It can wait

It can wait

Employers may be at fault if employees crash due to texting while driving, but there are ways to prevent both collisions and lawsuits.

November 23, 2015

In a day and age when smartphones and mobile devices are never far away, other important daily tasks such as driving to work can easily become an afterthought when an important call, text or email comes in.

However, distractions caused by cell phones can result in erratic driving at best or a serious collision at worst. According to the National Safety Council, employers are not only responsible for the safety of their staff, but are expected to require obedience of federal, state and local laws. This extends to cell phone use while driving.

The risk of crashing due to phone-distracted drivers is a rising concern among many, including parental groups and government agencies. Mobile provider AT&T even advocated for the reduction of cell phone use while driving with the recent “#itcanwait” campaign, which encourages drivers of all ages, occupations and backgrounds to put the phone down until they reach their destinations.

However, business owners, CEOs, managers and other figures in the corporate world are slower on the uptake than they should be, says David Lewis. As president and founder of human resources outsourcing and consulting firm OperationsInc, he advises HR directors, supervisors and other high-level professionals to carefully consider their company policies regarding phone use while driving.

“I think it’s a really significant and misunderstood (issue),” Lewis says. “As such, I think, unfortunately, it’s going to take a combination of a tragedy followed by a high-profile lawsuit or even arrest to wake companies up to the liability that they’re carrying here.”

Although it is commonly assumed that employees using personal cell phones in their personal vehicles are liable to nobody but themselves in the event of a crash, Lewis said the argument could be made that employers are responsible for how and when their employees take and return business calls and messages.

“This misconception exists that ‘it’s not my phone, so what happens if it happens to be used illegally or inappropriately while somebody is driving is not my responsibility,’ but there’s enough traction on the court side to suggest otherwise,” Lewis says. “In fact, it suggests that if you’re conducting business and you’re doing so by way of texting while driving or even just using your phone without a hands-free device, that there’s enough to suggest that the injured party in this case could at least have a shot at going after the employer.”

Kevin O’Brien, landscape designer with Cleveland-based company Lifestyle Landscaping, said cell phone use on the job is not only a safety issue, but can reflect poorly on a company’s reputation if employees are seen using personal devices while on the job.

“If someone gets in an accident, that’s horrible,” O’Brien says. “But, you also have to look at the other side of the coin. If I’m a client and I’m looking out in my yard and I see all these guys constantly checking their phone or texting, especially when you’re charging by the hour, we cannot have that image. That can do a lot of damage.”

The risk of a person’s work life intruding on their commute can be worsened by a corporate culture that demands constant accessibility and connectivity. When a manager expects an employee to answer every call or text no matter the circumstances, they could be inviting mishaps on the road and in the courtroom, Lewis says.

“There are a number of cases that are making their ways through the court system that are the most egregious, where the storyline is something along the lines of the company insisting on a standard of individuals answering their phones, responding to emails or texts within a certain period of time, a disregard for the safety of the individual or the laws in place, then a subsequent accident of some type,” Lewis says. “When you put all of those things together which are certainly not common but not unfathomable, you can have a situation where, because the employer has established that as a standard of behavior, that the employer is culpable.”

An expectation of constant mobile connectivity can be a sign of poor planning, says O’Brien, who adds that companies can reduce the need to call and text off-site employees by adequately organizing ahead of time.

“If we have a question for somebody, I can call them, leave them a voicemail, I know they’re going to get it,” O’Brien says. “As long as you’re scheduled out correctly and your crews know what they’re doing, where they’re going … that pre-planning, I think, eliminates the need for a lot of that last-minute stuff. If you are prepared on the front-end, there doesn’t seem to be as many issues or emergencies or last-minute changes.”

Motorist laws in the country vary by state, with each state approaching texting or general phone use while driving in different ways. According to the 2015 National Conference of State Legislatures, Ohio, Florida, Idaho, Nebraska and South Dakota treat texting while driving as a secondary offense, meaning law enforcement officers cannot pull over a driver solely for texting, but can issue a fine for it during a traffic stop initiated due to a primary offense such as speeding. However, state laws on texting while driving can vary by city and county.

Every other state except Montana, Arizona, Texas and Missouri have laws on the books classifying texting while driving as a primary offense. Texas and Missouri have texting bans for novice and beginning drivers, while Montana and Arizona have no state-wide texting bans.

Of the many states that treat texting while driving as a primary offense, several have also instituted a ban on hand-held phone use, requiring drivers to use hands-free sets to make and receive phone calls. These states include California, Oregon, Washington, Illinois, New York and West Virginia.

With the United States lacking a unified, nationwide policy on vehicular phone use, some concerned parties are taking steps of their own to reduce the risk of distracted driving. Daniel Raviv, a professor of engineering and computer science at Florida Atlantic University, filed a patent in 2010 for a device that blocks cell signal to a person’s phone as long as they are driving, while leaving the passengers’ cell signals uninhibited.

Raviv continues to research methods to prevent accidents from distracted driving and warns of the dangers of using a phone behind the wheel.

“It bothers me to see people driving while texting because you don’t see the road,” Raviv says. “You think you see the road, you think you are in control, but you’re not. Texting [while driving] is basically driving for a few seconds blindfolded. In a few seconds, you can drive very far and many things can happen in a few seconds. It really bothers me, and I was trying to find solutions.”

While scientists and lawmakers continue to ply the overall issue of distracted driving, Lewis says business owners and HR directors should take steps to protect both themselves and their employees by carefully examining their company policies and employee handbooks. To this end, signed agreements on safe cell phone use can prevent injury or death to employees as well as legal battles for the employer.

“I think that companies should first go ahead and establish a well-worded, well-vetted professional policy statement as it refers to the proper/improper use of a phone or PDA,” Lewis says. “I think that policy should not only appear in the employee handbook, but like some other critical policies, it should be given to the employees as a separate document to sign off on. The theory is that it’s one thing to sit there and hold somebody accountable for what is inside an 80-page handbook, it’s another to additionally hold them accountable for a policy that they also signed off separately.”

Along with changing laws and attitudes toward distracted driving, technology continues to improve and offer new ways for drivers to safely operate a vehicle and a smartphone; whether it’s hearing a text message automatically spoken out or answering a call with a voice command. No matter the technology available to employees, however, companies should still cover their legal bases and educate their staff with thorough and consistent policies, Lewis says.

Most responsible drivers are aware of the danger of cell phone use, but feel their job takes precedence or that they’re skilled enough to pull off a quick text from the highway. It may be time for those in the corner office to step in and help ensure staff safety.