A New Liability: Cell Phone Use on the Job
By Kaz Darzinskis

Few companies issue instructions about using cell phones while driving.

Employers that provide a cell phone to some employees are potentially exposing the company to significant 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.  

Since most drivers have less than $1 million in personal automobile insurance coverage, attorneys for the injured parties will look for deeper pockets when injuries from an accident are severe. Plaintiffs' attorneys can subpoena cell phone records to determine if drivers were using a cell phone near the time of an accident and to whom the driver was speaking. These records can be evidence 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 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.

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 retrieving 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 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.

Action Plan
The employer 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. The following list of action items offer ideas to help reduce liability.

1. Modify safety programs, employee manuals, and other means of issuing rules or guidelines so that employees know (and the company can prove they know) that using a cell phone for company business at any time while driving is prohibited. A survey by IEC showed that few companies issue any instructions about using cell phones while driving.
2. Inform employees about any laws restricting cell phone usage in their locality. This reinforces the idea that employees are always expected to follow the law.
3. Make it clear that such a rule is real, not 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 value of a simple rule against cell phone usage in cars might be worthless. Employers should make it clear that employees who spend time in vehicles are not expected to answer their calls immediately, even from their boss. Employers who tell their drivers to get out of traffic right away while picking up the phone are deluding themselves if they consider this is a practical or safe policy.
4. Establish recommended practices or rules for on-the-road use of cell phones. The following are examples of safe practices.
• 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, or other off-road areas.
• Hands-free cell phones require the same safety restrictions as hand-held phones.
5. Document efforts to persuade employees of the importance of such safety rules. Require that employees who are issued a cell phone sign an acknowledgment that these phones are not to be used while operating any automobile. Most phones come with a manual, and employers can insert a document containing the company policy on conditions of use.

Conclusion
Employers need to weigh the benefits of unrestricted cell phone use against the costs of potential liabilities. Because we are in a litigious society, in one instant, 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 tragedy for the employer. CM

Kaz Darzinskis is president and principal consultant for All Safe Consulting Inc. Contact him at (630) 985-1125 or by e-mail kaz@allsafeconsulting.com ; Internet: allsafeconsulting.com.