardous materials in an amount requiring a placard.
- Crash-Related: Histories or patterns of CMV crashes, including frequency and severity.
How is a CSA BASIC score derived?
The FMCSA uses a motor carrier’s safety data that is transmitted by state and federal enforcement to the Motor Carrier Management Information System (MCMIS). The past two years’ worth of roadside inspection and crash reports contain critical data elements used in CSA’s elaborate algorithms.
The algorithms provide carriers with a “measure” for each BASIC, taking into consideration:
- The severity of a roadside inspection violation or crash,
- How recent the event took place, and
- The carrier’s level of exposure (i.e., vehicle miles traveled, the average number of power units, number of inspections)
This BASIC measure is then compared against similar motor carriers for the percentile ranking. The rank is on a scale of 1-100, with 100 being the worst-performing. This percentile ranking is the carrier’s BASIC score.
How is the percentile ranking used?
Those motor carriers that exceed a predetermined threshold for an individual BASIC score are subject to an intervention by the FMCSA.
Interventions include:
- Warning letters advising of apparent safety problems and the potential consequences.
- Targeted roadside inspections to verify that the warning letters are being taken seriously.
- Offsite investigations that involve the collection and reviewing of documents at an FMCSA location.
- Focused onsite investigations at the motor carrier’s place of business, focusing on a specific safety problem.
- Comprehensive onsite investigations that occur at the motor carrier’s place of business.
- Cooperative safety plans developed and followed voluntarily by a motor carrier to address safety problems.
- Notices of violation to put a carrier on notice of specific regulatory violations that need to be corrected “or else.”
- Settlement agreements to contractually bind a motor carrier to take actions that improve safety.
- Notices of claims to levy a fine and compel compliance in the case of “severe” or repeat violations.
The intervention taken by the FMCSA is not sequential. If a carrier has multiple BASICs exceeding the thresholds and/or scores close to 100 percent, the agency will probably go straight to an investigation. A carrier can only be placed out of service based on the results of a comprehensive investigation since it contains elements of a compliance review.
How Can I Lower My CSA BASIC Scores?
The data used in the CSA formulas are only used for 24 months. As a result, you can only lower your CSA scores over time, by accumulating recent, violation-free inspections, and by avoiding crashes.
To improve your performance data, you should:
- Examine the violations that are scored in each BASIC,
- Look for trends (e.g., same driver or location), and
- Find a root cause for the safety event.
You should use this information to come up with a safety plan to avoid future violations and crashes. If the safety performance does not improve, you’ll have to re-evaluate its findings (find the real root cause) and apply another remedy until the issue is resolved.
To view your CSA scores and data, log into the CSA Safety Measurement System website using your DOT number and the carrier-assigned PIN that is used to update your DOT registration (MCS-150).
Doug Marcello – My colleague, Tiffany Peters, addresses what drivers should do after the accident.
Accidents happen unexpectedly, even to the best drivers. Knowing what to do beforehand is critical. Proper accident response will better position you to defend yourself and your company if a lawsuit is filed. In some instances, your response may even prevent a lawsuit. Below are the top 5 tips to keep in mind when preparing to respond to an accident.
- Pictures.
- If it is safe to do so, take pictures of:
o all sides of the vehicles involved, including the points of impact,
o the roadway, traffic signs, and any marks or debris, and
o the license plates of any witnesses who stop.
- It is best to leave the vehicles where they are until the police arrive and ideal if you can leave them there until you have coordinated with a reconstruction expert. If any vehicles must be moved to prevent another accident, try to document their locations as best you can with photos before moving.
- Look around for any surveillance cameras nearby that may have captured the accident.
- Silence.
- Do not talk with anyone unless absolutely necessary.
- You will have to talk to your company, your attorney, and first responders. Unless approved by your attorney, do not talk with anyone else.
- DO NOT DISCUSS FAULT WITH OR APOLOGIZE TO ANYONE.
- Social Media.
- Avoid posting ANYTHING on social media about the accident.
- Check your privacy settings regularly. Plaintiffs’ attorneys will look for anything they could show a jury that makes you look bad – even content that is unrelated to your driving or to the accident.
- While admissibility can be fought, it is better to not have it out there.
- Citations.
- Just because you were not given any tickets at the scene does not mean you are in the clear. In Pennsylvania, for example, a ticket can be issued up to 30 days after the accident, but if someone claims to be injured, then the time is extended to a year.
- Make sure to check your mail regularly. You are supposed to respond to citations within 10 days in Pennsylvania.
