Mobility

Is your employee's use of a company cell phone a liability?

Who is liable when your employee has an auto accident while having a work-related cell phone conversation? While there's no clear answer, here are some things to consider.


Your IT manager is driving to work talking to you on her cell phone. She’s quoting figures about the purchase of a new e-mail server when you hear a crash.

“Gotta go,” she says. “I’ve just rear-ended a minivan.”

While it’s common for your employees to use cell phones to conduct business while driving, if their conversations distract them and cause an accident, is your company liable?

As an employer, should you prohibit employees from making cell phone calls while they’re driving? Can you minimize your liability with such restrictions?

While there are no definitive legal guidelines, here are some suggestions on how businesses might best approach this issue.

Wireless-related accidents
Stephanie Faul, a spokeswoman with the AAA Foundation for Traffic Safety, said studies on cell-phone use while driving usually focus on whether an accident is caused either by holding the cell phone or driver inattention.

For example, a February 1997 study published in the New England Journal of Medicine found that the risk of a collision was four times higher when motorists use a cellular telephone. The study also noted that hands-free units provided no safety advantage over hand-held units.

In November 1997, John M. Violanti, a criminal justice professor at the Rochester Institute of Technology, published a study on cell phone-induced traffic accidents in the British journal Public Health. The study examined traffic accidents in Oklahoma, the only state with an accident report that notes the presence of cell phones and whether they are used at the time of an accident.

Violanti’s study found that wireless phones were involved in just "two-tenths of 1 percent of crashes in the last year studied." And those accidents involving cell phones were more likely in urban areas than on rural or suburban roads.

He concluded that, "The reasons for traffic accidents are causally complex, and cellular phones may be but one of many factors involved in driver distraction."
The Cellular Telecommunications Industry Association says there are more than 85 million wireless subscribers in the United States. That number is continuing to grow, making it more important than ever to understand the way people are using these phones.In 1997, the CTIA asked people to give the most important reason why they used a cellular phone. Seventy-nine percent responded because of the additional safety and security provided by a cellular phone, and seventeen percent said a cellular phone provided a business convenience.Here’s what the CTIA recommends for safe calling while driving:
  1. 1.      Make sure your phone is positioned where it is easy to see and reach. Be familiar with the operation of your phone so that you’re comfortable using it on the road.
  2. 2.      Use speed dialing to program frequently called numbers.
  3. 3.      When dialing manually, dial only when stopped. If you can’t stop, then pull over, dial a few digits, reenter the flow of traffic, and then survey traffic before completing the call. Better yet, have a passenger dial.
  4. 4.      Never take notes while driving.

A cell phone policy may minimize liability
Michael A. Stiegel, a member of the Leadership Council of the American Bar Association's Section of Litigation, said determining who would be liable in an accident involving your employee who was using a cell phone isn’t easy.

"An employer is liable for the wrongs of an employee if an employee is negligent," Stiegel said. "And negligence means failing to act in a reasonable manner.”

As an example, Stiegel outlined two scenarios and the repercussions if an employee had an accident while using a cell phone:
  1. 1.      The company has a policy prohibiting employees from using a cell phone while driving and will fire them for violating it. If the employee violates the policy and has an accident, the company's liability is questionable but not eliminated.
  2. 2.      If the same company can't prove in a court that it enforces that policy, the company could be liable.

What steps can an employer take?
While a definitive cell-phone policy may look good on paper, Stiegel contends that it would likely not be honored and could be impossible to enforce. He recommends that employers accept the risk and establish a policy that tells employees to exercise care and caution when using cell phones.

His suggestions are in line with a 1991 study on the use of cellular phones by the National Public Services Research Institute . Researchers James McKnight and A. Scott McKnight found “all forms of cellular phone usage lead to significant increases in the establishment of non-response to highway-traffic situations and increase in time to respond.” They also found that “prior experience with cellular phones appears to bear no relation to the distracting effect of cellular phone use.”

This study recommends that:
  1. 1.      All cell-phone users be advised not to engage in intense phone conversations while their vehicle is moving.
  2. 2.      Businesses whose employees regularly carry on transactions by means of cellular phones might advise, or even direct, that protracted dealings over the phone be avoided while the user’s vehicle is underway.
Is an employer liable if their employee has an accident while driving and using a company cell phone? What is your company policy on employee cell-phone use? Post a comment below or send us an e-mail.

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