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By Rhonda Smith
Adopting a detailed cell phone policy can help protect employers from liability should an employee cause an accident by using an electronic communications device while driving, legal and safety experts told BNA June 6-7.
But such policies do not provide organizations with absolute legal protection, they said, especially if employees are not properly trained and held accountable for violations.
“Employers who have policies do not automatically avoid liability,” said Susan W. Kline, a partner with Faegre Baker Daniels in Indianapolis. “But they are much better positioned to make a case that an employee who causes harm by using a cell phone or other electronic communication device in a way that was prohibited by company policy was not acting on the employer's behalf--as long as the policy is clearly communicated and consistently enforced.”
Dean A. LeDoux, a shareholder at Gray Plant Mooty, a law firm in Minneapolis, shared a similar view.
“Employers need to always be realistic and realize their employees are human beings and that creating another workplace policy doesn't solve a problem if they don't acknowledge that employees, in order to do their job, are going to have a tendency to ignore company policies,” he said.
“So you need to have that policy as a first step,” LeDoux said, “and effectively communicate to your workforce that the policy is real, it will be enforced, and that failure to follow the policy will lead to serious consequences for their job.”
A majority of states have implemented laws that restrict the use of cell phones, and other wireless communications devices while driving.
In addition, Department of Transportation Secretary Ray LaHood June 7 released a “Blueprint for Ending Distracted Driving” that offers a sweeping strategy to tackle what DOT described as “the growing and dangerous practice of using handheld cell phones behind the wheel.”
The blueprint highlights concrete steps stakeholders nationwide can take to address the problem posed by distracted drivers.
“Distracted driving is an epidemic. While we've made progress in the past three years by raising awareness about this risky behavior, the simple fact is people are continuing to be killed and injured--and we can put an end to it,” LaHood said in a written statement. “Personal responsibility for putting down that cell phone is a good first step--but we need everyone to do their part, whether it's helping pass strong laws, educating our youngest and most vulnerable drivers, or starting their own campaign to end distracted driving.”
In 2010, at least 3,092 people were killed in distraction-related crashes, DOT said, and an estimated 416,000 drivers and passengers were injured in crashes that involved a distracted driver.
The Department of Labor's Occupational Safety and Health Administration unveiled in October 2010 an education campaign that encouraged employers to prevent work-related distracted driving, with a specific focus on prohibiting texting while driving, which has been described as the most dangerous practice.
According to the Insurance Institute for Highway Safety website, text messaging while driving is illegal in 39 states and the District of Columbia.
“It is imperative that employers eliminate financial or other incentives that encourage workers to text while driving,” OSHA has said as part of its Distracted Driver Initiative. “Employers who require their employees to text while driving--or who organize work so that doing so is a practical necessity even if not a formal requirement--violate the OSH Act.”
The National Transportation Safety Board has recommended that states ban all cell phone use by drivers (30 HRR 47, 1/16/12).
Grace Horoupian, a partner at Fisher & Phillips in Irvine, Calif., said there is no law that explicitly holds employers liable for moving violations committed by workers who become distracted while driving because they are using cell phones or other handheld devices. But under the doctrine of “respondeat superior,” she said, employers have been held liable for the wrongful conduct of their employees if a court or jury finds that the conduct arose out of the regular course of the worker's employment duties.
“Thus, if employers are requiring employees to check in with their office, vendors, customers, etc., at all times and they happen to be on a call with someone related to work while driving, the employer will be held responsible for the act of its employees because the employee would have caused the accident while working,” Horoupian said.
A recent National Safety Council report, Employer Liability and the Case for Comprehensive Cell Phone Policies, notes that “the key phrase 'acting within the scope of his or her employment' can and has been defined broadly in cases of crashes involving cell phones.”
In one case cited in the NSC report, a jury found a driver and the corporation that owned the vehicle were liable for $21.6 million “because testimony revealed that the driver may have been talking with her husband on a cell phone at the time of the fatal crash.”
In another case, the employer (a Maryland municipality) of an off-duty police officer who was texting before a fatal crash that killed a college student was held liable for $4 million because the officer was driving a police cruiser, NSC noted.
In a third case, “[a]n employee was involved in a fatal crash while making 'cold calls' as he drove to a non-business-related event on a Saturday night,” the report stated. “The firm did not own the phone or the vehicle, but the plaintiff claimed that the company was liable because it encouraged employees to use their 'car phones' and lacked a policy governing safe cell phone use.”
The employee's firm settled the lawsuit for $500,000, NSC said.
“Really, the only time an employer can not be held liable is if the employee has a crash and it's not on company business and does not involve a company phone,” David Teater, NSC's senior director of transportation initiatives, told BNA.
In its report, released in April, NSC said, “The best action for employers is to implement a total ban policy that includes handheld and hands-free devices and prohibits all employees from using cell phones while driving.”
Such a policy should be reinforced throughout the year with education, NSC said.
Kline noted that apps are now available that can disable electronic communications devices when they are detected in a moving vehicle.
In terms of drafting a policy about electronic devices, she said that employers should make sure all relevant concerns are addressed.
“A thorough policy will address what is allowed while driving a vehicle provided or funded by the employer; what is allowed while using a company-provided or funded cell phone or other device at any time; and what is allowed while conducting company business of any kind, even in a personal vehicle using a personally owned cell phone or other device,” Kline said.
Typically, she said, text messaging as well as cell phone usage without hands-free technology is prohibited in such policies.
“The biggest question is will the employer allow cell phone usage with hands-free technology,” she said. “On that piece, some employers simply say it is allowed if permitted by law. Some employers say that's not allowed either.”
“Some take a middle ground and say you can make and receive calls using hands-free technology if the conditions allow it,” Kline added, explaining that “conditions” could pertain to the weather, traffic, or the nature of the discussion.
An employer's policy might stipulate that if the conditions allow it, an employee can engage in a hands-free call--but keep it brief, Kline said. If it is not safe to continue with the call, she added, the policy might state that the employee must either hang up or pull over and park the vehicle, if that can be done safely.
Kline said “the middle ground” approach is advisable both from a legal and risk-management standpoint. “It's probably even safer to say, 'No cell phone use in the car at all.' But, as a practical matter, if you go that far, the policy is only good as its enforcement.”
In that instance, Kline said, employers must be prepared to really deal with policy violations. “So think through your willingness to enforce whatever you put in place,” she said.
By Rhonda Smith
The National Safety Council report can be accessed at http://www.nsc.org/safety_road/Distracted_Driving/Documents/CorpLiability_wp.pdf. OSHA's Distracted Driving Initiative can be found at http://www.osha.gov/distracted-driving/initiative.html.
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