Texting While Driving—Expensive (Not to Mention Dangerous)

Beachboard, who is a shareholder in the Los Angeles and Torrence, California offices of national employment law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C., shared his tips on texting while driving at the SHRM Annual Conference and Exposition held recently in Atlanta, Georgia.

Beachboard reports studies that suggest:

• 95% of the “mobile” workforce has a smartphone
• 18% report working on portable devices from home
• 25% check email while on a sick day
• 34% check email on vacation
• 75% never turn off their Blackberries
• 50% check/send emails and texts while driving

That all adds up to some serious issues around portable devices. Texting while driving is critical, however, as the only one that’s actually physically dangerous as opposed to lawsuit dangerous.

Texting While Driving

Studies indicate that driver reaction time is 35% slower when texting while driving, says Beachboard. That’s worse than DUI at 21% ant marijuana at 12%.
Another study shows that 1.4 million crashes a year are caused by drivers talking or texting.

Some examples of employer liability for distracted driving:

1. $500,000 settlement with Smith Barney where a stockbroker making a cold call on a cell phone killed a motorcycle driver
2. A year in jail and $2 million in restitution for an attorney who killed a pedestrian and kept driving because he thought it was a deer
3. $5.2 million settlement with International Paper where an employee rear-ended car on freeway while texting

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What Should Employers Do?

Beachboard recommends that employers:

1. Prohibit cell phone usage—talking and texting—while in company vehicle, driving on company time, or driving and conducting company business
2. Require compliance with state and local law
3. At a minimum, implement a hands-free policy and provide a hands-free device

Wage and Hour Issues Caused by Technology

One study suggests that many employees spend more than 1 hour per day sending and receiving work-related emails off-hours. Typically, that time is not documented or reported.

However, if the employees in question are non-exempt, that time may be compensable. For example:

In Agui v. T-Mobile, Inc., non-exempt salespersons sued claiming they were required to respond to emails after hours while off the clock (the suit settled).

In Allen v. City of Chicago, the court refused to find that time spent by police officers performing work on mobile devices after hours was de minimus.

Beachboard suggests that companies:

1. Limit company devices to exempt employees
2. Prohibit non-exempt employees from checking emails/performing work outside work hours
3. Require employees to track after-hour work-related usage
4. Require prior approval for after-hour usage
5. Educate supervisors on consequences of emailing non-exempt workers after hours

Mobile devices after hours—a challenge, but certainly not your only challenge. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that whatever the agencies and courts throw in your way.

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E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.

Solicitation. In line with our general non-solicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.

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