Copyright 2008 Dolan Media Company. All rights reserved.
Commentary: Prevent employees from using phones while driving
by Martha Buyer, Daily Record, The (Rochester, NY)
02/11/2008
ROCHESTER, NY—A telecom-savvy client of mine recently returned from a wireless
trade show (Mobile Explosion) in Las Vegas.
None the worse for wear, she called me to ask some important questions about corporate
management of wireless (aka "cell") phones.
At one presentation, an expert in the area of telecommunications expense management
(TEM) correctly informed his audience the best way to manage the expense is to bring
all devices "in house," and make wireless devices company property. In
this way, economies of scale are easiest to achieve, with employees who use such
devices having the sexiest features at the lowest cost, and the company has a single
bill to manage instead of multiple bills and expense reports submitted whenever
employees get around to it.
The speaker also correctly raised the issue of tax consequences to employees of
this approach, but left at least one of the attendees a bit confused as to what
she should take back to her company. "What do you think?" she asked.
My initial response was an emphatic "Whoa, Nellie!" — in a cowboy-style
accent, of course. While the cost-conscious speaker likely was correct in terms
of the pure cost efficiencies of wireless device management, he failed to address
the myriad risks of employer-ownership of such devices. As is often the case (and
is certain justification for the existence of the insurance industry), the real
conflict lies between costs and risks. In this case, the most cost-effective solution
in the short-term may prove to be extremely costly in the long run.
For those who remain unconvinced, ask some of the losers of recent court battles
— or on the paying side of some healthy settlements — regarding employer
liability in the event of an accident when an employee is using his/her wireless
device while driving (see, for example, Smith v. Beers Skanska, a Georgia case settled
out of court for $4.75 million, or Alicia Bustos and Ruben Bustos v. Lazaro L. Leiva
and Dyke Industries Inc., Miami-Dade case no. 01-13370 CA 30, which settled for
$16.1 million after a $20.98 million jury award).
Multimillion dollar settlements in favor of the victim(s) of these cases are the
norm. For sure, this partially is due to the fact that the employer has the deepest
pockets. Beyond that, according to Gene Connors, a Reed Smith LLP labor and employment
partner: "The employer in each case invited liability in failing to create,
publish, enforce and get employee-signed acceptances to a policy that stresses 100
percent driving safety and forbids cell phone use and other distractions when driving
‘for' their employer."
As such, it is my recommendation that cost savings should take a back seat to risk
management. In this case, employers should not provide wireless phones to employees
(but choose to reimburse them for expenses incurred — yes, there are tax consequences
to the employee in this scenario) and, secondly and absolutely, all employees, whether
using a company-owned or personally-owned phone must sign a carefully drafted wireless
device policy that states, in effect, "if you use a device while driving, you,
and only you, are responsible for the subsequent actions."
The Insurance Information Institute published some striking statistics in its October
2007 newsletter
(www.iii.org/media/hottopics/insurance/cellphones/). While the statistics are interesting
in terms of growth in mobile phone usage, they also are sobering regarding the effects
phone usage has on the severity and frequency of injuries caused. The bottom line
is that phone usage while driving is distracting, and distracted drivers are involved
in a disproportionate number of serious accidents.
The issue is particularly sensitive in the Rochester region, where five young women
lost their lives last spring while the driver was alleged to be sending text messages
while driving. Talk about a wake-up call: These families, and the girls' friends,
will feel acute pain from the loss for a long time.
With this in mind, include the following in a mobile phone or device policy, which
increases in importance when an employee also uses a company-supplied vehicle:
u A provision underscoring that safety in driving is of primary concern and that
no one engaged in company business or in the use of any company-supplied vehicle
is to engage in any activity that could or would divert attention or distract while
driving. Also provide specific examples of activities to avoid.
u A provision specifically forbidding the use of a mobile phone for company business
while an employee is driving. Voicemail capability enables an employee who is driving
to leave the phone turned off until the employee has stopped moving in the vehicle.
As an aside, whether an employee abides by the policy is his/her decision, but the
company policy must be unequivocal. Driving while speaking on the phone is not acceptable.
* A requirement for the use of hands-free technology at all times.
* A requirement that an employee who uses his/her personal cell phone for company
purposes must respect and adhere to all relevant company policies and laws relating
to the use of wireless devices.
* Company-provided safety training relating to mobile phone use.
* A provision addressing health concerns and providing that an employee who uses
a wireless device does so at his/her own risk. This addresses employees who use
such devices while not driving but otherwise use the devices.
* It is recommended, in the strongest possible terms, that the policy be signed
by each employee and placed in his/her personnel file.
Finally, in order to minimize exposure, enforce the policy. Having a good policy
is the first step but, without enforcement, the policy isn't worth much more than
the paper it's printed on.
Martha Buyer is an attorney concentrating in the practice of telecommunications
law. Her clients range from Fortune 500 companies to small family-owned businesses
where she has provided a range of telecommunications consulting and legal services,
primarily geared to support corporate end-users working with carriers and equipment
providers. Buyer can be contacted at martha@marthabuyer.com
Copyright 2008 Dolan Media Company. All rights reserved.