- It is important to know the effect of a citation and your response to it in the state where it occurred. Before pleading guilty to be done with it, talk with your attorney to make sure you know the answers to the following:
o Can my plea be used against me in a civil action?
o Will this cause a suspension of my operating privileges?
o Does this carry points?
o Is this considered a serious or major offense?
o If in another state, what will my home state do with this?
o Are there any other potential consequences to be considered in this instance?
- Do not forget that Pennsylvania limits your time to appeal to 30 days. In other states, the time for response to a citation or the appeal of the judgment may differ.
- Police Report.
- Get a copy of the police report and review it for accuracy while everything is still fresh in your mind.
- If anything is wrong, like the location, see if you can get the officer to change it.
This is not an exhaustive list and assumes accident response measures are taken such as securing the scene with DOT triangles or warning flares, checking if anyone is hurt, reporting the accident to your company and authorities, and protecting against any immediate danger posed by hazmat materials. Before an accident happens, familiarize yourself with company guidelines and be ready to follow them. We would be happy to provide accident response packets for free – just send an email to Tiffany Peters at tmp@saxtonstump.com .
THERE IS A ROAD TO TORT REFORM…AND WE ARE NOT ON IT.
Doug Marcello
WHY IT MATTERS: We have the power and ability to bring real tort reform by radically changing our approach and flexing our electoral power.
WHY WE ARE FAILING: Our current course for tort reform is failing. Aside from isolated success in the very few politically fertile states, our current strategy and procedures are not getting traction.
Continuing to play the same game, the same way is a prescription for failure. Sure, PACs are necessary. A necessary…. “Money is the mother’s milk of politics”.
But we will never win that game. We are, and will be, outspent by those who reinvest in legislation and judicial elections from the 33%-40% they take from widowed and the injured.
We need to pivot to our strength and change the narrative. Change it from a money game we cannot win to an electoral contest.
THE REAL ROAD TO TORT REFORM: We have a power that none of the billboard lawyers possess—votes. We need to flex our electoral power to repel this existential threat.
Trucking related businesses employ 8.4 million people. This does not even include those who are self-employed. Or their spouses and partners. Or their children and parents. Or their friends.
In a time of a divided electorate in which a majority is determined by mere percentage points, trucking votes have power.
Trucking votes can be determinative. Electoral power personified by the mantra, “Truckers Vote”.
“SURE. BUT HOW?”: Never has it been easier than today’s world of social media. We can communicate directly to our people unfiltered by media intermediaries.
“Realistic?” Consider that the death of a Tunisian shopkeeper sent shockwaves via social media that brought down entrenched governments with military force in an “Arab Spring”. Our challenge pales in comparison.
Our road to real tort reform has four elements:
- Educate
- Motivate
- Flex
- Enlist
-EDUCATE: Our employees and the public. Of the existential threat of the billboard lawyers. Jobs. Consumer costs. Community support.
Of how the billboarders operate—did I say 33%-40% from the widowed and injured? And then take their expenses from what’s left. Litigation loans and funding. Financing campaigns of the judges before whom they appear.
Educate them of our true story. The lifeblood of America. Drivers missing birthdays and anniversaries to deliver what we need and what we enjoy. Million mile safe drivers and billions for safety. Supporting the communities in which we live.
-MOTIVATE: Motivation our people to vote for those who will protect and support our industry. Motivation to vote to turn out those who don’t.
There are two sides—those who are for us and those who are not. As a Texas politician once said, “the only thing in the middle of the road is yellow stripes and dead armadillos.”
-FLEX: We need to show our electoral power by turning out and making our voice heard. Forcefully.
The message needs sent—Truckers Vote. And we vote for those on their side of the road.
The message that politicians can either be with those with the money or those with the votes. Politician, its your choice. And then it is ours.
-ENLIST: The electoral mass of transportation is mighty but will be amplified by enlisting those in a similar position. Medical industry. Insurance.
Anyone in the crosshairs of billboard lawyers are our allies. Our threat is their threat. Our cause is their cause. Our voices are amplified by unity.
“SOUNDS GOOD IN THEORY, BUT…”-Who is going to do it? Where are you going to get the money?
-WHO?-We already have the infrastructure—National and state trucking organizations. Starting at the top—ATA, TCA, NPTC,… Individually or, even better, united these organizations are at the vanguard of members and resources.
Then continue with the state organizations. The grassroot entities closest to the members.
We have the “Who”. It is just a matter of focused efforts as a unified front. Educating, mobilizing, and enlisting their members for real action. Action that can mean the difference between having or losing their business or their job.
A task force of trucking organizations—“Truckers United”—for the preservation of our industry.
