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(6) if customers or government agen- using owner-operators should consider motor carriers for input on the poten-
cies are the true source of contrac- moving now to conduct an operational tial for EOBR harassment of drivers.
tors’ instructions, make their origin review to remedy any vulnerability to For now, carriers using EOBRs
clear in the independent contractor reclassifying their owner-operators as should consider safeguards such as
operating agreement (“ICOA”); employees rather than remaining inde- requiring EOBR use only for drivers who
pendent contractors. have demonstrated HOS-compliance
(7) don’t provide business coaching
to contractors, but allow inter- Damages in a successful worker- problems; issuing a company policy,
ested contractors to pay for outside reclassification class action could and training dispatchers and manag-
coaches through charge-backs; include the owner-operators’ cost of ers, on the limited proper use of EOBR
having to purchase their own health data; restricting the frequency and
(8) avoid “employee” terminology in care coverage, in addition to penalties detail of data-pings about the vehicle’s
paperwork, websites, and customer under ACA for failing to provide health- location; meeting the specifications of
communications; and care coverage to the carrier’s “employee” FMCSA’s current regulation on optional
(9) subject your ICOA and leasing drivers. use of “Automatic On-board Recording
practices to periodic legal review. Devices”; distributing for driver signa-
elecTRoNIc loggINg deVIceS ture a privacy-related disclosure and
affoRdable caRe acT – As an early advocate of an consent form; and using a third-party
complex cHoIceS Electronic Onboard Record (“EOBR”) clearinghouse to screen and channel all
While the Obama Administration mandate, the Arkansas Trucking EOBR data for use only to satisfy specif-
has announced that it will delay by Association has long appreciated the ic regulatory or customer requirements.
one year, until 2015, the requirement safety-enhancement and customer- Competitor Collaborations – Risk/
that larger employers provide health service benefits of EOBRs. The Trucking Reward. The Federal Trade Commission
care coverage to their workers or pay Alliance, spawned by the ATA leader- and private lawsuits seeking treble-dam-
penalties, all other provisions remain ship two years ago to lobby Congress, ages have increasingly been challenging
in the landmark Patient Protection and was instrumental in getting this EOBR competing companies’ agreements and
Affordable Care Act’s (“ACA”) remain mandate included in the transportation joint ventures under the antitrust laws.
in place. bill last year. Competitor collaborations offer motor
Transportation industry employers Now that Congress has finally carriers, among others, substantial law-
should prepare now for the other provi- agreed, the electronic logging devices ful opportunities to get more efficient
sions in the ACA. Individuals will have (ELD) as they are now referred, will and profitable by, for example, sharing
to maintain an ACA-defined minimum be fully implemented within the next information on squeezing unnecessary
level of health coverage or incur a pen- two or three years. The ELD mandate expenses out of their operations. But
alty collected by the IRS, while large becomes effective two years after the coordination among competitors can
employers – those with 50 or more full FMCSA promulgates, theoretically by also be a “slippery slope” to jury verdicts
time, or part-time equivalent, workers 10/1/2013, a final rule on the subject. of unlawful price-fixing, dividing up of
– will have to offer employees an oppor- FMCSA has publicly acknowledged customers, concertedly refusing to deal
tunity to enroll in “affordable” health motor carriers’ right to install EOBRs in with competitors, customers, or vendors
coverage providing “minimum value” to the meantime. except on anticompetitive terms, or
the employee, or incur a penalty. Some legal exposure may accom- engaging in other predatory conduct.
The individual mandate and ACA’s pany a carrier’s use of EOBRs. The To avoid such jury verdicts and the
Affordable Insurance Exchanges may Owner-Operator Independent Drivers prison terms, fines, and huge money
encourage owner-operators to look for Association has sued FMCSA over the damages they can bring, motor carriers
affordable health care plans in order to possibility that carriers would exploit should tread carefully and obtain anti-
avoid, as independent contractors, hav- EOBRs to harass drivers – by, for exam- trust advice in advance when contem-
ing to pay a penalty for lack of coverage. ple, waking drivers resting in the sleeper plating collaborations with other motor
There is also a possibility the individual berth or requiring drivers with available carriers – including benchmarking sur-
mandate will increase pressure on hours based on EOBR information to veys, questionnaires, or blogs.
motor carriers and insurers to facilitate continue driving despite driver fatigue
health insurance for owner-operators. – or to invade driver privacy through Dan Barney is a Managing Partner and
Motor carriers should familiar- EOBRs’ ability to GPS-track a driver’s Andrew Butcher is an attorney with the
Washington, D.C. office of Scopelitis,
ize themselves with this new dynamic off-duty whereabouts. Garvin, Light, Hanson & Feary, P.C.,
that owner-operators will face in 2015, In response, FMCSA recently a national law firm that specializes in
including whether it will help or hurt announced that it has completed a transportation law.
recruiting and retention. Motor carriers survey of more than 1,000 drivers and

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