Keep employees safe and limit company liability
Employers that provide cell phones to employees are exposing the company to potential liability. Employers may be held responsible for the actions of employees when workers act within the scope of employment. The combination of driving while using a cell phone for work-related purposes opens up a variety of possibilities for accidents and fatalities.
The Legal Basis
Since most drivers have less than $1 million in personal automobile insurance coverage, attorneys for the injured parties will look for deeper pockets, which usually reside with the employer. In the case of an accident, plaintiffs' attorneys can subpoena cell phone records to determine if drivers were using a mobile phone near the time of the accident and to whom the driver was speaking. These records can be used as evidence to prove that a particular phone call was business related.
A Florida jury awarded an injured motorist $20.98 million, because an employee driver had been making a business-related call at the time of the accident. In 2001, a $30 million wrongful death suit was filed against a law firm whose employee-lawyer was making a business-related call on a phone provided by the law firm. The state of Hawaii paid $2.5 million for an accident involving an employee who allegedly was talking on her cell phone when she hit a tourist.
Personal Phones, Cars are Not Exempt
Even the use of a personal cell phone in a car owned by the employee can be enough to draw the employer into a lawsuit. A major stockbroker settled a case for $500,000 when an employee ran a stoplight while reaching for a dropped cell phone. The employee was 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 sits on the juries that decide these cases, already believe cell phones cause accidents. A survey by the Insurance Research Council found that 84 percent of cell phone users already believe that using a phone while driving increases the risk of an accident. Nevertheless, 61 percent claim to use their phones sometimes while driving, and 30 percent admit to using the phone frequently while on the highways.
Action Plan
The employer should set rules prohibiting the use of cell phones while driving, especially if the driving is for company business. The following list of action items offer ideas to help reduce liability.
- Modify safety programs and employee manuals to include a statement that says using a cell phone for company business at any time while driving is prohibited. In addition to communicating the policy to employees, such written rules can be used in a lawsuit to prove that the company took steps to avoid driver accidents. Recent surveys show that few companies issue any instructions about using cell phones while driving.
- Inform employees about local laws restricting cell phone use . This reinforces the idea that employees are always expected to follow the law.
- Make it clear that these rules will be enforced and are not just formalities . If actual practice contradicts or differs from the policy, it 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 value of a simple rule against cell phone use in cars is worthless. Employers should make it clear that employees who spend time in vehicles are not expected to answer calls immediately, even from their boss.
- Establish rules for on-the-road use of cell phones . The following are examples of safe practices.
- Make necessary calls before getting 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 or other off-road areas.
- Hands-free cell phones require the same safety restrictions as hand-held phones.
- Document efforts to persuade employees of the importance of such safety rules . Require employees who are issued a cell phone to sign an acknowledgment that the phone should not be used while operating any automobile. In addition, insert the policy in the cell phone manual.
Conclusion
Employers should weigh the benefits of unrestricted cell phone use against the costs of potential liabilities. Because we are in a litigious society, an employee distracted by a cell phone while driving can cause personal tragedy for the employee and others involved in the accident, as well as financial hardship for the employer.
EST
Kaz Darzinskis is president and principal consultant for All Safe Consulting Inc., Downers Grove , Ill.
Contents copyright 2008 Douglas Publications LLC. All rights reserved.
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