Trucking industry insiders are charging that some ELD vendors are manipulating weaknesses in the Federal Motor Carrier Safety Administration’s technical requirements to allow trucking companies and drivers to use “ghost co-drivers” to avoid hours-of-service (HOS) rules. Recently, a driver utilizing ELD Rider software recorded a ghost co-driver being added to his device 15-20 minutes after the driver requested more hours from the company.
The history of ghost-driver accounts
Before ELDs became mandatory, it was common for automatic onboard recording device (AOBRD) systems to use ghost-driver (or generic or dummy) accounts to prevent unassigned driving time from accumulating in the system by providing “buckets” into which this driving time could be recorded. Some common ghost accounts included:
- Maintenance — used for maintenance movements by mechanics not required to log.
- Road test— used when a driver who had not been hired or entered into the logging system is road tested.
- Yard shuttles— used by non-drivers not required to log when a road truck was used to switch trailers in the yard.
When a driver used one of these accounts, they would usually either log in under the ghost account and use it while driving or fail to log in, instead allowing someone else to later assign the unassigned driving to the correct ghost driver account. Although AOBRD rules at §395.15 do not prohibit ghost accounts, they were to be used appropriately and monitored by the carrier.
However, some drivers or supervisors used ghost driver accounts to hide driving and on-duty time, and truckers were often tempted to log in to the ghost driver account when they were short on available hours.
Fleets utilizing automatic onboard recording device systems (AOBRDS) were required to change to ELDs by December 2019. The ELD rule that took effect December 16, 2019 requires most carriers to utilize electronic devices (ELDs) to track driver hours of service instead of relying on paper logbooks. The ELD regulations clearly state that all accounts must be assigned to an individual and all driver accounts must have a driver’s license number linked to them. This means ghost driver accounts are not permitted in an ELD system. Other requirements of the ELD rule include:
- ELDs must be certified and registered with the Federal Motor Carrier Safety Administration (FMCSA). The rule also sets forth ELD performance and design standards.
- The rule specifies the supporting documents drivers and carriers must keep.
- Harassment of drivers based on ELD data or fleet management systems is illegal, and there is recourse available for drivers who believe they have been harassed.
- Any driving time that comes into the “unidentified driver” account must be either assigned to a specific driver, or a comment must be attached to the driving time explaining why it could not be assigned to a specific driver.
- Fines for ELD violations range from $1,000 to $10,000.
ELD systems provide an option that is meant to remove the need for ghost accounts. Instead, “exempt driver” accounts may be established for exempt drivers – those who are not subject to the hours-of-service or logging regulations. Exempt driver accounts capture the driving time and assign it to the correct driver, but do not generate a regular log. This way, the driver can log in whenever a vehicle is moved, eliminating the need for a ghost driver account or unassigned driving time.
ELD workarounds abound
However, some vendors have created workarounds to entice customers who want to cheat on HOS logs with ghost co-drivers. According to a March 30 Freight Waves report, the FMCSA is stepping up enforcement to crack down on ELD providers that do not comply with federal requirements. The agency has removed five devices from its registry so far in 2023, more than it revoked in the previous four years. Only two revocations were made in 2022.
The FMCSA eliminated All-Ways Track ELD from its self-certification registry at the end of March 2023, and the vendor must make necessary modifications by May 26 before it can recertify the device. In the meantime, the agency is advising All-Ways’ ELD customers to use paper logs while the issues are addressed. FMCSA also revoked two other ELD providers from its registry several months ago, although the companies providing these two devices have now self-certified another HOS-tracking application with FMCSA.
Why do truck drivers tinker with ELD data?
While hard-working truckers should get their well-deserved rest time, some view hours of service compliance as a nuisance. Some truckers view hours of service requirements mostly as one more way for outsiders to control an industry they don’t understand or belong in. Since most drivers’ income stems from miles covered and jobs completed, many view limiting either as a costly imposition on them instead of an improvement in public safety.
Limits on how far trucking companies can push their drivers eat into delivery times and profits. Although most companies grudgingly accept the restrictions some try to find ways around them—or just choose to disobey. Whatever obliges a driver or company to find ways to cheat the system, the result is dangerously-tired drivers operating 80,000-pound trucks. Although this puts everyone on the road at risk, some drivers and companies do what they can to get around ELD restrictions.
Despite federal laws that mandate rest breaks, drowsy truckers are involved in a significant number of traffic accidents every year. However, proving hours of service violations is challenging if the ELD data shows the driver followed the rules, although audits sometimes reveal discrepancies or modifications to the ELD and its data. Proving that an ELD device or its output was tampered with is a critical part of proving fault for a truck accident.
At Phelan Petty, our track record of success, reputation for excellence, and personal commitment mean you can relax and focus on recovery from your truck accident case. If you were injured by a trucker attempting to skirt HOS rules, complete this form and receive a free case evaluation from one of our experienced personal injury attorneys. We serve clients in Richmond and throughout Virginia.
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Michael Phelan is a Virginia trial attorney who practices with a special focus on traumatic brain injury (TBI) cases, pharmaceutical and medical device claims, product liability cases, and truck accidents. Michael’s peers have consistently recognized him for his excellence as a trial lawyer, and his clients have praised him for his commitment to deep research, his outstanding communication skills, and his sincerity and dedication.