Dialing and Driving

by Michael A. Holzschu

Whether you agree or not, laws regulating cell phone usage are here to stay. Is your company policy adequate to protect you?

With more and more mobile phones and Palm Pilots being used in today's environment, we are increasingly finding ourselves encountering individuals that are on the phone and driving. They seem to be oblivious to their surroundings and create a hazard on the road. You know the individuals that we all encounter, crossing lanes without looking, running stoplights and just driving carelessly. Employers now have a new concern when it comes to employees using these mobile communication devices while driving.

Laws are being passed regulating the usage of cell phones while driving. This applies up to the state level with states such as New York passing a usage law. In other cases, municipalities have restricted the use of the cell phone when driving. With the law as it pertains to cell phone usage still in its infancy, there are two cases that every employer should take note of and take the appropriate steps to control this situation when employees are working. One case has been settled the other is still pending.

The first case involved an employee of Solomon Smith Barney who was on the cell phone on a Saturday night speaking with a client. This makes it working time. A motorcyclist was struck and killed by the employee while on the cell phone. Settlement $500,000. The employer was alleged to be a partly to blame for the crash.

The second case is still pending in California where an attorney, with Cooley Goodard, was involved in a hit-and-run death of a teenager. The claim is for $30 million dollars. The attorney was on her cell phone at the time of the accident talking with a client.

The law in this area is new to many courtrooms but many of the principles and legal theories covering claims by injured individuals is not. The danger that a deep pocket employer can held vicariously liable for injuries caused by an employee will touch all professions. In addition, in the case of many employers, it is expected that the employee will check in while "on the road". This is definitely not a policy that you would want published or made common knowledge. Just think of the liability tied to the policy.

 



So what can an employer do to limit the threat of lawsuits? Many attorneys are suggesting several different methods to combat the problem. The following material covers some of the ideas.

Your company should have a policy covering the use of wireless devices; i.e., cell phones, PDAs, etc. is a necessary aspect in the application of safety rules as well as proper procedures. The safety issue is by far easier to show negligence on the part of the employee and then show that the employer has done nothing to educate and train employees in the proper use of these devices.

In the case of Verizon and Merck, they have provided their employees with hands-free sets to use while in their vehicles. In other cases, the policy has been distributed and a separate acknowledgement sign off sheet has been required.

Regardless of what you think about this incursion into the use of wireless devices, this is an area that will continue to be a problem area for employers. The laws are far behind the times although; some areas of the US have banned the use of cell phones while driving. It may even be possible that your insurance policy for liability could have a clause in it that excludes coverage for injury caused by the failure of the company to provide a policy for or for an injury caused by an employee while operating a vehicle in an unsafe manner. It would be wise to verify the language in your insurance plan.

Employers should check their current company policies, insurance policies and assess the risk of employees and their mobile communication device pose.

© 2002 By Michael A. Holzschu

Michael A. Holzschu is the managing principal in the firm of Holzschu, Jordan Schiff & Associates specializing in Human Resource Systems, with a special focus on employee handbooks, job descriptions, performance appraisal systems, harassment training, safety and quality issues. He can be contacted at (248) 476-6907 or by email at mholzschu@hjsa.com or the Company website at www.hjsa.com. The company’s client base is primarily small to medium employers from all types of industries located throughout the United States.

 
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