Although employers may be aware of
the obvious benefits of allowing
employees to use cell phones while driving, they may be unaware of their liability risk.
“Talking on a cell phone while driving is a
known distracting activity and, if done as
an expected part of one’s job, can substantially increase a company’s liability in the
event of an automobile accident,” says Jim
Kapnick, president of Kapnick Insurance
Group.
Smart Business spoke with Kapnick
about how to minimize employer liability,
what type of information should be included in an employee cell phone use policy
and how to build employee awareness of
safety campaigns.
In recent years, what types of lawsuits
involving employee cell phone use have
been filed?
In 2001, a Miami jury found an Arkansas
lumber company liable for more than $20
million in damages after one of its employees struck another car, gravely injuring a
passenger. The employee was using his cell
phone for a sales call when the accident
occurred. The company settled the case for
$16.1 million.
In 1999, a stockbroker in Pennsylvania
struck and killed a motorcyclist on his way
to a nonbusiness-related event. Although
the stockbroker’s employer believed it
could defeat the plaintiff’s vicarious liability claim because it fell outside of the scope
of employment, the plaintiff also alleged
that the firm was itself negligent when it
encouraged employees to use cell phones
without training them on the potential
risks. The employer settled the case for
$500,000.
In addition to third-party claims resulting
from accidents, employers increasingly
face claims by employees for health problems allegedly stemming from cell phone
use. Although the science appears contradictory and inconclusive, some employees
contend that the radio frequency radiation
emitted during cell phone usage may lead
to various forms of brain cancer or other
illnesses. Employees who use cell phones while on the job have begun to file workers’ compensation claims and lawsuits
based on this theory.
How can employer liability be minimized?
While there is no guaranteed defense to
liability, developing an appropriate employee cell phone use policy, training employees about the dangers of talking on a cell
phone while driving and enforcing policies
with signed written acknowledgments
from employees when they are issued cell
phones and related equipment all can help
to limit an employer’s potential liability.
Considering that several states currently
ban the use of hand-held cell phones while
driving, and many states have taken an
increasingly active role in addressing the
relationship between driver cell phone use
and traffic safety, employers should require
employees to observe all applicable laws
regarding cell phone use while driving.
While state laws do not directly address
employer liability, they have the potential
to increase employer exposure for cell-phone-related accidents. For more information on state requirements, access the
Governor’s Highway Safety Association
Web site at www.statehighwaysafety.org.
What type of information should be included
in an employee cell phone use policy?
A cell phone/hand-held device use policy,
in essence, is a safety policy. Minimizing
the company’s liability is secondary to the
safety of an employer’s most valuable asset
— its employees. The policy should be
written in a tone that ensures the company
pledges to do everything possible to prevent workplace accidents and is committed to providing a safe working environment for all employees. With the overall
safety goal being stated as well as the purpose for the policy, then one can list the
acceptable procedures in the event a cell
phone must be used while driving. For
example: allow voice mail to handle your
calls and return them when safe.
Many have found it helpful to include the
cell phone/hand-held device policy within
their corporate vehicle use policy. In such a
policy, not only is cell phone use addressed
but so are many other important items,
such as the company’s right to suspend or
terminate driving privileges due to accidents or violations, minimum insurance
requirements when an employee operates
his or her own car and what to do in the
event of an accident.
How should an employer communicate with
employees about the new safety standard?
It is easy to establish policies and procedures that are shared with employees only
to be forgotten in a few months. A company should strive to establish an employee-awareness safety campaign that continues
throughout the year. This can easily be
done with posters, payroll stuffers and articles in the employee newsletter. The result
is an established safety culture and
employees that feel their employer really
cares about them. Happy employees drive
results to the bottom line.
JIM KAPNICK is president of Kapnick Insurance Group. Reach
him at (888) 263-4656 x132 or [email protected].
Kapnick Insurance Group is a member of Assurex Global, an
international network of insurance and employee benefit brokers.
