Although I gather it’s not illegal yet to talk on a handheld cell phone while driving, I’ve been hearing about some situations in which the company was held liable for accidents when the employee was doing business on the cell phone while driving. Even while driving to a ball game with the kids and taking a call. What should we be doing with regard to policy and training? — Warren K., HR Director in Palm Springs
What a timely question, Warren, with Governor Schwarzenegger having just signed the California Wireless Telephone Automobile Safety Act (more on that in a moment). Cell phones are now ubiquitous, and for many reasons, employers benefit from employees being accessible when they are mobile, including while in a vehicle. Employees find they can be more productive if they can take or make calls while driving, and even count on their phones for getting directions, checking voice mail, or translating needs in real time after conducting business with clients/customers. As a result, organizations of every size and type struggle with setting realistic usage guidelines that reduce their liability and promote employee safety but still encourage productivity.
- In 2001, a San Francisco-based law firm, Cooley Godward, was sued by the father of a 15-year-old child who was struck and killed by one of its employees while the employee was driving and talking on her cell phone, allegedly “involved in doing business.” In seeking $30 million in damages, the suit stated that the call was within “the expectation and acquiescence of Cooley Godward and served as a direct benefit…to the law firm.” (Cooley Godward settled for an undisclosed amount.) Note that the wording in this lawsuit implies that the law firm not only condoned use of the cell phone for doing business on the road but expected and gained benefit from it.
- A salesman for an Arkansas lumber wholesaler, Dyke Industries, was driving and talking on his cell when he was involved in an accident that severely disabled a 78-year-old woman. Dyke agreed to pay the woman $16.2 million.
More on the Horizon
One reason that many of these cases were successful is that cell phone records include the time of the call, the number dialed or received, and the duration of the call. These records can serve as proof for a plaintiff’s lawyer that an employee was indeed doing business on the phone when an accident occurred, if the call was business related. This means the plaintiff’s lawyer can contend that the employee was distracted by the business call and at fault for the accident, and that the employer is ultimately liable for allowing such behavior on the employee’s part.
Keep in mind that most jurors will probably have their own experience observing inattentive cell phone users on the road and may need little convincing.
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High Risk
Any organization that needs additional reasons to immediately implement a policy on safe cell phone use should consider the conclusions of these two reports:
- Motor vehicle accidents are still the leading cause of fatal work injuries, the latest report by the U.S. Bureau of Labor Statistics concludes. Although the report does not indicate accident “cause” data, many experts believe that driver inattention is the number one cause of all accidents.
- A 1997 New England Journal of Medicine study on cell phone use in cars (still one of the most comprehensive studies) concluded that the risk of an accident is four times higher when a motorist is using a cell phone.
Together, these reports indicate that an employer is highly vulnerable to liability actions when an employee is conducting business on the phone while driving.
Policy/Best Practice Tips
1. Write a policy on cell phone use that all employees must sign. Include clear prohibitions on making/taking calls with a handheld phone while driving and state that employees should not take or make a call without pulling over. Provide guidance on how to use hands-free devices safely. In addition, include specific prohibitions such as:
- No reading of text messages
- No looking up phone numbers or writing notes while driving
- No calls of any kind in extreme inclement weather unless pulled over safely
2. Establish requirements for safety training. Indicate specifically who should complete online or CD-ROM driver safety training and who should attend more comprehensive training (e.g., drivers). Preview any training program to ensure it addresses and aligns with your cell phone use policy.
3. Clarify management responsibilities.
- When calling an employee’s cell phone, managers should ask the employee “Are you driving?” If the answer is yes, the manager should instruct the employee to pull over and call back when it is possible to do so safely.
- Management should be careful to role-model the safe use of cell phones.
4. If you issue cell phones for business use, provide hands-free devices. (Be sure to have the employee sign your cell phone use policy at the time of issue.)
Summary
Enforcing a ban on cell phone use while driving for business would certainly be the ultimate in liability mitigation. However, it is unrealistic and probably counter-productive. Therefore, organizations should develop a cell phone use policy that employees acknowledge in writing; mandate training as appropriate; and ensure that managers enforce and role-model expected behavior.
Diana Gregory, SPHR, is senior human resources specialist at the Walnut Creek office of Administaff, a professional employer organization and human resources outsourcing firm.