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A pocket-sized cell phone is now standard issue for everyone in business from rookie salespeople to top managers to staff out in the field. And, who can argue the merits of quickly and efficiently ringing up customers and communicating instantly between job sites?
But, there's a dark side to this new technology. Your business faces costly lawsuits for personal injury or death when your employees cause traffic accidents while talking and driving. Defending against such suits is expensive in terms of attorney fees, even when you are deemed not liable.
The number of such lawsuits is growing in tandem with the increased use of cell phones on the road. But why are employers targeted? "Most such court cases attempt to link traffic accident injuries and the employer's liability under two theories,"explains Peter A. Susser, a partner in the Washington, D.C., office of Littler Mendelson, the nation's largest employment law firm. "First, under the theory of negligence, the employer is charged with permitting employees to utilize cell phones for business purposes without providing proper training and instruction. Second, under the age-old concept of 'respondeat superior,' the employer is responsible for damages caused by employees when they act within the scope of their employment," Susser says.
But, there's more: Your business also risks getting hit with costly fines when cell-phone-using employees violate the law. "We are seeing more state and local governments banning the use of hand-held cell phones while driving," says Susser. "Among them are New York, New Jersey and Washington, D.C. And around the world, about 40 countries have banned the use of hand-held phones."
Protective Policies
You can protect your business by establishing and enforcing policies for cell phone use by employees. But exactly what policies should you establish?
One approach is a strict ban, which prohibits the use of any cell phone or other electronic device,such as hand-held personal digital assistants(PDAs), while driving. This extreme approach falls in line with a "drive now, talk later" agenda from the National Highway Traffic Safety Administration(NHTSA), the federal agency charged with maintaining safe vehicles and highways. "Our guidance to employers is that individuals should not talk on a phone while driving," says NHTSA spokesman Rae Tyson. "Unless there is an emergency, drivers should pull over and park, then place their calls." While there's no data on the number of accidents caused by cellphone use, the NHTSA does estimate that driver distraction from all sources contributes to 25 percent of all police reported traffic crashes.
The key point here is that the NHTSA makes no distinction between hand held and hands-free devices. "We have a concern for anything that distracts the driver from his or her primary task,"Tyson says. "That concern remains even if the driver is using a hands-free device. The distraction potential is there regardless."
So, banning the use of cell phones—even with headsets—will maximize driving safety. But, is the approach too draconian for the real world of business? Not according to some observers. After all, purely from the standpoint of voiding lawsuits, a strict ban makes the most sense. One attorney who suggests this is Margaret A. McCausland, partner with the employment benefits labor practice group at the Philadelphia law firm of Blank Rome. "As an employment lawyer, I advise policies that maintain the safest working environment while reducing the employer's risk as much as possible," she says.
McCausland suggests establishing this three-pronged policy aimed at reducing employer liability for accidents when employees place business calls, use company vehicles, chat on company-issued cell phones or use electronic devices such as PDAs:
1) Employees may not place business-related calls or conduct company business using electronic devices while driving any vehicle.
2) Employees driving company vehicles may not place personal calls or conduct their personal matters on electronic devices even if such devices are personally owned rather than company issued.
3) Employees may not use company issued wireless or electronic devices to place any calls or conduct business or personal matters while driving any vehicle, even if that vehicle is privately owned.
Company by Company
While a strict ban is a prudent ban, not everyone agrees such drastic measures are necessary. "A few companies might completely ban all cell phone use while driving," says attorney Susser. "But the majority seems to take a more realistic position, which attempts to balance the need to make a phone call with the requirement that it be done safely."
Most current company policies require that employees follow all cellphone-related state and local laws. And many policies add the requirement that employees always use hands-free devices while driving. (The great majority of cell-phone-related state and local laws do allow the use of hands-free devices.)
Typical policies also call for commonsense measures such as avoiding engaging in upsetting conversations that may disrupt driving and abstaining from calls during bad weather or other challenging driving conditions. (See the sidebar "Consider These Cell Phone Policies" on this page.)
One caveat: Even the most carefully worded policy is not a foolproof way to avoid all lawsuits. "Just the fact that you have policies in place does not assure you will not be brought into litigation,"McCausland warns. After all, the employee who causes an accident may simply have ignored your policies.
Even so, being able to provide evidence of set policies can help you mount a stronger defense if tragedy occurs. "If the employee involved in an accident was in violation of your established policies, you can make the argument that the employee was acting outside the scope of his or her authority when the accident occurred,"McCausland points out. "That helps you argue that your business should be dismissed from the case altogether."
In the event your business does not succeed in being dismissed from a suit,McCausland adds, the fact that you instituted policies helps you communicate that your business was trying to establish a safe environment for employees and the public. That can help you obviate a finding of negligence, and that can reduce or eliminate costly judgments.
While cell phones help your employees communicate efficiently, they also increase the stakes in the litigation sweepstakes. You can take steps to keep yourself out of court while your employees enjoy the benefits of wireless technology. The secret is to heighten your awareness of cell phone safety issues,then follow through with appropriate policies and training. "There are really two areas of concern here," McCausland concludes. "One is safety and the other is the reduction of employer liability. The first is more important: You want to maintain the safety of your employees and the people with whom they come into contact."
Consider These Cell Phone Policies
One size does not fit all, it seems, when it comes to company cell phonepolicies. Typically, though, such policies offer variations on a number ofcommon themes, requiring employees to:• follow all state and local laws• use only hands-free cell phone devices while driving• avoid engaging in upsetting conversations while driving• refrain from placing calls during hazardous driving conditions such as heavy traffic or bad weather.
To reinforce such policies, many employers are:• requiring each employee to sign a statement of understanding of the company cell phone policy• educating employees with driver safety training before they can use a company vehicle• deducting traffic fines and associated costs from an offending employee’s paycheck.
Cell Phone Users Drive Like Old Folks
A new University of Utah study has found that when young motorists talk on cell phones, they drive like elderly people, moving and reacting more slowly and increasing their risk of accidents. “If you put a 20-year-old driver behind the wheel with a cell phone, their reaction times are the same asa 70-year-old driver who is not using a cell phone,” says David Strayer, a University of Utah psychology professor and principal author of the study. The study also found that drivers who talked on cell phones—regardless of whether they were young or old—were 18 percent slower in hitting their brakes than drivers who didn’t use cell phones. The drivers chatting on cell phones also had a 12 percent greater following distance—an effort to compensate for paying less attention to road conditions—and took 17 percent longer to regain the speed they lost when they braked. In addition, “there was also a twofold increase in the number of [simulated] rear-end collisions when drivers were conversing on cell phones,” the study says.
Strayer and his colleagues are widely known for their 2001 study showing that hands-free cell phones are just as distracting as hand-held cell phones, and for a 2003 study showing that the reason is “inattention blindness,” in which motorists can look directly at road conditions but not really see them because they are distracted by a cell phone conversation. The same researchers also gained publicity for a 2003 study that showed that motorists who talk on cell phones are more impaired than drunken drivers with blood alcohol levels exceeding 0.08.For more information on the study, visit www.utah.edu.
Summary of Cell Phone Restrictions
According to the Governors Highway Safety Association (GHSA), New Jersey, New York and Washington, D.C., are the only states to restrict hand-held cell phone use for all drivers statewide. Other legislation is being considered. To see a complete listing of the current status of state cellphone laws, visit www.statehighwaysafety.org/html/stateinfo/laws/cellphone_laws.html.