Employment Law Lookout

Employees Using Cellphones And Other Portable Devices While Driving: Should Employers Ban This Completely?

Posted in Environmental, Safety, & Toxic Tort, Workplace Policies and Processes

By James R. Beyer

Earlier this week, we blogged about the Illinois Vehicle Code that became effective on January 1, 2014.  We advised that “The enactment of this amendment provides Illinois employers with the opportunity to publish (or create) a policy that tells employees that they are NOT to talk on their mobile phones while on company business and in the car UNLESS they can do so in compliance with this new law.  (Please note that Illinois already has a statute in place that bans texting while driving.)  While having such a policy does not bar employer liability, having a strongly worded policy could help mitigate the risk of any liability. It is also a great opportunity to train employees and their managers about the dangers of ‘distracted driving’ and the reasons why employees should only use their phones if they can do so using the ‘hands free’ options outlined in the statute.”

All employers however may wish to go one step further and ban all cellphone use or use of any portable electronic devices while driving during the course of their employment, even if such usage is allowed under local laws.  In fact, many employers, including well known Fortune 500 companies, have adopted these policies.

This trend of banning all cellphones or other portable devices while driving even where permitted by local law is based on a number of factors. First, there have been a large number of  reported jury verdicts or settlements where companies have been found liable for accidents caused by their employees while driving and using their cellphones. A May 20, 2012 Washington Post article reported judgments or settlements ranging from $5.2 million to $21.6 million for lawsuits brought against companies whose employees caused accidents while using cell phones while on company business.  In May of 2012, a Texas jury found Coca-Cola Refreshments USA liable for more than $21 million in damages in a suit where a woman was injured when a Coca-Cola driver struck her while the driver was talking on a cellphone.

There is also a growing effort by the federal and state governments advocating that no one should use a cellphone or other portable communication device while driving. As also mentioned in the Washington Post article, the National Transportation Safety Board (NTSB) recommended in December of 2011 that all states and the District of Columbia ban any cellphone use behind the wheel, becoming the first federal agency to call for an outright prohibition on telephone conversations while driving. Part of the reason for the NTSB’s recommendation is that there is mounting evidence that using a cellphone hands free while driving is not safer than using a hand held cell phone. Research has shown that drivers using hand-held devices are four times more likely to get into a serious crash, and that hands-free cellphones aren’t much safer because just talking on the phone reduces the brain power focused on driving by 37 percent.

Talking on a hand-held cellphone while driving is also banned in 12 states (California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Jersey, New York, Oregon, Washington, and West Virginia) and the District of Columbia and in a number of localities. Additionally, texting while driving is banned in most states (currently, 41 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban text messaging for all drivers).  A decision from the  New Jersey Superior Court of Appeals in August has caused additional concern to employers.  The court held that the sender of a text message can be liable as well for causing a traffic accident if the sender knows or has “special reason” to know that the recipient would view the text while driving.  Thus, it is not a leap of faith for employers to be concerned that if they know or have reason to know their employees are using cellphones while driving that this New Jersey case can be used as precedent that the employer can bear liability for traffic accidents caused by distracted driving employees.

In light of all these concerns, a number of Fortune 500 companies have voluntarily adopted complete cellphone-bans for their employees while driving, including UPS, DuPont, Chevron, CSX, Shell, Time Warner and Owens-Corning. While employers may be concerned that these bans may impact productivity, the vice president for safety at Owens Corning states “our position is, quite simply, that we don’t make safety decisions based on productivity.”

Thus, employers with mobile workforces may wish to consider a ban of all cellphone use or use of any portable electronic devices by employees while driving even if such usage is legal under local law.