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 Jim.Kapnick@kapnick.com. Kapnick Insurance Group is a member of Assurex Global, an international network of insurance and employee benefit brokers.