If your company provides cell phones to some employees, you are exposing the company to huge potential liability. The legal basis of such liability is that employers may be held responsible for the actions of employees when employees act within the scope of employment. The company should issue rules to employees prohibiting the use of cell phones while driving, especially if the driving is on behalf of the company's business. Even employees who do not drive on company business and who drive their own cars can expose their employer to liability, if they get in a car accident that possibly was either caused by the use of an employer-provided cell phone or caused by personal cell phone use that involved company business.
As most drivers have less than $ 1 million automobile insurance coverage, attorneys for the injured parties will look for deeper pockets if injuries from an accident are very severe. Plaintiffs’ attorneys can subpoena cell phone records after motor vehicle accidents to determine if drivers were using their cell phone near the time of an accident. These records indicate to whom the driver was speaking, so probably it is possible to get evidence that a particular phone call was business related.
Employer Loses Over $16 Million
http://www.haggardparks.com/notable_cases.asp
In one case, Bustos v. Leiva, No. 01-13370 CA 30 (Miami-Dade Co., Fla., Cir. Ct.),a jury determined that the defendant, an employee driver, had been making a business related call at the time of the accident. The jury awarded the plaintiff $20.98 million, which was settled during appeal for $16.1 million. Such a massive liability is large enough to drive many companies completely out of business. Only larger companies have enough insurance to cover such a large award.
In 2001, a $30 million wrongful death suit, Yoon vs. Yeager, was filed against a law firm whose employee-lawyer was making a business related call on a phone that the law firm provided. The State of Hawaii paid $2.5 million for an accident involving a state employee who allegedly was talking on her cell phone when she hit a tourist causing permanent brain damage.
The mere fact that a driver does business using a personal cell phone can be enough to draw the employer into a lawsuit. Smith Barney settled a case for $500,000 when an employee ran a stoplight while retrieving a dropped cell phone. The employee was not on his own time and was using his own phone, but was making a call to a customer.
These cases are likely to be followed by others because much of the general public (who sit on juries) already believe cell phones cause accidents. Many people have personally witnessed erratic driving by drivers with a phone to their ear. Many people saw a well-publicized episode of "Myth Busters" cable TV show that conducted an experiment that they say proved that driving while engaged in an intense cell phone conversation impaired drivers more than having a .8 blood alcohol level. A survey by the Insurance Research Council (www.ircweb.org) found that 84 percent of cellular phone users already believe that using a phone while driving increases the risk of an accident. Nevertheless, 61 percent claim to use their phones at least sometimes while driving, and 30 percent admit to using the phone frequently while on the highways. Also, ordinances regulating cell phone use by major cities have had nation-wide publicity.
Action Plan
Employers should modify their safety programs, employee manuals, and other means of issuing rules or guidelines so that employees know and the company can prove they know that employees should not use cell phones while driving and must not use the phone for company business at any time while driving. A survey by IEC showed that most companies provide some of their employees a cell phone but that very few companies issue any instructions about using them while driving.
http://www.iecgroup.com/HRPortal/Navigator/PDF/NAV112003.pdf
The first thing employers should do is inform employees about any laws restricting cell phone usage in their locality, reinforcing the idea that employees are always expected to follow the law. The second thing employers should do is make it clear such a rule is real, not a just a formality. If actual practice contradicts or differs from written instructions, the written instructions may be deemed meaningless. For example, if employees are expected to immediately answer company phones during working hours, but some employees drive during those hours, the practical effect of a rule against cell phone usage in cars might be worthless. Employers should make it clear to all that employees who spend much time in vehicles are not expected to answer their calls immediately, even from the boss. Employers who tell their drivers to get out of traffic right away and pick up the phone are just kidding themselves if they think this is a practical or safe policy.
Employers should establish some recommended practices or rules for on-the-road use of cell phone. Examples are:
-Make necessary calls before getting back on the road.
-Learn how to use the cell phone mailbox to help avoid the temptation to pick up calls immediately, while driving.
-Check messages and return calls at parking lots, rest-stops, and other such opportunities.
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Employers should seek to persuade employees that cell phone use truly impairs driving. Compliance with rules is higher when the reasons for the rules are fully appreciated. The following points from recent research papers can be persuasive:
-While they are on the phone, drivers are four times more likely to get into an accident
-Cell phone users engaged in intense conversation have the same accident risk as those driving with a blood alcohol level at the legal limit;
-Those using a cell phone require three times as much time to activate their brakes than drivers under the influence of alcohol;
-Cell phone conversations distract the driver from the driving environment and potential hazards leading to more unsafe actions
-Studies also show that driver impairment is the same for hands-free cell phones as for hand-held cell phones.
Efforts to persuade employees of the importance of such safety rules should be documented. Companies should require that employees who are issued a cell phone sign an acknowledgment that these phones are not to be used while operating automobile. Most phones come with a manual and employers can insert a document containing its own conditions of use.
Conclusion
Employers need to weigh the benefits of unrestricted cell phone usage against the costs or potential costs. Because we are in a litigious society, one instance of an employee causing a serious accident because of distraction from a cell phone could put your company out of business.
