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Driving while dialing: Set policy to limit car-phone liability

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in Office Management,Records Retention

Many companies have policies regarding telephone calls at work. But these policies often fall short of including the use of phones and other wireless devices for business while driving. Don't let this happen to you.

Failing to address so-called "driving while dialing" can result in costly liability for employers, and there's more legal evidence that juries will hold employers liable if accidents occur. The latest examples:

A $30 million claim was allowed to proceed against a law firm in the hit-and-run death of a teenager on a Virginia roadway. The driver, one of the firm's associates, was using her cell phone to make a business call when the accident occurred. The lawsuit accuses the law firm of encouraging cell-phone use for business yet failing to have an adequate safety policy. (Yoon v. Wagner, Cooley Godward LLC, Loudoun Co., Va. Cir., CV 2001)

Salomon Smith Barney paid $500,000 to settle a case in which a stockbroker struck and killed a motorcyclist while using his cell phone. Even though the accident occurred on a Saturday, not during regular work hours, the employee was talking with a client at the time. (Roberts v. Smith Barney, E.D. Pa., No. 97-CV-2727, 1999)

Legislation, evidence is mounting

Big-dollar lawsuits aren't the only thing drawing attention to this legal risk. New York last year became the first state to ban drivers from using hand-held wireless phones except in emergencies. Similar legislation is pending in at least 27 other states, according to the National Conference of State Legislatures. Federal agencies were recently instructed to discourage employees from using cell phones while driving government-owned or government-leased vehicles.

Employers also face a wave of new studies making the link between distracted driving and accidents. One study: 39 percent of people engage in "distracted driving" while driving for work, says the 2001 report from the Network of Employers for Traffic Safety. Many of the distractions are work-related, including talking on the phone, reviewing notes, making lists or using a computer or handheld PDA.

Put rules in writing

So what can employers do to protect themselves? Consider the car just an extension of the workplace. You're in a far better legal position if you have a strong policy prohibiting employees from using their wireless phones for business while driving, says Mary Ann B. Oakley, a partner with Holland & Knight LLP in Atlanta.

You should require that cell phones be turned off while driving and instruct workers to respond to messages only after pulling off the road. Your policy should also state that violations could result in disciplinary action. (See sample policy below.)

As with policies against harassment, have employees sign a copy of the policy, and put it into the workers' personnel files. If you already have a policy on wireless phone use, consider broadening it to include all wireless devices.

Bottom line: Remind workers that using their cell phone or other device is always secondary to operating the car safely.

Tell them to first ask themselves, "Is this the appropriate time to make a call?" and, "Will this call distract me from my first responsibility to drive safely?"

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