Fleet Management News & Business Info | Commercial Carrier Journal
Issue link: http://read.dmtmag.com/i/303798
A S N E W T E C H N O L O G Y I S I N C R E A S I N G LY I M P O S E D I N T H E N A M E O F S A F E T Y O N T R U C K D R I V E R S , E X P E C T C O N T I N U I N G P O L I T I C A L A N D L E G A L I S S U E S C O N C E R N I N G T H E P R O P E R R O L E O F S U R V E I L L A N C E A N D M O N I T O R I N G T O A R I S E . " " Vo l . 8 , N o . 3 TRUCKSTOP.COM 25 E very trucking trade publication contains advertisements from technology vendors touting their product as the latest invention to meet the felt needs of carriers and their customers. Our industry is captivated by the technology revolution and an increasing array of federal regulations have been initiated in the name of safety to measure drivers' hours of service (ELD) and to control speeding (speed limiters). Aldous Huxley wrote "Brave New World" predicting a controlled society in which only a few remaining "savages" would value independent action. George Orwell wrote "1984" predicting that Big Brother (the government) would use technology to monitor private activities and restrain personal freedom. Yet the amount of personal data and the surveillance capabilities which the government and third parties have now readily available to profile every citizen, and truck drivers in particular, was never predicted and is truly staggering. TECHNOLOGY AND THE RIGHT TO PRIVACY ere is a legal and constitutional right to privacy which is threatened by the right to surveil, electronically capture, regulate and control an individual's every action. ere is an argument to be made that as technology costs fall, increased surveillance and data monitoring techniques, like DNA evidence, are ways to enhance highway safety, "cut to the chase," and determine and monitor driver performance with better certainty. To its credit, OOIDA has recognized that the ends may not justify the means when it comes to government mandated technological encroachments on the right of privacy. As a result of its efforts, the Agency's initial ELD mandate was rejected on court appeal and on March 12, the Agency issued a new rule including eight ways to help prevent E-Log harassment. Ironically, accompanying a recent internet article on the new rule was an advertisement by a vendor touting the advantages of carriers mandating onboard surveillance cameras! In sum, there is a building libertarian backlash to the use of technology to infringe on the right of privacy. As new technology is increasingly imposed in the name of safety on truck drivers, expect continuing political and legal issues concerning the proper role of surveillance and monitoring to arise. TECHNOLOGY AND RULEMAKING In addition to privacy concerns, increased use of technology involves other legal and political consequences which must be examined. Any new gadget for a truck mandated in the name of safety or the environment has a cost component which must be examined. As part of rulemaking, regulators are required to perform a cost benefit analysis and to examine the cost of any new rule on small businesses in particular. e so-called Paperwork Reduction Act and the Reg Flex Act require this type of analysis which is judicially appealable. (e cost of new technology falls disproportionately on small carriers and owner- operators due to retrofitting costs and trade associations representing small truckers must be particularly vigilant to ensure regulatory exceptions and phase-in periods.) In this context, the E-Log device is now a fairly cost effective third generation technology which primarily measures engine performance for hours of service compliance, not driver fatigue. e first generation tachograph technology was available in the '70s and a proposal for its use in lieu of a paper log was rejected by the ICC back then. Forty years later the technology has improved and the cost has been reduced. Politically, Congress is on board. SMS methodology has placed those who operate with a paper log at a competitive disadvantage and with the Agency listening to privacy concerns, an E-Logging rule is all but inevitable. Yet, all the bells and whistles aside, the technology is calibrated to measure productivity, not fatigue. It will be a rigid enforcement tool that trumps any driver flexibility, resulting in drivers driving while tired and being forced to stop for protracted periods of time when and where it is inconvenient to do so. Ironically, over 10 years aer the new HOS rules were implemented, we are still arguing over hours of service rules which the ELD is intended to enforce. Yet while all the research shows there are a variety of devices to measure fatigue rather than engine RPMs in real time, we are arguing over prescriptive hours of service, updated tachograph technology and extensive sleep apnea testing. One could certainly argue that technological advances are disconnected from wise policies. TECHNOLOGY, CONTROL, AND LIABILITY ISSUES Proponents of use of technology for greater control and monitoring of driver performance and truck location are carriers, shippers and brokers. Real time monitoring through GPS and other tracking devices of drivers and independent contractors as well as industry's fascination with the technology can have a wicked backlash. Two of the hot button legal issues affecting the trucking industry are (1) the so-called "misclassification" of owner-operators; and (2) the vicarious liability issue. Pending in Congress and in state legislatures are 22 separate bills aimed at reclassifying independent contractors as employees for federal and state taxation and worker's compensation purposes. e heart of the existing federal law is a "control test" which requires the owner- operator to be an independent businessman with flexibility to control the manner and method of his work. Requiring an independent contractor to have onboard surveillance in the absence of a federal regulatory mandate certainly would be an indicia of control that could be difficult to overcome. e desire of shippers and brokers for real time access to the location of their freight in