“RESOURCES?”-“So who’s going to pay for this?” “Where is the money coming from?”
First, we are talking about using existing resources focused on the existential threat. Existing publications, emails, webinars, conferences,… Existing resources to educate as to the threat and motivate the response.
Over the last eighteen months I have given a presentation entitled “The Four Phases of Litigation” to numerous national and state trucking organizations and insurance meetings. Many attendees were enlightened, if not shocked, by the threat and the strategy of the billboard attorneys. We need to extend the message as to why this is crucial as well as to the merits of our industry.
Second, we are not talking about massive expenditures. We are not going to out-TV or out-billboard the enemy. To do so is virtually wasting money.
We are talking about social media. Generally free as a medium.
Maximized by messaging from the organizations and the allies. Magnified by providing assets for posting by companies and employees.
Not the same old postings, but creative, captivating graphics and messages. Why can’t our crucial messages be more impactful than an eighteen year olds stating his college football commitment.
Third, if increased funds are needed, let’s get it. Like a WWII bond drive, we have noble cause and great need with funds dedicated to a specific use.
BOTTOM LINE: Real tort reform requires a fundamental change in our attack. To flex our electoral muscles driven by “Truckers Vote”. To drive the effort by “Truckers United” To do otherwise is to accept our fate with minimal progress.
By Alyssa Adams
The moment an accident occurs is not the time to put your company’s accident response plan into place. Having an accident response plan in place, including training your dispatchers on the policy, will allow you to act as soon as an accident occurs. The faster you act, the better prepared you can be to prevent a lawsuit or claim, and the better prepared you will be to defend yourself in the event of a lawsuit. Also, by acting fast and taking a proactive approach, you can potentially save money and litigation fees. Even if a suit is filed, taking a proactive approach gives you the opportunity to collect evidence from the scene, surveillance, statements, or social media evidence to use in your favor at trial. Below are the top 5 tips for you to keep in mind when preparing to respond to an accident.
- Act Fast and Be Prepared
- The faster you act, the better you can respond.
- To effectively respond, you must start well before an accident occurs.
o The best place to start is by training your dispatchers on how to respond when an accident call comes in. Train your dispatchers on:
- What they should be asking the driver,
- What information to obtain, and
- What additional individuals, including attorneys or field adjusters, to contact to help with the response.
- Do not takes statements from your driver
- Do not have your driver make any written or recorded statements regarding the accident.
- Advise your driver not to give any statements to anyone or talk to anyone else about the accident.
- One thing that you can do to completely protect your driver’s version of events, is to immediately have an attorney speak to the driver.
o Everything said to the attorney would be confidential and protected by attorney-client privilege and could not be used later against the driver.
- Bring in outside help
- You may want to have an attorney speak with your driver so that it is protected by attorney-client privilege.
- You will want to hire an independent adjuster to help investigate the accident.
o Hire an independent adjuster to call the other driver and witnesses to obtain their statement.
o If you believe that there may be security cameras in the area, from other businesses or entities, you can have the adjuster go out to the scene to try to obtain any videos that have footage of the accident.
o Hire an independent adjuster to go out to the scene and take photographs.
- Hire an accident reconstructionist to inspect the vehicle, do a download of the black box of the vehicle, and to review the accident site for to determine how the accident happened.
- Social Media
- Have you or your attorney’s office search for information concerning the accident.
o Check Facebook and other social media.
- Family members of the person hurt in the accident may comment on news articles or post about their loved one’s injuries.
- Have your attorney or independent adjust run a public record search and a social media search for the claimant.
o Make sure to keep checking on social media to see if they mention their injuries.
- Usually once the claimant retains an attorney, they will be told to take their social media down, so it is important to find it immediately, if you think there could be future litigation.
- Social media is very important and can sometimes be the piece of evidence that you need to prove the claimant is not injured. However, you must act fast on this. If you wait until a lawsuit is filed, it may be too late.
- Preservation of evidence
- Make sure to preserve any evidence from the accident.
o This would include pulling the driver’s logs for the week before the accident.
- If a preservation letter is received from the claimant’s attorney, make sure that you save anything that is included in the letter so that you are prepared in case of potential litigation.
o If not saved, you can be accused of spoliation and may have sanctions issued by the Court.
o If a preservation letter is received, have counsel send your own preservation letter to have the claimant preserve any evidence they have regarding the accident.
This is not an exhaustive list and assumes accident response measures are planned prior to the happening of the accident. We would be happy to provide accident response packets, forms, and checklists for free – just send an email to Alyssa Adams at aa@saxtonstump.com .
