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Beginning about 10 years ago, plaintiffs lawyers started filing lawsuits seeking damages for accidents caused by drivers using cell phones. Creative lawyers started going after the driver’s employer — and they hit the jackpot. In several cases, juries have ruled against employers and awarded tens of millions of dollars to victims injured by drivers using cell phones. It is now standard for plaintiff’s lawyers to seek the driver’s cell phone records in nearly every accident case, looking to see if the driver was making a work-related call at the moment of the accident.
Cell phone calls, text messaging, tweeting, etc. are commonplace, and many companies give employees cell phones and PDAs for business use. Some employers overtly or implicitly want their employees to be using them all the time — even while driving. Yet, there is no question that communication devices -- hands-free or not -- are a distraction to a driver. Using high technology devices is more and more important to getting business done efficiently and profitably. But, using them while driving can create a “bet the company” risk of liability. Best advice: Prohibit distracted driving.
First, you need to have a written driving policy in place that is distributed to all employees. Ideally, each employee — at every level of the organization — signs off on the policy.
Second, the policy needs to absolutely prohibit cell phone use, texting or any other use of technology while operating any kind of motor vehicle or machinery. It is not enough to have a mere warning about the dangers of distracted driving — you need to absolutely prohibit it. An absolute prohibition is especially important if you give employees the device, but to be safe, your policy should also prohibit use of personal devices.
Third, require that employees make all calls before starting the engine or after turning it off. Because drivers may forget to “mute” their device while driving (a very good suggestion in your policy), you should require employees to pull of the road — safely — before answering their phone, texting, etc.
Fourth, you need to make your policy widely known. You might as well capitalize upon it and make sure your customers, vendors, coworkers, parents, children, neighbors, competitors and anyone else you can think of all know that you value employee safety above everything else.
Finally, you have to enforce the policy. This is the hardest part for most contractors because you really don’t want to punish the supervisor or crew chief who is getting the job done and using every minute of every day to advance your business. On the other hand, you certainly don’t want that good employee to be injured by driving distracted, right? And, you sure don’t want to lose your company because you ignored the fact that your good employee was violating your policy.
What punishment is appropriate for policy violators? At the very least you should have a “paper trail” showing that you took prompt action to warn the employee and discourage violations of the policy. If that doesn’t work take away the device or forbid devices in company vehicles.
Dave Whitlock is a partner at Elarbee Thompson, a labor and employment law firm in Atlanta, GA. He has nearly 25 years experience in business immigration compliance, employment counseling and training and is a frequent lecturer and presenter on best practices in employment-reltated topics. He can be reached at Whitlock@elarbeethompson.com.